United States District Court, M.D. North Carolina
OLANDER R. BYNUM, Plaintiff,
KATY POOLE, Defendant.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Webster United States Magistrate Judge.
matter is before the Court on Defendant Katy Poole's
motion for summary judgment. (Docket Entry 58.) Plaintiff
Olander R. Bynum has filed a response. (Docket Entry 65;
see also Docket Entry 68.) For the reasons stated
herein, the Court will recommend that Defendant's motion
for summary judgment be granted.
a pro se prisoner and devout Muslim, filed this
action against Defendant alleging a constitutional violation
of his religious rights. (See generally Complaint,
Docket Entry 2.) Plaintiff contends that being a Muslim
requires him to attend Jumah Service, a prayer service.
(Id. at 3.) He asserts that while at Scotland
Correctional Institution ("SCI"), Jumah Service, a
Muslim holiday, was hosted on Fridays, but on Friday, April
3, 2015, Jumah Service was canceled. (Id.) Plaintiff
alleges that Defendant, a prison administrator, approved the
cancellation of all non-Christian religious services,
including Jumah Service. (Id.) Further, Plaintiff
alleges that he filed three grievances on three separate
occasions and never received a response. (Id. at
2-3.) As a result, on November 16, 2015, Plaintiff filed this
action pursuant to 42 U.S.C. § 1983 alleging that
Defendant violated his religious rights while at SCI.
(Id.) The Clerk entered an entry of default against
Defendant for failing to file an answer or otherwise respond
to Plaintiffs Complaint. (Docket Entry 11.) The Court later
granted a motion to set aside the entry of default (Docket
Entry 22) and Defendant Poole subsequently filed an answer
asserting several defenses against Plaintiffs claim. (Docket
Entry 23.) Shortly thereafter, Plaintiff filed a motion for
summary judgment alleging Defendant violated his Eighth
Amendment, Equal Protection, and Due Process Clause rights by
canceling Jumah Service. (Docket Entry 30.) The undersigned
entered a recommendation that Plaintiffs motion for summary
judgment be denied (Docket Entry 61), and on September 18,
2017, the Court adopted the recommendation. (Docket Entry
67.) Defendant's motion for summary judgment is now
pending before the Court.
judgment is appropriate when there exists no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Zabodnick v..
Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir.
1997). The party seeking summary judgment bears the initial
burden of coming forward and demonstrating the absence of a
genuine issue of material fact. Temkin v. Frederick
County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991)
(citing Celotex v. Catrett, 477 U.S. 317, 322
(1986)). Once the moving party has met its burden, the
non-moving party must then affirmatively demonstrate that
there is a genuine issue of material fact which requires
trial. Matsushita Eke. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). There is no issue for
trial unless there is sufficient evidence favoring the
non-moving party for a fact finder to return a verdict for
that party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v.
Calvert County, Md, 48 F.3d 810, 817 (4th Cir. 1995).
Thus, the moving patty can bear his burden either by
presenting affirmative evidence or by demonstrating that the
non-moving party's evidence is insufficient to establish
his claim. Celotex, 477 U.S. at 331 (Brennan,
dissenting). When making the summary judgment determination,
the Court must view the evidence, and all justifiable
inferences from the evidence, in the light most favorable to
the non-moving party. Zabodnick, 135 F.3d at 913;
Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997). However, the party opposing summary judgment
may not rest on mere allegations or denials, and the court
need not consider "unsupported assertions" or
"self-serving opinions without objective
corroboration." Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996);
Anderson, 477U.S. at 248-49.
in support of her motion for summary judgment, Defendant
incorporates the affidavits and attached exhibits submitted
in response to Plaintiffs motion for summary judgement.
(Docket Entry 60 at 1; see also Docket Entries 52-3,
52-4, 52-5, 52-6.) According to her affidavit, Defendant
asserts that she is not responsible for scheduling religious
services or any programs at SCI, but she is assured that SCI
staff makes a good faith effort to ensure all scheduled
programs are provided to the inmate populations in accordance
with the North Carolina Department of Public Safety
("NCDPS") policies and procedures. (Katy Poole
Affidavit ¶¶ 8, 10, Docket Entry 52-6.) Charlie
Locklear, correctional program director, was responsible for
overseeing facility programs at SCI during the relevant time
period, including "ensuring that the facility Chaplain
and program staff organized, supervised, and facilitated
inmate religious services at [SCI]." (Charlie Locklear
Aff. ¶ 8, Docket Entry 52-5.) In April 2015, Jumah
services were schedule to be held on Friday from 1:00 p.m.
through 2:00 p.m. (Id. ¶ 11; Ex. 4, Docket
Entry 52-5 at 38.) April 3, 2015, was Good Friday which was a
State holiday; thus, the Chaplain and program staff were not
scheduled to work. (Locklear Aff. ¶ 12.) Prior to
holidays, Locklear usually communicated with correctional
staff that the Chaplain and program staff would be off work,
but religious services should still be held for inmates.
(Id. ¶ 13.) Religious materials remained in the
Chapel for programs and services. (Id.)
April 6, 2015, Locklear was informed that Jumah services from
the previous Friday had been canceled. (Id. ¶
14.) Locldear states that the services were canceled "in
error by correctional staff because the Chaplain and program
staff were off." (Id. ¶ 14.) Locldear
immediately notified Defendant of the error. (Id.
