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Al-Azim v. Everett

United States District Court, E.D. Virginia.

August 23, 2016

RAHEEM S. AL-AZIM, et al. Plaintiffs,
J. EVERETT, et al, Defendants.



         Raheem 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[1] 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.)[2](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")[3] 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[4] 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.)[5]
(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 7.)[6]

         The 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.

         The 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.

         I. Standard 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). 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)).

         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 (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 ....").

         In 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.[7]

         At this 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).

         As an 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 be DENIED.

         Next, 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.

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

         II. Pertinent Facts

         "Plaintiffs 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.)

         A. Facts Pertaining to Claims 1 and 2

         1. NOI Dietary Requirements

         Elijah 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.

(Id. ¶8.)

         Additionally, 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 eating:

[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 pancakes.

(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.)

         Plaintiffs 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.)[8]

         Additionally, "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.)

         2. The Common Fare Diet

         'The 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 ...

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