United States District Court, Eastern District of Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
Joel Steven Spigelman is an inmate confined in the United States Penitentiary in Coleman, Florida. Proceeding pro se, Spigelman filed a civil rights complaint [R. 1] asserting claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) § 3, et seq., 42 U.S.C.A. § 2000cc–1, et seq., alleging that while he was confined in the United States Penitentiary-McCreary (“USP-McCreary”) located in Pine Knot, Kentucky, the Defendants violated his First Amendment rights and his rights under the RLUIPA relative to the practice of his religious beliefs during the period of time he was housed in the Special Housing Unit (“SHU”). Spigelman seeks compensatory damages of $360, 000.00. [R. 1 at 11].
This matter is before the Court on the Defendants’ motion to dismiss or, in the alternative, for summary judgment. [R. 40] Spigelman having filed a response to the Defendants’ dispositive motion [R. 42], and Defendants having filed a reply thereto [R. 44], this matter is ripe for review. For the reasons explained below, Defendants’ motion to dismiss, or alternatively, for summary judgment will be granted.
Spigelman arrived at USP-McCreary on December 21, 2010, and remained designated there until January 12, 2012, when he was transferred to the Federal Transfer Center in Oklahoma City, Oklahoma. [R. 40-2, Decl. of Sonny Partin,  ¶ 4; Attachment B thereto, at 1]. For a portion of that time, from November 9, 2011 until January 12, 2012, Spigelman was placed in USP-McCreary’s SHU. [Id.; Attachment C: SENTRY Report, Inmate History Quarters at 1]. Spigelman, who describes himself as “an observant Jewish male, ” claims that while he was confined in USP-McCreary’s SHU, the Defendants violated his First Amendment right to observe his religious beliefs and his rights guaranteed under the RLUIPA, by denying him permission to wear certain religious articles collectively known as a “tefillin, ” a Jewish prayer item. [R. 1 at 9].
On December 1, 2011, Chaplain Basile prepared a memorandum to Warden Richard Ives addressing the use of tefillin by inmates in the SHU. [R. 40-3, Decl. of Daniel Basile, ¶ 3; Attachment A, Memorandum dated December 1, 2011]. Chaplain Basile prepared the memorandum as a means of allowing Jewish inmates housed in the SHU, like Spigelman, to use tefillin in a safe manner that did not threaten the safety and well-being of staff or other inmates. Id. Per Chaplin Basile, tefillin can present a significant safety and security risk, as tefillin have long leather straps which could potentially be used as a weapon to harm inmates or staff members. [R. 40-3, Basile Decl. ¶ 4]; see also Gutman v. Wrigglesworth, 1:09-CV-628, 2012 WL 7060704 (W.D. Mich. Oct. 9, 2012) (rabbi was required to maintain and transport tefillin into jail, and supervise use of such, as tefillin could be used as a weapon and as a possible method for prisoner to harm himself). Chaplin Basile’s memorandum acknowledged the possible conflict between the safety issues created by tefillin and an inmate’s religious beliefs. Id. Accordingly, Chaplain Basile recommended that inmates who desired to use tefillin be allowed to do so during the inmate’s recreation period, when the inmate would be under the direct supervision of the recreation officer. [R. 40-3, Basile Decl. ¶ 5]. Under this plan, the inmate would be required to submit a written request to staff to use tefillin. Id. The staff would retrieve tefillin from the inmate’s property, and at the conclusion of the inmate’s prayers, tefillin would be returned to the officer’s station. Id.
This memorandum was circulated through Chaplain Basile’s chain of command. [R. 40-3, Basile Decl. ¶ 6]. Supervisory Chaplain John Hallock, as the supervisor of the Religious Services Department, reviewed the memorandum and signed it. Next, the memorandum was reviewed and signed by Associate Warden Herman Quay, who had administrative oversight of the Religious Services Department. Id. Finally, the memorandum was signed by Warden Richard Ives. Id. The memorandum, signed by Ives, Quay, Hallock and Basile, put a mechanism in place that would permit Spigelman, and other inmates of the Jewish faith, the use tefillin while housed in SHU.
As detailed in the Memorandum Opinion and Order entered on October 22, 2013 [R. 9], it is apparent from the face of his complaint that Spigelman did not exhaust his administrative remedies regarding his First Amendment and RLUIPA claims. Spigelman acknowledges that he did not exhaust his administrative remedies prior to filing the complaint; however, he states that he attempted to but that prison officials thwarted his efforts to do so. If prison officials prevent an inmate from exhausting administrative remedies by ignoring properly filed grievances or by impeding the use of the grievance system through actions such as withholding necessary forms, destroying inmate submissions, and the like, those remedies are not “available” to the prisoner, and he has not forfeited his ability to file suit. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Kaba v. Stepp, 458 F.3d 678, 684-85 (7th Cir. 2006); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002).
In responding to Spigelman’s claims, the Defendants contend that, contrary to Spigelman’s claims, prison officials did not thwart his efforts to exhaust his administrative remedies. In support of their motion to dismiss, the Defendants rely on the Declarations of prison personnel and the BOP’s prison records that are summarized below.
