By Sutton Travis 

In a decision that expanded religious liberties for prisoners on the verge of execution, the Supreme Court held in the late evening hours of Feb. 11 that Alabama prisoner Willie Smith could not be executed unless Alabama permitted Smith’s chaplain to accompany him into the execution chamber.[1]

Smith filed a complaint in the Middle District of Alabama on Dec. 14, 2020, alleging that the Alabama Department of Corrections’ policy of restricting all except the prison’s execution team from the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000[2] (“RLUIPA”).[3]  Smith sought an injunction against his execution scheduled for Feb.11, 2021, claiming that the policy violated RLUIPA by excluding his Christian minister from the execution chamber.[4]  Smith’s complaint explained that it was “integral to [his] faith” that his pastor “be physically present with him at the time of his execution.”[5]  The district court denied Smith’s request for an injunction,[6] relying on Alabama’s argument that allowing a chaplain into the execution chamber would undermine security measures.[7]  However, the Eleventh Circuit reversed and granted the injunction,[8] which the Supreme Court declined to vacate in Dunn v. Smith.[9]  

In her concurring opinion that elaborated on the Court’s one-sentence decision to uphold the injunction, Justice Kagan declared that “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death.”[10]  Alleged violations of RLUIPA are analyzed under an “exceptionally demanding” strict scrutiny standard,[11] which mandates that a prison must employ “the least restrictive means of furthering [its] compelling governmental interest.”[12]  Although Kagan acknowledged that Alabama does have a “compelling state interest” in maintaining “prison security,”[13] Alabama’s policy failed to implement the least restrictive means available because “a prison may ensure security without barring all clergy members from the execution chamber.”[14]  Kagan admonished that she could find no example where “the presence of a clergy member . . . disturbed an execution.”[15]  As she recommended, the prison could perform background checks and interview the minister to ensure that the minister is fit to attend the execution.[16] 

Prior Case Law Development on Execution Litigation

Smith is the latest installment in a recent line of cases evaluating prisoners’ religious liberties in the context of executions.  In Dunn v. Ray,[17] the Supreme Court vacated the Eleventh Circuit’s stay of execution for Domineque Ray in an unsigned order on Feb. 7, 2019.[18]  Ray, a practicing Muslim and Alabama prisoner, had petitioned for a stay of execution because the prison refused to allow his imam to enter the execution chamber, even though Christian ministers were permitted in the chamber.[19]  The Court’s unsigned order did not elaborate on its decision to vacate the stay of execution, only citing Gomez v. United States District Court for the Northern District of California[20] for the proposition that a reviewing court can take into account the “last-minute nature of an application to stay execution.”[21]  Kagan vehemently dissented, stating that the Court’s decision was “profoundly wrong.”[22]  According to Kagan, the Court’s decision failed to recognize Ray’s “powerful claim that his religious rights will be violated.”[23]  Kagan further argued that Ray’s request was timely, as he filed his complaint only five days after Alabama denied his request to have his imam accompany him into the execution chamber.[24] 

Another execution-related religious liberty case came just a month later in Murphy v. Collier.[25] The Supreme Court blocked Patrick Murphy’s execution in March 2019 because Texas’s policy did not permit a Buddhist spiritual advisor to accompany Murphy into the execution chamber.[26]  At the time, Texas only allowed Christian or Muslim ministers to enter the execution chamber.[27]  In a brief paragraph, the Supreme Court explained that Murphy’s execution could not proceed until Texas permitted a Buddhist spiritual advisor to “accompany Murphy in the execution chamber.”[28]  Justice Kavanaugh, who concurred in the decision to grant the stay of execution, attempted to distinguish Murphy from the Court’s decision in Ray, emphasizing that Murphy submitted his request for a Buddhist minister an entire month before the date of his scheduled execution.[29]  Despite Kavanaugh’s explanation, the “disparate outcomes” of Ray and Murphy have been characterized as arbitrary.[30]

Five days after the Supreme Court granted the stay of execution in Murphy, Texas revised its policy to bar all religious ministers from the execution chamber.[31]  Although Kavanaugh wrote a concurring opinion in the Murphy case, he also released an additional statement, opining that Texas’s revised policy “solve[d] the equal-treatment constitutional issue” and “likely passe[d] muster under [RLUIPA].”[32]  In essence, Kavanaugh advised death penalty states to remedy religious discrimination concerns by simply barring all religious ministers from the execution chamber.[33]  Relying on Kavanaugh’s statement, Alabama amended its policy in April 2019 and joined Texas in excluding all religious officials from its execution chamber.[34]  

Shortly after Texas’s policy revision, prisoner Ruben Gutierrez challenged the new policy, arguing that it violated his religious liberties under RLUIPA by prohibiting his chaplain from accompanying him in the execution chamber.[35]  However, the Supreme Court did not weigh in on the merits of Gutierrez v. Saenz.[36]  Instead, the Court merely issued a one-paragraph remand, instructing the district court to consider “the merits” of Gutierrez’s claims based on the district court’s earlier findings that allowing a spiritual advisor into the execution chamber would not result in serious security problems.[37]  Thus, Smith was the first case where the Supreme Court’s decision actually indicated that barring religious ministers from the execution chamber could violate RLUIPA.  

Concerns About the Supreme Court’s Surreptitious Shadow Docket

Smith also marks one of the most recent decisions from the Supreme Court’s “shadow docket,” a term used to refer to emergency orders that are granted separately from the Court’s “normal merits docket.”[38]  Shadow docket decisions are viewed with some skepticism because they are decided without oral argument and are typically short, supported by minimal legal reasoning or explanations, and can be unsigned by individual justices.[39]  The shadow docket has recently received national attention because of the Trump administration’s high volume of requests for emergency relief in the form of shadow docket decisions,[40] as well as the heightened divisiveness on display in recent shadow docket rulings.[41]  In fact, these concerns led the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet to hold a hearing Feb. 18 to discuss the shadow docket.[42]  In his testimony before the subcommittee, University of Texas law professor Stephen Vladeck referenced the uncertainty about whether Justice Alito or Justice Gorsuch (or both) joined Kagan’s opinion in Smith to provide the fifth (or sixth) vote to block Smith’s execution.[43]  According to Vladeck, this anonymity in shadow docket decisions can “complicate[] efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”[44]  

In his own testimony, Amir H. Ali, Deputy Director of the Supreme Court and Appellate Program of the MacArthur Justice Center, criticized the “arbitrariness” and “disparate outcomes” of the Supreme Court’s recent shadow docket execution decisions.[45]  In order to combat the trend of unexplained, arbitrary decisions, Ali advised Congress to codify a standard of review for the Supreme Court to implement when reviewing shadow docket cases[46] and to also require the Court to supply reasonings for these decisions.[47] 

The Potential Impact of Smith

Despite the uncertainty surrounding shadow docket decisions, the Supreme Court’s stance in Smith will likely affect several of the other twenty-seven states that continue to recognize the death penalty.[48]  As Kavanaugh noted in his statement following Murphy,[49] Texas has explicitly barred religious ministers from the execution chamber since April 2019.[50]  Additionally, Idaho’s current execution protocol implies that religious ministers may not enter the execution chamber with the prisoner, as “a spiritual advisor of the offender’s choosing” is expected to witness the execution from the “condemned offender’s witness area.”[51] Similarly, North Carolina’s execution protocol also indicates that religious ministers cannot accompany the prisoner into the execution chamber, stating that religious ministers “will be seated in the first row of chairs” during the execution.[52] 

As of Feb. 24, none of these states appear to have publicly acknowledged Smith or addressed how it will impact their current policies.  Nevertheless, policy adjustments will likely be necessary to avoid an onslaught of litigation and, more importantly, to respect prisoners’ religious liberties.  As Ali testified to the House subcommittee, “[w]hen it comes to the death penalty, the importance of getting things right is at its zenith: there is no do-over.”[53]

[1] Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021); see also Amy Howe, Court Won’t Allow Alabama Execution Without a Pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM), (explaining that the Court released its decision “around midnight eastern time”).

