Shepard v. Peryam

Citation657 F.Supp.2d 1331
Decision Date23 September 2009
Docket NumberCase No.: 08-10034-CIV.
PartiesRobert Michael SHEPARD, Plaintiff, v. Sheriff Bob PERYAM, Director Keena Allen, Linda Alvarez, and Michelle Parks, Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

Robert Michael Shepard, Key West, FL, pro se.

Jason L. Scarberry, Fort Lauderdale, FL, Edward J. Page, Ellen K. Lyons, Carlton Fields, Tampa, FL, for Defendants.

FINAL ORDER OF DISMISSAL

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon the August 20, 2009 Report and Recommendation of Magistrate Judge Patrick A. White (DE # 142) recommending that Defendant Alvarez's Motion for Summary Judgment (DE # 81) be granted; Defendants Allen and Roth's Joint Motion for Summary Judgment (DE # 88) be granted; Defendant Parks' Motion to Dismiss, or Alternatively for Summary Judgment (DE # 95) be granted; Prisoner Plaintiffs request for preliminary injunctive relief be denied; and all pending motions, not otherwise ruled upon by separate order, be dismissed, as moot. Plaintiff Objected (DE # 146) on August 28, 2009. On September 8, 2009 Defendants Parks and Alvarez Responded (DE # 147). Plaintiff Replied (DE # 148) on September 14, 2009.

As factual background, Plaintiffs Complaint requested injunctive relief for the alleged denial of (i) religious services; (ii) prayer beads; (iii) a prayer rug; (iv) a prayer cap; and (v) a Kosher diet. In the Report and Recommendation, Judge White held that Defendants were not individually or officially liable for a denial of these lights. Specifically, Judge White found that the religious services requested did not occur because Monroe County Detention Center ("MCDC") depends entirely on volunteer religious leaders and there were no volunteer leaders from the Muslim faith. Judge White further held that this policy was reasonable. Next, Judge White found that there is an MCDC policy prohibiting the use of any headwear for security reasons and held that this policy is reasonable. Third, Judge White held that the MCDC policy requiring all prayer beads to be breakaway for security and health purposes was reasonable. Judge White found that Defendants are not responsible for Plaintiffs failure to procure the approved breakaway beads. Fourth, Judge White held that the MCDC's policy prohibiting the use of prayer rugs was reasonably related to a valid governmental security concern. Moreover, Judge White found that Plaintiff was offered an alternative; the use of a towel. Plaintiff presented evidence that this alternative was not working, but the court held that "the fact that the alternative program offered did not work seamlessly at all times does not render the MCDC no-rug policy unconstitutional." (Report and Recommendation at 23.) Finally, Judge White found that an inmate's ability to have a Kosher diet was subject to revocation under the MCDC policy if he ate non-Kosher food. Judge White held that this policy did not violate Plaintiffs First Amendment rights.

Plaintiffs Objection to the Report and Recommendation (DE # 146) and Reply (DE # 148) discuss his disagreement with these MCDC policies. We, however, agree with Judge White that these policies are all reasonable.

Plaintiff further contends that based on the specific facts in this case, Plaintiffs Kosher diet should not have been revoked. Both parties agree that Plaintiff was initially approved for and provided a Kosher diet. Plaintiffs approval, however, was subsequently revoked under the MCDC policy because Plaintiff ate food other than that provided to him on the Kosher diet. Since this deviation violated the prison regulation, the continued providing of a Kosher diet was revoked. Defendants submitted an affidavit and supplemental affidavit from Defendant Parks stating that she told Defendant Alvarez she observed Plaintiff eating hamburger patties, which were outside the Kosher diet, and she was asked to make a written report of these observations. Her written report was also submitted. Defendants further submitted a memo written by Defendant Alvarez, requesting that Plaintiff be removed from the Kosher diet because he was seen eating things outside of that diet.

In his Objection and Reply, Plaintiff contends that these accusations were "fabricated." He insists that based on the dates of the reports and times he worked in the kitchen, the accusations must be false. After analyzing all the evidence, the trial judge found credible the reports written by Defendant Alvarez and Defendant Parks and the affidavits noting that Plaintiff was seen eating non-Kosher food. As Judge White was the fact finder in this case, we defer to his determinations "unless his understanding of the facts appears to be `unbelievable.'" United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002) (citations omitted). We find that they are not unbelievable and therefore defer to Judge White's findings of fact.

This Court concludes that the R & R contains thorough and well-reasoned recommendations. Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is

ORDERED and ADJUDGED as follows:

1. Magistrate Judge Patrick A. White's August 20, 2009 Report and Recommendation (DE # 142) be, and the same, is hereby AFFIRMED and ADOPTED.

2. Defendant Alvarez's Motion for Summary Judgment (DE # 81) is hereby GRANTED; Defendants Allen and Roth's Joint Motion for Summary Judgment (DE # 88) is hereby GRANTED; and Defendant Parks' Motion to Dismiss, or Alternatively for Summary Judgment (DE # 95) is hereby GRANTED.

2. The above styled action is hereby DISMISSED.

3. All unresolved motions in this case are hereby DENIED as MOOT.

4. The Clerk of the Court shall CLOSE this case.

REPORT OF MAGISTRATE JUDGE

PATRICK A. WHITE, United States Magistrate Judge.

