Ryidu-X v. Foxwell

IN THE UNITED STATES DISTRICT COURT —

FOR THE DISTRICT GF MARYLAND

MALCOM MAXWELL RYIDU-X, SID

# 896073, formerly known as Richard Janey, *

Plaintiff *

v * Civil Action No. CCB-18-2213

(Consolidated with CCB-18-2641)

ECI WARDEN RICKY FOXWELL, . *

MARYLAND DIVISION OF CORRECTION,!

COMMISSIONER OF CORRECTION, *

JOHN DOE # ONE,

MCI-H WARDEN DENISE GELSINGER,*? * .

ACTING WARDEN JOHN DOE # TWO,

CHAPLAIN FELTON, *

LIEUTENANT DUNAWAY,

OFFICER JONES, ,

OFICER ALLEN,

SERGEANT WILSON, * -

LIEUTENANT ATKINS,

*

Defendants

He eR

MEMORANDUM OPINION

On July 18, 2019, Maryland prisoner Malcom Ryidu-X (“Plaintiff’ or “Ryidu-X”) filed a

“Motion for Emergency Injunction” seeking to enjoin “Maryland State prison officials” at Eastern

' Ryidu-X names the Maryland Division of Correction (“DOC”) as a party to suit. Under the

authority conferred by 28 U.S.C. § 1915(e)(2)(B)(iii), the Court dismisses this Defendant under

the doctrine of sovereign immunity, which precludes a private individual not only from suing an

nonconsenting State in federal court, but also extends to an instrumentality of a State (also referred

to as an “arm of the state”), absent waiver or Congressional abrogation. See Pennhurst State

School & Hospital, 465 U.S. 89, 101-02 (1984) (explaining that absent consent, a suit in which

the State or one of its agencies or departments is named a defendant is proscribed by the Eleventh

Amendment); see also Bland v. Roberts, 730 F.3d 368, 389 (4th Cir. 2013). Although Maryland

has waived its sovereign immunity for certain types of cases brought in state courts, see Md. Code,

State Gov’t. Art., § 12-201(a), it has not waived its immunity under the Eleventh Amendment to a

suit of this kind in federal court.

* The Clerk shall amend the docket to reflect the spelling of Defendants’ names and the inclusion

of Defendants listed in the caption of the Complaint filed in Civil Action No. CCB-18-2641.

Correctional Institution (“ECT”) from an “on-going campaigne [sic] of discrimination and

harassment” against him. Ryidu-X named only ECI Warden Ricky Foxwell in his pleading, -

complaining that he had been unable to purchase personal hygiene items from the prison

commissary and that Foxwell denied him the ability to practice his religion as a Muslim unless

Ryidu-X “converts” from the Shi’a to Sunni Muslim faith.2 See Ryidu-X v. Foxwell, Civil Action

No. CCB-18-2213 (D, Md.), ECF No. 1.4 The submission, docketed as a Complaint, was

incomplete and Ryidu-X was ordered to supplement his pleading to include a full filing fee or

Motion to Proceed in Forma Pauperis. ECF No. 2. He complied, ECF No. 3, and counsel for

Defendants was ordered to respond to the complaint, ECF No. 4.

On August 27, 2019, the Clerk received a new civil rights action docketed as Ryidu-X v.

Doe, et al, Civil Action No. CCB-18-2641 (D. Md.). Ryidu-X reiterated his allegations against

Foxwell regarding the denial of worship and a lack of hygiene supplies and named ECI staff -

alleged to be carrying out Foxwell’s edicts and denying him access to writing supplies and other

property approved for sale via catalog. The Complaint further alleged the improper denial of

religious practices and prayer materials? by policy-makers with the Division of Correction

3 The parties provide no information concerming the two branches of Islam, but the beliefs and

practices of the two faiths differ. See, ¢.g., Jennifer K. Beaudry, Islamic Sectarianism in United

States Prisons: The Religious Right of Shi’a Inmates to Worship Separately from their Fellow

Sunni Inmates, 35 Horstra L. Rev. 1833, 1852 (2007). Sunni Muslims, the majority group,

believe that leadership of their faith passed to the prophet Muhammad's closest adviser after the

prophet’s death and thereafter has passed through election. Jd, Shi’a Muslims, on the other hand,

believe leadership passes via the prophet’s bloodline. Jd. The name of the Shi’a branch of Islam

is sometimes spelled “Shia,” “Shi’i,” or “Shi'ite.” Jd. at 1833 n. 4. This spelling variation is

- reflected in the pleadings and exhibits; for simplicity, this Court will use the spelling “Shi’a.”

* This Memorandum Opinion cites to pagination assigned through the Court’s electronic

docketing system.

