Dellinger v. Clarke

• Decision Date: 22 March 2016
• Docket Number: Civil Action No. 7:15cv00233
• Citation: 172 F.Supp.3d 898
• Parties: Douglas Dellinger, Plaintiff, v. Harold Clarke, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

172 F.Supp.3d 898

Douglas Dellinger, Plaintiff,

v.Harold Clarke, et al., Defendants.

Civil Action No. 7:15cv00233

United States District Court, W.D. Virginia, Roanoke Division.

Signed March 22, 2016

Douglas Dellinger, Independence, VA, pro se.

Nancy Hull Davidson, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Elizabeth K. Dillon

, United States District Judge

Douglas Dellinger, a Virginia inmate proceeding pro se , filed a civil action pursuant to 42 U.S.C. § 1983

in May 2015, alleging that the defendants violated his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc–1, et seq .¹ Defendants filed a motion for summary judgment acknowledging that plaintiff alleged violations of his rights under RLUIPA, and Dellinger responded thereto, making this matter ripe for disposition. For the reasons stated herein, the court grants in part and denies in part defendants' motion for summary judgment.

I.

A.

In his complaint, Dellinger, who is Jewish, alleges that neither River North Correctional Center (“River North”) nor the Virginia Department of Corrections (“VDOC”) “provide[s] or makes available” the kosher meals required by his religious beliefs. Dellinger also states that the “VDOC didn't allow purchase of kosher meals” from the commissary during Passover. Finally, Dellinger alleges that “Jewish inmates are continuously denied religious services or are habitually called late for services while all other religious groups are allowed services and even given extra time.”

B.

In their motion for summary judgment, defendants assert the following facts. The Common Fare diet is provided at River North and other VDOC facilities and is designed to meet all known religious dietary restrictions, including those of the Jewish faith. No pork or pork derivatives are used in any Common Fare food and all foods purchased and used for the Common Fare diet (except fruits and vegetables) are consistent with certified “kosher” by a recognized Orthodox Standard, such as “U,” “K,” or “CRC.” Further, the storage, preparation, serving, and cleaning of the kitchen and trays are compliant with all kosher requirements.

On January 26, 2015, the Chief of Corrections Operations for the VDOC issued a memorandum to the Wardens and Superintendents of VDOC facilities about the Passover observance for 2015, which occurred from April 4th through April 11th. The memorandum explained that menu modifications would be made to the Common Fare and Master Menus for inmates observing Passover in 2015.² Dellinger participated in Passover in April 2015 at River North, and he ate the Common Fare Passover menu.

In addition to the Common Fare Passover menu, inmates were permitted to purchase certain “Kosher for Passover” foods from the commissary.³ Inmates who registered to observe Passover and who were on the pass list for the faith groups authorized to observe Passover could order the “Kosher for Passover” items from the commissary by using forms that were distributed to them on January 16, 2015. The deadline to purchase “Kosher for Passover” food from the commissary was February 25, 2015. Dellinger did not submit an order.

Defendants state that all religious programs at River North are scheduled for one hour on Fridays and that no program receives more than one hour. Sometimes programs may be called late or dismissed early due to institutional needs, such as lockdowns, staff shortages, or internal incidents. If something conflicts with a program schedule, staff does not adjust the schedule because the scheduling change would affect other areas and facility needs, such as meals and offender count. A program may be cancelled when offender movement is not permitted, such as during a lockdown or when there is a staff shortage. At River North, Jewish services are held in the gymnasium on Fridays from 9:15 a.m. to 10:15 a.m. From January to August 27, 2015, Jewish services were held on all but five Fridays. According to the roster, Dellinger attended all but one Friday service.

C.

Dellinger did not respond to the motion for summary judgment regarding his Passover commissary food claim and his religious services claim. In his response, however, he does take issue with defendants' assertion that “the storage, preparation, serving, and cleaning of the kitchen and trays are compliant with all kosher requirements.”

Dellinger argues that although the Common Fare diet includes several kosher foods, the foods are all “rendered unkosher due to handling, preparation,” and River North's unkosher kitchen. Dellinger states that he “adheres to the Jewish Laws of Kashrut (kosher dietary laws),” a “required tenet” of his beliefs. Dellinger explains that Kashrut “means fit or acceptable and goes beyond what foods can and cannot be eaten,” it “also applies to preparation, handling, [and] exposure to unkosher foods, surfaces, utensils, pots, pans, steamers, ovens, dishwashers, etc.” Dellinger states that “if a kosher food is prepared in a[n] unkosher kitchen and without kosher certification, then the kosher food becomes unkosher ....” Dellinger believes that the kitchen at River North has never been certified kosher.

Dellinger also explains why he believes the utensils, appliances, serving trays, drinking cups, drink dispensers, eggs, and milk at River North are not kosher. He argues that although River North has a separate area to prepare Common Fare trays, he is not served kosher meals. Dellinger has submitted affidavits with regard to the preparation, serving, and cleaning of trays and glasses. He has personally observed Common Fare trays stacked together with general population trays causing cross contamination. Three other inmates have observed Common Fare trays served through contaminated tray slots. Inmates also state that the Common Fare trays and cups are intermingled with the general population trays and cups after use. This contaminates the Common Fare trays and cups, and they cannot become kosher again through a washing in the same dishwasher.

II.

Federal Rule of Civil Procedure 56(a)

provides that a court should 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.” In order to preclude summary judgment, the dispute about a material fact must be “ ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)

; see also

JKC Holding Co. v. Wash. Sports Ventures, Inc. , 264 F.3d 459, 465 (4th Cir.2001). If the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson , 477 U.S. at 250, 106 S.Ct. 2505. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g.,

Celotex Corp. v. Catrett , 477 U.S. 317, 322–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir.1994). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Baber v. Hosp. Corp. of Am. , 977 F.2d 872, 874–75 (4th Cir.1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1315–16 (4th Cir.1993) (“The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.”); Sakaria v. Trans World Airlines , 8 F.3d 164, 171 (4th Cir.1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment).

III.

Section 3 of RLUIPA provides that “[n]o 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 a rule of general applicability, unless the government demonstrates that” the burden is “in furtherance of a compelling governmental interest[ ] and is the least restrictive means of furthering that ... interest.” 42 U.S.C. § 2000cc–1(a)

. A substantial burden on religious exercise occurs when a government, through act or omission, “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Lovelace v. Lee , 472 F.3d 174, 187 (4th Cir.2006) (quoting Thomas v. Review Bd. of Ind. Emp't Sec. Div. , 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ). The plaintiff bears the initial burden of establishing that the government's actions substantially burdened his exercise of religion. Krieger v. Brown , 496 Fed.Appx. 322, 324 (4th Cir.2012) ; Adkins v. Kaspar, 393 F.3d 559, 567 n. 32 (5th Cir.2004) ; Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752, 760 (7th Cir.2003). In conducting the substantial burden inquiry, the plaintiff “is not required ... to prove that the exercise at issue is required by or essential to his religion.” Krieger , 496 Fed.Appx. at 325 (citing Cutter v. Wilkinson , 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ). Nevertheless, “at a minimum the substantial burden test requires that a ... plaintiff demonstrate that the government's denial of a particular religious ... observance was more than an inconvenience to one's religious practice.” Smith v. Allen , 502 F.3d 1255, 1278 (11th Cir.2007) (citing Midrash Sephardi, Inc. v. Town of Surfside , 366 F.3d 1214, 1227 (11th Cir.2004) ). No substantial burden occurs if the government action merely makes the “religious exercise more expensive or difficult,” but fails to pressure the...