United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Darrion Ar'mond Goff, is currently a prisoner in the
Rayburn Correctional Center (“Rayburn”) in Angie,
Louisiana. He filed this complaint pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983. He alleges that
defendant Lieutenant Colonel Mike Todd damaged, disrespected
and deprived him of his religious items in derogation of his
right to free exercise of religion; that defendant Warden
Robert Tanner did not properly investigate the claim he filed
with respect to the handling of his religious items; and that
defendants retaliated against him for filing a claim.
Plaintiff seeks monetary damages in the total amount of $50,
000. Record Doc. No. 1 (Complaint at ¶ V).
before this court is defendants' motion to dismiss for
failure to state a claim, which was filed on December 6,
2017. On December 18, 2017, I conducted a telephone
conference in this matter for all the purposes contemplated
in Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
and its progeny. Record Doc. No. 10. Plaintiff filed a timely
response to defendants' motion to dismiss the same day.
Record Doc. No. 14. Plaintiff has since provided the court
with copies of the disciplinary records and incident reports
discussed during his Spears hearing. Record Doc. No.
PLAINTIFF'S CLAIMS AND RECORDS
plaintiff's complaint he asserted four claims, including:
(1) a violation of his First Amendment “Right to
Practice Religion Freely”; (2) intimidation and threats
by Todd when Todd told him he would have to send his kufi
caps home; (3) Tanner did not fully investigate his
claims and Tanner's response was unrelated to his
allegations; and (4) retaliation for filing an Administrative
Remedy Procedure (“ARP”). Record Doc. No. 1
(Complaint at ¶ IV). During his Spears hearing,
plaintiff outlined three claims: (1) violation of his
religious rights when his religious items were disrespected;
(2) Warden Tanner did not properly investigate his grievance;
and (3) he was retaliated against for filing a grievance.
testified that he is incarcerated in Rayburn for an armed
robbery and aggravated battery conviction in July 2008, for
which he is serving a 30-year sentence. He confirmed that the
claims he asserts in this case arise from his incarceration
testified that on April 17, 2017, Lieutenant Colonel Todd
went through his personal items when he was transferred from
Allen Correctional Center (“Allen”) to Rayburn.
He asserted that there was already a “vibe”
against inmates who were transferred from Allen to Rayburn
because offenders from Allen had a reputation of “not
having respect for authority.” Goff stated that
“Colonel Todd took it upon himself to go through my
items and determine what I [was] allowed to have and what I
[was] not allowed to have.” It was during this search,
plaintiff stated, that Todd told him that his kufi caps had
to be sent home. Goff testified that he explained to Todd
that the caps are religious items, that the Department of
Corrections allows him to have the caps and that it is his
constitutional right to practice his religion freely.
Plaintiff stated that Colonel Todd responded,
“‘well, this is not the Department of
Corrections, this is Rayburn. You have to send them home or I
will have them destroyed. Here at Rayburn Correctional
Center, we do things differently.'” Goff asserted
that he told Todd that the Department of Corrections policy
allows inmates to retain religious items. He testified that
he has been incarcerated long enough to understand the
policies behind transfers and the items inmates are allowed
questioned about the subject items, plaintiff explained that
kufi caps are religious head coverings worn by Muslims. He
confirmed that he is a practicing Muslim. “After we
clean ourselves, we throw these hats on to make our prayers.
We put these hats on to either acknowledge ourselves or
remind ourselves of what is our obligation of upholding this
faith.” Goff stated that the message conveyed by the
Muslim faithful who wear kufis is “that we mean no
harm, that we are respectful individuals, and we are faithful
men of God. Mainly, these hats are used when we are praying
so we don't get dirt[y] when we prostrate ourself on the
testified that his kufi caps were sent home; he has not had a
kufi cap since his were sent away; and the absence of his
kufi caps prevents him from praying properly because he is
“not praying correctly in the manner that [he has] been
taught and in the manner we Muslims are to pray.” Goff
stated that he uses “an ordinary skullcap” given
to him by another inmate as a substitute for the kufi.