> The parties do not specify the nature of the “prayer material” allegedly kept from Ryidu-X. In

his supplement, Ryidu-X cites a January 25, 2018 letter from Administrative Officer Audrey

Brown concerning DOC policy OPS.140.0002.14(H)(6) prohibiting prisoners from storing

(“DOC”) and by the Warden, Acting Warden, Chaplain, and an unknown individual working at

the Maryland Correctional Institution-Hagerstown (“MCI-H”), where Ryidu-X previously was

incarcerated prior to his transfer to ECI in November of 2017. Ryidu-X stated such denial violated

the First, Eighth, and Fourteenth Amendments, the Religious Freedom Restoration Act (“RFRA”),

and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Because the issues

contained in the new lawsuit were closely aligned with Ryidu-X’s previous lawsuit, they were

consolidated under Civil Action No. CCB-18-2213. See Order of August 28, 2018, ECF No. 10;

see also Supplement to the Complaint, ECF No. 11.

Prior to consolidation Foxwell had been directed to respond to the emergency injunctive

relief request concerning the denial of commissary items filed in Civil Action No. CCB-18-2213.

See ECF No. 7; see also Show Cause Order of August 24, 2018, ECF No. 9. Foxwell responded

to the commissary denial issue and also responded to a second injunctive relief request contained

in Civil Action No, CCB-18-2641 concerning a 12-week denial of hygiene ttems by MCI-H

personnel. ECF No. 15, Injunctive relief was denied by Order dated September 24, 2018, and

Ryidu-X was given 21 days to amend his complairit to provide facts and information as to how

and when each named defendant violated his civil rights. ECF No. 17. When he failed to timely

comply, the consolidated action was dismissed without prejudice. See Order of October 23, 2018,

ECF No. 19. The consolidated action was reopened after Ryidu-X informed the Court that he did

not receive the September 24, 2018 Order, see ECF No. 20, and Defendants were ordered to

address the merits of the Complaint, as supplemented, ECF No. 21.

religious oil for personal use. See ECF No. 11-1. Oil is the only “material” referenced in the

parties’ submissions, and the Court assumes it is the “material” at issue in this case.

Defendants have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment,

ECF No. 24, with supporting materials, ECF Nos. 24-2, 24-3, 24-4, 26-1, 26-2, 26-3, which is

opposed by Ryidu-X.’ ECF No. 29. The pending Motion may be decided without a hearing. See

Local Rule 105.6 (D. Md. 2018). For the reasons stated below, the Motion, construed as a Motion

for Summary Judgment, will be granted in part and denied in part.

The Parties’ Allegations and Assertions

L Ryidu-X’s Allegations

Ryidu-X’s allegations extend on a timeline from September 2017 through 2018, during

which he was housed at two DOC facilities, MCI-H and ECI. His claims focus on access to

religious materials and commissary items, which he claims are denied to him because he is a Shi’a

Muslim.® He complains that on September 20, 2017, while he was housed at MCI-H, Chaplain

"In his opposition, the plaintiff moves to strike the defendants’ response in part, citing Fed. R.

Civ. Proc. 12(f) and asserting that it is false and scandalous for the defendants to claim he seeks

religious prayer ceremony materials for personal, rather than religious, use. ECF No. 29 at p. 1.

For reasons apparent herein, the request to strike is denied. Ryidu-X also seeks partial summary

judgment in his favor pursuant to Federal Rule of Civil Procedure 56(a) on the basis that the

defendants “have conceded and confirmed that [he] is infact (sic) denied access to the observance

and practice of his religion . . . simply because he is a Shiite Muslim who refuses to convert to

Sunni at their demand.” ECF No. 29 at p. 2. As discussed herein, the pleadings do not support

this statement, and Ryidu-X’s request for summary judgment will be denied.

8 Ryidu-X also complains that the contractual commissary provider, Keefe Commissary, is

permitted to deduct funds from prisoner accounts but fails to refund the money if the commissary

items ordered are not provided. Keefe does not appear to be a “state actor” amenable to a civil

rights action and is not named in this suit. Ryidu-X provides an Administrative Remedy Procedure

(“ARP”) grievance form dated July 6, 2018, relating to Keefe’s failure to provide products for -

which deductions were made to his account, suggesting it is indicative of the “harassment” he

experiences daily at ECI. ECF No. 1-1 at pp. 3-4. Other grievances concerning harassment based

on failure to submit a commissary slip on June 3, 2018; concerns about Ryidu-X’s financial

statement and receipt of a money order, and problems with breakfast distribution, naming

individuals who are not a party to this action; and the wrongful deduction of money for a medical

co-pay, are detailed in ARP ECI-1245-18 and an ARP form dated February 16, 2018. ECF No. 1-

1 at pp. 1-2, 5. These matters are not directly related to Ryidu-X’s underlying claims concerning

religious discrimination and the denial of hygiene materials and are not addressed here.

Felton informed him that as the only Shi’a Muslim he would no longer be allowed access to the

observance and practice of his religion, including access to prayer materials. ECF No. 11 at p. 3.

Ryidu-X states that Chaplain Felton advised him that access to religious materials would only be

provided to Sunni Muslim prisoners and would be kept for storage by the MCI-H correctional

officials. Jd. Those materials will be distributed to the Sunni Muslim inmates upon their request.

fd. Plaintiff further claims that Chaplain Felton stated he will personally enforce this policy. fd.