I INTRODUCTION

Plaintiff Shepard, who professes to follow the Muslim faith, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (DE# 1) and an Amendment (DE# 66), alleging that while confined at the Monroe County Detention Center ("MCDC"), acts or omissions of named defendants abridged his First Amendment religious rights.

In his original complaint (DE# 1) Shepard named three defendants: Richard Roth, [former] Monroe County Sheriff; Kenna Allen, MCDC Director of Programs Services; and Linda Alvarez [former] Director of Trinity Food Services at MCDC ("Trinity"). They allegedly denied him religious services, prayer beads, a prayer rug, a Kufi (prayer cap), and a Kosher diet. Shepard specifically requested only injunctive relief, and made no request for damages in any form. In his one-page amendment (DE# 66), Shepard added Trinity Food Services Manager, Michelle Parks, as a new defendant, claiming he had learned that she was responsible for the termination of his religious diet. The amendment DE# 66 included no request for relief.

Three summary judgment motions are pending: (DE# 81) by Alvarez; (DE#88) by Allen and Roth; and (DE#95) by Parks [whose correct name is Park, see DE# 96-2].

Individual Capacity Versus Official Capacity Claims

The pleadings were silent as to whether the defendants were sued in their individual or official capacities, or both. A Preliminary Report and a Report which screened the original complaint and amendment for sufficiency (DE# s 6 and 69), recommended that claims proceed against defendants Roth, Allen, Alvarez, and Park, in their individual capacities. This has apparently cause confusion.

A motion by former Sheriff Roth (Motion, DE# 73), requesting that the new Sheriff Bob Peryam be substituted as the proper party, was granted (Order, DE# 74). Subsequently, as noted above, Roth, not Peryam, joined in the motion for summary judgment (DE# 88). In doing so, Roth dropped a footnote, arguing that because the defendant had been sued in his individual capacity, the request for substitution was in error, and the substitution was unnecessary and improper.

In addition, as further discussed, below, defendant Alvarez argues in pertinent part in her summary judgment motion that plaintiff Shepard cannot obtain injunctive relief from her, because she is no longer Trinity's food Service Director at MCDC. If however, assuming arguendo, it were determined by the Court that Shepard would otherwise be entitled to injunctive relief from Alvarez on his religious dietary claim if she were still employed, then it appears such relief would properly be obtained from Alvarez's unnamed successor, and that that individual would properly be substituted for Alvarez, pursuant to Fed. R.Civ.P. 25(d).

While a plaintiff has a duty to make plain who they are suing, see Colvin v. McDougall, 62 F.3d 1316, 1318 (11 Cir. 1995), a plaintiff is not always required to designate with particular words in his pleading that the action was brought against defendants in their individual or official capacities, or both see Hobbs v. Roberts, 999 F.2d 1526, 1529-30 (11 Cir. 1993). How a complaint and claims are construed, in regard to the capacities in which the defendants are being sued, may depend on the nature of the claims raised, and defenses asserted. See Adams v. Franklin, 111 F.Supp.2d 1255 (M.D.Ala. 2000). In this case, where time has passed, more than one named defendant is no longer working at or within in the Monroe County jail system [Richard Roth, who is no longer Sheriff, was replaced by Bob Peryam; and Linda Alvarez, who is no longer a Trinity employee at MCDC, has presumably been replaced by an unnamed Food Services Director]. For now, plaintiff Shepard remains incarcerated at the MCDC, so that with respect to him there has been no change in his place of incarceration which would moot his claims for injunctive relief. (See Spears v. Thigpen, 846 F.2d 1327 (11 Cir.1988); Cotterall v. Paul, 755 F.2d 777 (11 Cir.1985) (an inmate's transfer or release renders moot his claims for...

To continue reading

Request your trial
8 cases
  • Moon v. Jordan
    • United States
    • U.S. District Court — Eastern District of Missouri
    • November 13, 2017
    ...providing a prayer rug and that the denial of a prayer rug did not preclude his free exercise of religion. See Shepard v. Peryam, 657 F. Supp. 2d 1331, 1352 (S.D. Fla. 2009) ("'no prayer rug' policy is clearly reasonably related to a valid governmental security concern; and plaintiff Shepar......
  • N.C. v. Alonso
    • United States
    • U.S. District Court — Southern District of Florida
    • December 13, 2013
    ...rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Shepard v. Peryam, 657 F. Supp. 2d 1331, 1344 (S.D. Fla. 2009) (citing Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001)). It "operatesto ensure that before [officers] are s......
  • Wallace v. Ste. Genevieve Det. Ctr.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • April 15, 2019
    ...Muslim faith that requires that the prayer ritual be performed on a prayer rug as opposed to a prayer towel."); Shepard v. Peryam, 657 F. Supp. 2d 1331, 1352 (S.D. Fl. 2009) ("absent a showing that use of a prayer towel will not suffice to meet the Muslim faith's requirement, it is not clea......
  • Bozeman v. Pollock
    • United States
    • U.S. District Court — Southern District of Florida
    • August 24, 2015
    ...rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Shepard v. Peryam, 657 F. Supp. 2d 1331, 1344 (S.D. Fla. 2009) (citing Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001)). Once it has been established that the officer was ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT