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Muhammad v. Taylor

United States District Court, W.D. Virginia, Roanoke Division

August 1, 2017

MALCOLM MUHAMMAD, Plaintiff,
v.
Y. TAYLOR, Defendants.

          MEMORANDUM OPINION

          Hon. Jackson L. Riser Senior United States District Judge.

         Malcolm Muhammad, a Virginia inmate proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. §§ 1983 and 2000cc-l, naming numerous current and former officials of the Virginia Department of Corrections ("VDOC") as defendants.[1] Plaintiff alleges that Defendants retaliated against him in violation of the First Amendment, prevented him from practicing his religion in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and transferred him and increased the length of his sentence in violation of the Fourteenth Amendment.[2] Defendants filed motions to dismiss and for summary judgment, asserting, inter alia, the defenses of qualified immunity and failure to exhaust available administrative remedies.[3] Plaintiff responded, making this matter ripe for disposition.[4] After reviewing the record, I grant the motion to dismiss and grant in part and deny in part the motion for summary judgment.

         I.

         A. The Relevant Facts

         Before commencing this action and while at Keen Mountain Correctional Center ("KMCC") in April 2014, Plaintiff had twice sued defendant Wicker, who is the Chaplain at KMCC, and thrice sued defendant Y. Taylor, who is both the Institutional Program Manager and the Institutional Classification Authority ("ICA"), for perceived violations of federal rights. See 7:14cv540, 7:15cv8, and 7:15cv57. The first case, 7:14cv540, and the second case, 7:15cv8, were both captioned Muhammad v. Fleming, et al. The first case was never served on any defendant, but in the second case, the court sent waivers of service of process to the Office of the Attorney General of Virginia on February 23, 2015, for all defendants, including Taylor. The final case, 7:15cv57, was captioned Muhammad v. Y. Taylor, et al. The court's first order bearing this caption was entered on February 9, 2015, and sought Plaintiffs financial data. The court entered it service order in case 7:15cv57 on April 6, 2015.

         Plaintiff contends that these three cases are notable because they and Plaintiff administrative grievances form Taylor's and Wicker's bases to retaliate against him. Plaintiff alleges that the other defendants in this case violated federal rights and retaliated against him in support of Taylor and Wicker "by denying him ... [f]ree exercise of his religion[, ].... placing him in segregation, retaliat[ing] for accessing courts, [inflicting] cruel and unusual punishment, transferr[ing] [him] to a maximum prison, [and] [violating] due process...."

         Plaintiffs litany of retaliation begins on January 28, 2015, after Plaintiff signed an attendance sheet for both himself and his cellmate upon entering the room for his Nation of Islam ("NOI") religious service at KMCC. Wicker reported this fact to Taylor, who chastised Plaintiff by saying, "You have a nerve to be throwing stones at me. You better stop throwing because I have a bigger stone to throw."

         Plaintiff believes "stones" represented Plaintiffs grievances and the three prior civil actions, even though no order with a caption Muhammad v. Y. Taylor, et al. had been docketed yet. Nonetheless, Taylor's and Wicker's alleged retaliation began after Taylor's "throwing stone" statement and after the court entered its conditional filing order in Muhammad v. Y. Taylor, et al. and the Business Office ostensibly alerted Taylor of that lawsuit on February 17, 2015.

         Three days later on February 20, 2015, Taylor had Plaintiff assigned to segregation. Wicker allegedly reported to Taylor that Plaintiff had made an "inflammatory statement" during a prior NOI service. It would not be until March 2015 that Plaintiff would learn that he would not be charged for the alleged inflammatory statement, "We going to keep a record of our own attendance because we know what we are dealing with." Even though he was not charged because of Wicker's accusation, Plaintiffs assignment to segregation triggered a search of his property per prison policy. The ramifications of that search also form the bases of this lawsuit against other defendants.

         As a consequence of Plaintiff s move to segregation, two correctional officers inventoried Plaintiffs personal property on February 20, 2015. They confiscated some newspapers and a damaged coax cable. Plaintiff does not have a claim about these items.

         However, defendant Hurt, a KMCC Property Officer, searched Plaintiffs personal property approximately three days later and discovered an "altered, " "homemade" long-sleeve grey T-shirt. The alleged alteration was that the sleeves were not original to the shirt and had been re-sewn on to the shirt. Plaintiff alleges that the shirt had never been altered since he had received it from a former cellmate a year earlier. Plaintiff also explains that the shirt is available to purchase from the commissary.

         Hurt reported the shirt to defendant Arms, who is KMCC's Institutional Investigator. Arms charged Plaintiff with offense code 132, "Possession/Construction of a Device Designed to Deceive Staff, to include, but not limited to, the Fabrication of a Dummy, " because the gray shirt purportedly resembled security staffs long sleeve uniform shirt.