¶ 15; Poole Aff. ¶ 14.) Locklear apologized to
inmates for the mistake, and followed up with correctional
and program staff to ensure that future Jumah services would
be held in accordance with prison policies. (Locldear Aff.
also submitted evidence of the Administrative Remedy
Procedure. The North Carolina Department of Public Safety
("NCDPS") has a three-step Administrative Remedy
Procedure ("ARP") which governs the filing of
grievances in each of its correctional
facilities. (See ARP Manuel, Docket Entry
23-1; see also Moore v. Bennette, 517 F.3d 717, 721
(4th Cir. 2008)). The ARP first encourages inmates to attempt
informal communication with responsible officials at the
facility where the problem arose. ARP § .0301(a). If
informal resolution is unsuccessful, the ARP provides that
"any aggrieved inmate may submit a written
grievance" Id. § .0310(a)(1). If the
inmate is not satisfied with the decision reached at the
above-described step one of the grievance process, he or she
may request relief from the facility head. Id.
§ .0310(b)(1). If the inmate is not satisfied with the
decision reached at the second step then he or she may appeal
to the secretary of public safety through the inmate
grievance examiner ("IGE")- Id. §
.0310(c)(1). The decision by the IGE or a modification by the
secretary of public safety constitutes the final step of the
Administrative Remedy Procedure. Id. §
support of her motion, Defendant argues that: (1) Plaintiff
did not exhaust his administrative remedies; (2) the
cancellation of a single Jumah service is insufficient to
establish a constitutional violation of Plaintiffs religious
rights; (3) Plaintiff does not state a claim for supervisory
liability; (4) Defendant is entitled to qualified immunity;
(5) Defendant is entitled to Eleventh Amendment protection in
her official capacity; and (6) Plaintiff should not be
awarded punitive damages as no evidence of aggravated conduct
is present. (Docket Entry 60 at 6-14.) For the reasons stated
herein, Defendant's motion should be granted.
Failure to Exhaust Administrative Remedies
Poole contends that Plaintiff failed to exhaust his
administrative remedies prior to filing the instant action.
(Id. at 6-8.) The Prison Litigation Reform Act
("PLRA"), 42 U.S.C. § 1997e(a), requires
inmates to properly exhaust administrative remedies before
filing civil actions challenging the conditions of their
confinement. See Woodford v. Ngo, 548 U.S. 81, 84
(2006); Moore v. Bennette, 517 F.3d 717, 725 (4th
Cir. 2008). The exhaustion requirement 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.
Nussk, 534 U.S. 516, 532 (2002). It is well-settled that
Section 1997e's exhaustion requirement is mandatory.
See Jones v. Bock, 549 U.S. 199, 211 (2007); see
also Woodford, 548 U.S. at 90-91 (stating that the PLRA
requires "proper exhaustion, " which "demands
compliance with an agency's deadlines and other critical
procedural rules"); Anderson v. XYZ Correctional
Health Servs., Inc., 407 F.3d 674, 676-77 (4th Or. 2005)
(citing Porter, 534 U.S. at 524).
review of evidence demonstrates that Plaintiff did not
exhaust his administrative remedies. As previously noted, the
NCDPS grievance procedure is comprised of three distinct
steps. Moore, 517 F.3d 717 at 721. Defendant does
not dispute Plaintiffs allegations that he engaged in step
one of the grievance process. On May 18, 2015, prison
officials accepted a grievance by Plaintiff (Grievance No.
4860-15-0653) alleging that the intentional cancellation of
Jumah Service was a direct violation of his freedom of
religion. (Docket Entry 2-1.) Thereafter, prison officials
responded informing Plaintiff that the service was canceled
in error, and that management was notified "to ensure
that all religious services are held according to
policy." (Docket Entry 23-2.) The response also included
Plaintiffs signature and a check mark that indicating that
Plaintiff agreed with the grievance response. (Id.)
The record, however, does not further indicate that upon
completing Step 1 of the grievance process and receiving a
response from prison officials, Plaintiff further appealed to
Step 2. In fact, Defendant Poole and several prison
officials, including the Grievance Officer at SCI, contend
that Plaintiff did not appeal to Step 2. (Shaquanna Wall Aff.
¶ 18, Docket Entry 52-4; Poole Aff. ¶ 22; Locldear
Aff. ¶ 20.) Plaintiff has presented no evidence to
refute this contention and his self-serving affidavit is not
sufficient to create a genuine issue of material fact.
Evans, 80 F.3d at 962; Jones v. Metis, No.
5:11-CV-00122-RBH, 2012 WL 630180, at *3 (D.S.C. Feb. 27,
2012) (unpublished) ("[Unsubstantiated allegation[s],
wholly lacking in evidentiary support, [are] insufficient to
create a genuine issue of material fact as to whether
[prisoner] did, in fact, exhaust his administrative
remedies."). Thus, it is clear that Plaintiff never
continued further in the grievance process to exhaust his
not until after this lawsuit was filed did Plaintiff submit
another grievance on December 28, 2015. (Wall Aff. ¶ 18;
see also Docket Entry 52-4 at 12.) The law is
settled that Plaintiff "may not exhaust (or attempt to
exhaust) his administrative remedies during the pendency of a
lawsuit." Thomas v. Slater, No. CA
9:10-0028-DCN-BM, 2010 WL 4822407, at *3 (D.S.C. Nov. 3,
2010) (unpublished), report and recommendation
adopted, No. CA 9:10-0028 DCN, 2010 WL 4823071 (D.S.C.
Nov. 22, 2010) (citation omitted); see also Seamons v.
Guise, No. 3:16-CV-649-FDW, 2017 WL 190101, at *2 (W.D.
N.C. Jan. 17, 2017) (unpublished) ("The law is settled
that a plaintiff must exhaust administrative remedies before
filing a claim, and a prisoner is not entitled to exhaust
administrative remedies during the ...