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Shabazz v. Johnson

United States District Court, E.D. Virginia, Richmond Division

February 24, 2015

GENE JOHNSON, et al., Defendants.


JAMES R. SPENCER, Senior District Judge.

Muwakkil S.B. Shabazz, a Virginia inmate and a member of the Nation of Islam ("NOI"), brings this 42 U.S.C. § 1983[1] action alleging that Defendants[2] violated his First[3] and Fourteenth[4] Amendment rights and the Religious Land Use and Institutionalized Persons Act ("RLUIPA").[5] The action proceeds on Shabazz's Particularized Complaint. ("Complaint, " ECF No. 29.) Specifically, Shabazz asserts:[6]

Claim One: By refusing to provide Shabazz with a diet in conformity with his religious beliefs, Defendants violated (a) the First Amendment and (b) RLUIPA.
Claim Two: Defendants violated Shabazz's right to equal protection by refusing to provide him with a Nation of Islam ("NOI") diet.
Claim Three: By refusing to provide Shabazz with sufficient time to worship, Defendants violated (a) the First Amendment and (b) RLUIPA.
Claim Four: Defendants violated Shabazz's right to equal protection by providing insufficient time for him to worship.
Claim Five: By denying Shabazz the right to purchase and wear bowties, Defendants violated (a) the First Amendment and (b) RLUIPA.
Claim Six: Defendants violated Shabazz's right to equal protection by denying him the right to purchase and wear bowties.
Claim Seven: By denying Shabazz access to NOI programs on cable television, Defendants violated (a) the Equal Protection clause and (b) RLUIPA.

( See Compl. 11-16.) Shabazz seeks declaratory, injunctive, and monetary relief.[7] Defendants have filed a Motion for Summary Judgment. For the reasons set forth below, the Court will GRANT Defendants' Motion for Summary Judgment with respect to Claims Two, Three (a) and (b), Four, Five (a) and (b), Six, and Seven (a) and (b). The Court DENIES WITHOUT PREJUDICE Defendants' Motion for Summary Judgment with respect to Claims One (a) and (b).


Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

In reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1871)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party... upon whom the onus of proof is imposed.' Id. (quoting Munson, 81 U.S. at 448). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.' Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials....").

As pertinent here, in support of their Motion for Summary Judgment, Defendants rely upon: (1) an affidavit of A. David Robinson (Mem. Supp. Mot. Summ. J. Attach. 1, ECF No. 40-1 ("Robinson Aff.")); (2) VDOC Operating Procedure § 841.3 ( id Encl. A); (3) VDOC Operating Procedure § 802.1 ( id Encl. B); (4) an affidavit of J. Everette ( id Attach. 2, ECF No. 40-2 ("Everette Aff.")); (5) an affidavit of Mark Engelke ( id. Attach. 3; ECF No. 40-3 ("Engelke Aff.")); (6) the VDOC Food Service Manual ( id. Encl. A); (7) a copy of the NOI menu provided at Buckingham Correctional Center ( id. Encl. B); (8) a copy of the Common Fare Agreement signed by Shabazz ( id Encl. C); and (9) an affidavit of Paul Beighley ( id. Attach. 4, ECF No. 40-4 ("Beighley Aff.")).

In response, Shabazz submits: (1) his own declaration (Resp. Mot. Summ. J. Attach 1, ECF No. 46-1 ("Shabazz Decl.")); and (2) an affidavit of Johnathan Lee X Smith, a frequent litigant in the Court ( id. Attach 2, ECF No. 46-2 ("Smith Aff.")). Additionally, Shabazz swore under penalty of perjury to the truth of his statements in his Complaint.

In light of foregoing submissions and principles, the following facts are established with respect to the Motion for Summary Judgment.


A. Common Fare Diet

Shabazz is confined in the Greensville Correctional Center ("GCC"). (Shabazz Decl. ¶ 3.) Shabazz is a member of the NOI. ( Id. ) Shabazz participates in the Common Fare diet. (Compl. ¶ 18.) "The Common Fare diet was designed specifically to meet the dietary needs of offenders who, for religious reasons, require a Kosher non-pork diet and whose dietary requirements cannot be accommodated with foods provided" by the regular menu ("Master Menu"). (Engelke Aff. ¶ 4.) "Appropriate procedures are in place to ensure that food service workers... receive appropriate training and supervision in the proper handling of Common Fare food. ( Id. ) "The Common fare menu has been analyzed and certified as meeting or exceeding minimum daily nutritional requirements." ( Id. ¶ 5.) The Islamic leader of the Islamic Center for Virginia has affirmed that the Common Fare diet meets Islamic guidelines. ( Id. ) Those offenders on the Common Fare diet who sign up as Islamic offenders are also allowed to participate in religious observances such as Ramadan and NOI Month of Fasting. ( Id. )

Prior to the creation of the Common Fare diet, the Buckingham Correctional Center served special meals to NOI offenders in accordance with a court order. ( Id. ¶ 6.) Buckingham "is not a Common Fare facility"; however, a few offenders remaining at the facility were "grandfathered" in and continue to receive special NOI meals provided by an outside vendor. ( Id. ) These meals include fish, and the cost per meal is approximately $2.70, compared with $1.35 for a Common Fare meal. ( Id. )

Currently 3, 000 offenders participate in the Common Fare diet. ( Id. ¶ 7.) "All offenders approved for the Common Fare diet are required to sign a Common Fare Agreement." ( Id. ) Shabazz signed his agreement on August 6, 2012. ( Id. ) "By signing this agreement, Shabazz acknowledged that the Common Fare provides [him] with an appropriate religious diet that meets or exceeds daily nutritional requirements." ( Id. Encl. C; see id. 7.)[8]

