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Jurisdiction: Alabama Middle District Court
Decision Date: 7/30/2015

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Hosey-Bey v. Williams Hosey-Bey v. Williams (M.D. Ala., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ERIC HOSEY-BEY, #193503, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SGT. ALTHEA WILLIAMS, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 2: 12-CV-959-WHA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 30, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ERIC HOSEY-BEY, #193503, Plaintiff, v. SGT. ALTHEA WILLIAMS, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION NO. 2: 12-CV-959-WHA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        July 30, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RECOMMENDATION OF THE MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. INTRODUCTION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This 42 U.S.C. 1983 action is pending before the court on a complaint filed by Eric Hosey-Bey ("Hosey-Bey"), an indigent state inmate incarcerated at the Ventress Correctional Facility ("Ventress"). Hosey-Bey identifies himself as a member of the Moorish Science Temple of America ("MSTA"). In the complaint, Hosey-Bey alleges that: (1) On October 14, 2012, the defendant deprived him of his First Amendment right to practice his religion because she "ordered that the Sunday school service of the Moorish Science Temple of America be closed down after only 10 to 13 minutes of class because she was short of officers. "; and (2) The defendant discriminated against him in violation of his right to equal protection because later in the same evening she allowed the Christians to hold their service. Complaint - Doc. No. 1 at 3. Hosey-Bey seeks a declaratory judgment, injunctive relief and

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        monetary damages for the alleged violations of his constitutional rights. Id. at 4; Amendment to the Complaint - Doc. No. 13 at 1-2. The defendant filed an answer, special report and supporting evidentiary materials addressing Hosey-Bey's claims for relief. Pursuant to the orders entered in this case, the court deems it appropriate to treat the special report filed by the defendant as a motion for summary judgment. Order of May 31 2013 - Doc. No. 17. Thus, this case is now pending on the defendant's motion for summary judgment. Upon consideration of this motion, the evidentiary materials filed in support thereof, the sworn complaint and the plaintiff's response to the report, the court concludes that the defendant's motion for summary judgment is due to be granted.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. SUMMARY JUDGMENT STANDARD

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. '" Greenberg v. BellSouth Telecomm Inc 498 F. 3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed. R. Ci v. P. Rule 56(a) ("The court shall grant summary judgment 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. "). The party moving

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record, including pleadings, discovery materials and affidavits, which it believes demonstrate the absence of a genuine issue - now dispute - of material fact. " Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox Inc 64 F. 3d 590, 593 (11th Cir. 1995) (moving party has initial burden of showing there is no genuine dispute of material fact for trial). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present appropriate evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex 477 U.S. at 322-324.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The defendant has met her evidentiary burden and demonstrated the absence of any genuine dispute of material fact with respect to the claims presented by the plaintiff. Based on the foregoing, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark Inc 929 F.2d 604 608 (11th Cir. 1991); Celotex 477 U.S. at 324; Fed. R. Ci v. P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact by citing to materials in the record including affidavits, relevant documents or other materials the court may . . . grant summary judgment if the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it. "); Jeffery 64 F. 3d at 593-594 (internal quotation marks omitted) (Once the moving party meets its burden, "the non-moving party must then go beyond the pleadings, and by its own affidavits or declarations under penalty of perjury, or by depositions, answers to interrogatories, and admissions on file, " demonstrate that there is a genuine dispute of material fact. ). This court will also consider "specific facts" pled in a plaintiff's sworn complaint when considering his opposition to summary judgment. Peebles v. Warden FCI Talladega 748 F. 3d 1090, 1098 (11th Cir. 2014). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg 498 F. 3d at 1263; Allen v. Bd. of Public Education for Bibb County 495 F. 3d 1306, 1313 (11th Cir. 2007).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In civil actions filed by inmates, federal courts