Plaintiff explained that a kufi cap has different threading
and design than the skullcap he uses, which is thick and
causes him to sweat. Goff stated that sweating while wearing
his skullcap “invalidates the whole meaning of being
clean” while praying. Plaintiff confirmed that he is
still able to pray, however. He affirmed that his allegation
is that wearing a kufi cap is necessary to proper religious
observance and that the skullcap is not a sufficient
also alleged that his Qu'ran was disrespected and damaged
by Todd during Todd's initial search of his personal
items upon transfer from Allen. Plaintiff testified that Todd
ripped the spine away from the pages of the book and tore out
the marker ribbon of his Qur'an while checking it for
contraband. When describing the subject incident, Goff
admitted, “for a second I almost lost control, and I
almost reacted in a manner that I think I would've
regretted because of the situation that was happening and the
value of these religious items.” Goff stated that his
Qur'an was returned to him in damaged condition, but he
testified that he still uses the book for religious purposes.
stated that he received a memorandum on April 21, 2017,
stating that several of his kufi caps were sent home with
money drawn from his account. Plaintiff testified that he
filed a grievance concerning the denial of his kufi caps and
the damage to his Qur'an on April 22, 2017. Goff
explained that Warden Tanner rejected his grievance with the
stated reason that a family member picked up his kufi caps
during visitation, per Goff's request. He asserted that
Warden Tanner did not properly investigate the grievance.
Plaintiff claimed that he could not have requested that his
kufi caps be picked up by a family member if they were sent
home by jail personnel in the mail.
confirmed that his third complaint is that he was retaliated
against for filing the grievance on April 22. He stated that
he was housed in a cell-block so the jail could “see
about my conduct and monitor me for a certain period of time
to see if I am able to re-enter into general
population.” Goff asserted that he was confined to his
cell-block for non-disciplinary reasons since his arrival at
Rayburn in April 2017. He admitted, however, that he had a
history of defiance-related disciplinary problems at Allen,
which he confirmed was likely the reason he was still being
monitored at Rayburn.
testified that he was involved in two incidents at Rayburn,
one on July 26, 2017 and another on November 19, 2017, which
led to disciplinary hearings. Goff testified that he first
experienced retaliation when Colonel Todd entered his
cell-block on July 26. Plaintiff asserted that he was
standing in his cell door and could see Todd walk through the
door, where he was greeted by Sergeant William Jones. Goff
asserted that this was the first time Jones had worked this
cell-block and that he had never spoken with Jones. Plaintiff
stated that Jones accused him of yelling obscenities down the
cell-block. Goff read Jones' account from a disciplinary
record. He denied saying anything to Jones. Plaintiff
testified that he was charged with defiance and aggravated
disobedience based on this incident and that he had a
hearing. Goff confirmed that he made a statement on his own
behalf before hearing officers and was convicted of the
disciplinary offenses after the hearing. Plaintiff stated
that he was given eight (8) weeks cell confinement, four (4)
weeks loss of telephone privilege and four (4) weeks loss of
testified that the second incident occurred on November 19,
2017, after a church service. He stated that he believes the
allegations contained in the disciplinary write-ups from the
incidents on July 26 and November 19 are untrue. Goff
asserted that the only reason he was convicted of these two
offenses is because officer reports are given more weight
than the statements of inmates. “After 10 years of
being incarcerated, ” he stated, “I've never
received these kinds of write-ups.” Plaintiff testified
that he was also “denied school” and “all
sorts of things” due to retaliation. He testified that
he believes his life is in danger due to the grievance he
filed but that he has not been physically harmed.
Plaintiff's Disciplinary Records
disciplinary records contain reports concerning three
separate incidents on July 8, July 26 and November 19, 2017.
On July 8, a disciplinary report was filed against Goff for
“violently shaking” his cell door bars. Record
Doc. No. 15 at p. 14. He pled guilty and was convicted of
property destruction. Id.
records from the July 26 incident indicate that he was
charged with defiance and aggravated disobedience.
Id. at p. 4. Officer Jones reported that Goff yelled
obscenities at him. Id. Plaintiff pled not guilty,
but he was given a sentence of eight (8) weeks cell
confinement, four (4) weeks canteen loss and four (4) weeks
telephone privilege loss after a hearing on July 28, 2017.
