Strope v. Cummings, No. 09-3306 (10th Cir. 6/9/2010)
| Decision Date | 09 June 2010 |
| Docket Number | No. 09-3306.,09-3306. |
| Parties | MICHAEL LEE STROPE, a/k/a Gordon Strope, Plaintiff-Appellant, v. WILLIAM CUMMINGS, Kansas Department of Corrections, in his individual capacity; DAVID R. MCKUNE, Warden, Lansing Correctional Facility, in his individual capacity; COLLETTE WINKLEBAUER, Lansing Correctional Facility, in her individual capacity; DANIELLE WAGNER, Lansing Correctional Facility, in her individual capacity; (FNU) THEISEN, Correctional Officer I, Lansing Correctional Facility, in his individual capacity; (FNU) JACKSON, Kitchen Supervisor, Lansing Correctional Facility, in her individual capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 5:05-CV-03385-SAC). (D. Kan.).
Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.
Plaintiff Michael Lee Strope appeals from the grant of summary judgment to defendants in this prison civil rights action involving conditions at the Lansing Correctional Facility (LCF) in Kansas, brought under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5. His amended complaint set out twenty counts, but, as the district court noted, these clustered into six basic claims involving events at LCF in the summer of 2005. Of these, only three are specifically argued on appeal: (1) deficiencies in the kosher diet at LCF; (2) interference with access to scheduled religious services; and (3) retaliatory transfer between cell units.1 Aplt. Br. at 2, supp. to page 3. Focusing on the disposition of these three claims, we affirm for substantially the reasons stated by the district court. Our standard of review is well-settled:
We review the grant of summary judgment de novo, applying the same standard the district court should apply under Fed.R.Civ.P. 56(c). For dispositive issues on which the plaintiff will bear the burden of proof at trial, he must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment. Evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise. Unsubstantiated allegations carry no probative weight in summary judgment proceedings.
Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007) (quotations, citations, and alterations omitted). While we liberally construe the pleadings of the pro se plaintiff, "we do not act as his advocate." Id. "Thus, although we make some allowances for [his] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements, the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotation, citation, and alterations omitted). With these standards in mind, we address the claims presented for our review.
Mr. Strope claims that deficiencies in LCF kosher meals served during the summer of 2005 violated both his right to the free exercise of his religion and his Eighth Amendment right to an adequate diet. Much of his objection to the diet has been advanced in general terms: kosher meals were less varied than the regular meals, had a paucity of seasonal fruits and vegetables, included wilted or even rotten items on occasion, and entirely lacked certain items found on the regular menu.2 The specific instances gleaned from his pleadings and grievances cited therein are: (1) on June 27, Strope received a warm sandwich (that should have been "cool/crisp"), along with a "green orange" and a "nasty" carrot/cabbage salad, R. vol. 1 at 67; (2) on June 30, he was served salad dressing that was not kosher, id. at 90; and (3) lunch on July 16 included a salad that was "rotted and clearly smelled spoiled," id. at 80. Grievances attached to but not cited in the complaint add: (4) on July 4, the regular line had a holiday meal with ice cream but the kosher line did not, even though the ice cream was kosher (the prison explained that the ice cream could not be given to the kosher line, which already was being served meat and therefore could not be served a dairy product), id. at 70-72; (5) a July 10 grievance over the lack of meal rotation complained of two consecutive chicken suppers and three rice/soy bean meals in the last several days (the prison noted that the former were different chicken dishes and the latter included soy chili and red beans and rice dishes), id. at 78; (6) on July 11, he was served a "cold tray" that was warm with wilted carrot sticks, id. at 81; and (7) on July 14, he received a turkey sandwich and rotted orange, while the regular line had a full balanced tray with macaroni salad, id. at 79.
Mr. Strope's primary claim here is that the inadequacies in the kosher diet burdened his religious observance, violating the Free Exercise Clause and the RLUIPA. While the analysis under these authorities differs in some respects, the principle dispositive here is the same: Strope must show that defendants' conduct imposed a substantial burden on his religious practice. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312-15 (10th Cir. 2010) (applying RLUIPA); Gallagher v. Shelton, 587 F.3d 1063, 1069-70 (10th Cir. 2009) (applying Free Exercise Clause). The district court held that Strope's scattered and minor complaints about kosher meals were insufficient as a matter of law to show that defendants had imposed a substantial burden on his religious exercise. We agree.
In Abdulhaseeb we identified three broad ways government action may impose a substantial burden on religious exercise:
(1) requir[ing] participation in an activity prohibited by a sincerely held religious belief, or (2) prevent[ing] participation in conduct motivated by a sincerely held religious belief, or (3) plac[ing] substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobson's choice-an illusory choice where the only realistically possible course of action trenches on an adherent's sincerely held religious belief.
600 F.3d at 1315. The first two are clearly not applicable here.
As for the third, we explained the concept of "substantial pressure" in terms of coercion created by the conditional receipt or denial of an important benefit:
Id. (quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981)). We cautioned that not "every infringement on a religious exercise will constitute a substantial burden," reinforcing the point with a quote from Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007): "[A]t a minimum the substantial burden test requires . . . more than an inconvenience to one's religious practice." Abdulhaseeb, 600 F.3d at 1316. Illustrating the distinction between substantial burden and inconvenience, we held (1) the flat denial of a halal diet with approved meats was actionable, id. at 1316-20, but (2) an incident (the panel concurrence notes "sporadic incidents") in which a prisoner's meal was rendered inedible by service of prohibited items contaminating his tray was not actionable, id. at 1320-21; id. at 1325; see also Gallagher, 587 F.3d at 1070 (). We "assume[d] that as the frequency of presenting unacceptable foods increases, at some point the situation would rise to the level of a substantial burden," but that level had clearly not been reached. Abdulhaseeb, 600 F.3d at 1321.
Neither has that level been reached here. The complaints summarized above reflect the inconvenience of non-preferred or occasionally unsatisfactory items in a meal. We cannot say that they constituted a substantial burden on Mr. Strope's practice of maintaining a kosher diet. While there were perhaps more instances involved here than in Abdulhaseeb, none were shown to have completely denied an edible meal to the prisoner, so in that respect the burden was lighter here than the burden deemed insubstantial in Abdulhaseeb. As for his broader complaints about the variety, quality, and rotation of the menu, such general allegations are insufficient at the summary judgment stage, where "[t]he purpose . . . is to determine whether there is evidence to support a party's factual claims" and "[u]nsupported conclusory allegations . . . do not create a genuine issue of fact." Abdulhaseeb, 600 F.3d at 1321 (quotation omitted).
Mr. Strope's alternative reliance on the Eighth Amendment does not obviate the deficiency in his case regarding the diet at LCF. Indeed, the relevant aspect of the Eighth Amendment standard is, if anything, considerably lower, guaranteeing inmates merely "the basic necessities of [nutritionally] adequate food." Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006) (quotation omitted). Whatever complaints Strope may have voiced regarding the content, variety, and preparation of the kosher menu, he has not shown that it failed to provide a nutritionally adequate diet.
LCF accommodates the religious needs of inmates through the use of a "call out"...
To continue reading
Request your trial