Opinion
2:03-CV-0209.
March 2, 2005
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON QUALIFIED IMMUNITY
Before the Court is defendants' Motion for Summary Judgment, with supporting Memorandum and Appendix, all filed March 1, 2004, in the above-referenced and numbered cause. Plaintiff filed his response on April 21, 2004, along with his Affidavit and "Response to Issues", which appears to be his supporting brief. Plaintiff also filed a March 5, 2004 "Brief in Support to Original Statement of Claim" which the Court construes to be plaintiff's reply under Rule 7, Federal Rules of Civil Procedure, as approved by Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995).
PLAINTIFF'S CLAIMS
Plaintiff claims defendants have violated his First Amendment right to Free Exercise of his religion and Fourteenth Amendment Due Process rights. At various points in his pleadings, plaintiff also asserts his Equal Protection rights, the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act were violated as well. Plaintiff's claims are expanded by the fact that, during this suit, his classification was updated from G5 and he was released from High Security to General Population.
Plaintiff alleges defendants took six months to change his religious designation, failed to provide him with unleavened bread for celebration of Passover in April of 2003, failed to baptize plaintiff in his chosen faith or allow him to participate in congregational worship with others of that faith, and failed to transfer him to a unit where services are conducted specifically for his faith subgroup.
Plaintiff requests compensatory damages and a transfer to another unit.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue plaintiff has not stated a claim of constitutional deprivation and assert they are entitled to Eleventh Amendment immunity and qualified immunity. Further, defendants contend plaintiff has failed to allege facts showing personal involvement by defendants WESTON, DRETKE, WALKER and PRICE.
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Considering claims of qualified immunity, the Court employs a two-step analysis. Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether, considering the facts alleged in the light most favorable to the plaintiff, the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). If the plaintiff's allegations fail to establish the violation of a constitutional right, the defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 193, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993). If an officer makes a reasonable mistake as to what the law requires, the officer is entitled to immunity. Price v. Roark, 256 F.3d 364 (5th Cir. 2001).
Since the RLUIPA was in effect at the time of the incidents and is still currently applicable, both prongs of the qualified immunity test must be applied in light of the RLUIPA. See, Ganther v. Ingle, 75 F.3d 210 (5th Cir. 1996) ( per curiam) (applying the first prong of the qualified immunity test in light of the RFRA).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT A. Religious Freedom Restoration Act
Initially, the Court notes the Supreme Court has held the Religious Freedom Restoration Act (RFRA), Title 42, United States Code, section 2000bb et seq., to be invalid as applied to states and localities because its passage exceeded Congressional remedial powers under Section 5 of the Fourteenth Amendment. Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Consequently, this statute provides no basis for relief to a state prisoner such as plaintiff.
B. Official Capacity Claims
1. Monetary Relief
In September of 2000 and following the issuance of Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) restating the RFRA but limiting its scope to laws and regulations that govern land use and institutions, such as prisons, that receive federal funds. 42 U.S.C. § 2000cc-1.
Several appellate circuits are presently split on the issue of whether the RLUIPA is constitutional. Bening v. Georgia, 391 F.3d 1299 (11th Cir. 2004) (RLUIPA is within Congress' spending clause powers and consonant with the Establishment Clause); Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) (RLUIPA is within Congress' spending clause powers and consonant with the Establishment Clause); Madison v. Riter, 355 F.3d 319 (4th Cir. 2003) (RLUIPA does not violate the Establishment Clause); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (RLUIPA is within Congress' spending clause power and consonant with the Establishment Clause); contra, Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted, ___ U.S. ___, 125 S.Ct. 308, 160 L.Ed.2d 221 (2004) (RLUIPA is a violation of the Establishment Clause). No argument has been presented in the instant case attacking the constitutionality of RLUIPA, and, therefore, that issue is not before this Court.
In relevant part, the RLUIPA states as follows:
(A) General rule
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person —
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc-1.
