United States District Court, W.D. Virginia, Roanoke Division
Douglas Peyton IV, Pro Se Plaintiff.
Margaret Hoehl O'Shea, Assistant Attorney General, Office
of the Attorney General of Virginia, Richmond, Virginia, for
OPINION AND ORDER
P. Jones, United States District Judge.
plaintiff, Jacob Douglas Peyton IV, a Virginia inmate
proceeding pro se, sues the Virginia Department of
Corrections (“VDOC”) and several of its
administrators and officials under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc-1, et seq., and 42 U.S.C.
§ 1983. After review of the record, I conclude that the
defendants' Motion to Dismiss and Motion for Summary
Judgment must be granted.
has been incarcerated in various VDOC prison facilities since
1977 and has filed multiple prior civil actions in this
court. The claims in this case concern various events that
occurred during a two-year period when he was confined at
River North Correctional Center (“River North”).
Peyton's initial pleading in this case and a subsequent
amendment, the court required him to submit a unified
pleading to supersede the earlier submissions and stand alone
as a full statement of his claims and supporting facts.
See Order, ECF No. 33. He has done so. Liberally
construed, Peyton's Amended Complaint (ECF No. 34) raises
the following contentions against the defendants: (1) River
North officials improperly confiscated Peyton's religious
materials because of his race and Nation of Islam
(“NOI”) religion; (2) Peyton's VDOC file
contains false information that he is an escape risk; (3)
some defendants knowingly used this false information to
prevent Peyton's transfer to a lower security facility to
retaliate against him based on his grievances and religion;
(4) because of Peyton's race and religion, some
defendants suspended Peyton from attending NOI group
religious services after he preached about lawsuits and
grievances on August 21, 2015; (5) some defendants suspended
NOI religious services in July 2015 for discriminatory or
biased purposes; (6) defendants interrupted Peyton's
“Black Lives Matter” sermon on July 29, 2016; (7)
the Common Fare diet does not adequately accommodate
Peyton's religious dietary needs; (8) officials removed
Peyton from the Common Fare diet in retaliation for his
complaints about administration of the program; and (9)
various defendants have improperly rejected Peyton's
grievances on these issues. As authority for these
contentions, Peyton cites RLUIPA and the First Amendment, and
the court also construes his pleadings as alleging
discrimination on the basis of race and religion, a possible
equal protection clause under the Fourteenth Amendment. As
relief, Peyton seeks compensatory, declaratory, and
defendants are the VDOC, VDOC Director Clarke, Regional
Administrator Ponton, D. Coffman of Central Classification
Services, and the following former or current employees of
River North: Warden Walrath, Warden Kanode, Institutional
Programs Manger Brian Hall, Staff Administrator R. Sellers,
Major M. A. Mullins, Intelligence Officer Burnette
(identified in the Amended Complaint as Bernette), Food
Service Director J. Morrison, Executive Secretary L. Shumate,
Grievance Coordinator B. Walls (originally identified as
Walsh), Sgt. Smith, and Correctional Officers Meadows and R.
defendants have filed a Motion to Dismiss all claims against
the VDOC and a Motion for Summary Judgment on behalf of the
other defendants, supported by affidavits. They argue that
some of Peyton's claims must be dismissed because he
failed to exhaust administrative remedies and that other
claims are without merit. Peyton has responded to the
motions, making them ripe for disposition.
Misjoinder of Claims and Defendants.
is an experienced pro se inmate litigator. Nevertheless, he
has submitted an Amended Complaint that pulls together, in
one omnibus civil action, multiple, unrelated claims from
different time periods against more than a dozen defendants,
in defiance of the federal rules of joinder. Fed.R.Civ.P. 18,
20; It would be within my discretion to sever the action into
multiple civil actions and require Peyton to pay filing costs
for all of them before resolving any of his claims. However,
because the case is now ready for resolution, for the sake of
judicial efficiency, I will forego severing this case and
decide the defendants' motions. B. Failure to Exhaust
42 U.S.C. § 1997e(a), a prisoner cannot bring a civil
action concerning prison conditions until he has first
exhausted available administrative remedies. This exhaustion
requirement is “mandatory.” Ross v.