VDOC food service provides inmates who eat from the regular serving line with a meat alternative at each meal. ( Id. ¶ 8.) Offenders who do not eat meat may select the alternative at each meal. ( Id. ) Beans are offered for lunch and dinner meals. ( Id. ) When the breakfast meal contains meat, cheese or peanut butter is offered as an alternative. ( Id. ) "Because the regular menu includes legumes, dairy products and eggs, inmates who choose not to eat meat nevertheless receive adequate nutrients necessary to a healthy diet." ( Id. )

The Common Fare diet is not served cafeteria-style like the regular meal. ( Id. ¶ 9.) "The Common Fare trays must be pre-made, covered and maintained at a specific temperature." ( Id. ) For this reason, offenders who participate in the Common Fare diet are unable to select alternative menu items from the Common Fare menu, ( Id. ) Offenders may purchase approved food items such as peanut butter from the commissary. ( Id. ) The "planned Common Fare menu may not be changed at the facility level, except where seasonal availability of produce items warrant substitutions be made." ( Id. Encl. A, "Food Service Manual, " at V.C.)

B. Shabazz's Dietary Demands

Shabazz is a vegetarian. (Compl. ¶ 18.) Shabazz met with Defendant Abernathy to explain that the Common Fare diet "does not accommodate his Religious Dietary Tenets that [are] outlined in How to Eat to Live, by the Most Honorable Elijah Muhammad, Volumes I and IL" ( Id. ) Shabazz filed an informal complaint, regular grievance, and two appeals regarding his desire to have a diet in accord with How to Eat to Live, and Defendants Abernathy, Washington, and Hobbs informed him that the Common Fare diet met his religious dietary needs. ( See Compl. ¶¶ 19-23 (citing Ex. A, at 1-7).) Shabazz states that "his dietary tenets, require him to train himself to eat only one (1) meal every twenty-four hours, with no in between snacks." ( Id. ¶ 18.) According to Shabazz, he "has lost about 20 lbs. of his bodily weight" from prison officials' refusal to provide him with an NOI diet. ( Id. ¶ 30.) Shabazz states that both the Master Menu and the Common Fare diet "violate[ ] my religious dietary requirements, " so he "opted for the Common Fare because it is the lesser of two evils." (Shabazz Deel. ¶ 7.)

According to Johnathan Lee X Smith, How to Eat to Live requires NOI believers to "eventually wean" themselves off meat and marine life. (Smith Aff. ¶ 14.) Smith explains that in 1998, the Honorable Louis Farrakan ordered all NOI members to stop eating meat and all marine life. ( Id. ¶ 15.) Smith explains that:

18. How to Eat to Live expressly says that the annual diet of members of the Nation of Islam is to consist[ ] of fresh, cooked spinach, cauliflower, rhubarb, eggplant, red cabbage, broccoli, white cabbage, okra, carrot, navy (pea) beans, asparagus, brussel sprout[s], turnip root, browned rice, white corn in its milk stage, and whole wheat bread that has been slowly baked twice and then allowed to set for 2-3 days before eaten. It requires us to eat fresh fruit and to drink bottled fruit juices. It says that our food must be prepared and cooked in the manner prescribed by God through the most Honorable Elijah Muhammad in How to Eat to Live. Our drinking water must be boiled and strained with cheese before we drink it.
19. How to Eat to Live expressly forbids members of the Nation of Islam to use... utensils that have been used to prepare, cook, bake, or eat pork, it's by products, and other religiously unacceptable food.
20. How to Eat to Live expressly forbids members of the Nation of Islam pork and its by products, canned food, white flour, white bread, freshly baked bread, freshly baked pastry, white potatoes, sweet potatoes, pancakes, French toast, syrup, margarine, macaroni, spaghetti, kidney beans, pinto beans, blackeyed peas, fried food, white rice, processed food[s], corn bread, peanut butter, scrambled eggs, dry cereal, wet cereal, stir fried vegetables, collard greens, kale salad, soy bean[s], jelly, baked beans, artificial food.
21. How to Eat to Live expressly forbids members of the Nation of Islam to eat food that has been prepared and cooked by disbelievers or unbelievers in our Islamic faith
25. How to Eat to Live forbids members of the Nation of Islam, including Plaintiff, Shabazz, to eat a diet that consists primarily of uncooked vegetables, such as the Common Fare Menu, because of the many poisonous chemicals sprayed on the vegetables... and because the human digestive tract was not designed by its Creator to digest raw vegetables.

( Id. ¶¶ 18-21, 25.) According to Smith, the Master Menu and Common Fare diet are unacceptable to members of the NOI under How to Eat to Live. (Id. ¶¶ 22-23.)

C. Worship Services

The VDOC contracts with Chaplain Services of Virginia to provide services including formal worship, religious education, pastoral counseling and care, and the coordination of religious volunteers in the VDOC facilities for all faiths. (Robinson Aff. ¶ 4.) The Chaplains also provide general support for all denominations including arranging space and time for services and obtaining religious publications. ( Id. ) The VDOC funds these representatives from the commissary funds, and no state or federal money is used for the services. ( Id. ) The VDOC shows no preference to the activities of any religious group. ( Id. ) "The amount of hours and space allocated to religious groups is based on the number of offenders participating in the program and availability of volunteers and staff resources." ( Id. )

"Since April 1, 2011, Chaplain Services has subcontracted with Muslim Chaplain Services to provide services to the VDOC including, but not limited to, formal Muslim worship, religious education, pastoral counseling, " and obtaining "VDOC approved materials needed to provide Muslim faith-based services." ( Id. ¶ 5.) Offenders may participate in on-site Jumu'ah ...

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