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Al-Azim v. Everett

United States District Court, E.D. Virginia, Richmond Division

August 3, 2015

RAHEEM S. AL-AZIM, et al., Plaintiffs,
v.
J. EVERETT, et al., Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

Raheem S. Al-Azim, Charles X, and Victor X ("Plaintiffs"), Virginia inmates proceeding pro se, have submitted this civil action. The matter is proceeding on the Plaintiffs' Amended Complaint (ECF No. 36). Plaintiffs have named as defendants the following individuals: A.D. Robinson, Chief of Operations for the Virginia Department of Corrections ("VDOC"); V.M. Washington, a former Regional Administrator for the VDOC; Wendy S. Hobbs, a Regional Administrator for the VDOC; Linda Shear, a former Chief Dietician for the VDOC; R. Abernathy, a former Food Service Manager for the VDOC; Timothy Puryear, a former Programs Manager for the Greensville Correctional Center ("GCC"); and Harold Clarke, Director of the VDOC.[1] The matter is before the Court on Plaintiffs' failure to serve Puryear and Abernathy and the Motion for Partial Summary Judgment (ECF No. 13) filed by the remaining Defendants.

I. FAILURE TO SERVE PURYEAR AND ABERNATHY

Whereas the original Complaint named fifteen individuals as defendants, the Amended Complaint names only seven defendants. R. Abernathy and Linda Shear are named in both the Original Complaint and the Amended Complaint. By Memorandum Order entered on August 12, 2014, the Court informed Plaintiffs that they had 120 days from the entry thereof to serve the defendants. See Fed.R.Civ.P. 4(m).[2]

Although it ultimately remained Plaintiffs' responsibility to serve the defendants, the Court attempted to serve the defendants pursuant to an informal service agreement with the Attorney General's Office for the Commonwealth of Virginia. By letter dated September 15, 2014, the Attorney General's Office informed the Court and Plaintiffs that it could not accept service for Shear and Abernathy because they were no longer employed by the VDOC. (ECF No. 6, at 1.) Thereafter, Victor X sought to compel the Attorney General's Office to provide the addresses for the unserved defendants. (ECF No. 10.)

By Memorandum Order entered on December 18, 2014, the Court granted the Motion to Compel in part. Specifically, the Court directed the Attorney General's Office to provide the addresses for Shear and Abernathy to the Court ex parte and under seal. The Court further noted that "Plaintiffs are not proceeding in forma pauperis. Therefore, they are not automatically entitled to have the Marshal serve process without the prepayment of service fees. Plaintiffs' eventual arrangement to serve the unserved defendants must address the VDOC's security concerns." (ECF No. 18, at 2-3.) On December 30, 2014, the Attorney General's Office provided the Court with the address for Shear and notified Plaintiffs of this fact. (ECF No. 21, at 1-2.) The Attorney General's Office further informed the Court and Plaintiffs that it did not possess a last known address for Abernathy. ( Id. at 1.) Thereafter, Plaintiffs made no further efforts to serve Abernathy or Shear. Accordingly, by Memorandum Order entered on May 18, 2015, the Court directed Plaintiffs to show good cause why all claims against Shear and Abernathy should not be dismissed for their failure to affect timely service.

In response, Plaintiffs initially suggest that they assumed that the Court would take care of any necessary arrangements to serve Abernathy and Shear.[3] The Court's prior Memorandum Orders clearly informed Plaintiffs that they bore the ultimate responsibility to ensure that the defendants were served. The December 18, 2014 Memorandum Order reminded Plaintiffs that they were not proceeding in forma pauperis and would have to make some arrangement to serve the unserved defendants. Plaintiffs did nothing. See Huff v. McCormick, No. 3:14cv349, 2015 WL 1349826, at *1 (E.D. Va. Mar. 24, 2015) (internal quotation marks omitted) (citations omitted) (observing that "neglect, misunderstanding, ignorance of the rule or its burden, or halfhearted attempts at service generally are insufficient to show good cause"). As Plaintiffs have failed to demonstrate good cause, all claims against Defendants Abernathy and Shear will be DISMISSED WITHOUT PREJUDICE.