[2] 42 U.S.C. § 2000cc­­–1.

[3] Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *1 (M.D. Ala. Feb. 2, 2021), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Smith, 2021 WL 517473, at *1.

[4] Id.

[5] Id. at *6.

[6] Id. at *22.

[7] See id. at *9–10.

[8] Smith, 2021 WL 490283, at *1, aff’d Smith, 2021 WL 517473, at *1.

[9] 2021 WL 517473, at *1.

[10] Id. at *2 (Kagan, J., concurring).

[11] Id. at *1 (quoting Holt v. Hobbs, 574 U.S. 352, 364 (2015)).

[12] 42 U.S.C. § 2000cc–1(a)(2).

[13] Smith, 2021 WL 517473, at *1 (Kagan, J., concurring).

[14] Id.

[15] Id.

[16] Id. at *2.

[17] 139 S. Ct. 661 (2019) (mem.).

[18] Id. at 661.

[19] See id. at 661–62 (Kagan, J., dissenting).

[20] 503 U.S. 653, 654 (1992).

[21] Ray, 139 S. Ct. at 661 (quoting Gomez, 503 U.S. at 654).

[22] Id. at 661 (Kagan, J., dissenting).

[23] Id. at 662.

[24] Id.

[25] 139 S. Ct. 1475 (2019) (mem.).

[26] See id. at 1475.

[27] Id. (Kavanaugh, J., concurring) (“[T]he relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.”).

[28] Id. (majority opinion).  

[29] Id. at 1477 (Kavanaugh, J., supplementary statement).

[30] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4 (2021) (statement of Amir H. Ali, Deputy Director, Supreme Court & Appellate Program of the MacArthur Justice Center) [hereinafter Ali Hearing Statement] (“The disparate outcomes of these cases demonstrate the arbitrariness of present Shadow Docket practice in terms of who dies without this basic dignity.”).

[31] Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., supplementary statement) (“Texas now allows all religious ministers only in the viewing room and not in the execution room.”).

[32] Id.

[33] See Howe, supra note 1 (describing Kavanaugh’s supplementary statement in Murphy as “suggesting” the “solution” of excluding all religious ministers from the execution chamber).

[34] See Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *2 (M.D. Ala. Feb. 2, 2021) (explaining that following “litigation in both Alabama in Texas,” Alabama revised its execution policy in April 2019 to restrict all religious ministers from the execution chamber), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).

[35] See Juan A. Lozano, U.S. Supreme Court Halts Texas Execution Over Clergy Question, AP News (June 16, 2020),

[36] No. 19-8695, 2021 WL 231538, at *1 (U.S. Jan. 25, 2021) (mem.).

[37] Id. at *1.  An earlier grant from the Supreme Court to issue a stay for the execution (while Gutierrez’s petition for certiorari was still pending) had instructed the District Court to evaluate “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”  Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (mem.); see also Smith, 2021 WL 358374, at *3 (noting that the district court in Gutierrez had found that “no serious security problems would result” from the presence of spiritual advisors in the execution chamber (citing Gutierrez v. Saenz, No. 19-cv-185 (S.D. Tex. 2019), Doc. 124, p.2))).

[38] Debra Cassens Weiss, House Panel Considers Reforms to Deal with Supreme Court’s Shadow Docket, ABA J. (Feb. 19, 2021, 9:38 AM),

[39] See id.; see also Hon. Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSblog (Oct. 28, 2020, 9:18 AM),; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM),

[40] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4–5 (2021) (statement of Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law) [hereinafter Vladeck Hearing Statement] (explaining that over four years, the Trump administration filed forty-one applications with the Supreme Court for emergency relief, which was “more than twenty times” the number of applications prior administrations submitted between January 2001 and January 2017).  The Supreme Court granted twenty-four of these applications “in full and four in part.” Id. at 5.

[41] Id. at 5 (“[D]uring the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”).

[42] The Supreme Court’ Shadow Docket, House Comm. on Judiciary, (last visited Feb. 24, 2021).  This link contains a recording of the virtual hearing.

[43] Vladeck Hearing Statement, supra note 40, at 6.  Justices Breyer, Sotomayor, and Barrett joined Justice Kagan’s opinion in Smith, Justice Kavanaugh’s dissent was joined by Chief Justice Roberts, and the opening sentences of the decision note that Justice Thomas would have vacated the injunction.  Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).  The decisions of Justices Gorsuch and Alito remain unknown, leading to speculation about which of the two joined the majority decision.  See, e.g., Jonathan H. Adler, SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote), Reason: Volokh Conspiracy (Feb. 18, 2021, 1:46 PM), (“If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court’s injunction in place.”).

[44] Vladeck Hearing Statement, supra note 40, at 6. 

[45] Ali Hearing Statement, supra note 30, at 4. 

[46] See id. at 5.  In particular, Ali recommended adopting the standard currently used for overturning certain state court decisions concerning prisoners, which requires that the Supreme Court should disturb “a lower court’s request for additional time to consider the lawfulness of an execution” only when “it is apparent to the Supreme Court that the lower court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or rested on ‘an unreasonable determination of the facts in light of the evidence presented.’”  Id. at 6 (quoting 28 U.S.C. § 2254(d)).

[47] See id. at 6.

[48] State by State, Death Penalty Info. Ctr., (last visited Feb. 18, 2021) (listing twenty-eight states that still recognize the death penalty).  However, three of these states (California, Oregon, and Pennsylvania) currently have a governor-imposed moratorium on executions.  Id.  An additional nine death penalty states have not carried out executions in at least ten years.  Executions Overview: States with No Recent Executions, Death Penalty Info. Ctr. (July 14, 2020), Virginia also appears to be on the brink of abolishing its death penalty. See Dean Mirshahi, With Northam’s Signature, Virginia Will Become First Southern State to Abolish the Death Penalty, ABC News (Feb. 23, 2021 12:48 PM), (noting that both the Virginia House and Senate have approved a bill abolishing the death penalty, and Governor Northam “seems poised to sign the legislation”).

[49] See Murphy v. Collier, 139 S. Ct. 1475, 1476 (2019) (Kavanaugh, J., supplementary statement).

