Fox v. State
| Decision Date | 14 September 2021 |
| Docket Number | Civil Action CCB-20-2085 |
| Parties | DONALD FOX, et al., Plaintiff, v. STATE OF MARYLAND, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Self-represented plaintiffs Donald Fox and Bruce Koenig (collectively “plaintiffs”), currently incarcerated at Maryland Correctional Institution-Jessup (“MCI-J”) brought this civil action pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiffs allege that their requests for prayer books, kosher grape juice, kosher challah bread, kosher matzah, tefillin, tzitis, candles for services and Holy days food items for Jewish Holy days, and outside guests to assist and to accompany the Jewish prisoners in their religious practice, have unreasonably been denied, violating their rights to freely practice their religion. Id., p. 4.
On February 16, 2021, defendants State of Maryland, Warden Dayena Corcoran, Chaplain Reginald Bellamy, and Chaplain Rachmiel Tobesman filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 14. Plaintiffs were notified of their right to respond. ECF Nos. 16 and 17. Plaintiffs sought, and were granted, extensions of time, to and including September 1, 2021, to respond to the dispositive motion. ECF Nos. 20, 21, 22, 23. Plaintiffs have not filed an opposition response. A hearing is not necessary. See Local Rule 105.6 (D. Md. 2021). For the reasons explained below, the defendants' motion, construed as a motion for summary judgment, will be granted.
Plaintiffs are both incarcerated at MCI-J and practice Judaism. ECF No. 1. Their requests for prayer books, kosher grape juice, kosher challah bread, kosher matzah, tefillin, tzitis, candles for services and Holy days, food items for Jewish Holy days, and outside guests to assist and to accompany Jewish prisoners in their religion's practices allegedly were denied by MCI-J's Administrative Chaplain Reginald Bellamy. Id., p. 4. All other Department of Public Safety and Correctional Services facilities provided the items requested by plaintiffs. Id., p. 5. Additionally, plaintiffs have been offered shabbat candles, a non-metallic candle holder, and the other items listed above, by the Aleph Institute, a Miami, Florida religious organization. Id., pp. 5-6. Defendants Bellamy and Tobesman have not approved the Aleph Institute to assist plaintiffs, despite their being approved by the United States Bureau of Prisons and the United States military. Id., p. 6.
Koenig has been “scolded” by Bellamy regarding his request for Jewish items. ECF No. 1, p. 4. Bellamy allegedly has instructed Koenig that “when those administrative remedy requests (“ARPs”) stop, things will get better.” Id. He also admonished Koenig that he must pray so that things would improve and Koenig should be more “Christ-like.” Id., p. 5.
Plaintiffs allege that other MCI-J inmates have stated that since Bellamy's assignment to MCI-J, Jewish prisoners have not received any of the accommodations they have requested. Id. Additionally, plaintiffs allege that unidentified former Chaplain Clerks state that Bellamy has advised them “not to give the Jews anything-they complain too much.” Id.
In 2018, the MCI-J dietary department offered to provide kosher grape juice, kosher matzah crackers, and kosher challah bread for the study session and for shabbat services. Later, dietary staff told plaintiffs that, “Chaplain Bellamy told us not to give you anything.” Id.
Plaintiffs claim Defendants Bellamy and Tobesman falsely told the Aleph Institute that they identify and affiliated with the Messianic Jewish sect. ECF Id., p. 6.
Plaintiffs contend that Secretaries for the Department of Public Safety and Correctional Services (“DPSCS”), Director of Religious Services for DPSCS, and Wardens at MCI-J have been made aware of the ongoing violation of prisoners' religious rights since 1999. Id.. Despite this knowledge they have permitted Bellamy and Tobesman to continue to violate plaintiffs' rights. Id.
Plaintiffs explain that the use of candles is deeply rooted in the practice of Judaism. Id., p. 7. In 2017, a new Assistant Warden forbade the use of any candles for any religious service at MCI-J, and instead plastic battery-operated tea lights were distributed for use. Id. Plaintiffs were given a dozen tea lights for their needs. Other DPSCS facilities provided actual shabbat candles to be used for Jewish, Catholic, Christian, Native American and other services. Id. Additionally, through 2019, other religious groups, including Catholic and Native American, were seen using real candles at MCI-J. Id. In late 2018, Tobesman saw the tea lights and allegedly stated that they were “wholly inadequate for use in any Jewish services or celebration.” Id., pp. 7-8. However, no one, including Bellamy or Tobesman, took any action to provide candles that Tobesman or the Aleph Institute would consider adequate for religious services. Id., p. 8.
