*1
Rеdd,
Correction;
of
Julie
Classifi
unexplained departure
an
doing so because
Administrator, Arkansas De
generally
“a
cation
precedent
from established
Correction;
an
partment
to be
of
Shawna
holding
departure]
for
[the
reason
Administrator,
change
Reid,
from
arbitrary
capricious
and
Classification
Correction;
Tele-
practice[.]”
Department
Cable &
agency
Nat’l
Arkansas
of
Servs.,
Richardson-Beshears,
Ass’n v. Brand X Internet
comms.
Classification
U.S.
Administrator,
Department
Arkansas
(2005);
also
v. Fox
see
FCC
Roberts,
Correction; Patricia A.
of
Stations, Inc.,
556 U.S.
Television
Administrator, Arkan
Classification
1800, 1811,
Because the BIA Administrator, tion De Arkansas pro- definition without established Acosta Correction; partment of Judith viding explanation reasonable its Administrator, Steed, choice, ca- Classification arbitrary departure is Correction; Thus, by Department I am pricious. although bound Arkansas of Tacker, our in Constanza and Ortiz- Adminis decisions Lori Classification Puentes, I agree trator, cannot with our circuit’s Department of Arkansas adoption as-a-matter-of-course of Correction; Tiner, Janet Classifica defining approach “particular BIA’s new Administrator, De Arkansas approach group”—an social which Christy partment Correction; of estab- represents departure a stark Townsend, Adminis Classification precedent, pro- but eviscerаtes lished also trator, Department Arkansas of many groups applicants tections for of eli- Correction; Webber, Classifi Julia gible agency’s prior under the definition. Administrator, Arkansas De cation Correction; partment of Pam Wil Therefore, reluctantly I concur son, Administrator, Classification result. Correction; Department Arkansas of Zomant, Leslie H. Classification Department Administrator, Arkansas Correction; of Kathleen M. De Administrator, chant, Classification Correction; Department of Arkansas Catherynne Whtyefawn KENDRICK, Roy Agee, Adminis Classification Appellant, trator, Department Arkansas Allison, Correction; Classifi Bobbie Administrator, De Arkansas POPE, cation Martin Classification Adminis Correction; partment trator, Candice Department Arkansas Administrator, Ashby, Correction; Pratt, Classification Classification Correction; Administrator, Department *2 Wendy Kelley, Roger Ayers, L. Classification Ad Classification Ad ministrator, Department ministrator, Department Arkansas Arkansas Correction; Crystal Lavender, of Correction; Bailey, Ronald Clas of Administrator, Classification Arkan Administrator, Arkansas sification Department Correction; of sas Correction; Henry Department of Maples, John Classification Admin Administrator, Boyce, Classification istrator, Department Arkansas of Correction; Department Arkansas of Correction; Masters, Deborah Clas Maggie Capel, Classification Ad Administrator, sifiсation Arkansas ministrator, Department Arkansas Department Correction; Larry of Correction; Caraway, William of May, Administrator, Classification Administrator, Arkan Classification Department Correction; Arkansas of Correction; Department of sas McCoy, P. Classification Adminis Phillip Cargill, Classification W. trator, Department Arkansas of Administrator, Department Arkansas Correction; McCrory, S.E. Classifi Coleman, Correction; Bernstein of Administrator, cation Arkansas De Administrator, Classification Arkan partment Correction; Sonya of Correction; Department of C. sas McGinnis-Douglas, Whitefield Clas Corrington, Classification Adminis Administrator, sification Arkansas trator, Department Arkansas of Department Correction; Larry of Correction; Judy Taylor, Classifica Norris, Administrator, Classification Administrator, De Arkansas Department Correction; Arkansas of Correction; partment of June Dan Payne, Dexter Classification Admin iels, Administrator, Classification istrator, Department Arkansas of Correction; Department of Arkansas Correction; Petit, Classification Ad Wayland, Classification Administra ministrator, Department Arkansas tor, Department Cоrrection; Kathy Arkansas of Cor Pirano, of Clas Deen, rection; Administrator, Jeff Classification sification Arkansas Department Administrator, Correction; of Department Arkansas Defen dants, Correction; Dixon, Linda of Classi Administrator, fication Arkansas Donavion, Sgt., K. Lavonda McPherson Department Correction; of Amanda Unit, ADC; Martin, Corporal, E. Sara Dutton-Jackson, C. Classification ADC, Unit, Appellees. McPherson
