Smith v. Starr

• Decision Date: 07 March 2022
• Docket Number: 21-cv-2703 (SRN/HB)
• Parties: Fellicia Smith, Plaintiff, v. Starr, Warden; Hiller, Unit Manager; Wilson, Trust Fund; Nelson, Commissary; each being sued in their individual and official capacities; and Federal Correctional Institution, Waseca; Defendants.
• Court: U.S. District Court — District of Minnesota

Fellicia Smith, Plaintiff,
v.
Starr, Warden; Hiller, Unit Manager; Wilson, Trust Fund; Nelson, Commissary; each being sued in their individual and official capacities; and Federal Correctional Institution, Waseca; Defendants.

No. 21-cv-2703 (SRN/HB)

United States District Court, D. Minnesota

March 7, 2022

REPORT AND RECOMMENDATION

HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiff Fellicia Smith's Complaint [ECF No. 1 at 11-12] and a document entitled “Order to Show Cause for a Preliminary Injunction and a Temporary Restraining Order” [ECF No. 6]. The Court construes Smith's requests in her prayer for relief and the separate “order” as a motion for a preliminary injunction. The motion has been referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the following reasons, the Court respectfully recommends that the motion be denied.

I. Background

Plaintiff Fellicia Smith has been incarcerated at the Federal Bureau of Prisons (“BOP”) in Waseca, Minnesota (“FCI Waseca”) since March 17, 2021. (Compl. at 2-3 [ECF No. 1].) On December 20, 2021, Smith filed the instant action challenging FCI

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Waseca's religious diet program under 1) the free exercise clause of the First Amendment, 2) the establishment clause of the First Amendment, 3) the Religious Freedom Restoration Act, and 4) the Religious Land Use and Institutionalized Persons Act.

A. FCI Waseca's Food Offerings and BOP's Religious Diet Program

FCI Waseca offers food products through three avenues: the mainline food service program, the commissary, and the special purpose order (“SPO”) program. The mainline ensures that inmates “will be provided with nutritionally adequate meals, prepared and served in a manner that meets Government health and safety codes.” (Lee Decl. Ex. A at 2 [ECF No. 29-1].) Meanwhile, the commissary serves as a store where inmates have the privilege to purchase merchandise and services not provided by the Bureau or of a different quality than that provided by the BOP. (Wilson Decl. ¶ 4 [ECF No. 30]; Wilson Decl. Ex. A at 1, 15 [ECF No. 30-1].) Inmates shop weekly but must stay within a monthly limit; at FCI Waseca, that limit is $360 a month, with an additional $50 in November and December. (Wilson Decl. Ex. A at 29.) The SPO program allows inmates to purchase an approved item or items not routinely sold in the commissary. (Wilson Decl. ¶ 8.) Inmates are permitted one SPO order per month, with a monthly limit of $300 per quarter. (Wilson Decl. Ex. A. at 40.) With exceptions not applicable to Smith, items purchased through SPO count against the inmate's monthly commissary spending limit. (Id. at 29.) All items in the commissary and offered through the SPO program are subject to a 30% markup (except during Passover) and shipping is charged to the inmate. (Id. at 38, 41.) Inmates may only purchase 14 shelf-stable entrees per

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commissary visit and may not have more than 21 shelf-stable entrees in their possession at any time. (Wilson Decl. ¶ 7.)

The BOP has implemented a religious diet program in order “to provide inmates of all faith groups with reasonable and equitable opportunities to pursue religious beliefs and practices, within the constraints of budgetary limitations and consistent with the security and orderly running of the institution and the Bureau of Prisons.” (Dolsberry Decl. Ex. A at 2 [ECF No. 28-1].) The religious diet program has two components: 1) self-selection from the mainline, including a no-flesh option and access to salad when offered; or 2) religious certified processed foods. (Dolsberry Decl. ¶ 4 [ECF No. 28].) FCI Waseca does not have a significant population requesting kosher or halal shelf-stable entrees, so while the commissary sells items that could meet kosher or halal standards, it does not currently stock kosher or halal shelf-stable entrees specifically. (Wilson Decl. ¶ 16.) While the certified religious diet program historically only provided inmates with kosher prepared foods (Lee Decl. ¶ 4 [ECF No. 29]), the BOP implemented a halal component on October 3, 2021. (Dolsberry Decl. ¶ 4.)