         Plaintiff sought discovery from defendants Lowe, Arms, Assistant Warden Clary, and Captain Lee before the disciplinary hearing. Plaintiff asked them to review video recordings showing him wearing the shirt in full view of security staff, and he asked that the shirt be brought to the hearing. Lowe, Arms, Assistant Warden Clary, and Captain Lee denied the requests to review the video recordings. Lowe also denied Plaintiffs pre-hearing request for three inmate witnesses who would have testified Plaintiff had received the shirt from a prior cellmate and that Plaintiff had possessed it before security staff wore gray shirts.

         Lowe conducted Plaintiffs disciplinary hearing on March 3, and both Plaintiff and Arms attended; Arms brought the gray shirt, but Plaintiff argued that it had been modified while in or Hurt's or Arms' possession. Plaintiff alleges that either Hurt or Arms altered the shirt after it was confiscated. By cutting off the sleeves and then resewing them with "fresh double pure white" machined stitches.

         Lowe found Plaintiff guilty of code 132 and penalized him with ninety days' loss of good-conduct time. Lowe based his decision on the reporting officer's testimony, Plaintiffs alleged testimony that the shirt belonged to him, and because the shirt closely resembled staffs uniform. Plaintiff filed a grievance that the shirt had been modified, but the grievance was rejected as non-grievable. Also, Plaintiff appealed the conviction to defendant Warden Kiser, who upheld Lowe's decisions.

         Plaintiff next appealed the conviction to defendant Ponton, who is a VDOC Regional Ombudsman. It would take Ponton three months to adjudicate the appeal. During that time, staff allegedly continued to retaliate against Plaintiff and violate federal law.

         Because of the conviction, Plaintiff needed a new classification report. Defendant Kegley, who was Plaintiffs counselor, handed Plaintiff an allegedly erroneous classification report on March 4. Plaintiff argued that the report erroneously added two classification points that would have ensured his transfer to Red Onion. Kegley said that he merely delivered the report and that Taylor had prepared it. Nonetheless, Kegley fixed the report by deducting the two points.

         Plaintiff filed a grievance about the two erroneously added points. Instead of recognizing that the two points had been added erroneously, defendant Sykes allegedly conspired to cover-up the errors by adding three extra points. Notably, Kegley's and Sykes' modifications did not matter because it was Taylor's allegedly erroneous report that was sent to VDOC's Central Classification Services ("CCS") for approval despite Plaintiffs objections.

         On March 5, Taylor conducted Plaintiffs ICA security level hearing, which was based on the allegedly erroneous report. Plaintiff alleges that he never received notice of the hearing and that he was not present. Taylor ultimately recommended that Plaintiffs security level be increased two levels from Level 4 to Level S, that he be transferred to Red Onion as a Level S inmate, and that his good-conduct time earning level be reduced.

         Defendant Clary approved the recommended the increase from Level 4 to Level S and the transfer to Red Onion. The VDOC's CCS approved Clary's security level and transfer recommendations on March 10. Additionally, defendant G. K. Washington, who is the former Regional Operations Chief, ordered that Plaintiff be "assign[ed] Security Level-S based on score of 43 points and serious nature of recent 132 infraction w[h]ere offender made a uniform shirt that could have been used to deceive and gain access to the outer perimeter. Offender is to be assigned to [L]evel S and transferred to Red Onion State Prison."

         Sykes conducted another ICA hearing on March 24, and per Washington's request, recommended Plaintiff be transferred to Red Onion as a Level S inmate. Sykes wrote the ICA hearing to suggest Plaintiff was at the hearing, but Plaintiff denies having been present. By March 26, defendants Warden Kiser and Mathena had approved Washington's request, and Plaintiff was transferred to Red Onion as a Level S inmate on April 2.

         On June 7, Ponton concluded his review of the conviction for the gray shirt. Ponton reduced the conviction from offense code 132, "Possession/Construction of a Device Designed to Deceive Staff, " to offense code 111, "Intentionally Destroying, Altering, Damaging, or Defacing State or any Person's Property."[5] In his memorandum to Warden Kiser, Ponton explained:

While I do not believe that it is the offender's intention to deceive the staff at KMCC or to use this shirt as anything other than something to wear while exercising (as he claimed), I cannot ignore the fact that based on the testimony given by the Reporting Officer, as well as the accused, the shirt should not have been in his possession, and it should not have been altered from its original form. To that end, I feel that the 111 charge is more appropriate in this case.
This case was discussed at length by the entire Offender Discipline Unit before this decision was reached, and everyone involved agreed that, based on the facts presented, it was highly unlikely that the offender had any intentions of deceiving the staff at KMCC with this shirt, due both to the fact that he wore it several times in full view of staff, and because it lacked a collar, insignia, or anything else which would lead a person to believe that whoever was wearing the shirt was anything other than an offender.

         Notably, Ponton did not order another hearing before simultaneously charging and convicting Plaintiff for the 111 charge, and he did not alter the penalty of forfeiture of 90 days' good-conduct time that had been imposed for the vacated code 132 conviction. Plaintiff objected to not having a hearing on the new charge before being convicted of it, but Warden Kiser said there was no need for another hearing to support Ponton's decision.