The RLUIPA does not mandate an award of monetary relief and merely provides for "appropriate relief," a phrase identical to that utilized in the RFRA. Given the relation between these statutes, the Court construes the phrase "appropriate relief" as that phrase was construed by the Fifth Circuit with respect to the RFRA in Ganther v. Ingle, 75 F.3d 207, 210 (5th Cir. 1996) ( per curiam) and finds that, by virtue of Section 101.057 of the Texas Civil Practice and Remedies Code, Texas has explicitly refused to waive its sovereign immunity to claims for monetary relief against the State. See, Ganther v. Ingle, 75 F.3d 207, 210 (5th Cir. 1996) ( per curiam); accord, Bitner v. Williams, 285 F.Supp.2d 593, 602 (M.D. Penn.).
A suit against an official in his official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief). To the extent plaintiff is suing the defendants for monetary relief, the suit against the defendants in their official capacities is barred by the Eleventh Amendment.
2. Injunctive Relief
a. Failure to Exhaust Administrative Remedies
Plaintiff seeks injunctive relief in the form of a transfer based on the present-day failure to transfer him now that his classification status has been elevated from G5 and he has been moved from High Security to General Population.
In an attempt to provide factual specificity to this claim, plaintiff submitted, with his September 15, 2004, Motion to Amend Statement of Claim, three I-60's which plaintiff sent to the Chaplain's department concerning transfer, only one of which was answered by defendant GOAD. In it, a March 9, 2004 I-60, plaintiff stated he was no longer in close custody and wished a transfer to an unspecified unit for services for those of "the Yahwist faith." Defendant GOAD instructed plaintiff to "write Huntsville."
The other two were dated March 1, 2003 and July 6, 2004 and were answered by a Chaplain Schlewitz. In the first, Schlewitz told plaintiff there was "no such procedure at this time" and instructed him he could come to chapel in 3 Bldg. on Saturdays at 0800 hours. By the second, Schlewitz responded to plaintiff's transfer for services for Yahweh's Evangelical Assembly or Yahweh's Assembly in Messiah by stating that no unit has these services.
Plaintiff does not plead nor has he shown he ever grieved this alleged failure to transfer him after his classification status improved and he was returned to general population.
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir.), cert. denied, 526 U.S. 1133, 199 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). Consequently, as to all defendants, this claim and plaintiff's prayer for injunctive relief in the form of a transfer to another unit is subject to dismissal for failure to exhaust administrative remedies before filing suit.
b. Failure to Transfer Claim
Moreover, even if the Court assumes plaintiff has exhausted administrative remedies on this claim after promotion to General Population, his facts do not show a violation of either the First Amendment or the RLUIPA.
TDCJ's religious accommodation policy has been examined by the Fifth Circuit and found to satisfy both the First and Fourteenth Amendments. Freeman v. Texas Department of Criminal Justice, 369 F.3d 854 (5th Cir. 2004).
Defendants have presented the Affidavit of Bill Pierce stating that religious services to inmates are provided "based on demand, need and resources." [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. The availability of appropriate supervision, time and space requirements, security concerns, as well as the unit or facility rules and regulations to secure safety and order and the significance of the religious ceremony are all considerations in scheduling such ceremonies. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment].
Alternatives are provided to allow plaintiff to practice his faith. Sabbatarian groups, such as members of plaintiff's faith, may attend services for other members of the Christian non-Roman Catholic faith group. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. An offender may also meet with an approved spiritual advisor who represents his faith-preference subgroup twice a month for up to two hours per session. Further, an offender may possess religious texts and items as appropriate to his faith and may worship in his cell. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. While some units offer Friday evening services to the Sabbatarian groups, conducted by a religious volunteer from that group, these are premised on the availability of an approved religious volunteer, adequate time, space, and staff, and a sufficient number of offenders wanting to participate. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. Volunteers are required to meet requirements established by the agency and to attend training. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. Plaintiff does not challenge these statements and has utterly failed to allege that defendant GOAD or any defendant has prevented a volunteer of his faith from meeting requirements for agency approval or has prevented a volunteer of his faith from ministering to him once that approval has been gained.
Concerning the RLUIPA, the Supreme Court has rejected the argument that "incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions." Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) (quoting Ling v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)).