When transferred to ECI in Westover, Maryland in November of 2017, Ryidu-X states he

was told by Protective Custody Unit Manager Lt. Dunaway that the MCI-H policy of disallowing

him access to the observance and practice of the Shi’a Muslim religion is also followed at ECI.

id. at 4, He states he was told that Shi’a Muslim religious services would not be arranged until

other Shi’a were present and a minimum of four to ten participants would be required before

services were held. He was also told he could participate in Sunni Muslim religious services. □□□

Ryidu-X also claims the denial of personal hygiene materials lasted a total of twelve weeks

and was intended as punishment, id., and claims that Officer Dunaway and Warden Foxwell told

him that his inability to obtain these items was “simply a glitch in the system,” ECF No. 7 at p. 2.

Ryidu-X states he sold or traded his meals to obtain hygiene items or borrowed them from other

prisoners. /d@. Ryidu-X claims that the named officers knew he lacked hygiene items but none

offered an alternative way for him to obtain these supplies, such as providing them through the

welfare commissary or directly from prison supplies. Jd. He names Officer Jones for the denial

of his access to the institutional commissary to purchase personal hygiene supplies on June 3,

2018. ECF No. 20 at p. 5. Ryidu-X names Officers Allen, Wilson and Atkins for the denials of

his purchases of personal hygiene supplies on June 18 and 25; July 2, 9, and 30; August 6 and 13;

and October 22, 2018. Jd. Ryidu-X alleges that these Defendant officers’ conduct amounted to

retaliation, harassment and punishment because of his present legal action. Jd.

In his November 2, 2018, Supplemental Complaint/Motion to Alter or Amend Judgment

Ryidu-X states that in the past he could attend Shi’a Muslim religious services because other prison

chaplains, religious leaders, and prison supervisory staff recognized and allowed for the separate

and equal treatment of both Shi’a and Sunni Muslims. ECF No. 20 at p. 4. He references a

February 13, 2015, letter as proof that in the past he had been able to obtain religious oil used □□

accordance with Shi’a religious practices. ECF No. 20-2.

Ryidu-X names MCI-H Warden Gelsinger and Chaplain Felton for their “order and

intentional act” of denying and discontinuing access to Shi’a Muslim religious services and

practices. ECF No. 20 at p. 4. Ryidu-X states that the defendants claimed they were enforcing

policies mandated by the Commissioner of Corrections. /d. Ryidu-X also claims that ECI Warden

Foxwell, ECI’s Chaplain (whose name is not specified), and Officer Dunaway barred Ryidu-X’s

participation in all Islamic religious services or practices, including participation in official

observance of the Feast of the Holy Month of Ramadan, unless and until he converted to the Sunni

Muslim faith. fd. at 5.

II. The Correctional Defendants’ Response __

The Correctional Defendants argue that Ryidu-X failed to complete administrative review

of his claims, thus precluding this Court from examining those claims. ECF No. 24-1 at p. 15.

The defendants further contend that they violated neither Ryidu-X’s First Amendment rights nor

his rights under RLUIPA, id. at p. 17, 19; that Ryidu-X did not sufficiently support his Eighth

Amendment claim, id. at p. 23; and that he failed to plead with specificity claims against certain

named defendants, id. at p. 24-25. Finally, the defendants claim that they are entitled to qualified

immunity from a claim for damages. Jd. at p. 25.

Defendants provide a Declaration from IGO Administrative Officer Samiyah Hassan in

support of their claim of administrative non-exhaustion. ECF No. 24-4. Hassan provides

documents showing that Ryidu-X properly completed relevant administrative review of one

grievance conceming religion while housed at MCHH, Id.

On October 17, 2017, Ryidu-X filed ARP MCI-H 0343-17 complaining that Chaplain

Felton was discriminating against the Shi’a faith. ECF No. 11-3. From the Commissioner’s

response, it appears the discrimination claim arose because prayer oil was provided only to those

participating in congregant worship services. See id. (ARP MCI-H 0343-17 and related appeals).

On December 11, 2017, the IGO received the matter, IGO 20171879, for review, which it

dismissed on January 25, 2018, based on the prison’s compliance with the dispensing of oil as

governed by the Religious Services Manual. ECF No. 24-4 at p. 3.

Ryidu-X also filed ARPs while at ECI. On July 5, 2018, Ryidu-X submitted grievance

ARP ECI-1245-18 concerning a plethora of complaints regarding Officer Green’s lack of action

to address missing food items during a lockdown, a lost money order and letter from a family

member, an unidentified officer who collected his commissary slip on June 3, 2018 but failed to

submit it, a lack of access to his prison account “to determine whether funds had’ been

“misappropriated,” and the failure to unlock his cell so he could participate in his assigned prison

job. ECF No. 1-1 at pp. 1-2. ARP ECI-1245-18 was dismissed on June 27, 2018, because the

complaint contained multiple unrelated issues. ECF No. 15-1 at p. 16. The IGO dismissed Ryidu-

X’s appeal of the dismissal on November 21, 2018, for failure to exhaust the ARP process. ECF

No. 26-1 at p. 2.?

