UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) ANTHONY ACCURSO, ) ) Plaintiff, ) ) v. ) Case No. 17-cv-02626 (APM) ) FEDERAL BUREAU OF PRISONS, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Anthony Accurso is incarcerated at FCI Seagoville in Seagoville, Texas. Plaintiff

is a practicing Buddhist. In December 2016, Plaintiff asked that he be permitted to purchase and

keep in his living area a zafu and zabuton. A zafu is a small circular cushion. A zabuton is a

square-shaped mat. Both are used by adherents of the Buddhist faith to practice meditation. In

January 2016, the Warden of FCI Seagoville denied Plaintiff’s request. The Warden explained

that under Bureau of Prisons (“BOP”) policy, as set forth in the agency’s Practical Guidelines for

Administration of Inmate Religious Beliefs and Practices, the requested items are classified as

“congregate religious items,” instead of “personal religious items.” “Personal religious items”

may be kept with an inmate’s personal property, whereas “congregate religious items” may not be.

The Warden advised Plaintiff that meditation cushions were available in the prison chapel and

accessible during regularly scheduled Buddhist services and at other times when the chapel is free,

and that meditation mats were pending purchase. Not satisfied with the Warden’s response,

Plaintiff sought administrative review of the Warden’s decision. But at all levels, the appeal was

denied. At each stage, the decisionmaker relied on the BOP’s classification of zafus and zabutons as congregate religious items, not personal religious items, as the reason for affirming the

Warden’s decision.

Plaintiff brings this action under the Religious Freedom Restoration Act (“RFRA”),

42 U.S.C. § 2000bb et seq., to challenge the BOP’s “national policy or practice of prohibiting

inmate possession of zafus and zabutons in inmate living areas.” Compl., ECF No. 1, at 1. Plaintiff

contests five aspects of the BOP’s policy or practice, all under RFRA and each associated with a

count in his Complaint: (1) the prohibition against inmates personally possessing zafus and

zabutons (Count One); (2) the refusal to allow zafus and zabutons to be transferred between

institutions (Count Two); (3) the restriction on use of zafus and zabutons to times when a chapel

is open and available (Count Three); (4) the practice of not providing zafus and zabutons to inmates

during transfer between institutions (Count Four); and (5) the denial of access to zafus and

zabutons during the period after an inmate arrives at a new institution (Count V). Id. at 9–10. As

relief, Plaintiff asks the court, in effect, to order the BOP to treat zafus and zabutons as personal

religious items that an inmate can keep in his living area and take with him during transfers. Id.

at 10–11.

Defendant Federal Bureau of Prisons moves under

(a) to transfer this case

to the U.S. District Court for the Northern District of Texas, where Plaintiff is incarcerated and

where the events at issue took place. See Def.’s Mot. to Transfer or, Alternatively, for Partial

Summ. J., ECF No. 9 [hereinafter Def.’s Mot.]. Alternatively, Defendant seeks partial summary

judgment on Counts Two, Four, and Five on the ground that Plaintiff did not exhaust his

administrative remedies as to those claims.

For the following reasons, the court denies

Defendant’s Motion in full.

2 II. MOTION TO TRANSFER

In Starnes v. McGuire, the D.C. Circuit articulated several factors that courts should

consider when deciding whether to transfer a case brought by a prisoner incarcerated outside of

the District of Columbia. See

, 929–31 (D.C. Cir. 1974). Those factors include:

(1) the prisoner’s difficulty communicating with counsel; (2) the challenge of transferring the

prisoner; (3) the availability of witnesses and files; (4) the speed with which the case can be

resolved; and (5) whether the case involves a national policy issue that may require the testimony

of policymakers. See id.; see also Royer v. Fed. Bureau of Prisons,

(D.D.C. 2013) (listing Starnes factors). Additionally, under

(a), a court is

required to balance the “convenience of the parties and witnesses” and the “interest of justice” in

deciding whether to transfer the case. Courts should consider a host of “private” and “public”

interest factors in the balancing. See Royer, 934 F. Supp. 2d at 103–04 (setting forth factors). The

moving party bears the burden of establishing that transfer is warranted. See Smith v. Yeager,

(D.D.C. 2017).

Here, Defendant argues that three key factors weigh in favor of transferring this matter to

the Northern District of Texas. First, Plaintiff is incarcerated there and the events at issue occurred

in that district. Second, it will be more convenient to obtain evidence from witnesses to these

events, including Plaintiff and prison administrators, in the Northern District of Texas. And, third,

there is no local interest in the District of Columbia as to the parties’ dispute. See Def.’s Mot. at

6–9. 1

The court is unconvinced that these factors tilt the balance in favor of transferring this case.