By failing to transfer plaintiff so he can worship with other Yahwists, especially in light of the alternatives provided to allow plaintiff's practice of his faith, prison officials have not influenced plaintiff to act in a way that violates his religious beliefs or forced him to choose between enjoying some non-trivial, generally available, benefit and following his religious beliefs. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). Thus, the failure to transfer now that he is general population does not place a substantial burden on plaintiff's religious exercise in violation of the RLUIPA or the First Amendment; and defendants are entitled to qualified immunity against plaintiff's claims for injunctive relief.
C. Individual Capacity Claims for Monetary Relief
Plaintiff's remaining claims are for monetary relief and relate to the period before his promotion in classification and transfer from High Security to General Population.
1. Failure to Transfer
The factors discussed above which establish defendants' qualified immunity on plaintiff's failure to transfer claim after plaintiff's classification promotion also establish defendants' qualified immunity on this claim before plaintiff's promotion.
As part of this claim, plaintiff challenges his former classification as High Security/G5 and seeks to mount a collateral challenge against at least two disciplinary cases he contends were the basis of his High Security or G5 classification and which prevented his participation in group worship, thereby negating any basis for a request for transfer to a unit providing group worship by plaintiff's faith subgroup. Plaintiff asks that his entire disciplinary and classification histories be produced and admitted so he can challenge individual entries in such files [Plaintiff's April 21, 2004 "Response to Issues" at page 23]. Plaintiff, however, has not directly successfully challenged the disciplinary cases he contends are improper nor has he properly challenged the resulting classification determinations at any time in the past. It was reasonable for defendants to conclude his disciplinary convictions and resulting classification were accurate and valid. Any present challenge would not alter the defendants' entitlement to qualified immunity with respect to their reliance on plaintiff's disciplinary and classification history as it stood.
See, plaintiff's September 15, 2004 "Motion to Enter Criminal Charge and Order to File Criminal Charges."
While in High Security/Ad Seg, plaintiff was ineligible for a unit transfer for religious reasons.
Secondly, plaintiff seeks to challenge the restrictions placed on inmates in High Security and Administrative Segregation. Plaintiff's classification records show that, from August of 2001 through February of 2003 he was not assigned to any jobs, but divided his time among "unassigned mental health," "institutional lockdown," "transient," "solitary," "pre-hearing detention," and "crisis management." Further, from February to the end of 2003, plaintiff's classification level was G5, restricting him from being in general population or attending group worship [attachment B to Appendix 2 of defendants' March 1, 2004 Appendix to Defendants Brief in Support of Motion for Summary Judgment]. Plaintiff does not dispute the accuracy of these records. In March of 2003, plaintiff, still a G5 inmate, was finally given a work assignment in a hoe squad. While working in that job assignment, plaintiff argues, he was allowed to work in a group of up to thirty-five, with an implement which could be used as a weapon. Further, plaintiff argues he was allowed to recreate in a wire cage containing up to seven inmates and, therefore, should be allowed group worship.
Plaintiff does not allege his co-worshipers in a group worship setting would have shared his classification status. That factor, alone, is a critical distinction between group worship and recreation or work. Further, group worship would not have been conducted in a wire cage or in a similar setting or with security identical to that of plaintiff's job on the hoe squad. There is obviously a valid, rational connection between the prison regulation at issue and the legitimate governmental interest of security; alternative means, as set forth above, supra, exist for plaintiff to exercise his right of religious expression, and the impact of allowing plaintiff to attend group worship would be to place others in danger of assault. Plaintiff has advanced no ready alternative to the restriction he challenges. Consequently, the Turner factors are satisfied and plaintiff's First Amendment rights were not violated by restricting his attendance at group worship. Moreover, plaintiff has not shown how this security restriction influenced him to act in a way that violates his religious beliefs or forced him to choose between enjoying some non-trivial, generally available, benefit and following his religious beliefs. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
Plaintiff argues he has been given conflicting instructions concerning how to route his request for a transfer. He alleges he was told by defendant GOAD to contact Huntsville but that, in June of 2003, he wrote the Director of Classification in Huntsville asking for a transfer and was told "[a]ll requests for transfer to another unit for faith services must be handled through the unit Chaplaincy." Accepting plaintiff's allegations as true, this discrepancy does not indicate whether defendant GOAD or the Classification employee in Huntsville who responded to plaintiff's letter is wrong. Further, it does not indicate either person is aware that the instructions he has given plaintiff are incorrect. This claim does not entitle plaintiff to relief.
