Herndon v. Byers et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JOHN ELWAIN HERNDON 	PLAINTIFF
v. 	Civil No. 6:23-CV-06140-SOH-BAB
WARDEN JARED BYERS, Ouachita River
Correctional Unit (ORCU); LT.
MONTGOMERY, ORCU; and SGT.
SUTTON, ORCU 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff John Elwain Herndon, a prisoner at the Ouachita River Correctional Unit
(“ORCU”), Arkansas Division of Correction (“ADC”), filed the above-captioned civil rights action
under 42 U.S.C. § 1983. 	Pursuant to the provisions of 28 U.S.C. § § 636(b)(1) and (3), the
Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the
undersigned for the purposes of making a Report and Recommendation.
The claims in this action were previously joined in Herndon v. Daniel, et al., Case No.
6:23-CV-06122-SOH-MEF (W.D. Ark. Nov. 27, 2023) (Herndon I). After granting Plaintiff’s
request to proceed in forma pauperis (IFP), United States Magistrate Mark E. Ford ordered that
the claims in this action be severed from that Complaint pursuant to Fed. R. Civ. P. 21. (ECF No.
7). 	This Court then ordered Plaintiff to file an amended complaint asserting only the severed
claims that are now subject to this action. (ECF No. 10). 	Having received that Amended
Complaint, (ECF No. 11), this matter is now before the Court for preservice screening under the
provisions of the Prison Litigation Reform Act (“PLRA”). 	Pursuant to 28 U.S.C. § 1915A, the
Court has the obligation to screen any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Upon
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that review and for the reasons outlined below, this Court recommends that Plaintiff’s claims
against Defendants Montgomery and Sutton for depriving him of his property without due process
of law in violation of the Fourteenth Amendment be dismissed and that Plaintiff’s official capacity
claims against Defendants Montgomery, Sutton, and Byers pursuant to 42 U.S.C. § 1983 also be
dismissed. This Court recommends that all other claims proceed.
BACKGROUND
Plaintiff asserts three claims. 	First, Plaintiff says that on July 3, 2022, Defendant
Montgomery took his shower bucket and the shower bench extension legs from his cell. (ECF
No. 10). Plaintiff says he is paraplegic and requires the shower bucket to shower and eliminate
his bowels. Id. 	Plaintiff claims that without the shower bucket and extension legs, the shower
bench is inoperable, leaving him with no way to shower or eliminate his bowels. Id. According
to Plaintiff, he had diarrhea at the time and because he no longer had any way to clean up after
himself, he stopped eating and drinking liquids, which ultimately led to his hospitalization. Id.
Plaintiff says that when another officer tried to retrieve the shower legs and bucket, he was told
that they had already been thrown away. Id. Plaintiff says that he has not received any assistance
from Wellpath to obtain a new shower bench. According to Plaintiff, he is currently using another
inmate’s shower bench, but will have no way to shower or eliminate his bowels if this inmate
leaves. Id.
With respect to these allegations, Plaintiff asserts a cause of action under the Fourteenth
Amendment, claiming that Defendant Montgomery took his personal property without just
compensation and in violation of ADC policy. 	Id. 	Plaintiff also claims that Defendant
Montgomery violated the Eighth Amendment prohibition on cruel and unusual punishment by
depriving him of his prescribed shower bench. Finally, Plaintiff asserts that he was discriminated
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against and subjected to intimidation and retaliation in violation of Title II of the Americans with
Disabilities Act (“ADA”). Id. Plaintiff identifies Defendant Montgomery in his individual and
official capacities.
Second, Plaintiff claims that in July 2022, Defendant Sutton stopped him as he was leaving
the cafeteria and took his self-made cardboard lapboard. Id. According to Plaintiff, because he
is a paraplegic, he cannot use his hands to carry objects. Instead, he puts hot drinks and soups on
the lapboard so that they do not spill on his pants. Id. 	Plaintiff says that he has been using a
cardboard lapboard for this purpose for 8 years and used it before he was incarcerated. 	Id.