[50] See Execution Procedure, Tex. Dep’t Crim. Just. Corr. Insts. Div. 8 (Apr. 2, 2019), (“[Texas Department of Criminal Justice] Chaplains and Ministers/Spiritual Advisors designated by the offender may observe the execution only from the witness room.”).

[51] Execution Procedures, Idaho Dep’t Corr. 16 (Jan. 6, 2012),

[52] Execution Procedure Manual for Single Drug Protocol (Pentobarbital), N.C. Dep’t Pub. Safety 7 (Oct. 24, 2013),  The protocols also provide that the religious minister should remain with the prisoner in the Preparation Room “until orders are given to move the condemned prisoner into the Death Chamber.”  Id. at 16.

[53] Ali Hearing Statement, supra note 30, at 5. 

Post Image by Nathan Dumalo on Unsplash.


By Kelsey Mellan

On March 23, 2017, the Fourth Circuit issued a published opinion in Custis v. Davis, a civil appeal of the district court’s sua sponte dismissal of a federal prisoner’s grievance claim. Plaintiff Ryricka Custis, a federal inmate, filed a complaint through his prison’s administrative grievance process but was subsequently denied relief. He then filed suit in the Eastern District of Virginia. The district court denied his claim sua sponte based on his failure to exhaust administrative remedies. The Fourth Circuit subsequently vacated the district court’s dismissal and remanded for further proceedings.

Facts & Procedural History

Custis, an inmate at Virginia’s Sussex I State Prison (“Prison”), was missing toes on his right foot and thus needed to be assigned to a bottom bunk in a bottom-tier cell. He originally received the necessary bunk assignment, but on August 18, 2014, he was temporarily moved to an upper-tier cell. On September 2, 2014, he fell while climbing the stairs to his cell, injuring his neck and back. He filed an Internal Complaint on September 11, 2014. Approximately one week later, on September 17, his complaint was denied because his assignment was made “based on open compatible available beds with a bottom bunk.”

Custis filed his Regular Grievance the next day, and the Prison received it on September 25. The Prison rejected the grievance on the same day, citing insufficient information, and ordered Custis to file an amended Regular Grievance with the requisite information. Custis filed this document on October 1, 2014. This Grievance was subsequently denied because it was not filed within 3o days of the alleged incident in conformity with the Virginia Department of Corrections Grievance Procedure (“VDOC GP”). The filing date was set for September 17, 2014. After a series of filings and appeals, Custis’s appeal of this rejection to the VDOC was denied.

Custis filed this law suit in the Eastern District of Virginia. The district court sua sponte ordered Custis to submit evidence that he completely exhausted his administrative remedies through the VDOC. Custis complied by submitting his prior grievances and appeals. The district court then dismissed his claim for failure to exhaust administrative remedies because he failed to follow the prison’s grievance procedure timeline. This timely appealed followed.

 Failure to Exhaust Administrative Remedies

The Fourth Circuit reviewed the district court’s dismissal for failure to exhaust available administrative remedies pursuant to precedent set in Talbot v. Lucy Corr Nursing Home. Custis raised two issues on appeal: (1) did the district court errr when it sua sponte examined whether Custis exhausted his administrative remedies, and if it did not err, (2) did the district court err when it found that Custis failed to exhaust his available administrative remedies.

In Jones v. Bock, the Supreme Court determined that an inmate does not need to demonstrate exhaustion of administrative remedies in his or her complaint. Rather, “failure to exhaust” is an affirmative defense that the defendant must raise. There are two rare exceptions to this rule that would allow the court to sua sponte dismiss a claim for failure to exhaust administrative remedies.

The first exception to the Jones rule is that a court may sua sponte dismiss a complaint when the alleged facts in the complaint, taken as true, prove that the inmate failed to exhaust all administrative remedies. Here, it is not clear from the face of Custis’s complaint that he had failed to exhaust all remedies. Even the district court did not conclude that he failed to exhaust said remedies – instead, the court ordered him to provide further documentation for its independent inquiry in the exhaustion of these remedies. Additionally, it is not clear that Custis’s assertion that he “attempted” to exhaust his administrative remedies meant that he tried and failed to exhaust them or that he was completely unable to exhaust said remedies. Thus, Custis’s complaint did not satisfy the first exception to the Jones administrative exhaustion exception.

The second exception to the Jones rule allows a court to sua sponte dismiss an inmate’s complaint for failure to exhaust administrative remedies when the court has given the inmate an opportunity to address or respond to the alleged failure to exhaust. However, this exception was created before Jones and does not survive post-Jones. Here, while the district court allowed Custis to amend his Grievance to include additional requisite information, it did not give him a chance to respond to its dismissal for failure to exhaust.


Thus, the Fourth Circuit determined the district court erred when it sua sponte examined Custis’s exhaustion of available administrative remedies. Additionally, the Fourth Circuit decided the record in this case was incomplete and the inquiry was premature. Therefore, the Fourth Circuit did not specifically decide whether Custis actually exhausted all remedies. Instead, it remanded this case to the district court for further fact finding.



By Kelsey Mellan

On November 4, 2016, the Fourth Circuit issued a published opinion in Scinto v. Stansberry, a civil case involving a prisoner who was allegedly denied medical attention while in a North Carolina prison (“Prison”). Plaintiff Paul Scinto, Sr. suffers from diabetes and claims that while he was incarcerated, he was denied medical care that resulted in permanent injury. Plaintiff alleged this denial of medical care violated his Eighth Amendment right, which prohibits the infliction of “cruel and unusual punishment.” The current issue before the Fourth Circuit is whether the district court erred in dismissing Plaintiff’s constitutional claims against Dr. Derick Phillip, Administrator Susan McClintock, and Warden Patricia Stansberry for denying him medical care while under their supervision at the Prison. In response, Dr. Phillip and Administrator McClintock claimed that because of qualified immunity, they were shielded from civil liability. The Fourth Circuit affirmed the district court’s decision regarding Warden Stansberry and vacated its decision in terms of Dr. Phillip and Administrator McClintock as the court determined their actions violated Plaintiff’s Eighth Amendment rights. Furthermore, the Fourth Circuit rejected the Defendants’ invocations of qualified immunity.

Facts & Procedural History

Plaintiff entered custody at the Prison in June 2005 after serving multiple years at different federal prisons. While incarcerated, Plaintiff suffered from numerous medical conditions, including high blood pressure, hepatitis C, and insulin-dependent diabetes. There were multiple incidents that occurred at the Prison giving rise to these claims. When Plaintiff first arrived at the Prison in June 2005, Dr. Phillip, his primary prison doctor, prescribed him daily insulin injections to control his diabetes. On June 14, 2005, Plaintiff alleged that he requested an insulin injection from Dr. Phillip because his blood sugar was abnormally high. Plaintiff then claimed Dr. Phillip denied him an insulin injection, opting to create a diet plan for Plaintiff instead. According to evidence presented by Plaintiff, Dr. Phillip never followed through on this meal plan Dr. Phillip claimed the only reason he did not give insulin to Plaintiff on June 14 was because of his “angry” attitude and threatening behavior. Dr. Phillip routinely failed to provide insulin to Plaintiff. Plaintiff alleged that inadequate treatment of his diabetes resulted in damage to his nervous system, kidneys, and eyesight.