Id. The hearing officers checked off “Report
is Clear and Precise, ” “Officer's version is
determined to be more credible than inmate's” and
“Only defense is denying the contents of report”
as the reasons for the hearing disposition and checked
“Seriousness of Offense” under the reasons for
sentence section. Id. Goff filed an ARP grievance on
August 2, 2017, in response to the disposition of his July 28
hearing. Id. at pp. 6-8. He requested three forms of
relief, including “no more...[r]etaliation from Col.
Mike Todd and/or officer(s) of Rayburn Correctional
Center.” Id. Goff's relief request form
was rejected by the warden on August 8, 2017, because
“[d]isciplinary matters are not appealable through the
Administrative Remedy Procedure.” Id. at p. 9.
third disciplinary report in Goff's records, from
November 19, 2017, states that he did not return to his
cell-block as he was ordered after the “church callout,
” which was a form of aggravated disobedience.
Id. at p. 5. Goff appealed his sentence, a loss of
two (2) weeks of yard and recreation time, and his appeal was
denied on December 19, 2017. Id. at p. 10. Warden
Tanner's appeal decision, id., states:
On appeal, you have not provided any evidence to dispute the
reporting officer's version of the incident. The rule
violation report is clear and concise and provides sufficient
evidence of the rule violation as charged. Because of the
seriousness of the offense and the need to ensure the
security and orderly running of the facility, I concur with
the judgment of the Disciplinary Board.
December 6, 2017, defendants filed a motion to dismiss for
failure to state a claim upon which relief may be granted and
asserting qualified immunity. Record Doc. No. 10. No evidence
of any kind has been submitted in support of the motion,
which is asserted strictly under the Rule 12(b)(6) standard.
First, defendants assert that, to the extent plaintiff has
asserted any monetary claims against defendants in their
official capacities, “[s]tate officials sued in an
official capacity for monetary relief are immune from suit in
federal court pursuant to the Eleventh Amendment to the U.S.
Constitution.” Record Doc. No. 10-1 at p. 3. Defendants
concede that plaintiff sues defendants in their individual
defendants argue that claims for damages against them in
their individual capacities are barred by the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”).
Id. at p. 6. Defendants cite Fifth Circuit precedent
holding that RLUIPA does not create a private right of action
against prison officials in their individual capacities.
defendants state that plaintiff's claims against
defendants, in their individual capacities, for compensatory
damages are barred by 42 U.S.C. § 1997(e)(e) because
plaintiff has not alleged a physical injury. Id.
defendants assert that they are entitled to qualified
immunity in their individual capacities. Id. at pp.
defendants argue that plaintiff has failed to plead
sufficient facts to support his claims. Id. at p.8.
Defendants state that plaintiff has failed to explain which
policy was invoked in the decision to send his kufi caps
home; how his Qur'an was mishandled, disrespected or
damaged; how his right to exercise his religious beliefs was
denied by Todd's actions; and which facts suggest that
defendants denied him a reasonable opportunity to exercise
his religious freedom. Id. at p. 9. Defendants cite
Fifth Circuit precedent concerning the restriction of kufi
cap use in relation to the legitimate penological interest of
safety; e.g., weapons could be hidden inside a kufi
cap. Defendants also state that to the extent plaintiff is
asserting destruction or deprivation of property without due
process, his due process rights were not violated and the
matter was sufficiently investigated by Warden Tanner.
Id. at pp. 10-11.
plaintiff's retaliation claim, defendants argue that
plaintiff has not alleged that either named defendant
retaliated against him and, as such, plaintiff's
“naked assertion[s]” are insufficient.
Id. at pp. 11-12. Defendants cite the four elements
necessary for plaintiff to assert a retaliation claim under
Section 1983, established by the Fifth Circuit in Jones
v. Greninger, 188 F.3d 322 (5th Cir. 1999): “(1) a
specific constitutional right, (2) the defendant's intent
to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, (4)
causation.” Greninger, 188 F.3d at 324-25.
Defendants state that plaintiff's conclusory allegations
fail to show a retaliatory motive or intent by defendants in
response to plaintiff filing an ARP. Id. at p. 12.
only complaint against defendants Todd and Tanner, defendants
argue, involves the handling of his Qu'ran and the
decision made during his ARP. Id. at p. 13.
“[I]t is important to note, ” defendants assert,
“that Plaintiff does not identify a discriminatory
policy that was the driving force behind any of the alleged
acts that now form the basis of this suit. The ...