2. Failure to Provide Unleavened Bread, Baptize, Etc.
Plaintiff appears to base his claims against DRETKE, PRICE, WALKER, and WESTON on defendants' supervisory positions, but the acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). A supervisory official may be held liable only when he is either personally involved in the acts causing the deprivation of a person's constitutional rights, or there is a sufficient causal connection between the official's act and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) (per curiam). Plaintiff has alleged no fact demonstrating personal involvement by these defendants DRETKE, PRICE, WALKER, and WESTON and has, therefore, failed to state a claim against them in their individual capacities on which relief can be granted.
Plaintiff's allegations in support of his claims against defendant GOAD in his individual capacity are more detailed. Specifically, plaintiff alleges he wrote Chaplain GOAD in June of 2002 to change his religious designation to "Yahwist." Plaintiff states it wasn't until an I-60 repeating this request to Chaplain GOAD, submitted on or about late November of 2002 or early December 2002, that defendant GOAD visited plaintiff cellside on January 17, 2003, and changed his designation to "House of Yahweh". (April 21, 2004 Response to Defendants' Motion for Summary Judgment at pages 2-3). Plaintiff has informed the Court this designation is incorrect (Plaintiff's September 15, 2004 Motion to Amend Statement of Claim); however, he does not indicate he ever informed any of the defendants of this fact or requested a change to the Yahweh Evangelical Assembly or Yahweh's Assembly in Messiah.
Plaintiff provided no more identifying information than specifying "Yahwist." Plaintiff's September 15, 2004 motion to amend at page 4 states "[p]laintiff as not being a member of the House of Yahweh as Bill Pierce or Chaplain Goad assumed"; however, plaintiff does not plead, and the evidence does not indicate, that plaintiff ever attempted to correct any misdesignation or even that GOAD or any other member of the prison staff is presently aware of plaintiff's dissatisfaction on this issue.
Plaintiff next alleges he sent a March 25, 2003 I-60 to defendant Chaplain GOAD reminding him of plaintiff's need for unleavened bread for the Feast of Passover and received a response that he would get a lay-in. Plaintiff also presents a copy of a letter from an elder of a church with which plaintiff corresponds addressed to the Chaplain and stating plaintiff's need for unleavened bread for Passover. Plaintiff complains that he did not receive the lay-in, a chaplain visit for Passover, nor any unleavened bread and didn't see GOAD until May 25th. With his September 15, 2004 Motion to Amend Statement of Claim, plaintiff also submitted an I-60 dated February 3rd (the year is cut off in the copy provided to the Court) by which he tells defendant GOAD he asked "Elder Garner" to send him unleavened bread. GOAD responded and instructed plaintiff to tell Garner to send the unleavened bread wrapped, addressed to defendant GOAD and to make sure it was sent from the church or synagogue. Plaintiff does not indicate whether he ever transmitted GOAD's instructions to Elder Garner. In any event, it was plaintiff's responsibility to do so, not that of defendant GOAD. Plaintiff then submits a March 22, 2004 letter from Elder Garner saying the Chaplain "doesn't communicate with us so there is no way I can get [the unleavened bread] in now."
Concerning the delay in changing plaintiff's religious designation in prison records, the facts alleged by plaintiff show that his November or December I-60 was received and processed by defendant GOAD in January of 2003 after a cell-side visit to plaintiff. Plaintiff has not shown such delay was unreasonable and has not shown how he was harmed by any delay. Plaintiff has alleged no fact showing defendant GOAD received any earlier request or was personally responsible for any failure to implement it. Plaintiff's allegations in this respect fail to rise to the level of a constitutional violation and, therefore, fail the first prong of the qualified immunity inquiry.
