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Little v. Jones

June 8, 2010

GARY LITTLE, PLAINTIFF - APPELLANT,
v.
JUSTIN JONES, DOC DIRECTOR; DEBBIE MORTON, DOC DIRECTOR'S DESIGNEE; GREG PROVINCE, MACC WARDEN; ANITA TRAMMELL, MACC DEPUTY WARDEN; BOB BIBERSTINE, MACC CHAPLAIN; DONNA VISOTSKI; REGINA HICKS; CECIL GIBBONS; MS. WYSE, MACC FOOD SUPERVISORS, DEFENDANTS - APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D. Ct. No. 6:07-CIV-00177-RAW-SPS).

The opinion of the court was delivered by: Tacha, Circuit Judge

PUBLISH

Before TACHA, KELLY, and HARTZ, Circuit Judges.

Gary Little, an Oklahoma state prisoner, brought suit under 42 U.S.C. § 1983 alleging the Oklahoma Department of Corrections ("ODOC") and several employees and officials at the Mack Alford Correctional Center (collectively "defendants"), violated his constitutional rights. Upon defendants' motion, the district court dismissed Mr. Little's complaint for failure to exhaust administrative remedies and denied his motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM in part, REVERSE in part, and REMAND.

I. BACKGROUND

Mr. Little entered the custody of the ODOC in June 2004 to serve a ten-year sentence for assault and battery. Since his incarceration, the ODOC has transferred Mr. Little between Oklahoma correctional facilities at least fourteen times. From March 26, 2007, through July 25, 2007, Mr. Little was incarcerated at the Mack Alford Correctional Center ("MACC") in Stringtown, Oklahoma.

While at MACC, Mr. Little requested a vegan diet, which consists of plant foods only and does not include any animal byproducts, including eggs or milk. He maintained that the diet was a part of his religious practices as a Seventh Day Adventist. Initially, Donna Visotski, a food supervisor at MACC, agreed with Mr. Little's request and began providing him with his desired diet. During this time, Mr. Little also began working with MACC Chaplain Bob Biberstine to set up a diet and appropriate menu.

On April 11, 2007, Mr. Little filed a Request to Staff ("RTS") with Chaplain Biberstine and Deputy Warden Anita Trammell complaining that MACC had "no policy on vegetarians" and requesting that his "religious diet [be] honored." The next day, Mr. Little filed a religious diet request form. Because the form did not contain an option to request a vegan diet, Mr. Little wrote in "vegan vegetarian diet." Deputy Warden Trammell answered Mr. Little's religious diet request that same day, crossing out the hand-written line "vegan vegetarian diet" and approving Mr. Little for a "meat free" diet. Additionally, Deputy Warden Trammell issued a memorandum to Ms. Visotski instructing her that "[u]nder no circumstances will Food Service prepare meals based on an inmate's individual request." The memorandum further provided that the only special religious diets allowed were "Meat Free," "Pork Free," and "Kosher."

On April 27, 2007, Deputy Warden Trammell responded to Mr. Little's April 11 RTS, informing him that he had been placed on a "non-meat diet" and would "receive double portions of vegetables, fruit if available and peanut butter." Mr. Little immediately filed a grievance with Warden Greg Province.*fn1 In the grievance, Mr. Little maintained that Deputy Warden Trammell had denied his request for a vegan diet in violation of his First Amendment rights. Mr. Little stated that he often went hungry because the meat-free diet Deputy Warden Trammell approved contained foods with animal byproducts that he could not eat pursuant to his faith. He also complained that he had submitted an RTS to the medical unit on April 16, 2007, concerning the health repercussions from the lack of a balanced diet, but had not yet been scheduled for an appointment, and that Chaplain Biberstein was "protect[ing] the Jews and Muslim Religions [sic] but will not protect mine."

Warden Province answered Mr. Little's grievance on April 30, 2007. In his response, Warden Province reiterated Deputy Warden Trammell's earlier determination that Mr. Little would be placed on a non-meat diet and would receive double portions of vegetables, peanut butter, and fruit, if available. On May 3, 2007, Mr. Little appealed from Warden Province's decision, raising nearly identical concerns as those asserted in his grievance. Two weeks later, Debbie Morton, the ODOC Director's Designee, returned Mr. Little's grievance appeal unanswered on the grounds that he included "more than 1 issue." Ms. Morton also indicated that the appeal improperly submitted additional issues not presented in the initial grievance and "[n]ew evidence, such as your claim that you only received two bananas and two apples on your food tray."

On June 15, 2007, Mr. Little filed a pro se complaint in the district court pursuant to § 1983. In his complaint, Mr. Little alleges that prison officials at MACC denied him a vegan diet in violation of his rights under the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Mr. Little seeks injunctive and declaratory relief.

The ODOC transferred Mr. Little to Lawton Correctional Facility on July 25, 2007, where he again requested and was denied a vegan diet. He filed a grievance and a grievance appeal, the latter of which was returned unanswered on the basis that ODOC policy does not allow an inmate to grieve an issue that is pending in litigation.

On October 22, 2007, defendants submitted a motion to dismiss or, alternatively, for summary judgment. Although they stated that Mr. Little "properly filed" the April 27, 2007 grievance, defendants argued that his grievance appeal was procedurally defective. Defendants therefore contended that Mr. Little had not exhausted his administrative remedies. In addition, defendants argued that Mr. Little's First Amendment claim was meritless because he was already receiving a special diet based on his requests, even if it fell short of Mr. Little's "personal preferences," and that his claim had become moot because he had been transferred to another facility.

While defendants' motion was pending, Mr. Little was transferred several more times. On April 21, 2008, he filed an application for a preliminary injunction with the district court.*fn2 Mr. Little stated that he was facing "hostility, resentment and retaliation" at Joseph Harp Correctional Center ("JHCC") after again requesting a vegan diet. He asked the court to order the ODOC ...


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