Plaintiff also says that a picture of Albert Einstein was glued on one side of the lapboard and a
copy of the painting by Bottacelli of Madonna and Christ called “Madonna of the Magnificat”
was also glued to the lapboard. Id. Plaintiff says that this painting connected him to his religion,
was his personal daily connection to Christ, and was an important religious icon to him. Id.
Plaintiff says that he felt vulnerable without it. Plaintiff says that when Defendant Sutton removed
this lapboard from the towel that was covering his supra-pubic catheter, he threw it on the ground,
and made Plaintiff leave it there. Id.
Plaintiff asserts a cause of action under the Fourteenth Amendment, claiming Defendant
Sutton took his personal property without just compensation and violated his right to freedom of
religion. Id. Plaintiff also claims that Defendant Sutton’s conduct violated the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”). Id. Plaintiff identifies Defendant Sutton in
his individual and official capacities.
Finally, Plaintiff claims that Defendant Byers, the Warden of the ORCU, failed to
adequately address the fact that Defendant Montgomery took his shower bench, an item he
requires to shower and eliminate his bowels. Id. Plaintiff claims that Defendant Byer’s failure to
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adequately respond to the loss of his shower bench demonstrates a deliberate indifference to his
medical care. Id. 	Plaintiff also asserts a cause of action for discrimination under the ADA,
claiming that other inmates have not had their shower benches taken from them. Plaintiff
questions whether Defendant Byers’s failure to properly respond to the loss of his shower bench
is retaliation for Plaintiff initiating Herndon I. Plaintiff identifies Defendant Byers in his official
and individual capacities.
For relief, Plaintiff requests that his medically prescribed shower bench be replaced by
either the ADC or Wellpath. He further requests that his Bottocelli painting, “Madonna of the
Magnificat,” be replaced and permission to carry it—glued to an 8 ½ x 11 cardboard on his lap
in a folded towel. Plaintiff also requests permission to carry a lapboard in his towel as a common
“auxiliary aid” used by paraplegics in the free-world to carry items on their laps. Id. 	Finally,
Plaintiff requests actual damages for pain and suffering related to the loss of his shower bench.
Id.
LEGAL STANDARD
Under PLRA, the Court is obligated to review the case prior to service of process being
issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are
frivolous, malicious, or fail to state a claim upon which relief may be granted; or (2) seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it
does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). 	A pro se complaint, moreover, is to be given liberal
construction, meaning “that if the essence of an allegation is discernable, even though it is not
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pleaded with legal nicety, then the district court should construe the complaint in a way that permits
the layperson’s claim to be considered within the proper legal framework.” Stone v. Harry, 364
F.3d 912, 915 (8th Cir. 2004). 	However, “they still must allege sufficient facts to support the
claims advanced.” Id. at 914 (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
DISCUSSION
Plaintiff asserts claims under 42 U.S.C. 	§ 1983, the ADA, and RLUIPA. 	This Court
begins with Plaintiff’s § 1983 claims.
A. 	42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege a violation of a
constitutional right committed by a person acting under color of state law.” Andrews v. City of
West Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006). Here, as the Court understands it, Plaintiff
asserts violations of the First, Eighth, and Fourteenth Amendments. 	The Court considers these
claims in reverse order.
1. 	Fourteenth Amendment
Plaintiff claims that Defendant Montgomery took his shower bucket and the shower bench
leg extensions, and that Defendant Sutton took his cardboard lapboard in violation of the
Fourteenth Amendment. 	The Due Process Clause of the Fourteenth Amendment provides that
“[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, § 1. Courts have interpreted procedural due process considerations as
imposing “constraints on governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.” Walters v. Wolf, 660 F.3d 307, 311 (8th Cir. 2011) (quoting Mathews v. Eldridge,
424 U.S. 319, 332 (1976)). Assuming, without deciding, that Plaintiff has a recognized property
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interest in his shower bucket, shower leg extensions, and lapboard, the question, then becomes
what process Plaintiff is owed for the loss of that property.