As to plaintiff's claim concerning the failure to provide or allow him to receive matzos, or unleavened bread, defendants have presented the sworn Affidavit of Bill Pierce, Director for Chaplaincy Department of the Texas Department of Criminal Justice, who avers that there are no funds to purchase religious items, including special food items but that some items are available for purchase by an inmate from the commissary, or, if a volunteer group donates approved items, they are then distributed to the appropriate offenders. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment].
Plaintiff responded that he has never asked the Unit or TDCJ to supply him with unleavened bread or matzos. This leaves plaintiff only with his contention that "[p]laintiff assert to have requested to allowed to be able to celebrate a religious holy day in insuring that plaintiff be able to receive unleaven [sic] bread matzah to which U.A.I.M. Elder George Garner and Y.E.A. Elder Jerry Healan and wife would have defurd [sic] any cost to the Texas Department of Criminal Justice." In his March 5, 2004, Brief in Support to Original Statement of Claim, plaintiff argued that defendants refused to allow the receipt of unidentified religious items. Plaintiff also attached a copy of the May-June, 2003 Y.E.A. Newsletter containing the statement, at page 9, that matzos had been purchased in Rosharon "for many of the prison brethren [which were shipped] to various [sic] and would have been sent to other units also had it been allowed by the wardens and Chaplaincy." Neither this statement nor any factual allegation by plaintiff indicates matzos were ever actually sent to defendant GOAD for distribution to plaintiff. Further, plaintiff does not state he ever informed Elder Garner of GOAD's instructions that the bread be wrapped, mailed to GOAD for plaintiff, and show itself to be sent from the church or synagogue, instead of a person. Plaintiff's allegations in this respect fail to support a claim that his lack of matzos for Passover was caused by any act or omission by defendant GOAD or any other defendant. Consequently, plaintiff's claim in this respect fails the first prong of qualified immunity analysis.
Plaintiff's April 21, 2004 Response to Defendant's Motion for Summary Judgment at page 11.
Plaintiff's April 21, 2004 Response to Defendant's Motion for Summary Judgment at page 8.
Plaintiff next complains he was not baptized or allowed group worship with others of his faith subgroup. Defendants have submitted an Affidavit by Bill Pierce, Director for the Chaplaincy Department of the Texas Department of Criminal Justice, averring that an inmate wishing to be baptized in a particular faith must make arrangements with the minister of his particular faith, which arrangements are coordinated by the unit chaplain [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. Pierce further states that defendant GOAD is not a member of plaintiff's faith and, therefore, would not be expected to conduct a service in that faith. [Appendix 1 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment].
Defendant GOAD, in his affidavit [Appendix 2 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment], avers that he has not received any requests from members of the "Yahweh faith" to participate as religious volunteers in any religious programming at plaintiff's unit, and has never received a request from an offender to hold services for the "Yahweh" faith. Further, GOAD states, as a member of the Baptist faith, he, himself, would not be able to conduct a service for members of the Yahweh faith [Appendix 2 to defendants' March 1, 2004 Appendix to Brief in Support of Motion for Summary Judgment]. Plaintiff does not dispute these statements.
Plaintiff does challenge defendant GOAD's Affidavit statement that "[plaintiff] has never made a request to me to be baptized in any particular faith." Plaintiff disputes this statement and presents an October 22, 2003, I-60 to GOAD showing his request to be baptized ["Evidence I" to plaintiff's September 15, 2004 Motion to Amend Statement of Claim]. Plaintiff also complains that it took GOAD over five months, or until April 22, 2004, to respond to this request [p. 5, paragraph VII of plaintiff's September 15, 2004 Motion to Amend Statement of Claim]. Thus, defendant GOAD does not appear to have known of plaintiff's request on February 12, 2004, when he executed his Affidavit. In any event, defendant GOAD's response to plaintiff was, "Sorry. — Need to be in G.P. [general population]." Plaintiff does not dispute that this is an accurate statement of TDCJ policy and, therefore, defendant GOAD is entitled to qualified immunity.
