United States District Court, E.D. Virginia.
RAHEEM S. AL-AZIM, et al. Plaintiffs,
J. EVERETT, et al, Defendants.
R. SPENCER SENIOR U.S. DISTRICT JUDGE
S. Al-Azim, Charles X, and Victor X ("Plaintiffs"),
Virginia inmates proceeding pro se, have submitted
this civil action. The matter is proceeding on the
Plaintiffs' Amended Complaint (ECF No. 36). By Memorandum
Opinion and Order entered on August 3, 2015, the Court
dismissed a number of the Plaintiffs' claims. See
Al-Azim v. Everett, No. 14cv339, 2015 WL 4634456, at *
7-8 (E.D. Va. Aug. 3, 2015). The following claims are still
before the Court:
Claim 1 (a) "Defendants Clarke, ... Hobbs, ... and
Washington violated [Victor X's and Al-Azim's] First
Amendment right to practice their religion by
refusing to provide them a diet reasonably consistent with
How to Eat to Live, Volumes 1 and 2, by the Most
Honorable Elijah Muhammad." (Am. Compl.
I.)(b) Defendants Clarke, Hobbs, and
Washington violated Victor X's and Al-Azim's rights
under the Religious Land Use and Institutionalized Persons
Act ("RLUIPA") by failing to provide a diet consistent
with How to Eat to Live. (Id. at 10.)
Claim 2 "Defendant Clarke ... violated [Victor
X's] rights under the Fourteenth Amcndment by refusing to
provide [him] a diet reasonably consistent with How To
Eat To Live, while affording one to members of the
Nation of Islam confined at Buckingham Correctional Center,
thereby intentionally discriminating against [Victor X] on
the basis of [his] religion." (Id. at 5.)
Claim 3 (a) "Defendants] Washington, Puryear, and Hobbs
violated [Charles X's] right to practice [his] religion
by refusing [him] sufficient time for worship services."
(Id. at 6.)
(b) Defendants Washington, Puryear, and Hobbs violated
Plaintiffs' rights under RLUIPA by refusing: (i) "to
afford Plaintiffs time to have [Fruit of Islam] F.O.I.
training classes for two (2) hours weekly"; (ii)
"refusing to afford Plaintiffs time to have Juma'ah
(Friday) prayer service for one (1) hour"; and (iii)
"refusing to afford Plaintiffs time to have
Self-Improvement: The Basis for Community Development classes
for two (2) hours weekly." (Id. at 10).
Claim 4 "Defendants Washington, Robinson, Clarke, and
Hobbs violated [Charles X's and Victor X's] right to
practice their religion by refusing to authorize them to
purchase and receive compact discs of weekly sermons by the
Honorable Louis Farrakhan." (Id. at
August 3, 2015 Order further directed that any party wishing
to file a motion for summary judgment must do so within
seventy (70) days of the date of entry thereof. Defendants
filed a Motion for an Extension of Time, which the Court
granted, and Defendants timely filed their Motion for Summary
Judgment on December 8, 2015.
Court granted Plaintiffs' Motion for an Extension of Time
to respond to Defendants' Motion for Summary Judgment. On
February 26, 2016, Plaintiffs filed their Response to
Defendants' Motion for Summary Judgment and then filed
their own Plaintiffs' Motion for Summary Judgment. As
Plaintiffs' Motion for Summary Judgment was filed well
past the deadline set in the August 3, 2015 Order.
Plaintiffs* Motion for Summary Judgment (ECF No. 54) will be
DENIED as untimely filed. For the reasons set forth below,
Defendants' Motion for Summary Judgment (ECF No. 47) will
be GRANTED IN PART AND DENIED IN PART. Claims 2(a), 2(b), 3,
and 4 will be DISMISSED.
Standard for Summary Judgment
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). It is the responsibility of the party
seeking summary judgment 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)).
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 (1872)). "'[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. Ban, 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 ....").
support of their Motion for Summary Judgment, Defendants have
submitted, inter alia, the affidavit of Curtis Wall,
a chaplain at GCC (Mem. Supp. Mot. Summ. J. Ex. 1 ("Wall
Aff., " ECF No. 48-1)), the affidavit of A. David
Robinson (id. Ex. 2 ("Robinson Aff., " ECF
No. 48-2)), and the affidavit of Elisabeth M. Thornton, the
VDOC Operations Administrator (id. Ex. 3,
("Thornton Aff., " ECF No. 48-3)). In response,
Plaintiffs have submitted, inter alia, the
Declaration of Victor X ("Victor Decl., " ECF No.
56), the Declaration of Johnathan Lee X ("X Decl.,
" ECF No. 58), the Declaration of Willie X,
("Willie Decl., " ECF No. 60), and the Declaration
of Charles X ("Charles Decl." ECF No. 61).
Additionally, Plaintiffs swore to the contents of the Amended
Complaint under penalty of perjury.
stage, the Court is tasked with assessing whether Plaintiffs
have "proffered sufficient proof, in the form of
admissible evidence, that could carry the burden of
proof of his claim at trial." Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) (emphasis
added). Thus, the facts offered by affidavit must be in the
form of admissible evidence. See Fed. R. Civ. P.
56(c)(2). In this regard, the statement in the affidavit or
sworn statement "must be made on personal knowledge ...
and show that the affiant or declarant is competent to
testify on the matters stated." Fed.R.Civ.P. 56(c)(4).
