Rogers v. US

• Decision Date: 10 March 2010
• Docket Number: Civil Action No. 08-149 Erie.
• Citation: 696 F. Supp.2d 472
• Parties: Antwon ROGERS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

696 F. Supp.2d 472

Antwon ROGERS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civil Action No. 08-149 Erie.

United States District Court, W.D. Pennsylvania.

March 10, 2010.

Antwon Rogers, Bradford, PA, pro se.

Andre Campbell, Atlanta, GA, pro se.

Desmond Singh, Bradford, PA, pro se.

Megan E. Farrell, United States Attorney's Office, Pittsburgh, PA, for Defendants.

MEMORANDUM ORDER

SEAN J. McLAUGHLIN, District Judge.

This civil rights action was received by the Clerk of Court on May 15, 2008, and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation Doc. No. 57, filed on February 9, 2010, recommended that Defendants' motion to dismiss or, alternatively, for summary judgment Doc. No. 52 be granted in part and denied in part. Specifically, the Magistrate Judge recommended that the motion be:

1. granted as to the Bivens and RFRA/RLUIPA claims of all Plaintiffs regarding prayer oils due to their failure to exhaust in accord with the PLRA;

2. granted as to all the Bivens and RFRA/RLUIPA claims relating to the Eid meal in January of 2006 by Plaintiff Campbell as he has failed to exhaust in accord with the PLRA;

3. granted as to the RLUIPA claims of all Plaintiffs;

4. granted as to the RFRA claims of all Plaintiffs;

5. denied as to the respondeat superior argument as to Defendants Sherman and Robare;

6. denied as to the First Amendment free exercise claim;¹

7. denied as to the Fifth Amendment equal protection claim;

8. granted as to the substantive due process claim under the Fifth Amendment;

9. granted as to the procedural due process claim under the Fifth Amendment;

10. denied as to the qualified immunity defense of all individual Defendants;

11. granted as to the dismissal of the FTCA claims against the individual Defendants; and

12. granted as to the FTCA claim against the United States.

It was further recommended that the Clerk of Courts be directed to terminate Plaintiff Campbell from this action due to his failure to exhaust his Bivens and RLUIPA/RFRA claims and because the FTCA claims are without merit; and that Clerk of Courts terminate the United States of America as a party to this action.

The parties were allowed ten (10) days from the date of service to file objections. Service was made on Plaintiffs by certified mail and on Defendants. No objections were filed. After de novo review of the motion and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 10th day of March, 2010;

IT IS HEREBY ORDERED that the motion is:

1. GRANTED as to the Bivens and RFRA/RLUIPA claims of all Plaintiffs regarding prayer oils due to their failure to exhaust in accord with the PLRA 2. GRANTED as to all the Bivens and RFRA/RLUIPA claims relating to the Eid meal in January of 2006 by Plaintiff Campbell as he has failed to exhaust in accord with the PLRA;

3. GRANTED as to the RLUIPA claims of all Plaintiffs;

GRANTED as to the RFRA claims of all Plaintiffs;

5. DENIED as to the respondeat superior argument as to Defendants Sherman and Robare;

6. DENIED as to the First Amendment free exercise claim;

7. DENIED as to the Fifth Amendment equal protection claim;

8. GRANTED as to the substantive due process claim under the Fifth Amendment;

9. GRANTED as to the procedural due process claim under the Fifth Amendment;

10. DENIED as to the qualified immunity defense of all individual Defendants;

11. GRANTED as to the dismissal of the FTCA claims against the individual Defendants; and

12. GRANTED as to the FTCA claim against the United States.

IT IS FURTHER ORDERED that the Clerk of Courts terminate Plaintiff Campbell from this action due to his failure to exhaust his Bivens and RLUIPA/RFRA claims and because the FTCA claims are without merit; and terminate the United States of America as a party to this action.²

The Report and Recommendation Doc. No. 57 of Magistrate Judge Baxter, filed on February 9, 2010, is adopted as the opinion of the Court.³

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, United States Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss or, alternatively, for summary judgment filed by Defendants Document # 52 be:

— granted as to the Bivens and RFRA/RLUIPA claims of all Plaintiffs regarding prayer oils due to their failure to exhaust in accord with the PLRA;

— granted as to all the Bivens and RFRA/RLUIPA claims relating to the Eid meal in January of 2006 by Plaintiff Campbell as he has failed to exhaust in accord with the PLRA;

— granted as to the RLUIPA claims of all Plaintiffs;-granted as to the RFRA claims of all Plaintiffs;

— denied as to the respondeat superior argument as to Defendants Sherman and Robare;

— denied as to the First Amendment free exercise claim;

— denied as to the Fifth Amendment equal protection claim;

— granted as to the substantive due process claim under the Fifth Amendment;

— granted as to the procedural due process claim under the Fifth Amendment;

— denied as to the qualified immunity defense of all individual Defendants — granted as to the dismissal of the FTCA claims against the individual Defendants; and

— granted as to the FTCA claim against the United States.