An additional incident took place on August 24, 2005 when Plaintiff suffered from a medical emergency causing him to experience extreme stomach pain, vomit blood, and become incontinent. Plaintiff claims that despite his multiple attempts to render assistance from Dr. Phillip and Administrator McClintock, he was not provided proper medical attention until two days later, at which time he was diagnosed with gallstones. Both Dr. Phillip and Administrator McClintock interacted with Plaintiff during this medical emergency and took no action to provide medical care for him.

Finally, Plaintiff alleged he was denied a proper diabetic diet during his stay at the Prison. He claimed that every meal served at the Prison was high in sugar and was accompanied by a sugary drink. When he expressed these concerns to both Warden Stansberry and his congressman who forward the concerns to the Warden, Plaintiff stated he was told that inmates were educated about how to select foods appropriate for their medical conditions. Because of the lack of diabetes-friendly food, Plaintiff claimed he suffered from high blood sugar levels, the treatment of which caused him to experience loss of diabetic control and severe destructive episodes of diabetic hypoglycemia and hyperglycemia.

Plaintiff originally brought multiple constitutional claims against numerous Prison officials in the District Court for the District of Columbia. The D.C. District Court dismissed most of these claims against officials and transferred the remaining claims to the District Court for the Eastern District of North Carolina. Cross-motions for summary judgment followed and the district court denied Plaintiff’s motion for summary judgment and granted summary judgment to the defendants on each of Plaintiff’s claims. This appeal only concerns three claims dismissed on summary judgment, each arising under the Eighth Amendment against Dr. Phillip, Administrator McClintock, and Warden Stansberry. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate, “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Eighth Amendment and Denial of Medical Care

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” In Helling v. McKinney, the Supreme Court determined that this amendment pertains to not only physically cruel punishment, but that it also includes “the treatment a prisoner receives in prison and the conditions under which he is confined.” The Supreme Court further defined this right in Farmer v. Brennan, in which the court established that prison officials are required to provide humane conditions of confinement and that inmates receive adequate food, clothing, shelter, and medical care.

To succeed on this constitutional claim pertaining to denial of medical treatment, a plaintiff must demonstrate a prison official’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” In Farmer, the Supreme Court crafted a 2-pronged test that plaintiffs must fulfill to prove an Eighth Amendment violation. First, plaintiffs must demonstrate that the alleged deprivation was, objectively, “sufficiently serious.” In order to be considered sufficiently serious, the medical need being deprived should be either diagnosed by a physician or so obvious that even a layperson would realize medical attention is necessary. Second, plaintiffs must show that, subjectively, prison officials acted with a “sufficiently culpable state of mind,” in that the official knew of and disregarded an excessive risk to the inmate’s health. This prong requires proof of the official’s actual knowledge of both the inmate’s serious medical condition and excessive risk posed by the official’s action or inaction.

Plaintiff’s Eighth Amendment Claims against Defendants

Plaintiff claims that Dr. Phillip violated his Eighth Amendment right when he refused to give Plaintiff insulin to combat his high blood sugar. The Fourth Circuit determined that Plaintiff demonstrated a genuine dispute of material fact as to both Farmer’s objective and subjective prongs. First, Plaintiff sufficiently proved he suffered from a serious medical condition, insulin-dependent diabetes. The issue of fact concerns whether the serious medical condition of diabetes actually led to the more serious kidney and eyesight problems. Moreover, Dr. Phillip actually treated Plaintiff for his diabetes and it is obvious to even a layperson that insulin-dependent diabetics require insulin injections. In terms of the second subjective prong, Plaintiff adequately demonstrated that not only did Dr. Phillip know about his medical condition, but that the doctor was fully aware of the potential ramifications of mistreatment of the disease. The Fourth Circuit decided that the combination of these facts was enough for Plaintiff’s claim against Dr. Phillip to survive summary judgment.

In terms of Plaintiff’s August 24 medical emergency, he again established genuine issues of material fact as to both Farmer prongs. In terms of the objective prong, Plaintiff’s evidence establishes that there is genuine dispute as to whether as to whether the denial of medical attention during this emergency resulted in serious injury or a substantial risk of serious injury. Subjectively, Plaintiff proved that it was likely both Dr. Phillip and Administrator McClintock were aware of his need for medical assistance. Their failure to take action could give rise to an inference of deliberate indifference, and therefore should survive summary judgment and be presented to a jury.

Despite the aforementioned actions by prison officials, the Fourth Circuit decided the district court correctly determined that Warden Stansberry did not violate Plaintiff’s Eighth Amendment rights. Objectively, Plaintiff failed to raise a genuine dispute of material fact regarding whether, in this case, the lack of a diabetic diet was a sufficiently serious deprivation to be actionable under the Eighth Amendment. Subjectively, the Warden provided adequate evidence to prove that on at least two occasions, inmates were educated on how to choose foods appropriate for their medical conditions. Moreover, several sister circuits have decided that as long as a prison provides some foods that are appropriate for different medical conditions, they have fulfilled their constitutional duties under the Eighth Amendment. Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. Therefore, the district court was correct in awarding Warden Stansberry summary judgment.

Also, the Fourth Circuit determined that Defendants in this case were not protected by qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This is because there is sufficient evidence that Plaintiff’s Eighth Amendment right to adequate medical care and freedom from officials’ deliberate indifference to his medical needs was violated. This right was clearly established, so Dr. Phillip and Administrator McClintock are not entitled to qualified immunity.


Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Warden Stansberry and reversed the grant of summary judgment to both Dr. Phillip and Administrator McClintock.

By Blake Stafford

On March 17, 2016, the Fourth Circuit issued its published opinion in Raynor v. Pugh, a civil case regarding prisoner civil rights.  James Herman Raynor, an inmate at a Virginia correctional facility, brought an action under 42 U.S.C. § 1983 alleging that G. Pugh, the Prison Housing Manager at the facility, violated the Eighth Amendment by failing to protect Raynor from an attack by another inmate.  The district court granted summary judgment in favor of Pugh after denying Raynor’s requests for discovery and subsequently finding no “genuine” disputes of material fact.  The Fourth Circuit vacated and remanded, finding (1) that genuine disputes of material facts permeated Raynor’s claim, precluding summary judgment; and (2) that it was error for the district court to deny Raynor the opportunity to conduct discovery.

Facts & Procedural History

Raynor is an inmate at Sussex II State Prison who suffers from various medical ailments, including seizures, blackouts, blood issues, heart issues, and breathing issues.  Raynor, who was then-cellmates with inmate K. Mullins, requested that Pugh move him to a different cell so he could be housed with a “caretaker” inmate who had volunteered to assist him with his health conditions.  However, Pugh determined that Mullins, rather than Raynor, would have to relocate. After Pugh delivered this news to both Mullins and Raynor, Mullins allegedly threatened to assault Raynor.  Pugh was allegedly still present when Mullins made this threat and responded that he did not care what Mullins did.  Soon thereafter, Mullins did physically assault Raynor, and Pugh allegedly watched the entire assault while failing to take any action until after the assault had ended.  Because of the attack, Raynor allegedly suffered significant spinal damage that caused constant and severe pain as well as a complete loss of leg control, forcing Raynor to be confined to a wheelchair for the rest of his life.

