Chism v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

NATHAN H. CHISM PLAINTIFF

ADC #550129

v. No: 4:22-cv-01106-PSH

DEXTER PAYNE, et al. DEFENDANTS

MEMORANDUM AND ORDER

I. Introduction

Plaintiff Nathan H. Chism filed a pro se complaint pursuant to 42 U.S.C. §

1983 on November 15, 2022, while incarcerated at the Arkansas Division of

Correction’s Varner Unit (Doc. No. 2). The Court granted Chism’s application to

proceed in forma pauperis (Doc. No. 3) and directed service on the defendants (Doc.

No. 5). Chism alleged that defendants Sergeant Tashalia Dunlap, Corporal Marquis

Taylor, and Corporal Latrell White confiscated certain personal property, including

some religious materials, at the direction of Lieutenant Jonathon Martin and Major

Joseph Mahoney during a cell search on June 9, 2022. He further claimed that

defendants Dexter Payne, James Gibson, and Joseph Mahoney were made aware of

these violations through the grievance process and failed to take corrective action.

After screening Chism’s complaint, the Court allowed Chism’s First Amendment

free exercise, the Religious Land Use and Institutionalized Persons Act (RLUIPA),1

and state law conversion claims to proceed and dismissed his remaining claims for

failure to state a claim upon which relief may be granted. See Doc. Nos. 4 & 21.

His claims against a Doe defendant were also dismissed for lack of service. See Doc.

No. 21.

Before the Court is a motion for summary judgment, a brief in support, and a

statement of undisputed material facts (Doc. Nos. 22-24) filed by the defendants,

claiming that Chism did not exhaust available administrative remedies with respect

to his First Amendment free exercise and RLUIPA claims before he filed this

lawsuit. Chism filed a response, brief in support, and a statement of disputed facts

(Doc. No. 33-35). He has also filed a motion to compel the defendants to return his

property to him (Doc. No. 36). For the reasons described below, the defendants’

motion for summary judgment is granted. Chism’s motion to compel is denied as

moot.

1 RLUIPA provides in part, “[n]o government shall impose a substantial burden on

the religious exercise of a person residing in or confined to an institution,” unless the

burden furthers “a compelling governmental interest,” and does so by “the least

restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2). “Congress enacted RLUIPA and its

sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42

U.S.C. § 2000bb et seq., ‘in order to provide very broad protection for religious liberty.’”

Holt v. Hobbs, 574 U.S. 352, 356 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682, 693 (2014)).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but instead must

demonstrate the existence of specific facts that create a genuine issue for trial. Mann

v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in

his favor on more than mere speculation, conjecture, or fantasy. Id. (citations

omitted). An assertion that a fact cannot be disputed or is genuinely disputed must

be supported by materials in the record such as “depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or

other materials . . .”. Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact

is disputed or undisputed by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict

for either party; a fact is material if its resolution affects the outcome of the case.

Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes

that are not genuine or that are about facts that are not material will not preclude

summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th

Cir. 2010).

III. Analysis

Defendants argue that they are entitled to summary judgment on Chism’s First

Amendment free exercise and RLUIPA claims because he failed to exhaust available

administrative remedies with respect to those claims before he filed this lawsuit. See

Doc. No. 23. In support of their motions, the defendants submitted: the declaration

of Terri Grigsby-Brown, the ADC’s Inmate Grievance Supervisor (Doc. No. 22-1);

the ADC’s grievance policy (Doc. No. 22-2); a copy of Chism’s grievance history

(Doc. No. 22-3); a copy of Grievance VSM22-01269 (Doc. No. 22-4); a copy of

Grievance VSM22-01270 (Doc. No. 22-5); a copy of VSM22-01271 (Doc. No. 22-

6); and a copy of VSM22-02195 (Doc. No. 28-7).

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust

prison grievance procedures before filing suit in federal court. See 42 U.S.C.

§1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Burns v. Eaton, 752 F.3d 1136,

1141 (8th Cir. 2014). Exhaustion under the PLRA is mandatory. Jones v. Bock, 549

U.S. at 211; Hammett v. Cofield, 681 F.3d 945, 949 (8th Cir. 2012). “[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).

The PLRA does not prescribe the manner in which exhaustion occurs. See Jones v.

