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Depaola v. Virginia Department of Corrections

United States District Court, W.D. Virginia, Roanoke Division

May 2, 2014

ERIC J. DEPAOLA, Plaintiff,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

MEMORANDUM OPINION

SAMUEL G. WILSON, District Judge.

This is an action pursuant to 42 U.S.C. § 1983 by plaintiff, 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, [1] alleging they violated his rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq. and the First Amendment by subjecting him to a tuberculosis screening test (also known as a purified protein derivative test or hereinafter "PPD test") and refusing to provide a diet that conforms to his religious beliefs. This matter is before the court on the defendants' supplemental motion for summary judgment. For the reasons that follow, the court grants the defendants' motion as to the PPD test claim and refers the diet claim to the magistrate.

I.

The court gave a detailed recitation of DePaola's claims in a memorandum opinion and order dated December 20, 2013 and need not do so again here. (Memorandum Op., ECF 25) In that opinion, the court granted the defendants' motion for summary judgment as to two of DePaola's claims and directed the defendants to respond to DePaola's claims regarding the PPD test and his diet. At the court's direction, the defendants have filed a supplemental motion for summary judgment with supporting affidavits and exhibits.

DePaola, a member of the Nation of Islam, objects to ROSP's policy requiring him to submit to a PPD test "due to the substances contained within [the] injection serum, " which he asserts includes "alcohols and/or other substances which are toxic, " and he "feels are not in conformance with his religious beliefs." (Compl. at 6, ECF 1; Pl. Declaration at 4, ECF 23-1) DePaola later indicated that he objects to phenol, one of the chemicals in the PPD injection serum. In support of their motion the defendants submitted an affidavit from S. Gronert, Ph.D., the Chairman of the Chemistry Department at Virginia Commonwealth University, who explains that there is "nothing in the [PPD test] solutions that would be classified as an alcohol" under the definition promulgated by the International Union of Pure and Applied Chemists. (Gronert Aff. at 1-2, ECF 31-3) Dr. Gronert further states that "alcohol, " in layman's terms, is actually ethyl alcohol, which does not share the same chemical composition as phenol.[2] (Id.) In response, DePaola abandons his argument that phenol is an alcohol, but still contends that phenol is a toxic substance, a contention he supports with an exhibit copied from an unknown source that indicates various ways in which "long-term or repeated exposure" to phenol may have "harmful effects." (Pl. Exhibit 5, ECF 34-1) Beyond that, DePaola does not dispute Dr. Gronert's analysis.

DePaola also claims that ROSP fails to offer a diet that conforms to his Nation of Islam dietary restrictions, which he asserts are different from the requirements of other Muslim sects. Although the defendants submitted affidavits, their evidence did not address whether or not Nation of Islam dietary requirements are different from other Muslim sects, whether accommodating those requirements would be feasible and nutritionally adequate, the ultimate cost of altering the common fare menu, or the potential cost of conforming to dietary requirements of potentially numerous religions.[3]

II.

DePaola alleges that by subjecting him to the PPD test which contains substances that his religion proscribes, the defendants violated his rights under RLUIPA and the First Amendment.[4] Finding DePaola has not shown a genuine dispute of material fact as to whether subjecting him to a PPD test constitutes an actual burden on his exercise of religion, the court will grant the defendants summary judgment motion as to that claim.[5]

RLUIPA provides that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... unless the government demonstrates that the imposition of the burden on that person is... (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-1(a). The plaintiff bears the initial burden of showing a substantial burden on his religious exercise. 42 U.S.C. § 2000cc-2(b); Lovelace v. Lee , 472 F.3d 174, 185-87 (4th Cir. 2006). "[A] substantial burden on religious exercise occurs when a state or local government... put[s] substantial pressure on the adherent to modify his religious behavior and significantly violate his beliefs.'" Lovelace , 472 F.3d at 187. A burden that is merely an "inconvenience on religious exercise" is not "substantial." Konikov v. Orange County, Florida , 410 F.3d 1317, 1323 (11th Cir. 2005). See also Lovelace , 472 F.3d. at 194 (holding RLUIPA does not reach negligent violations of inmates' religious practices, as "[a]doption of the negligence standard would open prison officials to unprecedented liability for burdening an inmate's religious exercise"); Civil Liberties for Urban Believers v. City of Chicago , 342 F.3d 752, 761 (7th Cir. 2003) (recognizing that RLUIPA was not meant to create a cause of action for every decision that constrains religious exercise, or the word "substantial" would be meaningless). Once a prisoner establishes a substantial burden on his religious exercise, the defendants must show that the policy is the least restrictive means of furthering a compelling governmental interest. Lovelace , 472 F.3d. at 189. The court will "not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety" and will instead apply RLUIPA "in an appropriately balanced way." Cutter v. Wilkinson , 544 U.S. 709, 711, 722 (2005).

DePaola has marshaled nothing to support his claim that the injection of the PPD test solution violates his religious principles. Initially, DePaola could not even point to a particular substance in the PPD test serum that would violate his beliefs. DePaola later cited an unknown source indicating that large quantities of phenol, one of the substances in the PPD serum, may be harmful. DePaola claims his religion proscribes "alcohols and/or other substances which are toxic, " but he provides no evidence to contest Dr. Gronert's conclusion that nothing in the PPD solution could be classified as an alcohol or to suggest that the amount of phenol in the PPD serum is toxic. Given that none of DePaola's submissions support his factual claim that submitting to a PPD test violates his religious principles, the court finds that he has not met his burden of showing the testing imposes a substantial burden on his religious exercise in violation of RLUIPA and the First Amendment.[6] The court will accordingly grant the defendants' summary judgment motion as to this claim.

III.

DePaola also maintains that the defendants' failure to provide a diet that complies with Nation of Islam dietary restrictions violates his religious principles, but it is impossible to discern from the current record whether there are differences between the dietary requirements of Nation of Islam and other Muslim sects and, if so, whether the common fare diet is nonetheless sufficient. The defendants also fail to indicate whether accommodating Nation of Islam dietary requirements would be feasible and nutritionally adequate, the cost of altering the common fare menu to accommodate DePaola's alleged religious needs, or the potential cost of accommodating numerous strands of religious dietary restrictions.[7] The court will accordingly refer this claim to the magistrate with the responsibility of determining these matters and, if necessary, holding an evidentiary hearing to resolve any material factual disputes.[8]

IV.

For these reasons, the court will grant the defendants' motion for summary judgment as to the PPD claim and will refer the diet claim to the magistrate.


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