In answering this question, the Supreme Court has usually held that “the Constitution
requires some kind of hearing before the State deprives a person of liberty or property.” Zinermon
v. Burch, 494 U.S. 113, 127 (1990). “In some circumstances, however, the Court has held that a
statutory provision for a post deprivation hearing, or a common-law tort remedy for erroneous
deprivation, satisfies due process.” Id. at 128. The Supreme Court has held, for example, that such
circumstances include “cases where the predicate deprivation is, or is akin to, a tortious loss of a
prisoner’s property resulting from a random unauthorized act by a state employee—versus some
established state procedure.” Walters, 660 F.3d at 312 (quoting Parratt v. Taylor, 451 U.S. 527,
541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986)).
“The loss of property . . . is in almost all cases beyond the control of the [government], in most
cases it is not only impracticable, but impossible, to provide a meaningful hearing before the
deprivation.” Id.
This is exactly one such case. 	Assuming Defendants Sutton and Montgomery took
Plaintiff’s property, this conduct is most akin to a tort. 	Indeed, Plaintiff asserts that Defendant
Montgomery took his property in violation of ADC policy. 	(ECF No. 1). 	Accordingly, for his
loss, a post-deprivation hearing is all the process Plaintiff is due. See Hudson v. Palmer, 468 U.S.
517, 533 (1984) (intentional deprivation of property does not violate due process when meaningful
post-deprivation remedy is available). 	Arkansas law provides such a post-deprivation remedy
through an action for conversion. See e.g., McQuillan v. Mercedes-Benz Credit Corp., 961 S.W.2d
729, 732 (1998) (conversion is common-law tort action for wrongful possession or disposition of
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someone else’s property). 	Accordingly, Plaintiff’s claims alleging that the loss of his property
constitutes a violation of the Fourteenth Amendment fail as a matter of law.
Further, to the extent that Plaintiff seeks to establish § 1983 liability against Defendant
Montgomery because he took Plaintiff’s property in violation of ADC policy, a violation of policy,
by itself, does not constitute a cognizable § 1983 claim. See Gardner v. Howard, 109 F.3d 427,
430 (8th Cir. 1997) (no § 1983 liability for violating prison policy). 	This Court therefore
recommends that Plaintiff’s claim against Defendant Montgomery for taking his shower bucket
and shower extension legs in violation of the Fourteenth Amendment be dismissed. Similarly, the
Court recommends that Plaintiff’s claim against Defendant Sutton in his individual capacity for
taking his cardboard lapboard in violation of the Fourteenth Amendment be dismissed.
2. 	Eighth Amendment
Plaintiff claims that Defendant Montgomery violated the Eighth Amendment prohibition
on cruel and unusual punishment by taking (and not replacing) Plaintiff’s medically prescribed
shower bucket and shower extension legs. 	Relatedly, Plaintiff asserts that Defendant Byers
violated his Eighth Amendment rights by failing to properly address Defendant Montgomery’s
conduct.
This Court construes such a claim as a “denial of medical care” under the Eighth
Amendment. 	To succeed on this type of claim, Plaintiff must demonstrate (1) that he had an
objectively serious medical need, and (2) that the Defendants knew of, but deliberately
disregarded, that serious medical need. See Ivey v. Audrain Cty., Mo., 968 F.3d 845, 848 (8th Cir.
2020). 	“A serious medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize the necessity for
a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal quotations
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omitted). 	“To demonstrate that a defendant actually knew of, but deliberately disregarded, a
serious medical need, the plaintiff must establish a mental state akin to criminal recklessness:
disregarding a known risk to the [detainee’s] health.” Barton v. Taber, 908 F.3d 1119, 1124 (8th
Cir. 2018) (internal quotations and citations omitted).
The Eighth Circuit has stated that deliberate indifference is an “onerous standard
requir[ing] a showing more than negligence, more than even gross negligence, but less than
purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate.”
Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal quotations and citations omitted).
Deliberate indifference may also be manifested by “prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once prescribed.”