After exhausting administrative remedies, Raynor filed this § 1983 action, alleging that Pugh’s deliberate indifference to Raynor’s safety, and the resulting injuries, constituted cruel and unusual punishment in violation of the Eighth Amendment.  Raynor submitted the following evidence to support the alleged facts: a verified complaint describing the incident; a corroborating affidavit from another inmate who had witnessed the assault; copies of several request for medical attention for severe spinal pain; and six doctor’s reports describing spinal x-rays taken before and after the assault.  Raynor also moved for discovery of the security video of the incident, any related prison policies or procedures, and all prison reports and documents related to the investigation of the assault.  Pugh disputed essentially every fact alleged by Raynor, contending that no threatening comments were made in Pugh’s presence before the assault; that he was in a different part of the prison during the assault; that prison policy would have prevented him from intervening even if he had been present; and that Raynor’s injuries were minor—any spinal problems were attributable to a prior accident.  Pugh moved for summary judgment and for a protective order to stay discovery based on a qualified immunity defense.

The district court denied Raynor’s discovery requests, granted Pugh’s discovery protective order (without reaching the merits of the qualified immunity defense), and granted summary judgment in favor of Pugh.  The district court found that the disputes of fact were not “genuine” due to a lack of evidentiary support for Raynor’s claims.

Prison Official Liability for Eighth Amendment Violations

The Eighth Amendment, which prohibits “cruel and unusual punishment,” imposes a duty on corrections officers to protect prisoners from violence at the hands of other prisoners.  To translate this duty into constitutional liability for prison officials under 42 U.S.C. § 1983, a plaintiff must establish that the incident satisfies a two-part test that consists of both an objective and a subjective inquiry.  First, the inmate must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury.  Second, an inmate must show that the prison official had a sufficiently culpable state of mind, which, in this context, consists of deliberate indifference to inmate health or safety.  This second prong requires the prison official to have actual knowledge of the excessive risk of danger, which can be proven through both direct and circumstantial evidence.  Additionally, a prison guard who does not intervene in the assault can avoid liability if such intervention would have placed the guard in danger of physical harm.  This does not, however, shield a prison guard from liability for completely failing to take any action to stop an ongoing assault.


The Fourth Circuit found that genuine disputes of material fact were present for both the objective-injury prong as well as the subjective-knowledge prong, precluding summary judgment.

(1) Objective-Injury.  Raynor alleged specific facts describing facial trauma and spinal injury caused by the attack.  These facts were supported by his verified complaint, several written requests for medical attention, and six medical reports interpreting x-rays of his spine before and after the incident.  Additionally, he offered a witnessing inmate’s affidavit, which describes Mullins’ final blow that allegedly caused the spinal injury.  Pugh disputed the truth of all of the facts alleged by Raynor; however, because Raynor offered evidence as to material facts concerning the seriousness of the injury, the Fourth Circuit found that summary judgment was precluded.

(2) Subjective-Knowledge.  Raynor alleged specific facts in his verified complaint (which are corroborated by the witnessing inmate’s affidavit) to support his allegation that—in two independent ways—Pugh acted with deliberate indifference.  First, Raynor alleged that Mullins told Pugh that he was going to attack Raynor and that Pugh responded that he did not care what Mullins did.  Second, he alleged that Pugh had knowledge of the attack as it was happening because Pugh watched the entire incident.  By failing to radio for help, Pugh’s response was allegedly not reasonable to shield him from liability for failing to protect Raynor from the attack and resulting injuries.  The Fourth Circuit found that each of these independent grounds supported Raynor’s contention that Pugh had actual knowledge of an excessive risk to Raynor’s safety.  Thus, summary judgment was precluded on this prong as well.


In sum, the Fourth Circuit found that genuine disputes of material fact permeated both prongs of Raynor’s § 1983 claim; thus, the district court erred in granting summary judgment.  The Court vacated the district court’s judgment and remanded the case.  Additionally, the Court found that, by failing to rule on the qualified immunity defense asserted by Pugh, the district court erred in granting Pugh’s protective order against discovery.  Thus, the Fourth Circuit instructed the district court to allow appropriate discovery on remand.


The concurring opinion agreed with the majority’s conclusions regarding discovery and the subjective-knowledge prong.  However, the concurrence found that, given Raynor’s complex medical history, the evidence Raynor proffered for the objective-injury prong was insufficient to allow a lay juror to determine whether Raynor’s spinal injuries were attributable to Mullins’ attack.


By Daniel Stratton

On December 29, 2015, the Fourth Circuit affirmed in part, and reversed in part, a district court’s dismissal of an inmate’s Federal Tort Claims Act (“FCTA”) claim, after he was stabbed and severely beaten by fellow inmates  in the published civil case Rich v. United States. The appellant, Joshua Rich, argued on appeal that the district court incorrectly dismissed his claim after determining that the FCTA’s discretionary function exception applied to the prison officials’ conduct. The Fourth Circuit, after reviewing Rich’s appeal, affirmed the district court’s determination that the prison officials’ decisions on prisoner placement were shielded by the discretionary function exception, but reversed the lower court’s decision regarding Rich’s opportunity to engage in discovery about the prison officials’ claims that they properly searched Rich’s attackers before placing them in proximity to Rich.

Rich is Sentenced to Fifty-Seven Years, Claims He was Targeted by Aryan Brotherhood While Incarcerated

In 2008, Rich was sentenced by the U.S. District Court for the District of Utah to fifty-seven years’ imprisonment, following his conviction for armed bank robbery, and for carrying a firearm in relation to the crime. He entered the U.S. Bureau of Prison (“BOP”)’s custody in September 2008.

Rich alleges that he was targeted by the white supremacist group, the Aryan Brotherhood, almost immediately after entering the BOP’s prison system for refusing to participate in the group’s criminal activities. Rich was transferred to several prisons over the course of 2008 to 2011 and required separation from the Aryan Brotherhood. In February 2011, Rich was moved to a U.S. penitentiary in West Virginia, USP Hazelton. While at USP Hazelton, Rich was attacked by five inmates on August 5, 2011, after they were put into the same recreation area, or “cage.”

Rich was severely beaten and stabbed multiple times. His injuries included laceration to his liver, among others, and he underwent several invasive surgeries as a result. A nine-inch homemade knife was recovered in the cage where the attack occurred.

Rich sued the federal government under the FCTA, claiming negligence on the part of the prison officials when they failed to protect him from harm. He argued that the prison’s correctional officers should have kept him separated from his attackers, and that those officers had failed to properly screen or search the other inmates before placing them in the same cage as Rich. The government moved to dismiss Rich’s claim, asserting that the discretionary function exception applied to both the prison officials’ decisions about separating Rich and his attackers and to the way in which the officers searched the attackers. The district court agreed with the government, and additionally found that Rich was not entitled to any discovery about whether the prison had any directives mandating a particular approach to performing pat downs and searches. As a result, the district court granted the government’s motion to dismiss for lack of subject matter jurisdiction.