Most significantly, although not dispositive, Plaintiff challenges a national BOP policy that likely

1 Citations to the parties’ pleadings are to the page numbers electronically generated by CM/ECF.

3 will require taking evidence from headquarters officials. See Starnes,

(“[T]he

existence of a national policy issue that may involve testimony by the policymakers is a factor to

be considered by the district judge in determining whether transfer is appropriate under Section

1404(a).”); see also infra note 3. As Defendant’s own exhibits show, the decision to reject

Plaintiff’s request to purchase and maintain a zafu and zabuton involved little more than reference

to the BOP’s national policy statement designating those items to be “congregate religious items,”

instead of “personal religious items.” 2 See Def.’s Mot., Decl. of Sonya Cole [hereinafter Cole

Decl.], ECF No. 9-3, Attachs. 3–5, at 31–42. So far as the court can tell, that decision did not

involve the exercise of discretion by the Warden or involve the application of policy to

circumstances unique to Plaintiff. Instead, the Warden made a straightforward decision based on

the classification scheme devised by BOP policymakers. Accordingly, the testimony of the

Warden and other prison officials at FCI Seagoville, while perhaps relevant, will likely be less

critical to resolving this matter than the testimony of D.C.-based BOP officials who will defend

the agency’s classification of zafus and zabutons. The greater convenience of litigating this action

in Texas for local prison officials therefore is a less weighty consideration in this case. 3 See Royer,

2 The BOP’s Program Statement Number P5360.09, titled “Religious Beliefs and Practices,” provides that “[a] list of generally authorized and transferrable inmate religious property is contained in the Practical Guidelines for Administration of Inmate Beliefs and Practices TRM” (“Practical Guidelines Manual”). Available at https://www.bop.gov/policy/progstat/5360 009.pdf, at 14. The Practical Guidelines Manual lists zafus and zabutons as congregate religious items of the Buddhist faith. Available at http://www.acfsa.org/documents/dietsReligious/FederalGuidelinesInmateReligiousBeliefsandPractices032702.pdf, at 1. 3 A declarant for Defendant, Alisha Gallagher, an attorney for the BOP, asserts that there may be as many as 15 witnesses who can offer relevant testimony, half of whom are in Texas. See Def.’s Reply in Further Supp. of Def.’s Mot., ECF No. 13, Decl. of Alisha Gallagher, ECF No. 13-1 [hereinafter Gallagher Decl.], ¶ 3. Gallagher does not, however, explain how the testimony of any particular witness in Texas bears on the legal questions presented here regarding the classification of Buddhist meditation cushions and mats as congregate religious items and whether such classification imposes a substantial burden on the exercise of the Buddhist faith. See 42 U.SC.§ 2000cc-1. Notably, Gallagher also lists three witnesses in Washington, D.C., all of whom are high-ranking BOP officials—the agency’s Acting Director, the Chaplaincy Services Administrator, and the Assistant Chaplaincy Services Administrator. Gallagher Decl. ¶ 3(e), (g)–(h). The listing of these officials confirms that Defendant will be relying on policymakers located at BOP headquarters to defend this case.

4

(finding that the testimony of local prison officials did not compel transfer

where “issues of national policy or decisions made by national officials [we]re relevant” to the

case, namely, whether the policy violated the requirement of notice-and-comment rulemaking);

see also Stern v. Fed. Bureau of Prisons,

(D.D.C. 2007) (denying transfer

where the “only issues before the court [we]re legal and pertain[ed] to the Bureau’s authority to

promulgate” a regulation).

Other factors do not counsel for or against transfer. The need for Plaintiff’s physical

presence in the District of Columbia, at least for discovery, is unclear, as his deposition could be

conducted remotely via video conference. Moreover, Plaintiff’s ability to communicate with

counsel will fare no better in Texas than it would here, as Plaintiff’s counsel is in Vermont. See

Compl. at 12. And, finally, the court is not moved by the purported quicker time in which this

matter might get resolved here versus in the Northern District of Texas. See Def.’s Mot. at 8. Such

statistics, stripped of any context, do not tell the court much about the relative congestion and

complexity of the districts’ respective dockets.

The cases upon which Defendant primarily relies are distinguishable. See Def.’s Reply in

Further Supp. of Def.’s Mot., ECF No. 13, at 3. Zaykiya v. United States involved Federal Tort

Claims Act and Bivens claims brought by an inmate who claimed that prison officials had over-

detained him for three years for his refusal to agree to a proposed installment plan for the payment

of fines.