Administrator, Department Arkansas Bobby Coleman, Classification Adminis Dykes-Cul Correction; of Linda trator, Department Arkansas of Cor lum, Administrator, Classificatiоn rection; Compton, C. Classification Correction; Department Arkansas of Administrator, Department Arkansas Stephanie England, Classification Correction, of Defendants. Administrator, Department Arkansas No. 11-1564. Correction; Faust, Nurzuhal Administrator, Classification Arkan United of Appeals, States Court Correction; Department sas Eighth Circuit. Cherry Garrett, Classification Ad Submitted: Aug. 2011. ministrator, Department Arkansas Filed: March Correction; Gibson, James Clas Administrator, Rehearing Rehearing En Banc sification April Denied 2012.* Correction; William Jones, Administrator, Classification Correсtion; Department of Wollman, Colloton,
* Judges Riley, hearing Gruender banc. en grant petition and Benton would for re- arising the confiscation of her
claims Bible, beads, and other religious during materials November *3 shakedown, subsequent 2007 cell and return these items. also failure to Wе present that—-on the record—tri- conclude issues exist on these claims. See alworthy Johnson, Montin v. Estate (8th Cir.2011) (summary judgment review); Dep’t v. Iowa King standard of Corr., Cir.), cert. — denied, U.S.—, 499, (de novo review of L.Ed.2d exhaustion). administrative Accordingly, as to the claims we reverse Donavion, fur- against and we remand for proceedings opin- ther consistent with this Corporal grant appellee also Sa- ion. We dismiss; we rah E. Martin’s motion to deny Kendrick’s motion to “reinstate” Martin; deny and we Kendrick’s remain- relief, part for which in raise ing motions claims can ad- allegations and that on remand. dressed COLLOTON, concurring Judge, Circuit dissenting in part part. and court, The adopting district fourteen- recommendation of a Baldwinsville, NY, page report and for Ryan, Brenna J. magistrate Catherynne judge, dismissed appellant. against Sergeant Lavon- Kendriсk’s claims Robinson, AAG, Rock, Sherri L. Little Donavion of the da AR, appellee. for (“ADC”). During the rele- Corrections LOKEN, period, puni- Kendrick housed in BYE, vant Before COLLOTON, at an Arkansas correc- segregation tive Judges. Circuit facility tional to violations of due
PER CURIAM. disciplinary lengthy proce- “After a rules. history, Catherynne Whtye- dural the District Court narrowed inmate multi- against the dis- Kendrick’s numerous claims appeals following fawn Kendrick one ple against defendants to two claims disposition trict court’s of her claims Donavion, destroyed 1. That against Sergeant K. defendant: Lavonda Bible; her remaining this 42 her and 2. confiscated the sole defendant Appellant’s Supplemental § re- Upon action. careful beads.” U.S.C. Br., view, v. Kendrick claims that Donavion’s conclude Kendrick adminis- at we Kendrick’s constitutional tratively exhausted her constitutional actions violated court.”). religion documents, the free exercise of under district right to The new moreover, Amendments. Fourteenth show com- First Kendrick pleted steps the first two of the three- court dismissed the claim The district stage grievance process, not thаt ex- she concerning confiscation a Catholic Bible hausted all available remedies. R. See prejudice failure exhaust without ¶ 428-7, Doc. 437-1. The district court administrative remedies. The dis prejudice court’s dismissal without should concerning rosary claim missed the beads be affirmed. majori prejudice with on the merits. The ty summarily judgment reverses the of the claim, On Kendrick’s second the court *4 meaningful explana district court with no “trialworthy concludes that there ais is- tion. I affirm.** would sue[]” on her that contention Donavion violated rights by Kendrick’s constitutional filing