The FCTA, the Discretionary Function Exception, and Their Application to Federal Prisons

The United States is generally immune from suit under the legal doctrine of sovereign immunity, however the FCTA provides an exception. Under the FCTA, sovereign immunity is waived when the federal government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred” for torts like negligence when they are committed by federal employees acting within the scope of their employment.  The FCTA’s discretionary function exception limits this waiver, however, in situations where an employee must perform a discretionary function or duty.

To determine whether conduct fits within this exception, courts generally apply a two-pronged test. First, the court determines if the challenged conduct involves an element of judgment or choice. If a statute, regulation, or policy sets out a specific course of action to the degree that there is no exercise of discretion, then the exception does not apply. If the action does involve an element of judgment, the court must then tackle the second prong, which is to determine whether the judgment was based on considerations of public policy. If it was, then a government employee defendant can assert that the court lacks subject matter jurisdiction under the exception.

If a defendant disputes the allegations in a complaint that could establish subject matter jurisdiction, a court may engage in an evidentiary hearing to determine if there are facts that support the jurisdictional allegations. Generally, under these circumstances, a plaintiff’s allegations in his complaint are not afforded a presumption of truthfulness. However, if the jurisdictional facts are intertwined with merit facts central to the complaint, a presumption of truthfulness will attach to the plaintiff’s claims. While the application of the discretionary function exception to decisions about the separation of prisoners is an issue of first impression for the Fourth Circuit, other circuits have weighed in on this issue previously.

The Fourth Circuit Decides that the Discretionary Function Exception Applies to Decisions about Separating Prisoners

The Fourth Circuit began its analysis by determining if the discretionary function exception applied to the prison officers’ decision to place Rich and his attackers in the same cage. The first step in this analysis was to apply prong one of the two-pronged test. Noting that the BOP is tasked with protecting and caring for all persons in its custody, the Fourth Circuit explained that the BOP retained discretion in implementing those tasks. Prison officials must consider and balance several factors when determining if an individual inmate may require separation. This, the Court concluded, satisfied the first prong of the test.

The Court, noting the issue of first impression, drew on other circuits’ experiences in determining whether the second prong was met. Other circuits, including the Seventh, Ninth, Eleventh have previously held that prisoner placement and potential threats to prisoners against one another was a standard part of the public policy considerations of maintaining order and security in federal prisons. Those circuits viewed factors such as available resources, proper classification of inmates, and appropriate security levels as inherent in various policy questions. Following in the other circuits’ footsteps, the Fourth Circuit agreed that prison officials should be afforded discretion in determining prisoner placement and separation. This, the Court held, meant that the discretionary function exception shielded prison officials from liability regarding whether they should have kept Rich separated from his attackers.  The Fourth Circuit, in turn, affirmed the lower court’s refusal to grant discovery on this issue.

Turning to the question of whether Rich should be granted discovery as to his allegations that the prison did not properly search the attackers before putting them in his recreation cage, the Fourth Circuit diverged from the district court. On this claim, the Fourth Circuit found that the disputed jurisdictional facts were intertwined with the merits of Rich’s claim that the prison had not properly executed pat downs of the attackers. Citing the fact that the prison officials’ signed declarations that they had performed pat downs of the attackers stood in contrast to Rich’s allegations, the Fourth Circuit explained that the allegations applied to both the merits of Rich’s claim as well as the jurisdictional questions over his claim.

The Court argued that a period of discovery would give Rich the opportunity to challenge the prison officials’ declarations that they carried out the searches. The Court also explained that even if they accepted the declarations as fact, those did not resolve the question about whether the pat down searches were carried out correctly. The Fourth Circuit reasoned that because the pat downs were to be conducted as outlined in the Correctional Services Manual, this suggested the existence of specific directives which Rich should be permitted to find in discovery.

Because inmates who have a history of weapons possession are required to undergo visual searches, including a body cavity search, prior to entering a recreation area, discovery could reveal whether any of the attackers had such a history and if such a search was undertaken.

The Court finally noted that Rich could potentially establish jurisdiction under this claim if he could show that the discretionary conduct engaged in by the prison officers was marked by carelessness or laziness, because such conduct cannot be grounded in policy decisions.

The Fourth Circuit Vacates and Remands to Allow Discovery on the Prison Officials’ Pat downs

While the Fourth Circuit affirmed that the discretionary function exception shielded the decision to place Rich and his attackers in the same recreation cage, the Court vacated and remanded to allow Rich to engage in discovery on the issue of whether and how prison officials performed pat downs and searches.

Prison outside

By Taylor Anderson

On July 1, 2015, the Fourth Circuit issued its published opinion regarding the civil case Incumaa v. Stirling. The appellant, prisoner Lumumba Kenyatta Incumaa (“Incumaa”), appealed the district court’s decision granting appellee South Carolina Department of Corrections’ (the “Department”) motion for summary judgment on the ground that the Department’s policy did not violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and that the Department did not violate Incumaa’s right to procedural due process. The Fourth Circuit affirmed the district court’s decision as to the RLUIPA claim holding that the claim was not sufficient to go before a jury. Additionally, the Fourth Circuit reversed the grant of summary judgment as it related to the procedural due process claim, holding that there is a triable dispute as to whether the Department’s process for determining which inmates are fit for release from security detention meets the minimum requirements of procedural due process.

Incumaa Alleges RLUIPA and Due Process Violation

In 1988, Incumaa began serving a life sentence without the possibility of parole in a prison operated by the Department. Incumaa is a member of the Nation of Gods and Earths (“NOGE”), a group whose adherents are also known as “Fiver Percenters.” Some Five Percenters have referred to the NOGE as a religion while others have denied it being a religion.

In April 1995, a group of Five Percenters—including Incumaa—organized a prison riot. During the riot, the assailants took three Department employees hostage and held them for 11 hours during a standoff with police. Four law enforcement officers were hospitalized. On June 16, 1995, the Department designated the Fiver Percenters as a Security Threat Group (“STG”).

Due to his role in the 1995 riot, Incumaa was validated as a Five Percenter, taken out of the general population, and placed in the Maximum Security Unit. Incumaa was transferred to the Special Management Unit (“SMU”) in 2005, and he remained in SMU up until this trial. Both the Maximum Security Unit and the SMU are considered security detention and both house inmates who have engaged in violent behavior. At the time of trial, Incumaa was one of only two Five Percenters housed in the SMU. Other validated Five Percenters were permitted to reside in the general population and openly maintained their affiliation with the group. During the decades Incumaa spent in security detention, he did not commit a single disciplinary infraction.

Incumaa claimed that the SMU is substantially more restrictive than the general population. For example, in SMU, Incumaa is (1) confined to his cell 24 hours a day on non-recreation and non-shower days; (2) permitted to leave his cell for recreation only one hour approximately ten times per month; (3) allowed only a ten-minute shower three times per week; and (4) strip searched, made to lift and shake his genitalia, made to bend over, spread his buttocks in the direction of the officer, then made to squat and cough, and afterwards hand cuffed behind his back every time he leaves his cell.