(D.D.C. 2003). There, the court found that venue was improper

in the District of Columbia and that it lacked personal jurisdiction over a number of individual

defendants, and therefore it was in the interest of justice to transfer the case to a district in which

5 personal jurisdiction over those defendants could be exercised. 4 See

at 59–60. The

considerations justifying transfer in Zaykiya are not present here.

The other key case that Defendant cites, Chandler v. Stover,

(D.D.C.

2016), is inapplicable for a different reason. There, a prisoner asserted Bivens claims against

individual prison officials and the BOP for violating his free speech and due process rights, and

for denying him proper medical care under the Eighth Amendment. See

at 292–95. The court

found that it lacked personal jurisdiction over the individual defendants and that venue was

improper in the District of Columbia.

at 296–98. Moreover, the court did not transfer the case;

it simply dismissed the complaint. Chandler therefore does not address the factors for and against

transfer that the court must consider here.

Accordingly, for the reasons stated, the court declines to transfer this matter to the Northern

District of Texas.

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

Alternatively, Defendant seeks entry of judgment in its favor as to Counts Two, Four, and

Five for failure to exhaust administrative remedies, as required by the Prison Litigation Reform

Act (“PLRA”), 42 U.S.C. § 1997e(a). See Def.’s Mot. at 9–10. Each of these counts challenges

BOP’s refusal to keep or make available zafus and zabutons during and immediately after an

inmate’s transfer to a new facility. See Compl. at 9–10. Defendant asserts that Plaintiff did not

specifically raise the lack of access to these items during transfer periods in any of his complaints

4 Here, Defendant has not asserted that venue is improper in this district. See Fed. R. Civ. P. 12(b)(3). Having failed to raise that ground for dismissal in its Motion, Defendant has waived it. See Fed. R. Civ. P. 12(h)(1).

6 to prison officials. See Def.’s Mot. at 10. The court denies Defendant’s request for entry of partial

summary judgment, at this time, for two reasons.

First, Defendant has offered no evidence about the degree of specificity prisoners at FCI

Seagoville must include to lodge administrative complaints. In Jones v. Bock, the Supreme Court

held that “[c]ompliance with prison grievance procedures . . . is all that is required by the PLRA

to ‘properly exhaust.’ The level of detail necessary in a grievance to comply with the grievance

procedures will vary from system to system and claim to claim, but it is the prison’s requirements,

and not the PLRA, that define the boundaries of proper exhaustion.”

(2007).

Here, the record contains no evidence as to the level of specificity Plaintiff was obligated to

provide when registering his grievances. See Cole Decl., Attach. 3, at 33 (BOP form for requesting

administrative remedies provides that there are “[a]dditional instructions on reverse,” but the back

page is not included in the record). The court therefore cannot determine at this point whether

Plaintiff exhausted his remedies as to the counts at issue.

Second, courts have held that, when prison grievance procedures are silent or incomplete

as to the degree of specificity required to seek redress, “a grievance suffices if it alerts the prison

to the nature of the wrong for which redress is sought.” Strong v. David,

(7th

Cir. 2002); accord Griffin v. Arpaio,

(9th Cir. 2009) (adopting Strong

standard); Aref v. Holder, Civil Action No. 10-539 (BJR),

, at *4 (D.D.C. Feb.

19, 2013) (same). Here, if it were to turn out that the rules applicable to Plaintiff were silent or

incomplete with regard to the specificity of a complaint, the notice standard articulated in Strong

arguably would be satisfied. At the heart of Plaintiff’s administrative grievances was the BOP’s

treatment of zafus and zabutons as congregate religious items that he could not purchase and keep

with his personal property. See Cole Decl., Attach. 3, at 34 (attachment to Plaintiff’s request for

7 administrative remedy). That designation also implicates an inmate’s ability to carry or to access

those items during transfer periods. See Practical Guidelines Manual,

http://www.acfsa.org/documents/dietsReligious/FederalGuidelinesInmateReligiousBeliefsandPra

ctices032702.pdf, at 1 (“The list of personal religious property items is generally transferrable to

all institutions in the Bureau of Prisons.”). Thus, it would appear, at least on the current record,

that Plaintiff gave the BOP adequate notice of his claims regarding lack of access to meditation

mats and cushions during transfer periods and therefore exhausted his administrative remedies.

The court need not, however, make a formal finding on exhaustion, as a final determination will

have to await factual development on the rules governing the grievance process.

Defendant’s motion for partial summary judgment is therefore denied.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Transfer or, Alternatively, for Partial

Summary Judgment is denied.

Dated: October 15, 2018 Amit P. Mehta United States District Judge

8