II. PLAINTIFFS' CLAIMS FOR RELIEF

Plaintiffs seek relief upon the following grounds:

Claim 1 (a) "Defendants Clarke, Shear, Hobbs, Abernathy, and Washington violated Plaintiffs' First Amendment[4] right to practice their religion by refusing to provide them a diet reasonably consistent with How to Eat to Live, Volumes 1 and 2, by the Most Honorable Elijah Muhammad." (Am. Compl. 1.)[5] (b) Defendants Clarke, Shear, Hobbs, Abernathy, and Washington violated Plaintiffs' rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA")[6] by failing to provide a diet consistent with How to Eat to Live. ( Id. at 10.)

Claim 2 "Defendants Clarke and Shear violated Plaintiffs' rights under the Fourteenth Amendment[7] by refusing to provide them a diet reasonably consistent with How To Eat To Live, while affording one to members of the Nation of Islam confined at Buckingham Correctional Center, thereby intentionally discriminating against Plaintiffs on the basis of their religion." ( Id. at 5.)

Claim 3 (a) "Defendant[s] Washington, Puryear, and Hobbs violated Plaintiffs' right to practice their religion by refusing them sufficient time for worship services." ( Id. at 6.)

(b) Defendants Washington, Puryear, and Hobbs violated Plaintiffs' rights under RLUIPA by refusing: (i) "to afford Plaintiffs time to have [Fruit of Islam] F.O.I. training classes for two (2) hours weekly"; (ii) "refusing to afford Plaintiffs time to have Juma'ah (Friday) prayer service for one (1) hour"; and (iii) "refusing to afford Plaintiffs time to have Self-Improvement: The Basis for Community Development classes for two (2) hours weekly." ( Id. at 10).

Claim 4 "Defendants Washington, Robinson, Clarke, and Hobbs violated Plaintiffs['] right to practice their religion by refusing to authorize them to purchase and receive compact discs of weekly sermons by the Honorable Louis Farrakhan." ( Id. at 7.)

Claim 5 "Defendants Hobbs, Washington, Puryear, Ray, and Younce denied Plaintiffs an opportunity to observe their Eid ul Fitr prayer service on August 30, 2011, in violation of [the] First Amendment." ( Id. at 8.)

III. SUMMARY JUDGMENT

Defendants have moved for Partial Summary Judgment on the grounds that Plaintiffs failed to exhaust their administrative remedies with respect to some of the above claims. For the reasons set forth below, the Motion for Partial Summary Judgment will be GRANTED.[8]

A. Plaintiffs' Response to the Motion for Partial Summary Judgment

Prior to addressing the Motion for Summary Judgment, it is necessary to address Plaintiffs' inappropriate response to that motion. By Memorandum Order entered on December 18, 2014, the Court informed Plaintiffs:

"In the case of multiple pro se plaintiffs, each plaintiff must sign each pleading, written motion and other paper." Day v. Wall, No. CA 08-094 ML, 2008 WL 4773054, at *1 (D.R.I. Oct. 30, 2008) (citing Casanova v. Dubois, 289 F.3d 142 (1st Cir. 2002)). Although the Court has overlooked the omission in this instance, in the future, any requests or submissions that fail to comply with this requirement will not be considered.

(ECF No. 18, at 3.) Despite this explicit warning, Plaintiffs' Response to the Motion for Partial Summary Judgment bears only the signature of Victor X. Jonathan Lee X Smith, a well-known recreational litigator, purported to sign the Response on behalf of Al-Azim and Charles X. As such, the Court will only consider the Response to the Motion for Partial Summary Judgment as it pertains to Victor X.[9]

B. Standard for Summary Judgment

Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citation omitted). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party... upon whom the onus of proof is imposed." Id. (internal quotation marks omitted) (citation omitted). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" ...


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