On August 8, 2018, Ryidu-X submitted grievance ARP ECI-1725-18, alleging that his

request for a copy of his financial record had been ignored or denied. ECF No. 26-2 at p. 10. After

investigation, Warden West denied relief, stating that he had been issued a copy of his account

forms on October 25, 2018. □□□ With the exception of the claim concerning an officer’s alleged

failure to submit a commissary request in June 2018, these grievances are not before the Court and

are not addressed here.

IGO No. 20181347, filed October 17, 2018, concerned Ryidu-X’s claim in ARP ECI-1378-

18 that he was denied the opportunity to practice Shi’a Islam. It was administratively dismissed

on November 28, 2018. ECF No. 26-1 at p. 2. On December [1, 2018, Ryidu-X filed IGO No.

20181917, which appears to be a resubmission from the disposition of ARP ECI-1725-18. As of

January 10, 2019, the matter remained pending with the IGO. Id.

Defendants confirm that Ryidu-X is the only Shi’a Muslim adherent housed at ECI. ECF

No. 24-1 at p. 7. They state that Officer Dunaway properly referenced the Religious Services

Manual, § .07, { D, subparagraph (12) to explain that Ryidu-X cannot have his own religious

services and that at least three fellow Shi’a Muslims would be needed before religious services

would be provided. Jd. ‘They state that Dunaway did not mandate that Ryidu-X become a Sunni

practitioner, but merely suggested he could join the Sunni worshippers to accommodate his request

to have congregant worship. fd. They stress that Ryidu-X is not prohibited from practicing his

religion, merely that they would not impede his ability to attend Sunni services should he choose

” Defendants do not provide a copy of the IGO decision. Ryidu-X, however, does not challenge

Declarant Hassan’s statement that such dismissal occurred.

to do so. Jd The defendants also argue that while he was at MCI-H, Ryidu-X was no longer

permitted to keep religious oil in his cell based on the directives on the use of oil only during

congregant worship, as provided in the Religious Services Manual - OPS.140.0002.14. Id at p. 8.

Defendants note that the contractual commissary provider, Keefe Commissary, is aware

that Plaintiff uses his new legal/religious name in his transactions. See Memorandum, ECF No.

15-1 at p. 2; see also ECF No. 15-1 at pp. 3-15. He has received multiple commissary purchases

that include personal hygiene products and stationery materials. See Declaration of Larry Adkins,

ECF 15-2 § 5; see also ECF No. 15-1 at pp. 12-15 (documentation of Ryidu-X’s multiple

transactions with Keefe Commissary). .

HI. Ryidu-X’s Opposition Response

Ryidu-X takes issue with the defendants’ assertion that his “access to religious prayer

ceremony materials was/is denied due to some sort of ‘personal use,’” ECF No. 29 at p. 1, and

states that his status as the “lone believer in the Shi’a faith” is false,!! ECF No. 29 at p. 2. He

states that he alone is denied an opportunity to receive religious meals, meet with religious leaders,

and observe religious holidays. /d. He reiterates that adherents of other faiths have their religious

and prayer ceremony materials stored by the prison and distributed as needed, an opportunity that

is not afforded to him because he is the sole Shi’a practitioner at EC] and thus unable to participate

in congregate worship with others.’* /d at p. 3. He also argues that the only conclusion to be

Ryidu-X provides no information to rebut the defendants’ assertion that he is the sole Shi’a

adherent at ECI, such as the name(s) of other practicing Shi’a Muslims.

12 Ryidu-X references a settlement agreement suggesting he is to be confined to segregation in a

single cell for the duration of his incarceration. The agreement is not provided and cannot be

obtained from the electronic docket of that case, Ryidu-X v. WCY, et al., Civil Action No. WDQ-

08-558 (D. Md.). He argues that his segregation status further supports his request to have “access

to... prayer ceremony materials allowed any and all other inmates of religious faiths.” ECF No.

29 at p. 3.

drawn from the denial of hygiene materials over a three-month period is that the defendants, who

failed to mitigate the situation, intended to inflict punishment and harassment on him. ECF No.

29 at pp. 4-5.

Standard of Review

In their motions, Defendants seek dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6) or summary judgment pursuant to Federal Rule of Civil Procedure 56. To defeat a motion

to dismiss under Rule 12(b)(6), the Complaint must allege enough facts to state a plausible claim

for relief. See Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts

pleaded allow “the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” /d. .

. Although courts should construe pleadings of self-represented litigants liberally, Erickson

v. Pardus, 551 U.S. 89, 94 (2007), legal conclusions or.conclusory statements do not suffice, Iqbal,

556 U.S. at 678. The Court must examine the entire Complaint and consider its factual allegations

as true, then construe those factual allegations in the light most favorable to the plaintiff. See

Albright v. Oliver, 510 U.S. 266, 268 (1994); see also Lambeth v. Bd. of Comm’rs of Davidson

407 F.3d 266, 268 (4th Cir. 2005). Where, as here, the defendants also have submitted

exhibits with their motion to dismiss, such evidence is considered by considering the motion as a

motion seeking summary judgment, Fed. R. Civ. P. 12(d), and by giving the nonmoving party “a

reasonable opportunity to present.all the material that is pertinent to the motion.” Jd.