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Beard v. Banks 548 U.S. 521 530, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006) (internal citation omitted). Consequently, to survive the defendant's properly supported motion for summary judgment, Hosey-Bey is required to produce "sufficient favorable evidence" which would be admissible at trial supporting his claims of constitutional violations. Anderson v. Liberty Lobby Inc 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Civil Procedure. "If the evidence on which the nonmoving party relies is merely colorable . . . or is not significantly probative . . . summary judgment may be granted. " Anderson 477 U.S. at 249-250. "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the trier of fact could reasonably find for that party. Anderson v. Liberty Lobby 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). " Walker v. Darby 911 F.2d 1573 1576-1577 (11th Cir. 1990). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Holifield v. Reno 115 F. 3d 1555, 1564 n. 6 (11th Cir. 1997) (A plaintiff's "conclusory assertions . . in the absence of admissible supporting evidence, are insufficient to withstand summary judgment. "); Harris v. Ostrout 65 F. 3d 912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond "his own conclusory allegations" challenging actions of the defendant); Fullman v. Graddick 739 F.2d 553 557 (11th Cir. 1984) ("Mere verification of party's own conclusory allegations is not sufficient to oppose summary judgment. "); Evers v. General Motors Corp 770 F.2d 984 986 (11th Cir. 1985) ("Conclusory allegations without specific supporting facts have no probative value. "). Hence, when a plaintiff fails to set forth specific facts supported by requisite evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex 477 U.S. at 322 ("Failure of proof

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. "); Barnes v. Southwest Forest Industries Inc 814 F.2d 607 609 (11th Cir. 1987) (If on any part of the prima facie case the plaintiff presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate. ); Chapman v. AI Transport 229 F. 3d 1012, 1023 (11th Cir. 2000) (en banc) (summary judgment appropriate where no genuine dispute of material fact exists). At the summary judgment stage, this court must "consider all evidence in the record . . . including pleadings, depositions, interrogatories, affidavits, etc. -- and can only grant summary judgment if everything in the record demonstrates that no genuine dispute of material fact exists. " Strickland v. Norfolk Southern Railway Co 692 F. 3d 1151, 1154 (11th Cir. 2012).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 S.W. 74th Avenue Miami Florida 363 F. 3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson 477 U.S. at 248; Lofton v. Secretary of the Department of Children and Family Services 358 F. 3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment. "). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. " McCormick v. City of Fort Lauderdale 333 F. 3d 1234, 1243 (11th Cir. 2003)

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine dispute for trial. '" Matsushita Elec. Indus. Co. v. Zenith Radio Corp 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex 477 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show no genuine dispute as to a requisite material fact); Waddell v. Valley Forge Dental Associates Inc 276 F. 3d 1275, 1279 (11th Cir. 2001) (To establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Beard 548 U.S. at 525, 126 S. Ct. at 2576; Brown v. Crawford 906 F.2d 667 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. The court has

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                undertaken a thorough and exhaustive review of all the evidence contained in the record.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        After such review, the court finds that Hosey-Bey has failed to demonstrate a genuine dispute of material fact in order to preclude entry of summary judgment. Matsushita supra.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. DISCUSSION
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A. Suit Against the Defendant in Her Official Capacity - Absolute Immunity

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To the extent Hosey-Bey seeks to sue the defendant in her official capacity, she is immune from monetary damages. Official capacity lawsuits are "in all respects other than name, . . . treated as a suit against the entity. " Kentucky v. Graham 473 U.S. 159, 166 (1985). "A state official may not be sued in his official capacity unless the state has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v. Halderman 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984), or Congress has abrogated the state's immunity, see Seminole Tribe v. Florida 517 U.S. 44 59, 116 S. Ct. 1114 1125, 134 L. Ed. 2d 252 (1996). Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence 916 F.2d 1521 1525 (11th Cir. 1990) (citations omitted), and Congress has not abrogated Alabama's immunity. Therefore, Alabama state officials are immune from claims brought against them in their official capacities. " Lancaster v. Monroe County 116 F. 3d 1419, 1429 (11th Cir. 1997).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In light of the foregoing, it is clear that the defendant is a state actor entitled to sovereign immunity under the Eleventh Amendment for claims seeking monetary damages from her in her official capacity. Lancaster 116 F. 3d at 1429; Harbert Int'l Inc. v. James 157 F. 3d 1271, 1277 (11th Cir. 1998) (state officials sued in their official capacities are

