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Shabazz v. Johnson

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

July 2, 2015

GENE M. 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 Amendment[3] rights and the Religious Land Use and Institutionalized Persons Act ("RLUIPA").[4] The action proceeds on Claims One (a) and (b) of Shabazz's Particularized Complaint. ("Complaint, " ECF No. 29.) Specifically, Shabazz asserts:[5]

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.

( See Campl. 11.) Shabazz seeks declaratory, injunctive, and monetary relief. Defendants have filed a renewed Motion for Summary Judgment.[6] Shabazz has responded. For the reasons set forth below, the Court will GRANT Defendants' Motion for Summary Judgment.


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 (citation omitted). "[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. (internal quotation marks omitted) (citation omitted). 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 Elisabeth M. Thornton, the VDOC Operations Manager (Mem. Supp. Mot. Summ. J. Ex. A, ECF No. 61-1 ("Thornton Aff.")); (2) Shabazz's commissary records ( id. Encl. A); (3) an affidavit of K. Whitehead, the Grievance Coordinator (Mem. Supp. Mot. Summ. J. Ex. B, ECF No. 61-2 ("Whitehead Aff.")); (4) VDOC Operating Procedure § 866.1 ( id. Encl. A & B); and, (5) Shabazz's grievance material ( id. Encl. C).

In response, Shabazz submits: (1) his own affidavit (Resp. Mot. Summ. J. Attach 1, ECF No. 65-1 ("Shabazz Aff.")); and (2) an affidavit of Johnathan Lee X Smith, a frequent litigant in the Court ( id. Attach 2, ECF No. 65-2 ("Smith Aff. II")). Additionally, Shabazz swore under penalty of perjury to the truth of his statements in his Complaint.

Moreover, in order to present a complete picture of the surrounding facts, the Court relies on previously submitted evidence. This includes several affidavits submitted in support of Defendants' first Motion for Summary Judgment ( see Mem. Supp. First Mot. Summ. J., ECF No. 40), including: (1) an affidavit of Mark Engelke ( id. Attach. 3, ECF No. 40-3 ("Engelke Aff.")); (2) the VDOC Food Service Manual (Engelke Aff. Encl. A); and, (3) a copy of the Common Fare Agreement signed by Shabazz (Engelke Aff. Encl. C). The Court also relies on the previously filed declaration of Shabazz (Resp. First Mot. Summ. J. Attach. 1, ECF No. 46-1 ("Shabazz Decl.")), and the affidavit of Johnathan Lee X Smith ( id. Attach. 2, ECF No. 46-2 ("Smith Aff.")).

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


A. Common Fare Diet

The VDOC recognizes twenty-eight different religions. (Thornton Aff. ¶ 4.) Many of these religions have dietary restrictions. ( Id. ) Differences in opinion exist about these dietary restrictions even within a given religion. ( Id. ) The "restrictions include not only the types of food (e.g. no pork products), the way meat is slaughtered (e.g. halal meat), the way food is stored and cooked (e.g. kosher), how the cooking tools are cleaned (e.g. kosher), and how the food is served (e.g. on trays uncontaminated by non-kosher food)." ( Id. ) Religious diets also may require fasting or feasts during various holidays. ( Id. )

"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.) The Common Fare diet was "designed to meet all known religious dietary restrictions." (Thornton Aff. ¶ 6.) All foods purchased and used for the Common Fare diet, save fruits and vegetables, are consistent with certified "kosher" standards. ( Id. ) The storage, preparation, and serving of food, and the cleaning of the kitchen and trays complies with all halal and kosher requirements. ( Id. ) "Appropriate procedures are in place to ensure that food service workers... receive appropriate training and supervision in the proper handling of Common Fare food." (Engelke Aff. ¶ 4.) "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. )

Currently 3, 000 offenders participate in the Common Fare diet. ( Id. ¶ 7; Thornton Aff. ¶ 10.) "All offenders approved for the Common Fare diet are required to sign a Common Fare Agreement." (Engelke Aff. ¶ 7.) 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. 17; id. Encl. C.)[8]

VDOC food service provides inmates who eat from the regular serving line with a meat alternative at each meal. ( Id. ¶ 18.) 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. ¶ 19.) "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 member of the NOL (Shabazz Decl. ¶ 13.) He currently participates in the Common Fare diet. (Compl., ¶ 18.) Shabazz's religious tenets require him to consume a vegetarian diet. ( Id. ) Shabazz claims he is a "strict vegetarian for religious and health reasons. I eat no meat or marine life. For religious reasons, I desire an annual diet free of all meat, all marine life, and all dairy products." (Shabazz Decl. ¶ 13.) 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 II." (Compl. ¶ 18.) 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 id. ¶¶, 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 Decl., ¶ 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 com 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, black-eyed peas, fried food, white rice, processed food[s], com 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.
22.... [T]he food[s] served from the Master Menu are expressly forbidden to us by How to Eat to Live. ... The current Master Menu contains these and additional foods, such as crab meat, oysters. In addition, this food is prepared, cooked, baked, ...

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