It is further recommended that the Clerk of Courts be directed to terminated Plaintiff Campbell from this action due to his failure to exhaust his Bivens and RLUIPA/ RFRA claims and because the FTCA claims are without merit.

It is further recommended that the Clerk of Courts should also be directed to terminate the United States of America as a party to this action.

The retaliation claims of Plaintiffs Singh and Rogers remain pending as Defendants have not moved for summary judgment on those claims.

A Case Management Order will be issued separately.

II. REPORT

A. Relevant Procedural History

On May 15, 2008, Plaintiffs Antwon Rogers, Andre Campbell and Desmond Singh, Sunni Muslims incarcerated at the Federal Correctional Institution at McKean ("FCI-McKean"), filed this pro se civil rights action. Plaintiffs allege statutory, constitutional and tort claims related to the alleged denial of Halal meat in celebration of Eid-ul-Adha in January 2006. Plaintiffs also challenge the prison's policy of selling scented oils used in Muslim prayer services through the Commissary, rather than through the special purchase order program. The three Plaintiffs assert statutory claims under the Federal Tort Claims Act, the Religious Land Use and Institutionalized Persons Act, and the Religious Freedom Restoration Act, as well as Bivens¹ claims under the First and Fifth Amendments. Plaintiffs Rogers and Singh also raise a retaliation claim. As relief, Plaintiffs seek monetary damages.

Named as Defendants are: the United States of America; Edward Roberts, the Federal Bureau of Prison's Northeast Regional Religious Service Administrator; James Sherman, former Warden of FCI McKean; S.L. Robare, Assistant Warden at FCI McKean; Jan C. Olowin, former Supervisory Chaplain at FCI McKean; Brian Grimm, Chaplain at FCI McKean; Gerald Desio, Food Service Supervisor at FCI-McKean; and Michael Baldensperger, Trust Fund Supervisor at FCI McKean.

Defendants have filed a motion to dismiss or, in the alternative, motion for summary judgment. Document # 52. Plaintiffs have filed a brief in opposition. Document # 56. This matter is now ripe for consideration by this Court.

B. Relevant Factual History²

According to the Amended Complaint, in early October of 2005, Plaintiffs and other Sunni Muslim inmates at FCI McKean ("Sunni inmates") submitted an Inmate Request to Defendant Grimm requesting that Halal lamb be served at their Eid-ul-Adha ("Eid") celebration in January 2006. Document # 41, Amended Complaint, page 13. Defendants acknowledge that Eid-ul-Adha commemorates the sacrifice of Ibrahim and is one of two "required" holy days per year for practitioners of Islam. Document # 53-7, Declaration of Defendant Jan Olowin, Chaplain, page 6.

Plaintiffs submitted a second request to Defendants Grimm and Olowin, dated November 10, 2005, requesting to have Halal beef, rather than Halal lamb, served at the Eid celebration, since the beef was available on the Institutional and/or Certified Menu. Document # 41, page 3. The next day, Plaintiffs and others met with Defendants Olowin and Grimm, at which time the Defendants allegedly agreed to have Halal beef served at the Eid celebration, and further agreed to ensure that all participating inmates were on the Religious Diet Program for the day of the Eid-ul-Adha observance. Id. at 14.

On November 18, 2005, Plaintiffs again met with Defendants Olowin and Grimm to discuss the January 2006 Eid observance, at which time Defendant Olowin allegedly informed Plaintiffs that Halal beef was approved for the ceremonial meal. Id. Further, Defendant Olowin allegedly told the group that the Halal beef had already been "purchased and provided for by the food service budget." Id. However, on January 10, 2006, the day the Eid observance was scheduled to be held, Plaintiff alleges that "the Defendants refused to provide an appropriate religious dietary meal (Halal beef ...) as promised and attempted to coerce and force Plaintiffs and others into rescheduling the Eid and into accepting a non-Halal meal." Id.

In April 2006, Defendants Olowin and Grimm agreed that "the Religious Service would purchase and provide Prayer oil to the Muslims like Defendants do for other Faith groups concerning their religious items." Id. at 16-17. However, the Religious Service stopped purchasing and providing the prayer oil after only two months, and Muslims were not allowed to use the Special Purpose Order (SPO) program to purchase the prayer oil. Id.

Plaintiffs...