Under Rule 56, summary judgment is granted if the moving party demonstrates that there

is no genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

assessing the motion, the district court must view the facts in the light most favorable to the

10

nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 255 (1986), and may rely only

on facts supported in the record, Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514,

522 (4th Cir. 2003). A fact is “material” if it “might affect the outcome of the suit under the

governing law,” Anderson, 477 U.S. at 248, and a dispute of material fact is “genuine” if sufficient

evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party,

id.

Analysis

The defendants raise the affirmative defense that Ryidu-X has failed to exhaust his

administrative remedies, except for his claims concerning the use of religious oil and denial of the

opportunity to practice Shi’a Islam. The Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.

§1997e, provides in pertinent part that:

No 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.

42 U.S.C. § 1997e(a). For purposes of the PLRA, “the term ‘prisoner’ means any person

incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,

probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h).

Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and

does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust

administrative remedies is an affirmative defense to be pleaded and proven by the defendants. See

Jones v. Bock, 549 U.S. 199, 215-16 (2007); see also Anderson v. XYZ Correctional Health Servs.,

407 F.3d 674, 682 (4th Cir. 2005). Nevertheless, a claim that has not been exhausted may

not be considered by this Court. See Bock, 549 U.S. at 219-20. In other words, exhaustion is

mandatory. Ross v. Blake, 136 8.Ct. 1850, 1856-57 (2016). Therefore, a court ordinarily may not

excuse a failure to exhaust. /d. (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining

“t]he mandatory ‘shall? ... normally creates an obligation impervious to judicial discretion”)).

A prisoner must follow the required procedural steps in order to exhaust his administrative

remedies. Moore v. Bennette, 517 F.3d 725, 729 (4th Cir. 2008). Exhaustion requires completion

of “the administrative review process in accordance with the applicable procedural rules, including

deadlines.” Woodford v. Ngo, 548 U.S. 81, 88 (2006). This requirement is one of “proper

exhaustion of administrative remedies, which ‘means using all steps that the agency holds out, and

doing so properly (so that the agency addresses the issues on the merits).’” /d. at 90 (quoting Pozo

v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). But, the Court is

“obligated to ensure that any defects in [administrative] exhaustion were not procured from the

action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th

Cir. 2007); see also Kaba y. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

The Maryland Department of Public Safety and Correctional Services (“DPSCS”) has an

established “administrative remedy procedure” (“ARP”) for use by Maryland State prisoners for

“inmate complaint resolution.” See generally Md. Code Ann. (2008 Repl. Vol.), Correctional

Servs. (“C.S.”), §§ 10-201; Md. Code Regs. (“COMAR”) § 12.02.28.02(1) (defining ARP). The

stievance procedure applies to the submission of “grievance[s] against . . . official[s] or

employee[s] of the Division of Correction.” C.S. § 10-206(a).

Regulations promulgated by DPSCS concerning the administrative remedy procedure

define a “grievance” to include a “complaint of any individual in the custody of the [DOC]...

against any officials or employees of the [DOC] . . . arising from the circumstances of custody or

confinement.” COMAR § 12.07.01.01(B)(8). Moreover, “[a] court may not consider an

]2

individual’s grievance that is within the jurisdiction of the [Inmate Grievance] Office or the Office

of Administrative Hearings unless the individual has exhausted the remedies” set forth in C.S.

Title 10, Subtitle 2. C.S. § 10-210(a).

To pursue a grievance, a prisoner confined in a Maryland prison may file a grievance with

the Inmate Grievance Office (“IGO”) against any DOC official or employee. C.S. § 10-206(a).

However, if the prison has a grievance procedure that is approved by the IGO, the prisoner must

first follow the institutional ARP process, before filing a grievance with the IGO. See C.S. § 10-

206(b). There is an established administrative remedy procedure process that applies to all

Maryland prisons. See COMAR §§ 12.02.28.01(A)}(B)(2)(b). When the ARP process provides a

possible remedy, it must be followed and completed before an inmate may file a grievance with

the IGO. COMAR § 12.02.28.01(C).

The ARP process consists of multiple steps. Step one requires a prisoner to file his initial

ARP with his facility’s “managing official,” COMAR § 12.02.28.05(D)(1), which is defined by

COMAR § 12.02.28.02(B)(14) as “the warden or other individual responsible for management of

the correctional facility” and defined under C.S. § 1-101(k) “as the administrator, director, warden,

superintendent, sheriff, or other individual responsible for the management of a correctional

facility.” Moreover, the ARP request must be filed within 30 days of the date on which the incident

occurred, or within 30 days of the date the prisoner first gained knowledge of the incident or injury

giving rise to the complaint, whichever is later. COMAR § 12.02.28.09(B).

The second step in the ARP process occurs if the managing official denies a prisoner’s

initial ARP, COMAR §§ □□□□□□□□□□□□□□□□□□□□□□□□ or fails to respond to the ARP within the

established time frame, COMAR § 12.02.28.14(B)(5\(c). The prisoner has 30 days to file an

appeal to the Commissioner of Corrections. COMAR § 12.02.28.14(B)(5).