Bеfore suit under 42 U.S.C. denying rosary her access to beads while 1983, § all an inmate must exhaust avail- punitive in segregation. But even assum- 1997e(a). § able remedies. 42 If a U.S.C. ing disputed there ais issue of fact about exhausted, claim not is then the district (as whether opposed Donavion to another Jones, court must dismiss it. Johnson officer) correctional confiscated (8th Kendrick’s 624, Cir.2003). 627 beads, rosary point there is in no conduct- correctly The district court ruled that ing a trial to resolve that factual if dispute properly Kendrick did not exhaust her judgment Donavion еntitled is to mat- as a claim about confiscation of a Bi- Despite ordering ter law. supplemental presented ble. Donavion that evidence dispositive on legal question, briefs the the grievance did not Kendrick exhaust the majority inexplicably declines to address remedies available to her within the cor- it. system. R. rectional Doc. 428-7. The The judgment district court’s be pertinent by evidence cited Kendrick should affirmed, 438, court, 6, in because alleged the district see R. Doc. at Donavion’s con rosary fiscation of grievance complained was a form that beads did not the violate items, and, minimum, about the of four confiscation none Constitution qualified which was a R. is entitled immunity—which Catholic Bible. Doc. to is 437-2, 437-3. The district court thus cor- both a defense to liability and an entitle rectly concluded that the ment Catholic Bible not to stand trial or to face other the claim was not On appeal, litigation. Iqbal, exhausted. Ken- burdens Ashcroft griev- 662, 1937, 1945-46, drick submits for first two the time 556 U.S. 129 S.Ct. (2009). ance forms that to a refer Catholic Bible. policy ADC forbids 2-C-l, Appellant’s App. Exh. punitive 2-D-l. an inmate in segregation рos to item, These documents in presented any beads, were including rosary sess that court, the they district thus cannot wrapped could be around the com neck to 42, establish error in the district Appellee’s 32, court’s ex- mit suicide. App. ruling. v. Harry, haustion Stone 364 F.3d Assuming policy that this burdened Ken (8th Cir.2004); 914-15 v. Su- to right drick’s her religion, exercise the Griffin (8th Cir.2000) Valu, per 218 F.3d policy reasonably legitimate related to (“We part do not consider as of the penological Safley, record interests. Turner v. 78, 89, 107 ... documents which upon [appellant] at- 482 U.S. S.Ct. 96 L.Ed.2d (1987). tempt rely that were not before the
** pend- ing I in the concur court's resolution of the motions. connection,” assuming Even there is room “valid, ment. rational
There
ais
the
rea
policy
about whether
was
id,
prison
the
debate
between
sonably
legitimate penological
related to
property
forbidding possession of
policy
“all
objectives, qualified immunity protects
the State’s
could facilitate suicide and
that
those who
safety
plainly incompetent
or
but
security
legitimate interest
Bellmon,
v. al-
knowingly violate the law.”
935 F.2d
Hall v.
prison.
See
Ashcroft
—Kidd,
U.S.—,
2074, 2085,
Cir.1991)
(affirming dis-
(internal
quota
regula-
ers. See O’Lone 342, 351-52, U.S. poli- (upholding prison reasonable,
cy prohibited even it though as observanсe, form religious
one because participate religious inmates could in other Tony HULSTEIN, Plaintiff-Appellee, ceremonies); Dept. Murphy v. Missouri (“A (8th Cir.2004) Com, DRUG ENFORCEMENT pre- prisoner need not be afforded [her] ADMINISTRATION, Defendant- practicing religion ferred means of as [her] Appеllant. long as is afforded means [she] sufficient so.”). no a trial to do There is need for No. 11-2039. the reason- disputes
resolve factual about Appeals, United States Court of matter of prison policy ableness of the as a Eighth Circuit. constitutional law. Dec. 2011. Submitted: minimum, aAt Donavion is entitled to Filed: March immunity. clearly It qualified es in 2007 that her enforcement of tablished Amend policy
the ADC violated the First