Department regulations required a review of each SMU inmate’s candidacy for release every 30 days. There are three bases on which the Department may recommend reclassification and/or release from the SMU: (1) the inmate renounces affiliation with the STG; (2) improvement in behavioral level; or (3) the Department Director removes the inmate’s group from the STG list. In this case, renunciation of affiliation with the STG would entail Incumaa renouncing his affiliation with the NOGE, since the NOGE was labeled as a STG. The regulations require that the inmate receive a notice of the classification decision after each 30-day review period. The regulations do not require that any factual basis be provided for its decision to recommend against release from the SMU. The record contained copies of Incumaa’s classification notices spanning over several years.

On December 12, 2012, Incumaa filed a pro se complaint against the Department pursuant to 42 U.S.C. § 1983. Incumaa claimed that the Department’s renunciation policy violated his rights under RLUIPA. Incumaa also claimed that, throughout his detention in SMU, the Department violated his procedural due process rights by failing to conduct meaningful review of whether he was fit for release to the general population. The district court granted the Department’s motion for summary judgment as to both claims. Incumaa filed a timely appeal.

The RLUIPA Claim is Without Merit

In relevant part, RLUIPA states: “No government shall impose a substantial burden on the religious exercise of a person resided in or confined to an institution . . . .” Incumaa argued that the Department policy similarly imposed a substantial burden on his religious exercise because it forced him to choose between continued adherence to his religion—the NOGE—in solitary confinement on one hand, and the far more favorable living conditions of the general population on the other.

The Fourth Circuit, for the purposes of this case, assumed that the NOGE was a religious group entitled to protections. However, the Fourth Circuit said that Incumaa’s RLUIPA claim failed because the Department’s policy did not force him to renounce his religion under the NOGE. The Fourth Circuit looked to the Department’s three avenues for securing release from the SMU, and noted that renunciation was only one of three avenues, therefore Incumaa was not forced to renounce his religion under the NOGE in order to be released from SMU.

Moreover, the Court recognized that other Five Percenters reside in the general population and maintain their affiliation, demonstrating that the Department is not forcing a renunciation of religion. The Fourth Circuit held that no reasonable factfinder could conclude that Incumaa’s renunciation of his faith is a prerequisite to returning to the general population. Incumaa failed to demonstrate that the Department’s policy imposes a substantial burden on his religion, therefore, the Department prevailed on the RLUIPA claim as a matter of law.

Incumaa’s Due Process Claim Stands

The Fourth Circuit examined Incumaa’s procedural due process claim under a two-step analysis.

First, the Fourth Circuit determined whether Incumaa had a protectable liberty interest in avoiding security detention. The Court used Sandin v. Conner in which the Supreme Court declared that prisoners have a liberty interest in avoiding confinement conditions that impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. The Fourth Circuit first noted that this part of the analysis is a “fact specific” inquiry and stated that in this case, Incumaa needed to demonstrate that his solitary confinement in security detention constitutes atypical and significant hardship in relation to the general population.

In Wilkinson v. Austin, the Supreme Court emphasized three factors for determining whether an inmate’s confinement constitutes atypical and significant hardship. These three factors are (1) the magnitude of confinement restrictions; (2) whether the administrative segregation is for an indefinite period; and (3) whether assignment to administrative segregation had any collateral consequences on the inmate’s sentence.

The Fourth Circuit looked to the Wilkinson factors, and pointed out that Incumaa demonstrated that his confinement conditions were severe. In particular, the Court looked to Incumaa’s limited activities outside of his cell, the near daily strip searches, and the confinement to a small cell in making its severity determination. Additionally, the Court held that Incumaa’s confinement to the SMU was extraordinary in its duration and indefiniteness. For these reasons, the Fourth Circuit found that Incumaa had a protectable liberty interest and the first part of this analysis was satisfied.

In the second part of the Fourth Circuit’s analysis, the Court evaluated whether the Department failed to afford Incumaa minimally adequate process to protect that liberty interest. The Court used a three-factor test recited in Mathews v. Eldridge in order to determine whether the Department’s procedural protections are sufficient to protect an inmate’s liberty interest. The three factors enunciated in Mathews are (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the Government’s interest.

Applying the Mathews three-factor test, the Fourth Circuit stated that the Department’s review process is inadequate and fails to honor the basic values of procedural due process. In particular, the Court stated that Incumaa has a significant private interest in leaving the restrictive conditions of the SMU, the risk of erroneous deprivation is high in this case because the Department’s review process is only single-layered and does not require a factual basis for its decisions, and the prison’s interests in the case do not outweigh Incumaa’s well-established right to receive notice of the grounds for his ongoing confinement.

Judgment Affirmed in Part, Reversed in Part and Remanded for Further Proceedings

Because Incumaa’s failed to establish a basis for his RLUIPA complaint, the Fourth Circuit affirmed the decision of the district court granting the Department’s motion for summary judgment as to that claim. Additionally, the Fourth Circuit reversed the district court’s order on Incumaa’s procedural due process claim because Incumaa has demonstrated a liberty interest in avoiding solitary confinement and the Department has not proven as a matter of law that it provided Incumaa meaningful review.


By Taylor Anderson

On May 21, 2015, the Fourth Circuit issued its published opinion regarding the civil case Blake v. Ross. The appellant, inmate Shaidon Blake (“Blake”), appealed the district court’s summary dismissal of his 42 U.S.C. § 1983 excessive force claim against Appellee Lieutenant Michael Ross (“Ross”) on the ground that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The Fourth Circuit reversed the judgment of the district court and remanded the case for further proceedings, holding that because Blake reasonably believed that he had sufficiently exhausted his remedies by complying with an internal investigation, Blake exhausted his administrative remedies as required by the PLRA.

Blake Alleged Use of Excessive Force

On June 21, 2007, Ross and Lieutenant James Madigan (“Madigan”) approached Blake’s cell at the Maryland Reception Diagnostic and Classification Center in order to move Blake to another cell block. Ross handcuffed Blake, and escorted him out of the cell towards his new cell downstairs. While Ross escorted Blake, Madigan physically contacted Blake multiple times. Madigan reached out and grabbed Blake’s arm, shoved Blake while he was walking down the stairs, and shoved Blake at the bottom of the stairs.

When they reached the new cell, Madigan ordered Blake to stand against the wall of the corridor. Madigan began yelling, screaming, and pointing in Blake’s face. While Ross held Blake against the wall, Madigan wrapped a key ring around his fingers and then punched Blake at least four times in the face in quick succession. Ross and Madigan then took Blake to the ground by lifting him up and dropping him. Ross dropped his knee onto Blake’s chest, and he and Madigan restrained Blake until other officers arrived. The responding officers took Blake to the medical unit.

That same day, Blake reported the incident to senior corrections officers. The Internal Investigative Unit (“IIU”) of the Maryland Department of Public Safety and Corrections Services (“Department”) undertook a year-long investigation, eventually confirming that Madigan had used excessive force against Blake.

