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Baines v. Hicks

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

December 19, 2016

ARTIS BAINES, Plaintiff,
C. HICKS, et al, Defendants.


          James R. Spencer Senior U.S. District Judge

         Artis Baines, a Virginia inmate proceeding pro se, brings this 42 U.S.C. § 1983[1] action alleging that Defendants[2] violated his First Amendment free exercise rights.[3] his Fourteenth Amendment equal protection rights, [4] his due process rights, [5] his rights under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and breached a contract.[6] The action proceeds on the Final Particularized Complaint. ("Final Complaint, " ECF No. 72.)[7] Defendants have filed a Motion for Summary Judgment. (ECF No. 80.) For the reasons set forth below, the Court will GRANT Defendants' Motion for Summary Judgment.


         Baines has filed numerous complaints during the pendency of this action. With each new submission, his legal claims and the supporting facts have shifted, and the defendants have changed. On September 4, 2014, Baines filed his initial Complaint. (ECF No. 1.) Baines subsequently filed improper amended pleadings in January 2015, March 2015, and on May 21, 2015. (ECFNos. 18, 21, 25.) After reviewing the Supplemental Complaint, by Memorandum Order entered on September 14, 2015, the Court directed Baines to file a particularized complaint. (ECF No. 34.) On October 19, 2015, Plaintiff filed a Particularized Complaint. (ECF No. 38.) In the Particularized Complaint, Baines raised the following claim:

Plaintiff alleges that [Defendants] violated his First Amendment right to practice his dietary laws and that Defendant[] Garrett violated Plaintiff's Fourteenth Amendment rights to procedural and substantive due process when Garrett removed Plaintiff from the Common Fare Diet for six (6) months in the manner described supra.

(Part. Compl. 9.) The Court directed service of the Particularized Complaint on Defendants.

         On December 8, 2015, Defendants filed an Answer and a Motion for Summary Judgment. In response Baines filed a Motion to Amend with a new Proposed Amended/Supplemental Complaint. (ECF No. 50.) By Memorandum Order entered on January 28, 2016, the Court directed Defendants to file a response to the Motion to Amend, the Proposed Amended/Supplemental Complaint, and its impact on the Motion for Summary Judgment. (ECF No. 52, at 2.) The Court subsequently reviewed Baines's Response in Opposition for the Motion for Summary Judgment and found "that [Baines] ha[d] revised portions of his allegations from the Particularized Complaint and provide[d] new evidence." (ECF No. 59, at 1.) Therefore, by Memorandum Order entered on February 16, 2016, the Court also directed a response from Defendants to the Response in Opposition. (Id.)

         By Memorandum Opinion and Order entered on June 17, 2016, the Court denied without prejudice Defendants' Motion for Summary Judgment and Baines's Motion to Amend, and directed Baines to file a final particularized complaint. The Court explained the following:

Baines's attempt to amend appears to be nothing more [than] an effort to avoid an adverse summary judgment. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1488 n.20 (2016); cf. Local 472 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Indus, of U.S. and Canada v. Georgia Power Co., 684 F.2d 721, 724-25 (11th Cir. 1982) (denying motion to amend "after all defendants had filed motions for summary judgment" and Plaintiff failed to respond to the Motion for Summary Judgment). The Court views Baines's most recent attempt to amend his complaint as bordering on abusive: Baines's claims cannot be squared with those set forth in his after-filed Response in Opposition to Summary Judgment; Baines's amended pleadings are designed to add new parties and tack on unrelated allegations for claims he should have known about and alleged at the time he filed his Particularized Complaint; the facts alleged are inconsistent with his prior submissions; and, Baines has had multiple opportunities to provide these facts but failed to do until he filed the Amended Complaint. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1487 & nn.l 1-12 (2016); see Id. § 1488 & nn. 13 & 20.