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        protected from suit for damages under the Eleventh Amendment); Edwards v. Wallace Cmty. Coll 49 F. 3d 1517, 1524 (11th Cir. 1995) (damages are unavailable from state official sued in his official capacity).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court will henceforth address the claims presented against the defendant in her individual capacity.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. Relevant Facts

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On October 14, 2012, defendant Williams ordered the Sunday school service of the MSTA closed prior to the conclusion of the service. Complaint - Doc. No. 1 at 3; Affidavit in Support of Complaint (Affidavit of Eric Hosey-Bey) - Doc. No. 1-1 at 1 ("Around 5: 55 p. m Sgt. Althea Williams called on the radio to an officer Pullom that we had to cancell (sic) our Sunday school because she had no officer to place in the chapel. "); Affidavit in Support of Complaint (Affidavit of Michael Morris-Bey) - Doc. No. 1-1 at 3 ("On the day Oct-14-12 while we were having Sunday school that just begun around 5: 58 pm Sgt. Althea Williams called on the radio to an officer Pullom that we had to cancel our Sunday school because she had no officer to place there. "); Affidavit in Support of Complaint (Affidavit of Eric Moore-Bey) - Doc. No. 1-1 at 2 (same); Affidavit in Support of Complaint (Affidavit of Cardell Craig-El) - Doc. No. 1-1 at 4 (same). Defendant Williams took such action

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        because when notified by the officer on duty in the chapel that his shift had ended and he needed relief "we did not have an officer to relieve him at that time. " Defendant's Exhibit A (Affidavit of Althea Townsend) - Doc. No. 16-1 at 2; Defendant's Exhibit B (Affidavit of David Pullom) - Doc. No. 16-2 at 2 ("On October 14, 2012, I, Officer David Pullom, Day B Officer was assigned to handle the Chapel Service. At 6: 00 p. m. which was the end of my shift, I notified Night B Shift Supervisor, Sgt. Althea Townsend that I needed a relief from the Chapel. Sgt. Townsend informed me that she did not have an officer to relieve me and to secure the Chapel and send the inmates back to their assigned dormitory. "). Defendant Williams further asserts that she decided to close the chapel because in her opinion it was "in the best interest of the facility in regards to security. " Id. As is clear from the affidavits filed in support of the complaint, Hosey-Bey concedes that the reason offered by defendant Williams at the time of this action was a lack of sufficient officers to secure all areas of the facility. Complaint - Doc. No. 1 at 3. At approximately 7: 30 p. m. when an officer became available to provide security for the chapel, the chapel was re-opened for services. The

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        service scheduled at the time of re-opening was a Christian service.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        C. The First Amendment Claim

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Federal law recognizes "that 'courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. ' Procunier v. Martinez 416 U.S. 396 405, 94 S. Ct. 1800 1807 (1974). As the Martinez Court acknowledged, 'the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. ' Id at 404-405, 94 S. Ct at 1807. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources. " Turner v. Safley 482 U.S. 78, 84-85 (1987). Correctional officials are, therefore, "accorded latitude in the administration of prison affairs, " Cruz v. Beto 405 U.S. 319 321 (1972), which necessarily includes "the inescapable withdrawal or limitation of many inmate privileges and rights. " Pell v. Procunier 417 U.S. 817 822 (1974) (quotation marks and citation omitted); Bell v. Wolfish 441 U.S. 520 546 (1979).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "In the First Amendment context, . . . some rights are simply inconsistent with the status of a prisoner or 'with the legitimate penological objectives of the corrections system. '" Shaw v. Murphy 532 U.S. 223, 229 (2001), quoting Pell 417 U.S. at 822. In accordance