On September 8, 2009, Blake filed a pro se § 1983 complaint against Ross, Madigan, two supervisors, and three government entities. The district court later dismissed the claims against the government entities, and granted the two supervisors’ motion for summary judgment. After Ross filed an answer to the complaint, Ross motioned for summary judgment and the motion was denied.

On August 2, 2011, nearly two years after filing his answer to Blake’s complaint, Ross filed a motion to amend his answer. This motion was granted. Ross’s amended answer included a new affirmative defense alleging that Blake had failed to exhaust his administrative remedies as required by the PLRA, 42 U.S.C. § 1997e(a).

On January 9, 2012, Ross moved for summary judgment on the ground that Blake had failed to exhaust his administrative remedies. On May 10, 2012, the district court granted summary judgment to Ross. Blake timely appealed the dismissal of his claim against Ross.

What the PLRA Required Blake to Do

The PLRA requires an inmate to exhaust available administrative remedies before filing an action. The Department provides inmates with a number of administrative avenues for addressing complaints and problems. At issue here is the interaction between two of them: the Administrative Remedy Procedure (“ARP”) and the IIU.

The ARP is available for “all types of complaints” except “case management recommendations and decisions,” “Maryland Parole Commission procedures and decisions,” “disciplinary hearing procedures and decisions,” and “appeals of decisions to withhold mail.”

The IIU is responsible for investigating, among other things, allegations of excessive force by an employee or nonagency employee.

The IIU investigated Blake’s encounter with Ross and Madigan; however, Blake never filed an administrative grievance through the ARP. Ross contended that the ARP was available to Blake, thus Blake failed to exhaust all administrative remedies. Blake argued that the investigation removed his grievance from the ARP process. The Fourth Circuit sought to resolve this issue and examined the exhaustion defense in greater detail.

Ross’s Exhaustion Defense Was Without Merit

The Fourth Circuit noted that the PLRA’s exhaustion requirements are not absolute, pointing to Justice Breyer’s comment that there are “special circumstances” in which a prisoner’s failure to comply with administrative procedural requirements may have been justified. If the inmate’s failure to exhaust available remedies “was justified by his reasonable belief” that no further remedies were available, then the inmate’s failure may qualify as an exception to the PLRA requirements.

The Fourth Circuit went on to adopt the Second Circuit’s two prong test for determining whether a situation qualifies as an exception to the PLRA (formulated in Macias v. Zenk). If the situation satisfies both prongs, it qualifies as an exception to the PLRA’s complete exhaustion requirement.

The first prong is whether “the prisoner was justified in believing that his complaints in the disciplinary appeal procedurally exhausted his administrative remedies because the prison’s remedial system was confusing.” The Fourth Circuit determined that Blake reasonably interpreted Maryland’s murky and complex inmate grievance procedures by using three resources available: the Inmate Handbook, the Maryland Code of Regulations, and the Maryland Department of Correction Directives. Thus, Blake was justified in believing that his complaints to the IIU procedurally exhausted his administrative remedies. The Fourth Circuit found that the first prong was satisfied.

The second prong is whether “the prisoner’s submissions in the disciplinary appeals process exhausted his remedies in a substantive sense by affording corrections officials time and opportunity to address complaints internally.” The Fourth Circuit found that Blake’s IIU investigation satisfied this component of the exception because the Department conducted a one-year investigation into Blake’s violent encounter, giving officers ample notice and opportunity to internally address the issues raised.

Judgment Reversed and Remanded

Because Blake’s complaint to the IIU satisfied both prongs of the PLRA exception test, the Fourth Circuit held that Ross’s exhaustive defense was without merit, reversed the judgment of the district court, and remanded the case for further proceedings.

One Judge dissented. The dissenting Judge believed the Fourth Circuit should have affirmed the district court’s judgment because Maryland’s ARP was available to Blake and he did not use it, and for that reason, Blake’s unexhausted claim should not have gone forward.

By David Darr

Today, in the civil rights case Infinite Allah v. Virginia, the Fourth Circuit affirmed in an unpublished per curiam opinion the decision of the District Court for the Western District of Virginia granting judgment in favor of Virginia on the plaintiff’s Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim.

Plaintiff Contended the District Court Erred in Concluding Virginia’s Policies Are the Least Restrictive Means to Further a Compelling Government Interest

On appeal, the plaintiff contended two issues: (1) the District Court erred in concluding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest; and (2) the District Court incorrectly found that the plaintiff’s religious group, the Nation of Gods and Earths (“NGE”), was a prison gang. The plaintiff also asked the court to definitively rule on three issues that the District Court assumed to be in the plaintiff’s favor.

Plaintiff Claimed that Virginia Was Substantially Burdening His Religious Exercise

Infinite Allah, a prisoner, brought a claim against the Virginia Department of Corrections for substantially burdening his religious exercise in violation the RLUIPA. Infinite Allah claimed that Virginia burdened his religion, NGE, by classifying NGE as a gang, by restricting NGE members from meeting communally, by prohibiting the plaintiff from wearing NGE clothing and accessories, by not providing meals that complied with a NGE diet, and by preventing NGE members from access to NGE publications. The District Court held a three-day bench trial to decide the case. The District Court found that NGE asserted racist teachings, NGE acted as a prison gang that posed a threat to the safety and security of the prison, NGE members posed a heightened risk of violence when they met, NGE accessories served as a gang identifier and served recruitment, the prison allowed Infinite Allah to have meals in general accordance with his religious accommodations, and NGE materials contained prison codes for passing messages and racist and violent sentiments.

For the sake of the argument, the District Court assumed that the NGE was a religion, the plaintiff’s beliefs were sincerely held, and that Virginia’s policies substantially burdened the plaintiff. With these three prongs of the RLUIPA assumed, the burden switched to Virginia to show that its policies were the least restrictive means in furtherance of a compelling government interest. The District Court decided that prison safety is a compelling government interest. The District Court also ruled that each of the measures Virginia took was the least restrictive means to further the compelling government interest of prison safety and that the plaintiff’s diet in prison was not substantially burdened. The plaintiff appealed.

Is There Reversible Error in District Court Decision?

The Fourth Circuit examines all findings by the District Court on factual issues on the clearly erroneous standard. It is also an affirmative defense to a RLUIPA claim for a governmental entity to claim that a challenged policy used the least restrictive means in furtherance of a substantial governmental interest.

The Fourth Circuit Adopted the Reasoning of the District Court

The Fourth Circuit commended the District Court on its “well-crafted” opinion, and decided to adopt the same reasoning as the District Court did. The Fourth Circuit gave appropriate deference to the District Court’s finding of fact that NGE was a prison gang in ruling that the District Court’s findings were not clearly erroneous. The Fourth Circuit also agreed with the District Court’s reasoning on whether Virginia’s policies were the least restrictive means to a compelling governmental interest. The Fourth Circuit also refused to rule on the three elements of the RLUIPA that the District Court assumed were satisfied.

The Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest and that the District Court did not err as to any findings of fact.