Blake, 136 S.Ct. 1850, 1856 (2016), and “applies
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). To
comply with § 1997e(a), an inmate must follow each step
of the established grievance procedure that the facility
provides to prisoners and meet all deadlines within that
procedure. See Woodford v. Ngo, 548 U.S. 81, 90-94
(2006). Even if the particular form of relief the inmate
seeks in his lawsuit is not available through the
prison's grievance proceedings, he must, nevertheless,
properly exhaust all available remedies under that procedure
before bringing a civil action in this court. Booth v.
Churner, 532 U.S. 731, 741 (2001).
Procedure (“OP”) 866.1 is the written
administrative remedies procedure that VDOC inmates must
follow to comply with § 1997e(a). Mem. Supp. Mot. Summ.
J., Walls Aff. ¶ 4 and Enclosure A, ECF No. 60-2.
Section III of this procedure defines a grievance as
“[a]n unresolved issue filed and signed by an
individual offender on their own behalf concerning an issue
which has affected them personally.” Id. at
Walls Aff. Enclosure A. Under OP 866.1, an inmate with a
grievance about some event must first make a good faith
effort to resolve his concerns informally, usually by
completing an Informal Complaint form and submitting it to
prison staff. Id. at Walls Aff. ¶ 6. He will
receive a written response on the bottom of the Informal
Complaint form within fifteen days, in order to allow him to
initiate the formal grievance procedure by filing a Regular
Grievance within thirty days of the occurrence about which it
complains. Id. After investigation of the Regular
Grievance, the warden or his designee will send the inmate a
Level I response. Id. at ¶ 8. If the responding
official determines the grievance to be “unfounded,
” the inmate must appeal that holding to Level II, the
regional administrator, and in some cases, to Level III.
Id. “Expiration of the time limit without
issuance of a response at any stage of the process
automatically qualifies the grievance for appeal.”
Regular Grievance does not meet the filing requirements of OP
866.1, the grievance coordinator will reject the document at
intake, mark the reason for the rejection on the back of the
form, and return it to the inmate within two days.
Id. at ¶ 7. The inmate can appeal the intake
rejection decision to the regional ombudsman, or he can
correct the deficiencies and refile the Regular Grievance.
Id. Regardless of the inmate's choice at this
stage, proper exhaustion requires him at some point to file a
Regular Grievance that is accepted at intake and to pursue it
through Level I and Level II, and Level III, if applicable.
Id. at ¶ 8.
emergency grievance is not a step toward exhaustion of the
remedy procedures in OP 866.1. Id. at ¶ 9. As
the emergency grievance form states, inmates can use such a
form to seek “expedited staff responses to allegations
that an [inmate] is subject to a substantial risk of imminent
sexual abuse and to situations or conditions which may
subject the [inmate] to immediate risk of serious personal
injury or irreparable harm.” Id. at Walls Aff.
Enclosure C, ECF No. 60-2. After the emergency, to properly
exhaust available administrative remedies, the inmate must
pursue the normal steps of the Regular Grievance procedure.
Id. at Walls Aff. ¶ 9.
Peyton's Unexhausted Claims.
defendants argue that Peyton did not properly exhaust
available administrative remedies before filing this lawsuit
as to Claims (2), (3), (6), (7), (8), and (9). In support of
this contention, they present an affidavit from River North
Grievance Coordinator B. Walls concerning the remedy forms
Peyton has submitted related to each of these claims.
Escape Risk Flag.
April 2016, Peyton believed he was eligible to be transferred
from River North, a Security Level 4 (“SL-4”)
prison, to a SL-3 prison facility and asked his counselor for
such a transfer. The Institutional Classification Authority
rejected his request for a security level reduction and
transfer, however. Peyton learned that in June 2015, the
River North administration had flagged him as an escape risk,
based on an alleged incident in 1981 in New York. Peyton
contends that officials must have known from his VDOC records
going back to 1977 that he could not have been in New York in
1981. He alleges that “out of deliberate indifference,
reckless disregard, race and religious animus and harassment,
they knowingly used the false flag e[s]cape risk information
to prevent his transfer to a lower security level
facility.” Am. Compl. 7, ECF No. 34.
to Walls's review of grievance records, Peyton submitted
a Regular Grievance on May 12, 2016, asking to have false
information about an escape removed from his record. Mem.
Supp. Mot. Summ. J., Walls Aff. Enclosure D, ECF No. 60-2.
Walls rejected the grievance as a request for services, and
this decision was upheld on appeal.
5, 2016, Peyton filed an Informal Complaint asking to have
the escape flag expunged from his record. Id. at
Walls Aff. Enclosure E. This form was received the next day
and assigned a tracking number, but Peyton withdrew the
request on May 10. Officials do not respond to a withdrawn
Informal Complaint, and the inmate is barred from filing any
other Informal Complaint on the same issue. Id. at
Walls Aff. ¶ 13.
filed a Regular Grievance on June 1, 2016, complaining about
allegedly false statements in his prison record that he is an
escape risk; wanting to have the matter investigated; asking
to have the person responsible relieved of duty; and
demanding to have the false statement removed from his
record. Id. at Walls Aff. Enclosure E. Walls
rejected the grievance at intake, because Peyton “had
not used the informal process to resolve his complaint and
had not submitted an Informal Complaint.” Id.
at Walls Aff. ¶ 14. Walls did not assign the Regular
Grievance a number and returned it to Peyton with the reasons
for rejection noted on the back of the form. Peyton does not
submit evidence that he completed the Regular Grievance
procedure and appeal(s) concerning his escape flag claims.
Sermon about “Black Lives Matter.”
submitted a Regular Grievance dated August 24, 2016,
complaining that the NOI group service had been interrupted
on July 29, 2016, after the Warden and Assistant Warden told
Peyton he could not teach “Black Lives Matter”
during the service. Two days later, Walls rejected the
grievance at intake. On the back of the form, he noted that
Peyton's grievance was an “[i]nquiry on behalf of
other offenders [and] filed on behalf of the NOI.”
Id. at Walls Aff. Enclosure F. This rejection
decision was upheld on appeal. Peyton does not submit
evidence that he completed the Regular Grievance procedure
and appeal(s) concerning his Black Lives Matter claim.
Common Fare Diet.
of his NOI affilation, Peyton has participated for years in
the VDOC's Common Fare religious diet program that
excludes all pork products. Peyton states that NOI followers
are “forbidden to eat or even touch pork.” Am.
Compl. 13, ECF No. 34. Peyton complains that at some point,
River North began serving Common Fare meals that included
“brown beans, white rice, collard greens, peanut
butter, cornbread and other foods forbidden by NOI dietary
laws.” Id. at 14. He also complains that on
October 28, 2015, River North officials forced him to violate
his religious dietary beliefs when they placed “Common
Fare food trays on food carts with pork trays, ”
allowed the same workers to handle both types of trays, and
used lids from pork trays to cover Common Fare trays.
Id. at 13. Peyton contends that when he asked for
menu changes to correct these deficiencies, the warden had
him suspended from the Common Fare program “as
harassment and to silence his
complaints.” Id. at 15.
to Walls's review of grievance records, Peyton filed a
Regular Grievance on June 17, 2015, complaining that the
Common Fare meals at River North forced him to eat foods that
violated his religious dietary beliefs, making him unable to
practice his religion. Mem. Supp. Mot. Summ. J., Walls Aff.
Enclosure B, ECF No. 60-2. He asked for changes to the Common
Fare program there or for a transfer. The next day, an
official rejected the grievance at intake as a request for
services, and this rejection decision was upheld on appeal.
filed an Emergency Grievance on June 6, 2016, at 10:30 a.m.
complaining that he had received no response to two request
forms he had submitted to Food Service for an NOI tray
instead of a Common Fare tray. Id. at Walls Aff.
Enclosure C. He complained that Common Fare violated his
religious beliefs. Lt. Blevins responded at noon, stating
that Peyton's submission did not meet the definition of
an emergency and that he should submit appropriate paperwork
to bring his dietary requests. ...