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Mayo v. Askew

United States District Court, M.D. Alabama, Northern Division

September 3, 2014

DAVID LEE MAYO, #241618, Plaintiff,


SUSAN RUSS WALKER, Chief Magistrate Judge.

For good cause, it is

ORDERED that the recommendation previously entered in this case (Doc. # 79) be and hereby is WITHDRAWN, and the following recommendation is entered as the recommendation of the court.


This case is before the court on a 42 U.S.C. § 1983 complaint filed by David Lee Mayo ("Mayo"), an indigent state inmate currently incarcerated at the Easterling Correctional Facility ("Easterling"). Mayo alleges that he follows the Native American religion, and he claims: (1) defendants refused to allow him to use tobacco for smoking in the ceremonial pipe, and refused to allow him to use tobacco in sacred prayer ties hung in the Tree of Life; (2) defendants allow racist gangs to desecrate the Native American grounds; and (3) defendants refuse to provide an environment where the sweat lodge can be used appropriately or to transfer him to an institution with a functioning sweat lodge and tobacco use, in violation of his rights under the First Amendment, Eighth Amendment, Fourteenth Amendment, Alabama Constitution, and Alabama Department of Corrections ("ADOC") Policy No. 333. Compl. - Doc. No. 7 at 2-4, Amended Compl. - Doc. Nos. 21-22. Mayo names as defendants[1] Chaplain Anthony Askew, Warden Heitzel, and Chaplain Mr. Anglin, who all work at Easterling. He seeks injunctive relief and monetary damages for the alleged violations.[2] Doc. No. 7 at 4.

The defendants filed an answer, special report, supplement to the special report, and supporting evidentiary materials addressing Mayo's claims for relief. Docs. Nos. 27, 28, 37. Defendants argue that Mayo's claims are without merit, they are entitled to immunity, Mayo fails to show any injury, and Mayo failed to exhaust his available administrative remedies before filing suit, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e.

Pursuant to the orders entered in this case and governing case law, the court deems it appropriate to treat the defendants' report and supplemental report as a motion to dismiss. Doc. No. 38; Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) ("(A)n exhaustion defense-as in (this) case-is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.'") (citations omitted). Thus, this case is now pending on the defendants' motion to dismiss, and plaintiff's opposition to it. Doc. Nos. 27, 28, 37, 40, 41, 58, 60. Upon consideration of this motion, the evidentiary materials filed in support thereof and the plaintiff's response, the court concludes that the defendants' motion to dismiss is due to be granted.


"When deciding whether a prisoner has exhausted his remedies, the court should first consider the plaintiff's and the defendants' versions of the facts, and if they conflict, take the plaintiff's version of the facts as true. If in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed.' Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008) (citing Bryant, 530 F.3d at 1373-74). If the complaint is not subject to dismissal at this step, then the court should make specific findings in order to resolve the disputed factual issues related to exhaustion.' Id. (citing Bryant, 530 F.3d at 1373-74, 1376)." Myles v. Miami-Dade County Correctional and Rehabilitation Dept., 476 F.App'x 364, 366 (11th Cir. 2012). Defendants bear the burden of proof during this second step. Turner, 541 F.3d at 1082.


In their motion to dismiss, defendants assert that Mayo's claims are due to be dismissed as premature because he failed to exhaust his available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Defs.' Report - Doc. No. 28 at 13-14, Defs.'s Supp. Report - Doc. No. 37. Specifically, defendants maintain that Mayo never filed a Request for Religious Assistance as provided in Alabama Department of Corrections ("ADOC") Administrative Regulation 313 ("AR 313"). Summers July 27, 2011, Aff. - Doc. No. 28-3 at 2; Defs.' Ex. 10 - Doc. No. 28-10 at 2; Ex. 1 to Summers Aug. 25, 2011, Aff. - Doc. No. 37-1 at 4-6. As explained, federal law directs this court to treat defendants' response as a motion to dismiss for failure to exhaust an administrative remedy and allows the court to look beyond the pleadings to relevant evidentiary materials in deciding the issue of proper exhaustion. Bryant, 530 F.3d at 1375.

A. Exhaustion Principles

The PLRA requires exhaustion of available administrative remedies before a prisoner can seek relief in federal court on a 42 U.S.C. § 1983 complaint. Specifically, 42 U.S.C. § 1997e(a) directs that "(n)o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative remedies." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "(T)he PLRA's 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. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available administrative remedies is a precondition to litigation and a federal court cannot waive the exhaustion requirement. Booth, 532 U.S. at 741; Alexande r v. Hawk, 159 F.3d 1321, 1325 (11th Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 93 (2006). Moreover, "the PLRA exhaustion requirement requires proper exhaustion. " Id. (emphasis added).

The Supreme Court in Woodford determined "(proper exhaustion) means... that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Id. at 88. The Court further explained "(p)roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules (prior to seeking relief from a federal court) because no adjudicative system can function effectively without imposing some orderly structure on the courts of its proceedings... Construing § 1997e(a) to require proper exhaustion also fits with the general scheme of the PLRA, whereas (a contrary) interpretation (allowing an inmate to bring suit in federal court once administrative remedies are no longer available) would turn that provision into a largely useless appendage." Id. at 91-93. This interpretation of the PLRA's exhaustion requirement "carries a sanction" for noncompliance and avoids "mak(ing) the PLRA exhaustion scheme wholly ineffective." Id. at 95. Consequently, a prisoner cannot "proceed... to federal court" after bypassing available administrative remedies, either by failing to exhaust administrative remedies properly or waiting until such remedies are no longer available, as allowing federal review under these circumstances would impose "no significant sanction" on the prisoner and "the PLRA did not create such a toothless scheme." Id. Further, the PLRA's exhaustion requirement contains no futility exception where there is an available inmate grievance procedure. See Booth, 532 U.S. at 741 n.6 ("(W)e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."); Cox v. Mayer, 332 F.3d 422, 424-28 (6th Cir. 2003) (holding that the exhaustion requirement applies to a former prisoner who filed his complaint without exhausting his administrative remedies and who had since been released from custody); see also Massey v. Helman, 196 F.3d 727, 733 (7th Cir. 1999). "The only facts pertinent to ...

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