13

If the Commissioner of Correction denies an appeal, the prisoner has 30 days to file a

grievance with the IGO.'? COMAR § 12.02.28.18; C.S. § 10-206(a); COMAR § 12.07.01.05(B).

When filing with the IGO, a prisoner is required to include copies of the following: the initial

request for administrative remedy, the warden’s response to that request, a copy of the ARP appeal

filed with the Commissioner of Correction, and a copy of the Commissioner’s response. COMAR

§§ □□□□□□□□□□□□□□□□□□□□□□□□□□□□ If the grievance is determined to be “wholly lacking in merit on

its face,” the IGO may dismiss it without a hearing. C.S. § 10-207(b)(1); see also COMAR §§

12.07.01.06(A)(1)-(B)(6). An order of dismissal constitutes the final decision of the Secretary of

DPSCS for purposes of judicial review. C.S. § 10-207(b)(2)(ii). However, if a hearing is deemed

necessary by the IGO, the hearing is conducted by an administrative law judge with the Maryland

Office of Administrative Hearings. See C.S. § 10-208(a); COMAR §§ 12.07.01.07(A)(1)-(3).

The conduct of such hearings is governed by statute. See C.S. § 10-208: COMAR

§ 12.07.01.07(D); see also Md. Code Ann., State Gov’t § 10-206(a)(1).

A decision of the administrative law judge (“ALJ”) denying all relief to the inmate is

considered a final agency determination. C.S. § 10-209(b)(1)(i); COMAR § 12.07.01.10(A)(2).

However, if the ALJ concludes that the inmate’s complaint is wholly or partly meritorious, the

decision constitutes a recommendation to the Secretary of DPSCS, who must make a final agency

determination within fifteen days after receipt of the proposed decision of the administrative law

judge. See COMAR 8§ 12.07.01.10(B)(1)\(a)-(5); see also C.S. § 10-209(b)(2)(c).

The final agency determination is subject to judicial review in Maryland State court, so

long as the claimant has exhausted his or her remedies. See C.S. § 10-210(a). An inmate need not

'3 If the Commissioner fails to respond, the grievant shall file an appeal within 30 days of the date

the response was due. COMAR § 12.07:01.05(B){2).

14

seek judicial review in state court in order to satisfy the PLRA’s administrative exhaustion

requirement. See, e.g., Pozo, 286 F.3d at 1024 (“[A] prisoner who uses all administrative options

that the state offers need not also pursue judicial review in state court.”).

The PLRA’s exhaustion requirement serves several purposes, These include “allowing a

prison to address complaints about the program it administers before being subjected to suit,

reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation

that does occur by leading to the preparation of a useful record.” Bock, 549 U.S. at 219; see also

Moore, 517 F.3d at 725 (explaining that exhaustion means providing prison officials with the

opportunity to respond to a complaint through proper use of administrative remedies). It is

designed so that prisoners pursue administrative grievances until they receive a final denial of the

claims, appealing through all available stages in the administrative process. See, e.g., Booth v.

Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of prisoner’s claim for failure to exhaust

where he “never sought intermediate or full administrative review after prison authority denied

relief”); Chase v. Peay, 286 F. Supp. 2d 523, 530 (D. Md. 2003) (“The exhaustion requirement

under the PLRA has been interpreted to require prisoners to pursue administrative grievances until

they receive a final denial of their claim, appealing through all available stages in the

administrative process.”).

A prisoner need only exhaust “available” remedies. See 42 U.S.C. § 1997e(a). In Ross v.

Blake, 136 S.Ct. at 1855, the Supreme Court rejected a “freewheeling approach to exhaustion as

inconsistent with the PLRA.” In particular, the Court rejected a “special circumstances” exception

to the exhaustion requirement. /d. at 1856-57. But, it reiterated that “[a] prisoner need not exhaust

remedies if they are not ‘available.’” Jd. at 1855. “[AJn administrative remedy is not considered

15

to have been available if a prisoner, through no fault of his own, was prevented from availing

himself of it.” Moore, 517 F.3d at 725.

The Ross Court outlined three circumstances when an administrative remedy is unavailable

and an inmate’s duty to exhaust available remedies “does not come into play.” 136 S. Ct. at 1859.

First, “an administrative procedure is unavailable when (despite what regulations or guidance

materials may promise) it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates.” Jd. Second, “an administrative scheme

might be so opaque that it becomes, practically speaking, incapable of use. In this sttuation, some

mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Jd. The

third circumstance arises when “prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation.” Jd. at 1860.

Exhausting administrative remedies after a complaint is filed will not save a case from

dismissal for failure to exhaust administrative remedies. Kitchen v. Ickes, 116 F. Supp. 3d 613,

624 (D. Md. 2015) (citing Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001) (overruled on other

grounds)), aff'd, 644 F. App’x 243 (4th Cir. 2016); see also Freeman v. Francis, 196 F.3d 641, □

645 (6th Cir. 1999) (“The plain language of the statute [§ 1997e(a)] makes exhaustion a

precondition to filing an action in federal Court . . . The prisoner, therefore, may not exhaust

administrative remedies during the pendency of the federal suit.”).

