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Pevia v. Shearin

United States District Court, D. Maryland

February 24, 2015

DONALD R. PEVIA, Plaintiff,
v.
BOBBY P. SHEARIN, Defendant.

MEMORANDUM

ELLEN LIPTON HOLLANDER, District Judge.

Plaintiff Donald R. Pevia, a self-represented inmate incarcerated at North Branch Correctional Institution ("NBCI"), has sued former Warden Bobby Shearin, asserting that his right to practice his chosen religion under the First Amendment was abridged by defendant when he was denied the opportunity to participate in Native American ceremonial worship. Defendant has moved for dismissal or summary judgment (the "Motion"). ECF 12. Plaintiff opposes the motion. ECF 14.[1] The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, defendant's motion, construed as a motion for summary judgment, shall be DENIED.

I. Factual Background

Pevia alleges that he made informal efforts to have Native American worship services instituted at NBCI, but was unsuccessful. He was then advised by unidentified correctional staff that Warden Shearin would not permit Native American services at NBCI, as the service required the use of ceremonial tobacco. ECF 1 at 3.[2] Pevia also states that he learned from another inmate that in order to obtain approval for Native American services, at least 8 inmates must be willing to participate. Id.

Pevia filed an inmate grievance, id., which is known as an Administrative Remedy Complaint ("ARP"). In his ARP, Pevia indicated that he did not need to conduct services with other Native Americans; he could perform the ceremony himself. He asked for the following ceremonial items: sage bowl; sage; ceremonial tobacco and pipe; eagle, turkey, owl, raven feathers; four rocks for the north, east, south, and west gates; and four colors to paint the rocks red, black, white, and yellow. He asked that Native American service be instituted and he be given a service and study day. ECF 12-2, Ex. 1 (ARP) at 4.

Pevia also alleges that he personally made his request to Shearin, and told Shearin that he is a registered Native American, as is his entire family. He also described his experiences conducting ceremonial services and pow wows. ECF 1 at 3-4. Nevertheless, Shearin disregarded Pevia's request and refused to institute Native American services. Id. at 4.

Defendant indicates that NBCI is Maryland's highest security prison, housing many inmates who have "demonstrated a propensity for violence and assaultive behavior, along with an inability or unwillingness to conduct themselves according to rules and regulations of the system." ECF 12-1, Memorandum at 4.

Defendant offers that Pevia filed ARP NBCI-1683-13 on June 22, 2013, complaining that NBCI was violating his right to practice his Native American religion. ECF 12-2, Ex 1 at 3-4; ECF 12-3, Ex. 2, Declaration of Warden Frank Bishop, at ¶ 4. Kevin Lamp, Administrative Chaplain, investigated the ARP on July 22, 2013. ECF 12-2 at 6; ECF 12-3 at ¶ 5. Lamp recommended dismissal of the ARP, because Native American religious services require meeting on a grass or dirt location within the compound of NBCI. Lamp stated that, due to the architectural structure of NBCI, the only available natural surfaces are in areas that would create security concerns. ECF 12-2 at 6; ECF 12-3 at ¶ 5. Shearin reviewed the ARP and dismissed it on July 23, 2013, citing the limited available outdoor natural surface at the NBCI compound, which presented security concerns. ECF 12-2 at 5; ECF 12-3 at ¶ 6.

Plaintiff filed a Headquarters Appeal on July 29, 2013. ECF 12-2 at 9-10; ECF 12-3 at ¶ 7. The DOC Commissioner responded: "Your appeal has been investigated and is hereby meritorious. The Warden is instructed to adequately accommodate the religious requirements of the Native American Faith Group. No further action will be taken through the ARP process." ECF 12-2 at 13; see also ECF 12-2 at 11-15; ECF 12-3 at ¶ 7.[3] On October 15, 2013, apparently unaware of the Commissioner's findings, Pevia filed a grievance with the Inmate Grievance Office ("IGO"). ECF 12-2 at 14; ECF 12-3 at ¶ 8. The Administrative Law Judge ("ALJ") dismissed the case as "moot" on March 27, 2014, because Pevia's claim had already been found meritorious. But, the ALJ noted that any complaint as to the adequacy of NBCI's response to the Commissioner's decision would be the subject of a new grievance and subject to the exhaustion requirements of the ARP process. ECF 12-2 at 14-15; ECF 12-3 at ¶ 7.

Pevia filed ARP NBCI-4546-13 on December 23, 2013, complaining that the Commissioner's order was not implemented and that he continued to be denied access to Native American services. ECF 12-2 at 22-23. The ARP was dismissed on January 7, 2014, with a finding that options were being reviewed to locate an appropriate location on NBCI grounds to hold the religious services. Pevia was directed to talk to his Housing Unit Manager if he had further questions. Id. Pevia did not appeal the dismissal. Pevia indicates he did not appeal because he attempted, as directed, to resolve the issue with staff who reported to him that they were in the process of establishing the Native American service. ECF 14-1, Memorandum at 4.

Chaplain Lamp contacted the Iron House Council in March 2014, in an effort to establish a connection with the organization to facilitate Native American services at NBCI. ECF 12-2 at 16-19; ECF 12-3 at ¶ 9. On May 27, 2014, members of the Council conducted the first Native American service at NBCI. ECF 12-2 at 19-21; ECF 12-3 at ¶ 10. The services were repeated on June 10 and 24, 2014, and were scheduled to continue regularly, depending upon the availability of the Iron House Council. ECF 12-3 at ¶ 10.

In his response, Pevia indicates that, since the establishment of Native American services at NBCI in May of 2014 to the date of his response, August 6, 2014, he was not permitted to participate in any of the Native American services. ECF 14-1 at 4. He indicates that only inmates housed in the "honor buildings" are permitted to participate in the Native American services. He states that he is housed in Housing Unit 2, where inmates must watch religious services on the television, but Native American services are not part of the services aired weekly. Id. Pevia indicates that in his ARP he requested a television and that the Native American service be placed on the service list to be broadcast. Id .; see also ECF 12-2 at 23. Pevia reiterates his claim that he has been denied the opportunity to practice his religion for over one year and requests injunctive relief, compensatory damages, and punitive damages. ECF 1 at 5.

In further support of his claim, Pevia has provided the Declaration of inmate Kenneth L. Trice. See ECF 14-2. Trice avers that for five years he has endeavored to start a Native American religious service at NBCI, id. at 1, but has encountered one "roadblock after another." Id. at 2. Trice states that he is housed as a general population inmate on Housing Unit 2 and is free to move about the institution, but has never been permitted to attend a Native American service. Moreover, Trice avers that NBCI does not have a Native American religious service.[4] Id.

II. Standard of Review

Defendant's Motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. ECF 12. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). When the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[5]

A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to ...


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