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
Here, Plaintiff asserts that he is paraplegic, that the shower bench had been prescribed to
him so that he could shower and eliminate his bowels, and that without the shower bucket and
shower legs, the shower bench is useless, leaving him with no way to shower or eliminate his
bowels. (ECF No. 11). Plaintiff further claims that when Defendant Montgomery took his shower
bucket and the extension legs, he had diarrhea and because he could no longer eliminate his bowels
or clean himself, he stopped eating and drinking, which eventually resulted in his hospitalization.
Id. 	Thus, the Court finds for the limited purpose of preservice screening that Plaintiff has
established a plausible deliberate indifference claim against Defendant Montgomery in his
personal capacity for taking his shower bucket and the shower bench extension legs, thereby
interfering with his medical care.
Turning to Defendant Byers, Plaintiff claims that Defendant Byers was aware that
Defendant Montgomery removed his shower bucket and extension legs but did nothing to replace
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them, thereby evincing deliberate indifference to his medical care. (ECF No. 11). A supervisor,
such as Defendant Byers, “cannot be held liable, on a theory of respondeat superior, for an
employee’s unconstitutional actions.” Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (citing White
v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994)). “Rather, a supervisor incurs liability for an Eighth
Amendment violation when the supervisor is personally involved in the violation or when the
supervisor’s corrective action constitutes deliberate indifference toward the violation.” Id. (internal
citation and footnote omitted). “The supervisor must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he or she] might see.” (quoting Ripson
v. Alles, 21 F.3d 805, 809 (8th Cir. 1994) (internal quotation omitted)). Here, Plaintiff alleges that
although Defendant Byers was not personally or directly involved in discarding his shower bucket
and the shower bench extension legs, he knew about it, knew that his medical condition required
these items so that he could clean himself and vacate his bowels, but he nevertheless took no action
to correct the situation. See (ECF No. 11). 	Thus, the Court finds for the limited purpose of
preservice screening that Plaintiff has established a plausible deliberate indifference claim against
Defendant Byers in his personal capacity.
3. 	First Amendment
Plaintiff asserts that Defendant Sutton violated his right to religious freedom by
confiscating his cardboard lapboard depicting “Madonna of the Magnificat.” (ECF No. 11). The
Free 	Exercise 	Clause 	of 	the 	First 	Amendment 	provides 	that 	“Congress 	shall 	make 	no
law . . . prohibiting the free exercise [of religion] . . ..” U.S. Const. amend I. It is applied to the
states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
“[A] person claiming that a governmental policy or action violates his right to exercise his
religion freely must establish that the action substantially burdens his sincerely held religious
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belief.” Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). “In order to be considered a ‘substantial
burden,’ the governmental action must significantly inhibit or constrain conduct or expression that
manifests some central tenet of a person’s individual religious beliefs; must meaningfully curtail
a person’s ability to express adherence to his or her faith; or must deny a person reasonable
opportunities to engage in those activities that are fundamental to a person’s religion.” Id. (internal
citations omitted).
In this case, Plaintiff asserts that the copy of “Madonna of the Magnificat” glued to his
cardboard lapboard “connected [him] to his religion,” “was [his] personal daily connection to
Christ,” and “was an important religions icon to [him].” 	(ECF No. 11). 	Thus, for the limited
purposes of preservice screening, this Court finds that Plaintiff has established a plausible First
Amendment claim against Defendant Sutton in his individual capacity for throwing Plaintiff’s
copy of this painting on the floor and telling him to leave it there.
4. 	Official Capacity Claims
Plaintiff identifies the Defendants to his § 1983 claims in both their individual and official
capacities. “A suit against a government official in his or her official capacity is another way of
pleading an action against an entity of which an officer is an agent.” Baker v. Chisom, 501 F.3d
920, 925 (8th Cir. 2007) (citing Monell v. Dep’t of Social Services, 436 U.S. 658, 690 n.55 (1978)).
Put differently, “the real party in interest in an official-capacity suit is the governmental entity and
not the named official.” Baker, 501 F.3d at 925 (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).
In this case, each defendant is alleged to be an agent of the State of Arkansas.