It is clear from the record evidence that Ryidu-X failed to exhaust his administrative

remedies as to claims involving the prison commissary, as he did not pursue ARP grievances

concerning commissary problems through all levels of administrative review including the IGO.

While his claim that his commissary slip was not collected on June 3, 2018 was submitted for IGO

review, Ryidu-X’s ARP grievance concerning the incident was filed on August 8, 2018, more than

16 .

two weeks after the filing of this lawsuit. See ECF No. 26-2 at p. 10. As stated above, exhausting

administrative remedies after a complaint is filed will not save a case from dismissal for failure to

exhaust administrative remedies. See Kitchen, 116 F. Supp. 3d at 624. Ryidu-X’s claims

concerning commissary purchases cannot be considered and are dismissed without prejudice," as

are Defendants Jones, Allen, Wilson and Atkins, who may have played a role in the receipt and

processing of Ryidu-X’s commissary requests.

Ryidu-X’s claim concerning his ability to exercise his religion is administratively

exhausted and shall be addressed on the merits. While “Lawful incarceration brings about the

necessary withdrawal or limitation of many privileges and rights, a retraction justified by the

considerations underlying our penal system,” O/vlone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)), “convicted prisoners do not forfeit

all constitutional protections by reason of their conviction and confinement in prison,” id. (quoting

Bell v. Wolfish, 441 U.S. 520, 545 (1979)) (emphasis added). With respect to the free exercise of

religion, prison inmates retain a right to reasonable opportunities for free exercise of religious

beliefs without concern for the possibility of punishment. See Cruz v. Beto, 405 U.S. 319, 322

(1972) (per curiam). That retained right is not unfettered. As a threshold matter, to state a claim

for violation of rights under the Free Exercise Clause, Ryidu-X “must demonstrate that: (1) he

holds a sincere religious belief; and (2) a prison practice or policy places a substantial burden

on his ability to practice his religion.” See Wilcox vy. Brown, 877 F. 3d 161, 168 (4th Cir. 2017)

'4 Although the question of commissary cannot proceed, the Court notes that in several instances □

the ARP responses stating that commissary items were ultimately received failed to take into

account that a// the requested items, specifically soap, were vof included in the package provided

to Ryidu-X. While Ryidu-X was not physically injured and was able to obtain soap from other

sources, it appears his grievances concerning “hygiene materials” were valid in part.

17

(citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). A substantial

burden is placed upon a prisoner’s religious exercise when it “put[s] substantial pressure on an

adherent to modify his behavior and to violate his beliefs.” Jd. Nevertheless, prison restrictions

that impact on the free exercise of religion but are reasonably related to legitimate penological

objectives do not run afoul of the constitution. See Turner v. Safley, 482 U.S. 78, 89-91 (1987).

Ryidu-X’s religious practices are provided even greater protection under RLUIPA.!* In

relevant part, RLUIPA states:

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 the

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 (a).

RLUIPA “protects institutionalized persons who are unable freely to attend to their

religious needs and are therefore dependent on the government's permission and accommodation

for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005); see also Hoit v.

Hobbs, 135 S.Ct. 853, 860 (2015); Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir. 2009); Lovelace

v. Lee, 472 F.3d 174, 186 (4th Cir. 2006). Enactment of RLUIPA restored religious free exercise

15 RLUIPA does not support a claim for monetary damages against state officials like

Defendants. Sossaman y. Texas, 563 U.S. 277, 293 (2011) (holding that acceptance of federal

funds by States does not amount to consent to waiver of sovereign immunity to RLUIPA claims

for monetary damages against state employees in their official capacities); Rendelman v. Rouse,

569 F.3d 182, 189 (4th Cir. 2009) (holding RLUIPA does not authorize a claim for money damages

against a state employee sued in their individual capacity). As such, Plaintiffs only potential

remedies under RLUIPA are equitable.

18

rights to prisoners similar to those enjoyed by those who are not incarcerated. See Cutter, 544

US. at 715-17.

RLUIPA defines “religious exercise” as “any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc—5(7)(A); Holt, 135

S.Ct. at 860; Smith, 578 F.3d at 251. Under RLUIPA, the prisoner initially must show that the

challenged policy substantially burdens his exercise of his religion. See 42 U.S.C. § 2000cc—2(b);

Holt, 135 $.Ct. at 862. A prison regulation imposes a substantial burden when it places “substantial

pressure on an adherent to modify his behavior and to violate his beliefs,” Lovelace, 472 F.3d at

187 (quoting Thomas, 450 U.S. at 718), or “forces a person to choose between following the

precepts of [his] religion and forfeiting [governmental] benefits, on the one hand, and abandoning

one of the precepts of [his] religion . . . on the other hand,” fd. (quoting Sherbert v. Verner, 374

U.S. 398, 404 (1963)). While Ryidu-X need not prove that the practice at issue is “required or

essential to his [or her] religion” he must at least “demonstrate that the government’s denial of a

particular religious . . . observance was more than an inconvenience to [his] religious practice.”

Tillman y. Allen, 187 F. Supp. 3d 664, 673 (E.D. Va. 2016) (quoting Smith v. Allen, 502 F.3d 1255,

(11th Cir. 2007)). One factor in determining whether a prison regulation results in a

“substantial burden” is “whether the inmate retains other means for engaging in the particular

religious activity.” Jd. at 674 (internal quotations omitted).

RLUIPA “prescribes a shifting burden of proof for inmate religious exercise claims.”

Ineumaa y. Stirling, 791 F.3d 517, 525 (4th Cir. 2015). A prisoner must initially “demonstrate that

the prison’s policy exacts a substantial burden on religious exercise,” and then “the burden shifts

to the government to prove its policy furthers a compelling governmental interest by the least

restrictive means.” /d. Prison security is a compelling interest. Cutter, 544 U.S. at 725, n. 13.

19

Courts “are ill equipped to deal with the increasingly urgent problems of prison administration and

reform” and must exercise restraint in cases dealing with the administration of prisons. Procunier

v. Martinez, 416 U.S. 396, 405 (1974). Deference is given to prison administrators who must

regulate the prison while balancing the prisoners’ rights to free exercise of religion with the

maintenance of the security of the institution. See Cutter, 544 U.S. at 723. Moreover, in enacting

RLUIPA, Congress “anticipated that courts would apply [RLUIPA’s] standard with “due deference

to the experience and expertise of prison and jail administrators in establishing necessary

regulations and procedures to maintain good order, security and discipline consistent with

considerations of costs and limited resources.” /d. (citing legislative history).

Additionally, where a plaintiff is unable to sustain his RLUIPA claim, there is no need for

the court to separately consider the claim under the First Amendment, as the claim will necessarily

fail there too. RLUIPA provides more protection for an inmate’s religious exercise than the Free

Exercise Clause. See Lovelace, 472 F.3d at 198 (“RLUIPA incorporates and exceeds the

Constitution's basic protections of religious exercise.”).

The parties do not dispute that Ryidu-X holds a sincere adherence to the Shi’a Muslim

faith. But there also is no credible dispute that he is the sole Shi’a practitioner at ECI, so there is

no issue for the court to decide about congregant worship. Further, there is no evidence that

suggestions by corrections personnel that Ryidu-X might join Sunni worship services were

intended to coerce Ryidu-X into rejecting his faith, which differs fundamentally. Questions do

remain, however, as to the use of oil during religious practices, how frequently that practice might

occur, and whether some accommodation can be made available to Ryidu-X to provide him limited

access to oil during the necessary practice of his faith.

20

As a final matter, Ryidu-X suggests that he has suffered harassment and retaliation for

exercising First Amendment right to petition for the redress of grievances. “The First Amendment

right to free speech includes not only the affirmative right to speak, but also the right to be free

from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw,

202 F.3d 676, 685 (4th Cir. 2000). To state a claim of retaliation for exercising First Amendment

rights, a plaintiff must show that (1) the plaintiff engaged in protected First Amendment activity;

(2) the defendant took some action that adversely affected the First Amendment rights; and (3)

there was a causal relationship between the protected activity and the defendant’s conduct. See

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005).

While “the constitutional rights that prisoners possess are more limited in scope than the

constitutional rights held by individuals in society at large,” “incarceration does not divest

prisoners of all constitutional protections.” Shaw v. Murphy, 532 U.S. 223, 228-29 (2001). “[A]

prison inmate retains those First Amendment rights that are not inconsistent with the status as a

prisoner or with the legitimate penological objectives of the corrections system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974). Specifically, the Fourth Circuit has held that a prisoner’s

“right to file a prison grievance free from retaliation” is protected by the First Amendment. Booker

v. S. Carolina Dep’t of Corrections, 855 F.3d 533, 545 (4th Cir. 2017).

A plaintiff can establish this element of retaliatory conduct if the defendant took an action

that would “deter a person of ordinary firmness from the exercise of First Amendment rights.”

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine, 411 F.3d at 500 (internal

quotation marks omitted)). A plaintiff also must demonstrate a causal connection between his

First Amendment activity and the alleged retaliatory action. See Constantine, 411 F.3d at 501.

The showing can be based on circumstantial evidence, such as evidence that the defendant

21

aware of the First Amendment activity and that the retaliation took place within some “temporal

proximity” of that activity. Jd Ryidu-X has not exhausted a retaliation claim through the

administrative grievance process, however, and he presents no compelling factual basis to pursue

such a claim here. !”

For the reasons noted herein, Defendants’ dispositive motion will be granted in part and

denied in part. Plaintiffs claims concerning the denial of commissary/hygiene items and

retaliation/harassment will be dismissed without prejudice; Defendant Maryland Division of

Correction will be dismissed; Defendants Jones, Allen, Wilson and Atkins will be dismissed

without prejudice; and summary judgment will be denied as to the remaining Defendants with

regard to Plaintiffs claims regarding his right to practice his religion through the use of prayer oil.

Plaintiff is granted 21 days to move for appointment of counsel.

A separate Order follows.

3/22 4 Cle

Dat Catherine C. Blake

United States District Judge

The Court reserves its ruling on the doctrine of respondeat superior and qualified immunity

pending further submission by the parties.

22