Furthermore, summary judgment affidavits must "set out
facts." Id. Therefore, "summary judgment
affidavits cannot be conclusory or based upon hearsay."
Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954,
962 (4th Cir. 1996) (internal citation omitted) (citing
Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975
(4th Cir. 1990); Md. Highways Contractors Ass'n v.
Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)). The
absence of an "affirmative showing of personal knowledge
of specific facts" prevents the consideration of such
facts in conducting the summary judgment analysis. EEOC
v. Clay Printing Co., 955 F.2d 936, 945 n.9 (4th Cir.
1992) (citation omitted) (internal quotation marks omitted).
initial matter, Plaintiffs raise a number of objections to
Defendants' submissions. First, Plaintiffs contend that
the commission for the notary who endorsed Robinson's
affidavit expired prior to the notary endorsing
Robinson's Affidavit. This is simply not accurate. The
notary's commission expires on April 30, 2019. (Robinson
Aff. 4.) Accordingly, Plaintiffs' objection to
Robinson's Affidavit will be OVERRULED. Plaintiffs'
Motion to Strike Robinson's Affidavit (ECF No. 59) will
Plaintiffs contend that the Court should not consider
Thornton's Affidavit because, inter alia, she
fails to demonstrate that she is competent to testify as to
food costs and the burdens of various diets. As the VDOC
Operations Administrator, Thornton is competent to testify to
the matters set forth in her affidavit and Plaintiffs fail to
demonstrate that her Affidavit should not be considered
because she failed to attach additional records to her
Affidavit. Plaintiffs' objections to Thornton's
Affidavit will be OVERRULED.
light of the foregoing submissions and principles, the
following facts are established for purposes of the Motion
for Summary Judgment.
are sincere students and followers of the Most Honorable
Elijah Muhammad under the leadership of the Honorable
Minister Louis Farrakhan, the National Representative of the
Most Honorable Elijah Muhammad and the Nation of Islam"
(Am. Compl. ¶ 3.) Plaintiffs believe their religion
commands them to obey Elijah Muhammad and Louis Farrakhan.
(Victor Decl. ¶ 9.)
Facts Pertaining to Claims 1 and 2
NOI Dietary Requirements
Muhammad outlined the dietary requirements for members of the
NOI in How to Eat to Live. (Am. Compl.
¶ 1.) "How To Eat To Live requires
Plaintiffs to train themselves to consume only one meal every
twenty-four (24) hours - with no in between snacks or
brunches - consisting of food approved by How To Eat To
Live." (Id. ¶ 4.) According to Plaintiffs,
How to Eat to Live requires that they eat:
properly baked whole wheat bread and properly cooked navy
(pea) beans, cabbage (without the green leaves), carrots,
spinach, beets, lettuce (without its green leaves), browned
rice, rutabaga, asparagus, broccoli, eggplant, white corn (in
its milky stage), onion, olives, garlic, rhubarb,
cauliflower, green pepper, and a limited number of other
foods. These vegetables must be fresh and properly cooked
before [being] eaten. These vegetables must be fresh, not
canned, and properly cooked before eaten.
Plaintiffs insist that they must refrain from "eating
meat and all marine life.'” (Id. ¶
5.) Plaintiffs represent that the regular menu at GCC
contains the following foods which they are prohibited from
[P]ork meat, food containing its derivatives, beef, fish,
collar[d] greens, kale salad, peanut butter, jelly, corn
bread, yellow corn, white rice, oleo, biscuits, freshly baked
bread, freshly baked pasteries, processed cheese, white
bread, sweet potatoes, white potatoes, canned (cooked)
vegetables, pinto beans, kidney beans, blackeyed peas,
cabbage with its green leaves, spaghetti, macaroni, fried
food, hard baked food, egg, jello, french toast, and
(Id. ¶ 6 (emphasis added).) Plaintiffs,
however, are not consistent with respect to which foods they
are prohibited from eating. For example, while Plaintiffs
insist that their religious diet prohibits them from
consuming eggs, they simultaneously complain that the
commissary at GCC refuses to sell eggs which are needed for
their diet. (Victor Decl. ¶ 5.)
further assert that Defendants "can easily accommodate
the annual dietary requirements of Plaintiffs by providing
the so-called Nation of Islam Month of Fasting Menu that they
have composed to enable members of the Nation of Islam ... to
observe our annual Ramadan." (X Decl. ¶ 4 (citing
Encl. A).) Contrary to Plaintiffs' earlier expressed need
for only a single meal a day, the Month of Fasting Menu
provides two meals a day and regularly contains food items
that Plaintiffs insist they are prohibited from eating such
as fish and eggs. (X Decl. Encl. A, at l-4.)
"How To Eat To Live strictly forbids Plaintiffs
to consume food that has been prepared or cooked in or with
utensils that have been used to prepare, cook, serve, or eat
pork or its by-products or other prohibited food." (Am.
Compl. ¶ 9.)
The Common Fare Diet
Virginia Department of Corrections recognizes 28 different
religions." (Thornton Aff. ¶4.) "Many
religions have dietary restrictions." (Id.)
Differences in opinion exist about these dietary
restrictions, even within a given religion. (Id.)
"These religious dietary restrictions include not only
the types of food (e.g. no pork products), but also include
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 ...