Bock, 549 U.S. at 218. It merely requires compliance with prison grievance

procedures to properly exhaust. See id. Thus, the question as to whether an inmate

has properly exhausted administrative remedies will depend on the specifics of that

particular prison’s grievance policy. See id.

Pursuant to the ADC’s grievance policy, Administrative Directive 19-34,

inmates are provided Unit Level Grievance Forms as part of the Inmate Grievance

Procedure. See Doc. No. 22-2 at 5. To resolve a problem, an inmate must first seek

informal resolution by submitting a Step One Unit Level Grievance Form

(Attachment I) within 15 days after the occurrence of the incident. Id. at 6. Inmates

are to “specifically name each individual involved for a proper investigation and

response to be completed by the ADC.” Id. at 5. Only one problem or issue may be

grieved per grievance form. Id. An inmate must be “specific as to the substance of

the issue or complaint to include the date, place, personnel involved or witnesses,

and how the policy or incident affected the inmate submitting the form.” Id. at 6. A

problem solver or staff member holding the rank of sergeant or above can collect the

grievance and return the yellow and pink copies of the grievance to the inmate as

receipts. Id. at 7. The problem solver or staff member investigates the complaint,

and may attempt to resolve the complaint by meeting with the inmate or taking

certain other steps, but ultimately must provide a written response at the bottom of

the form. Id. at 7-8. If the inmate is not satisfied with the resolution or the problem

solver does not respond within three working days, he may then complete Step Two

of the grievance procedure and submit either the pink or yellow copy of his Unit

Level Grievance Form as a formal grievance. Id. at 8. The inmate retains either the

pink or yellow copy, whichever he did not submit for Step Two. Id. at 9. If a formal

grievance is medical in nature, it is assigned a code and forwarded to the appropriate

medical personnel for response. Id. at 10.

The inmate should receive a Response to the Unit Level Grievance Form

(Attachment III or IV depending on whether the grievance is medical in nature), or

an Acknowledgement or Rejection of Unit Level Grievance (Attachment II). Id. at

10-11. If the inmate receives no response, or if the inmate is not satisfied with the

response, the inmate can then appeal to the Deputy Director. Id. at 12. An inmate’s

appeal must be written in the space provided on the Response to Unit Level

Grievance Form (Attachment III or IV) or the Acknowledgment or Rejection of Unit

Level Grievance (Attachment II). Id. at 12. The inmate must include the original

Unit Level Grievance Form (Attachment I) and either the Response to Unit Level

Grievance Form (Attachment III or IV) or the Acknowledgement or Rejection of the

Unit Level Grievance (Attachment II) with his appeal. Id. If an inmate fails to

submit either of the two pages with his appeal, the appeal may be returned to the

inmate as rejected. Id. Once the Deputy Director responds or the appeal is rejected,

the grievance process is complete. Id. at 13. According to the ADC’s grievance

policy, the entire grievance procedure should be completed within 76 working days

absent an extension or unforeseen circumstances. Id. at 14. The grievance policy

specifically states that inmates must exhaust administrative remedies at all levels of

the procedure before filing a federal civil rights lawsuit. Id. at 19.

B. Chism’s Complaint Allegations

Chism alleges that defendants Dunlap, Taylor, and White took his personal

property at the direction of defendants Martin and Mahoney during a cell search on

June 9, 2022. Doc. No. 2 at 5. He claims this property included all his clothing

except boxers, socks and a jumpsuit, various personal items, legal paperwork, and

religious property. Id. Chism alleges that the defendants who took his property did

not properly inventory it or comply with prison procedures, and thereby violated his

constitutional rights and committed theft under state law. Id. at 5-8. He also claims

that he endured cold temperatures while wearing only boxers, socks, and a jumpsuit.

Id. at 8. Finally, Chism alleges the taking of his religious property as well as the

ADC’s policy of limiting inmates to one religious book substantially burdened his

right to practice the Asatru faith, in violation of the First Amendment, RLUIPA, and

the Religious Freedom Restoration Act (RFRA).2 Id. at 8-10. He claims that

defendants Payne, Gibson, and Mahoney were made aware of these violations

through the grievance process and failed to take corrective action. Id. at 9-10.

As stated earlier, only Chism’s First Amendment free exercise, RLUIPA, and

state law conversion claims were allowed to proceed after screening. See Doc. Nos.

4 & 21. His claims that the defendants violated his constitutional rights by taking

his property were dismissed for failure to state a viable claim. Id.