Given the renewed interest in shelf-stable kosher and halal entrees, Trust Fund Supervisor Jacqueline Wilson contacted vendors and reviewed samples from a correctional security and safety standpoint. (Wilson Decl. ¶ 17.) Ultimately, Wilson selected a vendor that could sell kosher and halal shelf-stable entrees by the case, which contain twelve of the same meal, because the overall price was the most reasonable. (Id. ¶ 18.) Like other goods purchasable at the commissary or through the SPO program, the cases are sold at ¶ 30% markup (except during Passover) with shipping charged to the

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inmate, and credited against the inmate's spending limit. (Wilson Decl. Ex. A at 38, 41.) The twelve-pack of meals costs between $74.90 and $95.35 after mark-up, and shipping costs $13.95 per case. (Wilson Decl. ¶ 18.)^[1]

Whether the meals are ready to eat without cooking or reheating is disputed, and Smith complains about the inability to reheat these products. (Compare Defs.' Mem. Opp. at 13 [ECF No. 26] and Wilson Decl. ¶ 24 (no heating necessary), with Pl.'s Reply at 7-8 [ECF No. 35], Lee Decl. ¶ 6 (“The meals are designed to be heated in a conventional or microwave oven ....”), and Wilson Decl. Ex. C at 1 [ECF No. 30-3] (pictures of meals advertising “Heats in Minutes” on the package).) Although historically there were microwaves available for use by inmates, as of May 1, 2020, FCI Waseca no longer allows inmates other than those assigned to work in food service to have access to microwaves or heating implements due to the risk of fire and history of misuse. (Wilson Decl. ¶¶ 22-24.) Instead, inmates may use a small container^[2] to collect temperature-regulated hot water. (Id. ¶¶ 21, 25.)

B. Smith's Attempt to Participate in the Religious Diet Program

Smith alleges in her Complaint that she is religious but does not belong to a “traditional or established church.” (Compl. at 2.) Instead, her religious beliefs remold and shift as she learns more about the religious practices and observations of others.

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(Id. at 3.) She states that when she was transferred to FCI Waseca, she found it difficult to practice her religious dietary beliefs. She alleges that she could not find kosher or halal foods available at the commissary, and staff and other inmates said those options did not exist. (Id.)

In September 2021, Smith learned of the BOP's Program Statement 4500.12, which requires the provision of kosher and halal meals through the special purpose order (“SPO”) program. (Compl. Ex. A [ECF No. 1-1 at 1].) Smith states that when she inquired, however, she was told she had to be designated as Jewish or Muslim to order meals through the program. (Compl. at 4.)

After the prison contracted with the vendor to supply kosher and halal foods through the SPO, Smith submitted an electronic request to be interviewed for the religious diet program on December 21, 2021. (See Dolsberry Decl. Ex. B [ECF No. 282].) Smith wrote she did not identify as Jewish or Muslim, but that she would “like to eat kosher/halal food with a few significant differences for religious reasons.” (Id.; see also Compl. at 2.) FCI Waseca Chaplain Craig Dolsberry met with Smith two days later to conduct an interview to determine her religious motivations for wanting to participate in the diet program and how best to accommodate her dietary needs. (Dolsberry Decl. ¶ 9; Dolsberry Decl. Ex. A at 19.) He could not understand the precise parameters of Smith's religious dietary requests. (Id.) However, he understood that Smith would eat chicken, but not the skin from the bones; she would not eat veins or arteries in meat; she would not eat pork or tofu, but she could eat certain beef products; and fruits and vegetables were acceptable. (Id.) Smith did not explain how the certified process food program aligned

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with her dietary restrictions. (Id.)^[3] As a result, Chaplain Dolsberry thought there was a high risk that Smith would request to be removed from the program or eat off diet and be removed. (Id. ¶ 11.) When Chaplain Dolsberry spoke with Smith again in January 2022 he was unable to obtain additional information because Smith insisted on a deposition. (Id. ¶ 13; Pl.'s Reply at 8.) As a result, Chaplain Dolsberry did not alter his recommendation against the religious diet program.

C. Plaintiff's Pursuit of Administrative Remedies

The BOP has a four-tiered administrative procedure for inmate grievances, codified at 28 C.F.R. § 542.10-542.19. The first step is informal resolution with prison staff. 28 C.F.R. § 542.13(a). Requests for Informal Resolution Forms (BP-8) are not assigned a Remedy ID number and are not tracked. (Boldt Decl. ¶ 7.) If the inmate is unable to informally resolve her complaint, she may file a formal Request for

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Administrative Remedy (BP-9) at the incarceration institution. 28 C.F.R. § 542.14. If the inmate feels the response to her BP-9 is inadequate, she may appeal to the Regional Director within 20 calendar days of the signed response by filing a Regional Office Administrative Remedy Appeal (BP-10). 28 C.F.R. § 542.15(a). Finally, if still dissatisfied, the inmate may appeal to the General Counsel, by filing a Central Office Administrative Remedy Appeal (BP-11.) Id. An inmate may not raise in an appeal an issue she did not raise in a lower level filing. 28 C.F.R. § 542.15(b)(2).

Smith filed an informal resolution attempt (BP-8) on September 8, 2021, complaining about the lack of food to meet her religious dietary needs. (Compl. Ex. B [ECF No. 1-1 at 2].) After the changes to the availability of kosher and halal meals, Unit Manager Hiller responded to Smith's grievance on November 4, 2021, indicating Smith could purchase meals through the SPO program. (Compl. Exs...