ERIC J. DEPAOLA, Plaintiff,
VIRGINIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
SAMUEL G. WILSON, District Judge.
This is an action by Eric J. DePaola, an inmate at Red Onion State Prison ("Red Onion") proceeding pro se, against the Virginia Department of Corrections ("VDOC") and ten of its employees in their individual and official capacities (collectively "Defendants"), pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, et seq. and pursuant to 42 U.S.C. § 1983 for alleged violations of his First and Fourteenth Amendments. DePaola, who is a frequent and sometimes abusive litigant,  claims Defendants violated his rights by screening him for tuberculosis with purified protein derivative injection ("PPD test") that contains alcohol, failing to provide common fare foods that meet religious requirements, serving him food in unsanitary conditions in violation of his religious requirements, and denying him feast meals for Eid-ul-Adha and Christmas. Defendants have moved for summary judgment. The court grants Defendants' motion as to DePaola's claims related to the feast meals and takes the remaining claims under advisement pending the submission of further information from Defendants.
DePaola alleges that he has been a practicing Muslim for over five years and has been following the teachings of the Nation of Islam for approximately three years, (Compl. at ¶ 20, ECF No. 1.), and that he has a religious objection to the PPD test Red Onion administers because of the "substances contained in the injection serum." (Id. at ¶ 40.) He nonetheless submitted to one on March 8, 2012, but claims he only did so to avoid disciplinary action and segregation during showers and recreation. In support of their motion for summary judgment, Defendants filed an affidavit from the Warden of Red Onion, Randall Mathena, stating medical staff has apprised him that "there is no substance in the PPD skin test solution that would violate DePaola's religious beliefs." (Mathena Aff. at ¶ 4, ECF No. 20-1.) According to Mathena, all Red Onion inmates and staff are subject to an annual PPD test and inmates who refuse the PPD test are subject to "administrative segregation and appropriate disciplinary action." DePaola responds that Red Onion should use other acceptable alternatives to screen him for tuberculosis (e.g. x-ray and sputum test) and reiterates his belief "that the PPD solution contains alcohols and other substances which are toxic and/or violate his religious requirement to not introduce harmful substances into his body." (DePaola Declaration at ¶ 17, ECF No. 23-1.)
DePaola complains that the food he receives as part of the common fare diet violates his religious beliefs. DePaola requested and persisted in his efforts to receive the common fare diet at Red Onion based upon his Muslim beliefs, for which VDOC granted approval on September 20, 2011. The common fare diet DePaola requested and now receives contains, among other things, white bread, peanut butter, cottage cheese, grapefruit, and white rice. DePaola alleges it also includes products containing peas. Because of these foods, DePaola complains the common fare diet fails to meet his religious dietary requirements. (Compl. at ¶ 25, ECF No. 1.) Defendants have submitted an affidavit from Mark Engelke, Director of Food Services for VDOC, stating the common fare diet is designed to meet the dietary needs of inmates who, for religious reasons, require a Kosher, non-pork diet and whose dietary requirements cannot be accommodated with foods provided by the Master Menu, and that, according to the Islamic Center of Virginia, it meets Islamic dietary guidelines. (Engelke Aff. at ¶ 4&7, ECF No. 20-1.) Defendants also submitted the affidavit of the Food Operations Director at Red Onion, P. Scarberry. According to Scarberry, "only authorized food items are served on the Common Fare menu" and peas are not among them. (Scarberry Aff. at ¶ 5, ECF No. 20-1.) DePaola responded that cottage cheese contains Polysorbate 80 and that "Vegan Beef Flavored Rice & Vegetable Dinner with Black Beans" contains peas. He also has submitted a document from an unknown source that states Polysorbate 80 is "an organic compound of acids and alcohols, " (Pl. Exhibit G, ECF No. 23-2), and he submitted a food label for the vegan meal that lists peas as an ingredient, (Pl. Exhibit F, ECF No. 23-2), though he has not connected this label specifically to his claims.
The court cannot discern from the parties' submissions whether, before initiating this lawsuit, DePaola informed Defendants about the religious dietary restrictions he now claims and, if so, whether Defendants made any attempts to respond to or address his concerns.
DePaola also complains about the condition of the food he has received "on several occasions, " including rotten fruits or vegetables, molded bread, and inadequate portions of certain foods, (Compl. at ¶ 6-9, ECF No. 1), and he makes several general complaints related to unsanitary food trays, food trays being pushed from the kitchen on unrefrigerated carts, and officers failing to change their gloves after touching unsanitary surface. DePaola asserts that eating such food offends his religious beliefs that he must eat a meal that is "prepared with fresh ingredients... and served in a sanitary manner." (Compl. ¶ 36, ECF No. 1.) According to Scarberry's affidavit on these issues, "fruits and vegetables are thoroughly scrubbed, " spoiled foods are discarded, and food is served using premeasured ladles and weighing "to ensure adequate food portions." (Scarberry Aff. ¶ 6, 8, ECF No. 20-1.) Scarberry's affidavit continues that common fare trays "are placed in a clean and sanitized dishwasher, " and the food preparation area and food temperature are continually monitored. (Scarberry Aff. at ¶ 6-9, ECF No. 20-1.)
DePaola is kept in segregation because of his unruly behavior. According to the Warden, officers "assigned to special housing units such as segregation... are provided gloves to wear during the delivery of food trays, " and "[o]fficers may change gloves should they become contaminated." (Mathena Aff. at ¶ 5, ECF No. 20-1.) DePaola has responded with his own sworn declaration and the sworn declarations of other inmates that "the common fare trays are often prepared and served in an unsanitary manner, often with rotten fruits and vegetables, " (Declaration of R.J. Boone, ECF 23-2), and he has appended as exhibits two grievance documents reflecting occasions when officers replaced food after DePaola complained. (Pl. Exhibit H, I, ECF No. 23-2.)
Finally, DePaola complains of two instances in which he did not receive food that he actually wanted. On both occasions, DePaola received the regular common fare tray instead of feast meals. On November 7, 2011, DePaola alleges Defendants denied him the Eid-ul-Adha feast, a feast based on the Muslim holiday. DePaola asserts his religious beliefs require him to participate in the Eid-ul-Adha feast, and when he notified a correctional officer that he should have received the feast meal, the officer responded that "the feast meal was on regular trays and not the common fare trays." (Compl. ¶ 53-4, ECF No. 1.) Defendants contend DePaola refused the Eid-ul-Adha feast and DePaola has responded with several sworn declarations to the contrary. (Declaration of DePaola at ¶ 12, ECF No. 23-1; Pl. Exhibits J-L, ECF No. 23-2.)
DePaola also complains that he did not receive the Christmas feast on December 25, 2011, which he alleges violates his religious belief that he must honor all of God's prophets, including Jesus. (Compl. at ¶ 60, ECF No. 1.) DePaola does not state why he could not honor Jesus on Christmas in some other way, for example, by using the common fare meal he received on that day. DePaola further complains that all inmates are permitted to participate in the two Muslim feasts, but common fare recipients cannot partake in the Christmas feast without threat of being removed from the common fare diet, even though the feasts all contain the same food. (Compl. at ¶ 65-6, ECF No. 1.) According to Engelke's affidavit, Red ...