As a threshold matter, “[n]either a state nor its officials acting in their official capacities
are ‘persons’ under § 1983” when sued for money damages. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). 	Thus, state officials may only be sued in their official capacities for
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prospective injunctive relief. Ex parte Young, 209 U.S. 123, 157-60 (1908); Fond du Lac Band of
Chippewa Indians v. Carlson, 68 F.3d 253, 255 (8th Cir. 1995) (“Ex parte Young recognized that
suits may be brought in federal court against state officials in their official capacities for
prospective injunctive relief to prevent future violations of federal law.”). 	Further, it is well-
established in this Circuit that for official liability to attach, “individual liability first must be found
on an underlying substantive claim.” McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.
2005). 	Accordingly, because this Court recommends that Plaintiff’s individual capacity claims
against Defendants Montgomery and Sutton for taking his personal property in violation of the
Fourteenth Amendment be dismissed, this Court similarly recommends that his official capacity
claims against these defendants for the same conduct also be dismissed.
This leaves Plaintiff’s official capacity claims against Defendants Montgomery and Byers
for their purported deliberate indifference to Plaintiff’s medical care by discarding his shower
bucket and the extension legs to his shower bench, and the First Amendment claim against
Defendant Sutton in his official capacity for confiscating Plaintiff’s picture of “Madonna of the
Magnificat.” “To establish liability in an official-capacity suit under section 1983, a plaintiff must
show either that the official named in the suit took an action pursuant to an unconstitutional
governmental policy or custom . . . or that he or she possessed final authority over the subject
matter at issue and used that authority in an unconstitutional manner.” Nix v. Norman, 879 F.2d
429, 433 (8th Cir. 1989).
With respect to Defendants Montgomery and Sutton, there are no allegations that they
acted pursuant to an unconstitutional policy. To be sure, Plaintiff claims that they acted contrary
to official policy. See (ECF No. 11). 	Further, Plaintiff has failed to establish any facts that the
ADC has an unofficial custom of depriving inmates of their shower bucket, shower bench
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extension legs, and religious paintings notwithstanding official policy. Indeed, it appears that the
ADC has allowed other similarly situated inmates to keep their shower bench extension legs
because Plaintiff says he is currently using someone else’s. Finally, there are no allegations that
Defendants Montgomery and Sutton possess “final decision-making authority” at the ADC.
Accordingly, Plaintiff’s official capacity claims against Defendants Montgomery and Sutton
should be dismissed.
This leaves Plaintiff’s official capacity claim against Defendant Byers, the warden of the
O.R.C.U. Viewed in the light most favorable to Plaintiff, Defendant Byers, as warden, has final
decision-making authority over policy. But there are no allegations that Defendant Byers enacted
an unconstitutional policy, which then precipitated the allegedly unconstitutional conduct.
Further, Plaintiff has failed to establish any facts that Defendant Byers’s decision—in failing to
address 	Defendant 	Montgomery’s 	allegedly 	unconstitutional 	conduct—is 	evidence 	of 	“a
continuing, widespread, persistent pattern of unconstitutional misconduct.” Jenkins v. Cnty. of
Hennepin, Minn., 557 F.3d 628, 634 (8th Cir. 2009). 	Accordingly, Plaintiff’s official capacity
claim against Defendant Byers should similarly be dismissed.
B. 	Americans with Disabilities Act (ADA)
Title II of the ADA, 42 U.S.C. § 12131 et seq., “prohibits qualified individuals with
disabilities from being excluded from participation in or the benefits of services, programs, or
activities of a public entity.” Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999). Title II of
the ADA applies to state prisons. Id. (citing Pennsylvania v. Dept. of Corrections v. Yeskey, 524
U.S. 206 (1998)).
To establish a prima facie claim under the ADA, the plaintiff must show “(1) he is a person
with a disability as defined by statute; (2) he is otherwise qualified for the benefit in question; and
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(3) he was excluded from the benefit due to discrimination based upon disability.” Id. (citing 42
U.S.C. §12131 et seq.).