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        with this principle, an inmate's rights established under the First Amendment are not protected if allowing such protection is "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. " Id at 822. Thus, while inmates retain a constitutional right protected by the First Amendment to freely exercise their sincerely held religious beliefs, this right is limited by the fact of incarceration and valid penological objectives such as maintaining institutional security and order. O'Lone v. Estate of Shabazz 482 U.S. 342, 345 (1987); Turner 482 U.S. 78; Lawson v. Singletary 85 F. 3d 502, 521 (11th Cir. 1996). The law is well settled that "central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. " Pell 417 U.S. at 823; Bell 441 U.S. at 546 ("Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. "). It is, therefore, clear that preservation of security and order within a prison is essential to the facility's effective administration and constitutes both a compelling and substantial governmental interest. Pell 417 U.S. at 823, Lawson 85 F. 3d at 512; Harris v. Chapman 97 F. 3d 499, 504 (11th Cir. 1996).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In a prison setting, to demonstrate a free exercise violation, a plaintiff must show that prison officials administered or implemented a policy or regulation, not reasonably related to any legitimate penological interest or security measure, which substantially burdens and significantly interferes with the practice of his religion or restricts his free exercise of a

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        sincerely held religious belief. Hernandez v. Commissioner 490 U.S. 680, 699 (1989); O'Lone v. Estate of Shabazz 482 U.S. 342, 349 (1987); see also Overton v. Bazzetta 539 U.S. 126 132 (2003). The burden must be substantial and significantly interfere with an inmate's practice or free exercise of his religious beliefs. Hernandez 490 U.S. at 699. A policy is "valid if it is reasonably related to legitimate penological interests. " Turner v. Safley 482 U.S. 78, 89 (1987); O'Lone 482 U.S. at 349. "Such a standard is necessary if 'prison administrators . . and not the courts are to make the difficult judgments concerning institutional operations. '" Turner 482 U.S. at 89 (quoting Jones v. North Carolina Prisoners' Union 433 U.S. 119 128, 97 S. Ct. 2532 2539 (1977)). Consequently, the defendant does not have the burden of proving the validity of an administrative action or security decision; rather, the burden is on the plaintiff to disprove it. Id. at 89-91.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In determining whether the actions of a correctional official improperly infringe on a prisoner's constitutional rights, the factors to be considered include: (1) whether there is a valid, rational relationship between the challenged action and the legitimate government interest it serves; (2) whether there are alternative means of exercising the right available to the inmates; (3) the impact accommodation of the asserted right will have on jail staff and other inmates; and (4) the absence of ready alternatives as evidence of reasonableness of the regulation. Turner 482 U.S. at 89-91; Beard 548 U.S. at 529, 126 S. Ct. at 2578. However, a "court is not required to weigh evenly, or even consider explicitly, each of the four Turner factors. " Spies v. Voinovich 173 F. 3d 398, 403 (6th Cir. 1999); Freeman v. Texas

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Department of Criminal Justice 369 F. 3d 854, 860 (5th Cir. 2004) (interpreting the decision in Turner as stating that a court need not weigh evenly or even consider each of the factors as rationality is the controlling standard).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Hosey-Bey complains that defendant Williams deprived him of his right to practice his religion by closing the chapel on October 14, 2015 prior to the conclusion of the MSTA service. In his responses, Hosey-Bey argues that defendant Williams could have abandoned her post to provide security to the chapel or ordered Sgt. Hooks to provide the necessary security. However, this assertion does not in any way undermine the defendant's position that, in her professional opinion, to maintain proper security of the facility the chapel should be closed until an officer without other duties could be assigned to that area. Defendant Williams asserts that as soon as an officer became available to provide security for the chapel the chapel was re-opened for services. Defendants' Exhibit A (Affidavit of Althea Townsend) - Doc. No. 16-1 at 2 ("At approximately 7: 00 p. m the kitchen officer secured the kitchen and was then able to assist with other security details. The kitchen officer did not have to return to the kitchen until 10 p. m. or 12 a. m therefore, the officer who was assigned to the kitchen conducted Church for the 7: 30 p. m. service. "); Defendants' Exhibit C (Affidavit

