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Peyton v. Walrath

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

September 27, 2017

JOHN WALRATH, ET AL., Defendants.

          Jacob Douglas Peyton IV, Pro Se Plaintiff.

          Margaret Hoehl O'Shea, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants.


          James P. Jones, United States District Judge.

         The 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.


         Peyton 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”).

         After 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 injunctive relief.

         The 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. Morgan.

         The 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.[1]


         A. Misjoinder of Claims and Defendants.

         Peyton 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 Administrative Remedies.

         Under 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).

         1. VDOC Grievance Procedures.

         Operating 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.” Id.

         If a 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.

         An 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.

         2. Peyton's Unexhausted Claims.

         The 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.

         a. Escape Risk Flag.

         In 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.

         According 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.

         On May 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.

         Peyton 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.

         b. Sermon about “Black Lives Matter.”

         Peyton 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.

         c. Common Fare Diet.

         Because 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.”[2] Id. at 15.

         According 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.

         Peyton 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. ...

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