Plaintiffs explain that the State of Maryland's DPSCS offers a Kosher diet for Jewish inmates who request it. Id., p. 8. Unlike other special diets, those who wish to receive a kosher diet must fill out an application that includes the name, address, and phone number of family members, Rabbis, and others who will attest that they “really are Jewish.” Id. The application is kept in an unsecured file cabinet in the Dietary Manager's office. Id. Additionally, unlike other special diets, those receiving Kosher diets are not allowed to share the contents of their trays with any other inmate, even other Jewish inmates. Id., p. 9. This prohibition is only imposed on Jewish inmates and, plaintiffs contend, is contrary to basic tenets of Judaism and Jewish life. Id. Additionally, inmates receiving the Kosher diet are prohibited from purchasing any non-Kosher food items from the prison commissary. Id. Plaintiffs explain that Judaism “command[s them] to donate to the needy, to give gifts, and to trade with others, Jewish or other religions.” Id. Plaintiffs contend that “restricting our daily lives in such a manner is akin to re-writing Judaism altogether...” Id. If an inmate receiving Kosher meals violates these rules regarding sharing items from their tray or purchasing non-Kosher food from the commissary, they may be terminated from participating in the Kosher diet. Id.
Richard Bellamy has been the Administrative Chaplain at MCI-J since November 1999. ECF No. 14-3, ¶ 1. He is responsible for overseeing the paperwork for seventeen different religious groups and the programming for twelve of those groups, including Judaism. Id., ¶ 2. He is not responsible for making policy decisions or any decisions regarding who receives Kosher meals. Id. Rachmiel Tobesman is the Administrative Chaplain at Central Maryland Correctional Facility (“CMCF”) and is the Rabbinic Advisor for DPSCS. ECF No. 14-4, ¶ 1.
Defendants explain that when inmates enter the Division of Correction they are asked to complete paperwork regarding their religious affiliation. ECF No. 14-4, ¶ 4. Practitioners of Judaism, which requires a Kosher diet, must request the diet by completing the Religious Diet Application Form. Id., ¶ 5. Not all inmates who identify as Jewish request a Kosher diet. Id., ¶ 4. Tobesman is responsible for reviewing the applications and interviewing inmates regarding their understanding of Kosher diet rules. Id., ¶ 5. Once the inmate is approved for the diet they must sign the Religious Diet Agreement, which provides, among other things, that inmates receiving Kosher meals may not purchase non-Kosher food from the Commissary. Id., ¶ 6. Tobesman estimates that 60% of the items sold in the Commissary are Kosher. Id.
Tobesman is also responsible for reviewing the Commissary logs for all Kosher-keeping inmates to confirm their purchases do not violate the Religious Diet Agreement. ECF No. 14-4, ¶ 7. If an inmate violates the contract, they are provided verbal counseling for the first offense. Continued violations may result in additional counselling and may ultimately lead to a year suspension from participation in the Kosher meal program. Id. Fox has purchased non-kosher items at the Commissary on several occasions, after which he was counselled regarding his purchases and reminded that he can only purchase Kosher food items while receiving the Kosher diet. Id., ¶ 8.
Policies regarding Kosher meals are codified in the Code of Maryland Regulations and are consistent throughout DPSCS. ECF No. 14-4, ¶ 11. Per Department of Corrections (“DOC”) regulations, food items are not allowed to be donated. ECF No. 14-4, ¶ 13.
Defendants further explain that inmates who are prescribed a medical diet may not participate in the religious diet program. See COMAR 12.03.02.03G; OPS 140.0002.09C(B); ECF No. 14-4, ¶ 9; ECF No 14, Ex 5. Koenig has reported that he suffers from allergies and food sensitivities and over the last seven years has been prescribed a medical diet on a number of occasions. ECF No. 144, ¶ 9. In 2012, was permitted to receive medical and kosher diets simultaneously. Id.
DPSCS received a complaint from the Aleph Institute in 2017 claiming plaintiffs were not provided with prayer books or other items necessary for the practice of their religion. ECF No. 14-4, ¶ 14; ECF No. 14-8. The issues were investigated and DOC staff determined that the items were provided to plaintiffs and all Jewish inmates and were kept in the locker where Jewish inmates stored religious materials. ECF No. 14-4, ¶ 14.
DPSCS has identified security concerns regarding the use of tefillin. ECF No. 14-4, ¶ 15. Tefillin contains long leather straps and is a security risk because it can be...
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