C. Chism’s Grievances

In her declaration, Inmate Grievance Supervisor Grigsby-Brown states that

she reviewed Chism’s non-medical grievance file for any grievances concerning his

claims in this case. Doc. No. 22-1 at 6, ¶¶ 33-34. Grigsby-Brown states that she

found four non-medical grievances submitted by Chism between June 9, 2022 (the

date of the incident described in his lawsuit) and November 15, 2022 (the date he

2 Chism’s RFRA claims were dismissed because the RFRA has been found

unconstitutional as it applies to the states. See Doc. Nos. 4 & 21. See also City of Boerne

v. Flores, 521 U.S. 507 (1997); see also Williams v. Norris, 11 Fed. Appx. 656, 2001 WL

357336 (8th Cir. April 11, 2001) (holding that state prisoners “may no longer look to RFRA

in free exercise claims, as RFRA has been declared unconstitutional” as to the state

government).

filed this lawsuit) that concerned his claims in this case or named any of the

defendants. Id. Each is described below.

EAM22-01269. Chism submitted this grievance on June 9, 2022, stating:3

On 6-9-22 Sgt. Dunlap, Cpl. White, and Cpl. Taylor and a hoe squad

rider whose name I don’t know did a shakedown in Iso1 under Lt.

Martin’s direction. Five religious books were stolen from me at this

time. The Nature of Asatru by Mark Puryear. Talke of the Norse

Warrior Gods by A&E Keavy. The Masks of Odin by Elsa Brita

Tichenell (leather bound). The Prose Edda by Snorri Starluson

translated by Jesse Byock (leather bound). The Stages of Icelanders-

Penguin classics edition. The first three are out of print and the two

leatherbound books were gifts. I was given no confiscation form when

these books were stolen. They are to be returned or inventoried, a

confiscation form written, and placed in my property. All the officers

involved are to be disciplined. 4 ‘Wheel of the Year’ religious

calendars were also taken. Note: This is NOT a duplicate, this is the

only grievance I’ve written concerning my religious books.

Doc. No. 22-4 at 1. Chism received a response on July 12, 2022, and appealed,

stating: “No confiscation form was offered or given to me so the books were stolen.

I’m not on punitive and I did not have “an excess amount of property. Return my

stolen books. Id. at 5. His appeal was subsequently denied. Id. at 4.

EAM22-01270. Chism submitted also this grievance on June 9, 2022, stating:

On 6-9-22 Sgt. Dunlap, Cpl. White, and Cpl. Taylor and a hoe squad

rider whose name I don’t know did a shakedown in my cell in Iso1

under Lt. Martin’s direction. I was never given a confiscation form for

my property that was stolen by these officers. Items include numerous

books and magazines, 1 Sony radio, 1 pr. Sony earbuds, 2 pr. Talkbuds,

5 pens, 8 pks. AA batteries, 3 XXL T-shirts, 1 pk. emery boards, 1 pr.

3 Grievances are transcribed verbatim without any corrections for misspellings or

mistakes.

Fingernail clippers, 1 mirror, 3 bowls w/ lid, 4 bowl lids, 1 coffee cup,

plus 4 legal envelopes containing legal work and family

correspondence which should never have been touched. The legal work

and family letters are to be returned immediately! The rest is to be

inventoried, a confiscation form written, and placed in my property.

My toothbrush was also taken and needs to be replaced immediately.

Note: This is NOT a duplicate, this is the only grievance I’ve written

concerning my non-religious property.

Doc. No. 22-5 at 1. Chism received a response stating that his complaints had

already been addressed in response to his other grievances. Id. at 4. He appealed,

stating that he listed property in this grievance not listed in other grievances. Id.

His appeal was denied. Id. at 3.

EAM22-01271. Chism also submitted this grievance on June 9, 2022, stating:

On 6-9-22 Sgt. Dunlap, Cpl. White, and Cpl. Taylor and a hoe squad

rider whose name I don’t know did a shakedown in my cell in Iso1

during which they confiscated the book ‘The Legend of Broken’ by

Caleb Carr. This is a library book that I’m allowed to have that is

checked out in my name. I did not even receive a confiscation form.

This book needs to be returned immediately or removed from the lit of

books checked out to me, and the officers mention above need to be

made aware of ADC policy regarding shakedowns and confiscations.