For the purposes of preservice screening, the Court finds that Plaintiff has established a
plausible ADA claim: Plaintiff has established that he is a person with a disability as defined by
statute, specifically, Plaintiff is paraplegic, see 42 U.S.C. § 12102(4) (disability “shall be construed
in favor of broad coverage of individuals” under the ADA); that he requires a shower bench to
clean himself and vacate his bowels due to his disability; that he was prevented from washing
himself and eliminating his bowels because Defendant Montgomery took his shower bucket and
the shower bench extension legs, rendering his shower bench useless; and that Defendant Byers
was on notice of the issue but failed to correct it. This Court, therefore, recommends that Plaintiff’s
ADA claim against Defendants Montgomery and Byers proceed.
Further, this Court finds that Plaintiff has established a plausible ADA claim against
Defendant Sutton. 	Again, when viewed in the light most favorable to Plaintiff, Plaintiff has
established sufficient facts showing that he has a qualifying disability, that a self-made cardboard
lapboard allowed him to carry hot drinks and soups, and that denying him the ability to use this
tool interfered with his ability to consume hot items such as hot drinks and soups.
C. 	Religious Land Use and Incarcerated Persons Act (RLUIPA)
Plaintiff claims that Defendant Sutton, in addition to violating the Free Exercise Clause of
the First Amendment also violated the Religious Land Use and Incarcerated Persons Act
(RLUIPA) by throwing his cardboard lapboard depicting “Madonna of the Magnificat” on the
floor and telling him to leave it there.
Pursuant to RLUIPA,
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, . . . even if the burden results from
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a rule of general applicability, unless the government demonstrates that imposition
of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a)(1)–(2) (“Section 3”).
Section 3 of RLUIPA protects inmate religious exercise in this manner “when 	the
substantial 	burden 	is 	imposed 	in 	a 	program 	or 	activity that 	receives 	Federal 	financial
assistance.” 42 U.S.C. § 2000cc–1 (b)(1). “Religious exercise” means “the exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-
5(7)(A).
RLUIPA, moreover, “explicitly provides for a cause of action to enforce the heightened
free exercise right it creates.” Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009) (citing
§ 2000cc–2(a)–(g)). Further, “in such a suit, if the institutionalized person ‘produces prima facie
evidence to support a claim,’ by showing that the government practice substantially burdens the
person's exercise of religion, then the government bears the burden of persuasion on every other
element of the claim.” Id. (citing 42 U.S.C. § 2000cc-2(b)).
Here, Plaintiff asserts that Defendant Sutton took his cardboard lapboard depicting a
religious painting, threw it on the floor, and told him not to pick it up, that this painting was his
daily connection to Christ and was “an important religious icon to [him].” 	(ECF No. 11).
Accordingly, for the limited purpose of preservice screening, this Court finds that Plaintiff has
established a plausible claim under the RLUIPA against Defendant Sutton on the grounds that
taking away Plaintiff’s religious painting constituted a “substantial burden” on the exercise of
Plaintiff’s religion.
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CONCLUSION
In sum, having reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, this Court
recommends that the following claim be DISMISSED:
(1) Plaintiff’s individual and official capacity claims against Defendants Montgomery and
Sutton for taking his shower bucket, the shower bench extension legs, and his religious
painting without due process in violation of the Fourteenth Amendment; and
(2) Plaintiff’s official capacity claims under 42 U.S.C. § 1983 against Defendants
Montgomery, Sutton, and Byers.
This Court further recommends that the following claims PROCEED:
(1) Plaintiff’s individual capacity claim against Defendant Montgomery and Defendant
Byers for interfering with his medical care in violation of the Eighth Amendment as it
relates to the removal of his shower bucket and the shower bench extension legs.
(2) Plaintiff’s claims under the ADA against Defendant Montgomery, Defendant Byers,
and Defendant Sutton;
(3) Plaintiff’s individual capacity claim against Defendant Sutton for taking his religious
painting in violation of the First Amendment;
(4) Plaintiff’s claim against Defendant Sutton for taking his religious painting in violation
of RLUIPA.
STATUS 	OF 	REFERRAL: 	This 	case 	should 	remain 	referred 	for 	all 	matters 	not
recommended for dismissal in this Report and Recommendation.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
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reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 25th day of January 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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