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 15

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        of Aellis Howard) - Doc. No. 16-3 at 2 ("On October 14, 2012, I, Officer Aellis Howard was assigned to the kitchen for the night shift. At approximately 7: 30 p. m I secured the kitchen and was advised by Sgt. Althea Williams to conduct church call in the Chapel. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Closing the chapel when there is a shortage of officers to secure all areas of the prison is reasonably related to the legitimate and compelling penological interest of maintaining the security and orderly running of the institution. Lawson 85 F. 3d at 521 ("Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. "); Bell 441 U.S. at 546 ("Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of . . . convicted prisoners. "). Moreover, cancellation of a portion of the MSTA service on October 14, 2012 due to the lack of an officer to secure the chapel did not substantially burden or significantly interfere with Hosey-Bey's ability to engage in the free exercise or practice of his religion. Hosey-Bey has therefore failed to establish a violation of his First Amendment rights. Consequently,

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        summary judgment is due to be granted in favor of the defendant on this claim.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        D. The Equal Protection Claim

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Hosey-Bey asserts that defendant Williams "discriminated against" him as a member of the MSTA by cancelling the MSTA service on October 14, 2012 while later allowing the Christians to hold their service. Complaint - Doc. No. 1 at 3. This claim, however, provides no basis for relief to Hosey-Bey.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Despite the tendency of all rights 'to declare themselves absolute to their logical extreme, ' there are obviously limits beyond which the equal protection analysis may not be pressed. . . . The Fourteenth Amendment 'does not require absolute equality or precisely equal advantages, '. . . nor does it require the State to 'equalize prison conditions. '" Ross v. Moffitt 417 U.S. 600, 611-612 (1974); Hammond v. Auburn University 669 F. Supp. 1555 1563 (M. D. Ala. 1987) ("The Equal Protection Clause of the Fourteenth Amendment does not require all persons to be treated either identically or equally. "). To establish a claim cognizable under the Equal Protection Clause, "a prisoner must at a minimum demonstrate

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        that (1) he is similarly situated to other prisoners who received more favorable treatment; and (2) the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis. Jones v. Ray 279 F. 3d 944, 946-47 (11th Cir. 2001); Damiano v. Florida Parole and Prob. Comm'n 785 F.2d 929 932-33 (11th Cir. 1986). " Sweet v. Secretary Department of Corrections 467 F. 3d 1311, 1318-1319 (11th Cir. 2006). "Official action will not be held unconstitutional solely because it results in a . . . disproportionate impact. . . . Proof of . . . discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. " Village of Arlington Heights v. Metropolitan Housing Development Corp 429 U.S. 252 264-265 (1977). "'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker . . . selected . . . a particular course of action at least in part 'because of, ' not merely 'in spite of, ' its adverse effects upon an identifiable group. " Personnel Administrator of Massachusetts v. Feeney 442 U.S. 256, 279 (1979) (footnote and citation omitted); see also Hernandez v. New York 500 U.S. 352 359 (1991). Evidence which merely indicates disparity of treatment or even arbitrary administration of state powers, rather than instances of purposeful or invidious discrimination, is insufficient to show discriminatory intent. McKleskey v. Kemp 481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). Where a plaintiff challenges an action of correctional officials, exceptionally clear proof of discrimination is required. Fuller v. Georgia Bd. of Pardons and Paroles 851 F.2d 1307 1310 (11th Cir. 1988).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Since this case is before the court on a properly supported motion for summary judgment submitted by the defendant, Hosey-Bey bears the burden of producing evidence which would be admissible at trial sufficient to show that the defendant provided more favorable treatment to other similarly situated inmates and acted with intentional discrimination in doing so. Celotex 477 U.S. at 322-324; Anderson 477 U.S. at 249 (To preclude summary judgment, plaintiff must present significant probative evidence showing defendant provided more favorable treatment to similarly situated persons and did so as the result of intentional discrimination. ); Arlington Heights 429 U.S. at 265 (At the summary judgment stage, the plaintiff must produce specific, substantial evidence that the defendant intentionally discriminated against him due to a constitutionally protected interest. ); E & T Realty Company v. Strickland 830 F.2d 1107 1114 (11th Cir. 1987), cert. denied 485 U.S. 961 (1988) (Intentional discrimination on the part of the defendant in providing the challenged disparate treatment is required. "Mere error or mistake in judgment" or "even arbitrary administration of a statute, without purposeful discrimination, does not violate the equal protection clause. "). The plaintiff cannot rest on conclusory allegations of a constitutional violation to defeat summary judgment nor is "the mere existence of a scintilla of evidence in support of his position" sufficient to avoid summary judgment. Anderson 477 U.S. at 252; Waddell 276 F. 3d at 1279 (conclusory allegations based solely on subjective beliefs are insufficient to oppose summary judgment).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Assuming for the sake of argument that Hosey-Bey meets the similarly situated