Spigelman was assigned to Correctional Counselor Sonny Partin’s case load from November 2011 through January 2012. [R. 40-2, Partin Decl. ¶ 6]. During this time period, Counselor Partin made weekly rounds in the SHU. Id. When making his rounds in the SHU, Counselor Partin would check with inmates on his case load to see if they had any issues that needed the Unit Team’s attention. Id. Additionally, Counselor Partin always took blank administrative remedy forms (Informal Grievance Forms known as BP-8s; BP-9s; BP-10s; and BP-11s) with him when he made his SHU rounds to ensure that inmates on his caseload had access to the Administrative Remedy Program. Id.
USP-McCreary maintains a logbook that Unit Team members sign when they enter and leave the SHU. [R. 40-2, Partin Decl. ¶ 7]. A review of the SHU Log Book for the relevant time period reflects that Counselor Partin made weekly rounds in the SHU on the following dates and times:
November 23, 2011
9:16 a.m. to 10:30 a.m.
November 24, 2011
8:15 a.m. to 8:30 a.m.
December 1, 2011
8:20 a.m. to 10:50 a.m.
December 8, 2011
7:30 a.m. to 9:48 a.m.
December 16, 2011
8:30 a.m. to 11:10 a.m.
December 22, 2011
8:00 a.m. to 11:00 a.m.
December 29, 2011
7:45 a.m. to 10:00 a.m.
January 5, 2012
12:30 p.m. to 1:45 p.m.
[R. 40-3, Partin Decl.; Attachment E: Copies of Special Housing Unit Visitors Log for Nov. 6, 2011 to Jan. 7, 2012]
In addition to Counselor Partin, other members of the Unit Team also made weekly rounds in the SHU. Id. Like Counselor Partin, all members of the Unit Team carry remedy forms with them during their rounds. Id. Thus, Spigelman would have had access to the remedy forms from any member of the Unit Team. Id.
According to the BOP’s records, in direct contradiction of Spigelman’s allegations that BOP staff prevented him from exhausting his administrative remedies by not permitting him access to the appropriate forms, Spigelman filed two formal administrative remedies during his time in SHU from November 9, 2011, to January 12, 2012. [R. 40-3, Partin Decl. ¶ 5; Attachment D: SENTRY Report, Administrative Remedy Generalized Retrieval at 32-35]. Neither of these filings related to the claims alleged in the instant case. Additionally, Spigelman also filed multiple administrative remedies in the months following his transfer from USP-McCreary to USP-Coleman I in Florida, including a Request for Administrative Remedy that was filed on January 12, 2012, upon his arrival at the Federal Transfer Center in Oklahoma City, Oklahoma. Id. In addition to the formal administrative remedies filed under the Administrative Remedy Program, Spigelman also filed several informal grievances and cop-outs. Id. These records clearly demonstrate that Spigelman did have access to the Administrative Remedy Program forms and yet, he did not file an administrative remedy that relates to the claim he has raised in the present litigation.
First, on December 1, 2011, Spigelman filed an informal grievance claiming that he was not receiving adequate medical care in the SHU. [R. 40-3, Partin Decl. ¶ 9; Attachment F: Grievance dated Dec. 1, 2011]. Next, on December 22, 2011, Spigelman filed an informal resolution with Counselor Partin. [R. 40-3, Partin Decl. ¶ 9; Attachment G: Grievance dated Dec. 22, 2011]. In this request for informal resolution, Spigelman indicated that he had requested the use of tefillin in SHU, but he had been denied access to use it. Id. Counselor Partin had copies of the original grievances provided to him as he sent electronic copies of the grievances to the relevant department for that department’s response (e.g., claims involving religious issues were sent to the Religious Services Department; medical issues were sent to the Medical Department). Id. When Counselor Partin received a response from the involved department, he completed the response portion on the original informal resolution form and then returned the original form with his response to the inmate. Id. As per policy, Counselor Partin did not make or retain copies of the informal grievances after the response portion was completed and provided to the inmate. Id.
On November 17, 2011, Spigelman filed an Appeal (“BP-11”) with the BOP’S Office of General Counsel (Remedy Identification Number 640957-A1). [R. 40-3, Partin Decl. ¶ 10; Attachment D at 32]. This appeal concerned a medical issue and was closed on February 28, 2012. Id.
On December 21, 2011, Spigelman filed a Request for Administrative Remedy (“BP-9”) at USP-McCreary (Remedy Identification Number 670289-F1). [R. 40-3, Partin Decl. ¶ 11.] Spigelman alludes to the filing of this BP-9 in his Complaint. [R. 1, Complaint, Page ID# 67 (stating that he “[f]iled a BP9 with the warden after medical responded to BP8”)]. This appeal involved the same medical issues Spigelman raised in his December 1, 2011 informal grievance. Id. Spigelman was provided a response for informational purposes only on January 5, 2012. Id.
Finally, on January 12, 2012, Spigelman filed a BP-11 with the BOP’s Office of General Counsel wherein he appealed a prior Request for Administrative Remedy. Id. This remedy was assigned Remedy Identification Number 640961-A1, but was rejected because it was filed late. Id. The issue involved in the appeal was also of a medical nature only. Id.
To reiterate, Spigelman acknowledges that he failed to exhaust his administrative remedies regarding the use of tefillin while in the SHU, but he contends that prison officials thwarted his efforts to do so; therefore, he should be permitted to pursue his claims against the Defendants in this action. However, his claim that he lacked access to the proper forms and was hampered by prison officials in pursuing and exhausting his administrative remedies ...