Plaintiff's claims appear to be based on the mistaken belief that, once having informed defendant GOAD of his general faith preference, it was GOAD's duty take affirmative steps to locate someone who could baptize and minister to plaintiff or to communicate with whomever plaintiff designated to ensure the availability of whatever items plaintiff or his minister need to celebrate the rituals of that faith. "[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert v. Verner, 374 U.S. 398, 412, 83 S.Ct. 1790, 1798, 10 L.Ed. 965 (1963) (Douglas, J., concurring). Nothing in plaintiff's allegations supports a claim that defendant GOAD obstructed plaintiff in the free exercise of his religion or influenced plaintiff to act in contravention of its precepts. Therefore, plaintiff has not stated any fact to support a claim against defendant GOAD, and defendant GOAD is entitled to qualified immunity.
3. Due Process Claim
Responding to defendants' assertion that he had failed to show any connection between defendants DRETKE, PRICE, WALKER, and WESTON with the alleged violation of plaintiff's rights, plaintiff argues he informed each defendant through the grievance procedure "of action being perpetrated against his First Amendment Rights in turn created plaintiff's Fourteenth Amendment Rights to be violated defendants PRICE, WALKER, and WESTON by signatures has implicated themselves to the knowledge of allegation of violation of plaintiff First Amendment Right of Free Exercise of Religion and Equal Protection under the law [sic et passim]" [p. 7 of plaintiff's April 21, 2004 "Response to Issues]. By this, the Court takes plaintiff to argue that PRICE, WALKER, and WESTON violated plaintiff's Fourteenth Amendment Due Process rights either by denying his grievances about his free exercise rights or by failing to act based upon the allegations in the grievances. The narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved, much less resolved in his favor. Any right to investigation and resolution is grounded in state law or regulation. Inasmuch as the results of plaintiff's grievances had no bearing on the duration of his confinement, the plaintiff cannot show the existence of a state-created liberty interest in an inmate grievance procedure. See, Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).
Further, as the analysis in section B.2.b. above shows, plaintiff's free exercise rights were not violated under either RLUIPA or the First Amendment. Therefore, the denials of his grievances by defendants PRICE, WALKER, and WESTON did not constitute a violation of plaintiff's Fourteenth Amendment right to Due Process; and plaintiff's claim in this respect lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
4. Equal Protection Claim
Plaintiff's allegations concerning his Equal Protection claim are not clear, but plaintiff appears to contend any failure to transfer him to a unit where there were other inmates of his faith constituted a violation of his right to Equal Protection. Plaintiff has provided a grievance he submitted to prison officials concerning the failure to transfer and the response to such grievance was that High Security offenders such as plaintiff were not eligible for transfer to a general population unit. Plaintiff does not dispute the accuracy of this response.
Step 1 grievance no. 2003158195 attached to plaintiff's original complaint.
To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class or due to an irrational or arbitrary state classification unrelated to a legitimate state objective. Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 2051-52, 48 L.Ed.2d 597 (1976); Stern v. Tarrant County Hospital District, 778 F.2d 1052 (5th Cir. 1985), cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986). A classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity and does not violate the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). Furthermore, the failure to articulate the purpose of rationale of a classification is not fatal, and the classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. It is clear that the legitimate penological interest of the State in maintaining security is rationally related to restrictions on inmate unit and housing assignments.
"[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data." FCC v. Beach Communication, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993).
Moreover, plaintiff utterly fails to allege any fact showing "purposeful discrimination resulting in a discriminatory effect among persons similarly situated," Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) (quoting Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992)) and, therefore, fails to state any claim of an Equal Protection violation, entitling all defendants to qualified immunity.
CONCLUSION
For the reasons set forth above, and pursuant to Title 42, United States Code, sections 1915A and 1915(e)(2)(B), plaintiff's claims are frivolous, fail to state a claim on which relief can be granted, and request monetary relief from defendants who are immune from such relief.
In addition, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment in the instant cause; and defendants are protected by qualified immunity and are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c).
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion for summary judgment be GRANTED and all of plaintiff VINCENT WILEY JAMES' claims be dismissed with prejudice.
IT IS SO RECOMMENDED.