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 19

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        element, his equal protection claim nevertheless fails because no reasonable juror could find, based on this record, that the defendant acted with an improper motive. McKleskey 481 U.S. at 292. The defendant adamantly denies she undertook any adverse action against Hosey-Bey in violation of his equal protection rights and maintains that her only reason for closing the chapel during the MSTA service was to maintain security of the institution. Defendant' Exhibit A (Affidavit of Althea Townsend) - Doc. No. 16-1 at 2 (The decision to close the chapel during the MSTA service occurred because "I . . . felt it was in the best interest of the facility in regards to security. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Other than Hosey-Bey's contradictory statements referenced herein, supra at n. 3, and his self-serving, speculative allegations of religious discrimination, the record is devoid of evidence that the defendant acted in an intentionally discriminatory manner. Instead, the evidence before the court establishes that defendant Williams closed the chapel solely because she lacked sufficient staff to provide security for the chapel at the time the MSTA service was being conducted, a situation which had been resolved by the time the Christian service began, i. e an officer became available to provide security for the chapel. Hosey-Bey has therefore not created a genuine issue that religion or some other constitutionally impermissible factor constituted a motivating factor in the defendant's decision to close the chapel during the MSTA service and re-open the chapel for the Christian service. Thus, the defendant is entitled to summary judgment on Hosey-Bey's equal protection claim.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV. CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 20

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. The defendant's motion for summary judgment be GRANTED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2. Judgment be GRANTED in favor of the defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                3. This case be dismissed with prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                4. The costs of this proceeding be taxed against the plaintiff.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is further

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ORDERED that on or before August 13 2015 the parties may file objections to this Recommendation. Any objections filed must clearly identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities Inc 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit handed down