         By early September 8, 2015, staff at Red Onion had learned of the change in the conviction from code 132 to code 111, conducted a new ICA hearing, and reduced Plaintiffs security level from Level S to Level 5. On October 23, 2015, Plaintiff was transferred to Wallens Ridge State Prison, where he remained in segregation for forty days before being released into general population.

         B. The Relevant Grievances

         1. About the initial transfer to segregation for the "inflammatory statements"

         Plaintiff filed an informal complaint, alleging that Wicker and Taylor discriminated against him for being an NOI adherent by alleging hemade an inflammatory statement. After not receiving a response to the informal complaint, Plaintiff filed a regular grievance, writing, "[T]his informal complaint was not responded to by the next action date of today 3-10-15. Case No. KMCC-15-INF-00751. I want this responded to ASAP." The grievance was rejected at intake as non-grievable because the grievance complained about not receiving a response on the informal complaint and not about the issue discussed in the informal complaint. Plaintiff appealed, but he did not challenge the disposition of the regular grievance. Instead, he reverted back to the argument in the informal complaint about Wicker's and Taylor's alleged discriminatory acts. The Regional Ombudsman upheld the intake decision as non-grievable, noting that policy allowed him to file a regular grievance about the issues raised in the informal complaint once the time expired for staff to respond.

         Plaintiff refiled an informal complaint and then a lengthy regular grievance about, inter alia. Wicker's allegation of an inflammatory statement, Wicker's behavior during NOI services, Wicker's poor record keeping, Wicker's retaliation, Plaintiff being placed in segregation, and Plaintiff being interviewed by Arms. The grievance was rejected at intake as presenting more than one issue, and the Regional Ombudsman upheld the intake decision on appeal.

         Plaintiff submitted a new grievance, limiting the issue to "why [he] was placed in segregation" as "retaliation" and requesting an investigation of Wicker as the action to be taken. This second grievance ostensibly was rejected at intake or deemed unfounded because, although there is no documentation in the record, Plaintiff appealed that disposition to the Regional Ombudsman. (ECF No. 36-8, pageid# 488.) The record reflects that the Regional Ombudsman received the appeal, but the record does not reflect the Regional Ombudsman's adjudication.

         2. About the gray shirt and related retaliation

         Plaintiff filed an informal complaint about how Arms presented the altered gray shirt during the disciplinary hearing in retaliation for Plaintiff filing grievances and "making complaints." Arms responded, "[T]he shirt was not altered in any way to change the condition or appearance of the shirt from the condition the shirt was in when it was confiscated...." Plaintiff filed a related regular grievance seeking an investigation of Arms' alleged retaliatory false testimony, and defendant Webb, who is KMCC's grievance coordinator, rejected the grievance at intake as non-grievable. A Regional Ombudsman upheld that decision on appeal.

         3. About the erroneous classification report delivered by defendant Kegley

         Plaintiff filed a regular grievance about the two erroneous points in the initial report delivered by Kegley and allegedly prepared by Taylor. Warden Kiser deemed the grievance founded and admitted the error. Warden Kiser further noted that the error was corrected during the ICA hearing on March 24, 2015. Ponton upheld Warden Kiser's decision on appeal.

         4. About not being present at the ICA hearing on March 24, 2015

         On April 12, 2015, Plaintiff purportedly mailed a regular grievance from Red Onion to Webb at KMCC about the ICA hearing held on March 24, 2015. Plaintiff denied having received advance notice of the ICA hearing and denied having been present. Plaintiff also noted that he was not aware of the ICA hearing until April 7, 2015.

         After not hearing back from Webb, Plaintiff purportedly filed a self-styled appeal with the Regional Office on May 19, 2015, complaining how Webb had not responded to the grievance. On May 22, 2015, Webb wrote Plaintiff a letter, denying ever having received that grievance. On June 7, 2015, Plaintiff resent the purported missing grievance to Webb and informed Webb that he had already appealed Webb's failure to respond to the Regional Office. Webb's office received the second copy of the grievance on June 18, 2015. Webb replied by a letter dated June 23, 2015, explaining that the grievance was not complete and appeared to be untimely filed.

         On June 30, 2015, Plaintiff wrote defendant Locust, who is VDOC's statewide grievance coordinator, to notify her that he had not received a response from Webb or the Regional Office. After not hearing back from her, Plaintiff sent Locust another letter on July 14, 2015, about the ICA hearing and a grievance Webb had rejected. On July 22, 2015, Plaintiff sent her a letter about how the Regional Ombudsman had sent him an unsigned Level II response.

         Locust responded by sending him three letters. In her final letter, Locust explained that she was aware of his complaint about not being at the ICA hearing on March 24, 2015, and directed him to submit his request to the appropriate person. Locust also noted, "No additional response will be provided and your paperwork is being returned to you for your record."

         5. About requesting a rehearing after ...


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