Doc. No. 22-6 at 1. He received a response and appealed, again stating that he was

not on punitive status and his property should not have been taken without a

confiscation form. Id. at 4. Chism’s appeal was subsequently denied. Id. at 3.

EAM22-02195. Chism submitted this grievance on October 30, 2022, stating:

I came off punitive a couple of weeks ago and have put in several

requests for my property, if it exists, to be returned to me. I have not

received either a response, or my property. If my property hasn’t been

destroyed it is to be brought to me. If it isn’t brought to me it will be

taken as an admission that my property has been destroyed.

Doc. No. 22-7 at 5. The grievance was rejected as untimely, and Chism appealed.

Id. at 4. His appeal was also rejected as untimely. Id. at 3.

D. Exhaustion as to Payne, Gibson, and Mahoney

None of the grievances filed by Chism concerning the property taken on June

9, 2022, named defendants Payne, Gibson, and Mahoney or described Chism’s

complaint allegation that they failed to take corrective action in response to

grievances he filed. He also did not allege that Mahoney was involved in taking his

property, as he alleged in his complaint. Therefore, Chism failed to exhaust his

administrative remedies against these defendants before he filed this lawsuit.

Additionally, in response to the motion for summary judgment, Chism admits he did

not name Payne, Gibson, and Mahoney in any grievance, and voluntarily agrees to

their dismissal.4 Doc. No. 34 at 4, ¶ 3. For these reasons, Chism’s claims against

Payne, Gibson, and Mahoney are dismissed without prejudice.

4 Chism states that he may wish to reinstate his claims against Payne, Gibson, and

Mahoney once he completes discovery. Doc. No. 34 at 4, ¶ 3; Doc. No. 35 at 6, ¶ 4.

Chism has had ample time to conduct discovery related to the issue of exhaustion. He

should also be able to recall whether or not he grieved his allegations that they failed to

take corrective action after his religious property was taken in June of 2022.

Additionally, defendants have provided a record of grievances filed by Chism, and he has

not identified any that may serve to exhaustion his claims against Payne, Gibson, or

Mahoney.

E. Exhaustion as to Chism’s Free Exercise and RLUIPA Claims

Although Chism named defendants Dunlap, White, Taylor, and Martin in

some of the grievances he submitted, he did not claim that the taking of his religious

property or the ADC limiting inmates to one religious book substantially burdened

his right to practice the Asatru faith, in violation of the First Amendment or

RLUIPA, as he alleged in his complaint. In fact, he only mentioned that his religious

property was taken in one grievance: EAM22-01269. At no point did he put

defendants on notice that he was complaining about his ability to exercise his

religion. Accordingly, they were not given the “opportunity to correct [their] own

mistakes” before being “haled into federal court.” Woodford v. Ngo, 548 U.S. 81,

89 (2006). This is the point of the exhaustion requirement, and it was not met in this

case. For that reason, Chism’s free exercise and RLUIPA claims are dismissed

without prejudice,5 and the Court declines to exercise supplemental jurisdiction over

his remaining state law conversion claims.6

5 Even if Chism had named Payne, Gibson, or Mahoney in the grievances he filed

concerning the property that was taken on June 9, 2022, those grievances would not serve

to exhaust his claims against them because he did not describe his complaint allegation that

the taking of his property interfered with the practice of his religion.

6 See ACLU v. City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999) (“[W]hen

state and federal claims are joined and all federal claims are dismissed on a motion for

summary judgment, the state claims are ordinarily dismissed without prejudice to avoid

needless decisions of state law . . . as a matter of comity.”). See also Condor Corp. v. City

of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990) (“The judicial resources of the federal courts

are sparse compared to the states. We stress the need to exercise judicial restraint and avoid

state law issues wherever possible.”).

IV. Conclusion

Chism did not complete his administrative remedies with respect to his First

Amendment free exercise and RLUIPA claims before he filed this § 1983 lawsuit.

Accordingly, the defendants’ motion for summary judgment (Doc. No. 22) is

granted, and Chism’s First Amendment and RLUIPA claims are dismissed without

prejudice for failure to exhaust available administrative remedies. Further, the Court

declines to exercise jurisdiction over Chism’s pendent state law conversion claims.

Finally, Chism’s motion to compel his property to be returned (Doc. No. 36) is

denied as moot.

DATED this 3" day of October, 2023.

moon