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 21

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        prior to the close of business on September 30, 1981.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Done this 30 day of July, 2015.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/Charles S. Coody        CHARLES S. COODY        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The defendant is now known as Althea Townsend.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Effective December 1, 2010, Rule 56 was "revised to improve the procedures for presenting and deciding summary-judgment motions. " Fed. R. Ci v. P. 56 Advisory Committee Notes. Under this revision, "subdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word -- genuine 'issue' becomes genuine 'dispute. ' 'Dispute' better reflects the focus of a summary-judgment determination. " Id. "'Shall' is also restored to express the direction to grant summary judgment. " Id. Despite these stylistic changes, the substance of Rule 56 remains the same and, therefore, all cases citing prior versions of the rule remain equally applicable to the current rule.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Despite the repeated statements set forth in the affidavits filed in support of the complaint averring that defendant Williams "called officer Pullom on the radio" and ordered him to close the chapel, Hosey-Bey in his sworn response avers that Williams "stepped inside the door" of the chapel and ordered Pullom to cancel the service. Plaintiff's Response - Doc. No. 20 at 2. In the sworn declaration of Michael Morris-Bey filed by Hosey-Bey in support of this response, inmate Morris-Bey contradicts his prior affidavit and states that "our meeting began late only to be cancelled 10-minutes later . . . when Sgt. Althea Williams peeped inside" and ordered officer Pullom to cancel the service. Declaration in Support of Response - Doc. No. 20-1 at 1. Hosey-Bey presents no explanation for the discrepancies of the affidavits filed in support of his complaint and the statements contained in his sworn response and the supporting sworn declaration, all of which were made under penalty of perjury before a notary public. This court may therefore disregard Hosey-Bey's response and the supporting affidavit of inmate Morris-Bey filed solely for the purpose of opposing summary judgment to the extent these documents directly contradict the affidavits filed in support of the complaint. Van T. Junkins and Associates v. U. S. Industries Inc 736 F.2d 656 657 (11th Cir. 1984); see also McCormick v. Ft. Lauderdale 333 F. 3d 1234, 1240 n. 7 (11th Cir. 2003) (contradictory affidavit submitted solely to defeat summary judgment may be disregarded by the court). Moreover, in light of the direct contradiction of statements contained in the affidavits of the plaintiff and inmate Morris-Bey submitted with the complaint and those presented in his response and the supporting declaration of inmate Morris-Bey, it appears that Hosey-Bey has submitted perjured documents to this court. Due to the determination that the defendant is entitled to summary judgment, the court will not impose any additional sanction against the plaintiff.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The plaintiff frames his complaint as raising only constitutional claims; however, the court has considered whether his claims should also be considered under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et. seq. ("RLUIPA"). The plaintiff complains about only a single incident in which a religious service was interrupted due to security concerns based on the lack of a correctional officer. This single incident is insufficient to rise to the level of a substanti'al burden on the plaintiff's exercise of religion. And, even if it did rise to that level, the immediate institutional need for order and safety would prevail here. See Cutter v. Wilkinson 544 U.S. 709 (2005).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In his supplemental response, Hosey-Bey advises that Sgt. Williams was the acting shift commander due to the absence of Lt. Thomas which indicates that the staff was at least one officer short at the time the chapel was closed. Moreover, it is clear from the documents filed by Hosey-Bey that Sgt. Williams undertook the duties of Lt. Thomas thereby impacting her ability to perform her normal duties. Finally, the documents filed by Hosey-Bey in support of his responses establish that Sgt. Hooks was responsible for clearing the institutional count during the relevant period of time. Plaintiff's Exhibit B - Doc. No. 36-2 at 2.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In his response, Hosey-Bey takes issue with the time defendant Williams asserts that an officer became available to provide security for the chapel. Specifically, he argues that the defendant presented false sworn statements on this issue as the Shift Log indicates that chow call was completed at 5: 20 p. m. Plaintiff's Exhibit B - Doc. No. 36-2 at 1. However, the affidavits of the defendant and officer Howard do not address when chow call was completed; rather, the affidavits address when officer Howard had completed his duties with respect to securing the kitchen. Thus, Hosey-Bey's allegations of perjury are not supported by the record.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The court notes that Hosey-Bey's religious exercise claim would fail even if pursued under the Religious Land Use and Institutionalized Persons Act of 2000 "RLUIPA" as he does not demonstrate a substantial burden on the practice of his religion with respect to the claim presented herein. Smith v. Allen 502 F. 3d 1255, 1276-1277 (11th Cir. 2007 (citations omitted) ("To establish a prima facie case under the applicable section . . . of RLUIPA, a plaintiff must demonstrate 1) that he engaged in a religious exercise; and 2) that the religious exercise was substantially burdened. . . . A 'substantial burden' is defined as being 'significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. ' . . . To constitute a 'substantial burden' on religious practice, the government's action must be 'more than . . . incidental' and 'must place more than an inconvenience on religious exercise. '").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The defendant is now known as Althea Townsend.