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Depaola v. Virginia Department of Corrections

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

August 12, 2014

ERIC J. DePAOLA, Plaintiff,

Eric J. DePaola, Pro Se Plaintiff.

J. Michael Parsons, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants.


JAMES P. JONES, District Judge.

This is a civil 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 VDOC employees in their individual and official capacities, [1] pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, et seq., and 42 U.S.C. § 1983. In previous rulings, the court has granted summary judgment as to almost all of DePaola's contentions. The remaining claim now before me alleges that the VDOC common fare diet includes foods that are inconsistent with DePaola's particular religious dietary requirements. After review of the record, I find the defendants are entitled to summary judgment.[2]


DePaola alleges that he has been a practicing Muslim for over five years and had been following the teachings of the Nation of Islam ("NOI") for approximately three years. At his request, based on these beliefs, Red Onion officials have served him a common fare diet since September of 2011.

Mark Engelke, VDOC food service director, states in his affidavit that 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 VDOC's regular menu. He states that common fare menu has been certified by the Islamic Center of Virginia as complying with Islamic dietary guidelines and by dieticians as meeting or exceeding minimum daily nutritional requirements. To be approved to receive the common fare menu instead of the regular VDOC menu, an inmate must demonstrate and sign an agreement stating that the common fare menu meets his religious dietary needs. DePaola signed such an agreement.[3]

DePaola now asserts that common fare meals are inconsistent with his religious dietary beliefs. He states that his NOI religious dietary requirements differ from those of other Muslim sects and require him to eat 100% whole grain wheat bread, not white bread, no peanut products, no cottage cheese, no grapefruit, no white rice, and no peas.[4] The common fare meals include these prohibited items. DePaola claims that cottage cheese contains Polysorbate 80, which is allegedly comprised of acids and alcohols that Muslims are forbidden to eat. He also offers evidence that a beef-flavored rice and vegetable entree often included in his common fare meals lists peas as an ingredient.

Engelke states that the VDOC houses inmates of various Muslim sects, including NOI, Sunni Muslims, Shiite Muslims, the World Community of Islam, and Moorish Science Temple. He agrees that within the NOI community, inmates espouse differing dietary beliefs. For example, he states that some NOI inmates eat fish, while others do not, and some NOI inmates claim that their beliefs require them to eat only one meal per day, while others eat three meals per day. Engelke explains that the centralized common fare program does not allow officials at each VDOC facility to make changes to the master menu or to provide substitutions for food items on the menu in order to meet such individualized NOI dietary practices.[5]

In fact, the VDOC Food Service manual expressly states that "[t]he planned Common Fare menu may not be changed at the facility level, except where seasonal availability of produce items warrants that substitutions be made." (Engelke Aff. Ex. B, at 2, ECF No. 20.) The common fare program requires meal trays to be pre-made to meet nutritional and religious requirements. The defendants insist that Red Onion prepares common fare meals using only food items authorized by the common fare menu. In keeping with the policy, Red Onion officials state that they cannot provide food alternatives to satisfy DePaola's food preferences.

Defendant Scarberry explains in her submssion how DePaola's disputed food items are served under the master common fare rules. Kosher white bread, peanut butter, and grapefruit may be served at any time, except during the NOI Month of Fasting, when these items are not included on the menu. "[P]eas and dried beans, with the exception of navy beans, [are] an unacceptable food substitute during the [NOI] Month of Fasting. The... entree [which DePaola identified as containing peas] is not serve during the NOI fasting period." (Scarberry Aff. ¶ 7, ECF No. 31.) Scarberry states that brown rice, not white rice, is served in common fare meals, although the rice may appear white in color. She also provides evidence that Polysorbate 80 does not contain alcohol and states that, to the best of her knowledge, the cottage cheese in Red Onion common fare meals does not contain alcohol.

Engelke states that providing substitutes for various items authorized on the common fare menu to cater to the differing dietary beliefs of NOI offenders would require the VDOC to bear significant additional costs. He states that fluctuating requests for customized common fare meals would be unmanageable and require hiring additional food service staff. Engelke asserts that identifying the precise cost increase for such individualized NOI meals is not feasible, but would be expected to impose a significant burden on Virginia taxpayers. VDOC officials also fear that permitting NOI inmates to have meals tailored for individual religious differences within that belief set would open the door to requests from other religious subgroups for their own special adjustments to the common fare menu. Engelke predicts that allowing any group or groups to request a customized version of the common fare menu would throw "the VDOC back into the same overly burdensome predicament [it] faced before" offering the common fare diet. (Engelke Aff. ¶10, ECF No. 41.) Presently, approximately 3, 000 Virginia inmates participate in the common fare meal program.

According to DePaola, because he has not eaten the items he claims are prohibited by his beliefs, he has suffered physically from hunger pangs, has had difficulty sustaining his weight, and has suffered in his spiritual practice from not having a proper ...

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