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Effective December 1, 2010, Rule 56 was "revised to improve the procedures for presenting and deciding summary-judgment motions. " Fed. R. Ci v. P. 56 Advisory Committee Notes. Under this revision, "subdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word -- genuine 'issue' becomes genuine 'dispute. ' 'Dispute' better reflects the focus of a summary-judgment determination. " Id. "'Shall' is also restored to express the direction to grant summary judgment. " Id. Despite these stylistic changes, the substance of Rule 56 remains the same and, therefore, all cases citing prior versions of the rule remain equally applicable to the current rule.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Despite the repeated statements set forth in the affidavits filed in support of the complaint averring that defendant Williams "called officer Pullom on the radio" and ordered him to close the chapel, Hosey-Bey in his sworn response avers that Williams "stepped inside the door" of the chapel and ordered Pullom to cancel the service. Plaintiff's Response - Doc. No. 20 at 2. In the sworn declaration of Michael Morris-Bey filed by Hosey-Bey in support of this response, inmate Morris-Bey contradicts his prior affidavit and states that "our meeting began late only to be cancelled 10-minutes later . . . when Sgt. Althea Williams peeped inside" and ordered officer Pullom to cancel the service. Declaration in Support of Response - Doc. No. 20-1 at 1. Hosey-Bey presents no explanation for the discrepancies of the affidavits filed in support of his complaint and the statements contained in his sworn response and the supporting sworn declaration, all of which were made under penalty of perjury before a notary public. This court may therefore disregard Hosey-Bey's response and the supporting affidavit of inmate Morris-Bey filed solely for the purpose of opposing summary judgment to the extent these documents directly contradict the affidavits filed in support of the complaint. Van T. Junkins and Associates v. U. S. Industries Inc 736 F.2d 656 657 (11th Cir. 1984); see also McCormick v. Ft. Lauderdale 333 F. 3d 1234, 1240 n. 7 (11th Cir. 2003) (contradictory affidavit submitted solely to defeat summary judgment may be disregarded by the court). Moreover, in light of the direct contradiction of statements contained in the affidavits of the plaintiff and inmate Morris-Bey submitted with the complaint and those presented in his response and the supporting declaration of inmate Morris-Bey, it appears that Hosey-Bey has submitted perjured documents to this court. Due to the determination that the defendant is entitled to summary judgment, the court will not impose any additional sanction against the plaintiff.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff frames his complaint as raising only constitutional claims; however, the court has considered whether his claims should also be considered under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et. seq. ("RLUIPA"). The plaintiff complains about only a single incident in which a religious service was interrupted due to security concerns based on the lack of a correctional officer. This single incident is insufficient to rise to the level of a substantial burden on the plaintiff's exercise of religion. And, even if it did rise to that level, the immediate institutional need for order and safety would prevail here. See Cutter v. Wilkinson 544 U.S. 709 (2005).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In his supplemental response, Hosey-Bey advises that Sgt. Williams was the acting shift commander due to the absence of Lt. Thomas which indicates that the staff was at least one officer short at the time the chapel was closed. Moreover, it is clear from the documents filed by Hosey-Bey that Sgt. Williams undertook the duties of Lt. Thomas thereby impacting her ability to perform her normal duties. Finally, the documents filed by Hosey-Bey in support of his responses establish that Sgt. Hooks was responsible for clearing the institutional count during the relevant period of time. Plaintiff's Exhibit B - Doc. No. 36-2 at 2.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In his response, Hosey-Bey takes issue with the time defendant Williams asserts that an officer became available to provide security for the chapel. Specifically, he argues that the defendant presented false sworn statements on this issue as the Shift Log indicates that chow call was completed at 5: 20 p. m. Plaintiff's Exhibit B - Doc. No. 36-2 at 1. However, the affidavits of the defendant and officer Howard do not address when chow call was completed; rather, the affidavits address when officer Howard had completed his duties with respect to securing the kitchen. Thus, Hosey-Bey's allegations of perjury are not supported by the record.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The court notes that Hosey-Bey's religious exercise claim would fail even if pursued under the Religious Land Use and Institutionalized Persons Act of 2000 "RLUIPA" as he does not demonstrate a substantial burden on the practice of his religion with respect to the claim presented herein. Smith v. Allen 502 F. 3d 1255, 1276-1277 (11th Cir. 2007 (citations omitted) ("To establish a prima facie case under the applicable section . . . of RLUIPA, a plaintiff must demonstrate 1) that he engaged in a religious exercise; and 2) that the religious exercise was substantially burdened. . . . A 'substantial burden' is defined as being 'significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. ' . . . To constitute a 'substantial burden' on religious practice, the government's action must be 'more than . . . incidental' and 'must place more than an inconvenience on religious exercise. '").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Walker v. Darby, 911 F.2d 1573 (11th Cir., 1990)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1990-09-20 Citations: 7
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Evers v. General Motors Corp., 770 F.2d 984 (11th Cir., 1985)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1985-09-10 Citations: 5
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Nettles v. Wainwright, 677 F.2d 404 (5th Cir., 1982)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1982-05-17 Citations: 15
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cutter v. Wilkinson, 544 U.S. 709 (2005)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2005-05-31 Citations: 35
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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