(ECF No. 67, at 5-6.) The Court found "it difficult to ascertain exactly what Baines intends to argue, which of the contradictory facts the Court should rely upon, and which Defendants Baines intends to name." (Id. at 6.) The Court noted that "Baines's various submissions are wholly inconsistent" and explained that "[n]either the Court nor the Defendants should be required to sort out Baines's claims and the supporting facts in the first instance." (Id.) As an indulgence to Baines as a pro se plaintiff, the Court permitted Baines to file a final particularized complaint to refine his claims. Baines has filed a Final Complaint.

         A review of the Final Complaint reveals that Baines has again altered his claims. Many of his claims provide little more than conclusory statements that his constitutional rights were violated. Moreover, several of his claims are internally inconsistent and difficult to reconcile with each other. While the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not act as the inmate's advocate and develop, sua sponle, statutory and constitutional claims that the inmate failed to coherently raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). A pro se plaintiffs "obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action will not do." Thigpen v. McDonnell, 273 F.App'x 271, 273 (4th Cir. 2008) (citations omitted) (internal quotation marks omitted). Liberal construction of a pro se pleading does not mean that a court should invent facts to remedy an inadequately pled claim. Instead, the "plaintiff remains the master of his complaint and is, in the end, the person responsible for articulating the facts that give rise to a cognizable claim." Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998). Baines has had more than ample opportunity to plead his claims. Accordingly, the Court will not cull through the allegations and supporting facts to create the most promising legal claims for Baines.


         In his Final Complaint, Baines asserts the following claims for relief:[8]

Claim One: Defendants "substantially burdened [Baines's] free exercise right by creating pressure on [Baines] to consume food from the Common Fare diet . . . that did not conform to his understanding of his Islamic dietary tenets, " in violation of (a) the First Amendment, and (b) RLUIPA. (Final Compl. 6.)
Claim Two: Defendants "subjected [Baines] to unlawful discrimination on account of his religion in violation of the Equal Protection Clause of the Fourteenth Amendment" by not providing him a Halal diet.[9] (Id.)
Claim Three: Defendants "violated [Baines's] rights under the Common Fare contract" (Id. at 11.)
Claim Four: Defendants violated Baines's free exercise rights under (a) the First Amendment and (b) RLUIPA, when he was removed from the Common Fare diet. (Id. at 19.)
Claim Five: Defendants violated Baines's "procedural due process rights under the Fourteenth Amendment" when they removed him from the Common Fare diet. (Id.)
Claim Six: Defendants violated Baines's "substantive due process rights under the Fourteenth Amendment" when they removed him from the Common Fare diet. (Id.)

         Baines seeks a variety of relief scattered throughout the Final Complaint including injunctive and monetary relief.[10]


         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 Slates 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 duly 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-----").

         As pertinent here, in support of their Motion for Summary Judgment, Defendants rely upon: (1) an affidavit of Mark Engelke (Mem. Supp. Mot. Summ. J. Attach. 1, ECF No. 81-1 ("Engelke Aff."));[11] (2) the VDOC Food Service Manual (id. End. A); (3) a supplemental affidavit of Mark Engelke (Mem. Supp. Mot. Summ. J. Attach. 2, ECF No. 81-2 ("Supplemental Engelke Aff.")); (4) a copy of the Common Fare Menu for April 2015 through March 2016 (id. End. A); (5) an affidavit of Anthony Anderson (Mem. Supp. Mot. Summ. J. Attach. 3, ECF No. 81-3 ("Anderson Aff. "); (6) a copy of the Common Fare Diet Attendance Report for the month of December 2014 (id. End. A); a supplemental affidavit of Anthony Anderson (Mem. Supp. Mot. Summ. Attach. 4, ECF No. 81-4 ("Supplemental Anderson Aff."); (7) grievance material submitted by Baines (id. End A); (8) an affidavit of Louise Goode, the Assistant Warden at GCC (Mem. Supp. Mot. Summ. J. Attach. 5, ECF No. 81-5 ("Goode Aff."); (9) VDOC Operating Procedure § 841.3 (id. End. A); (10) an Institutional Classification Authority Hearing Notification Form (id. End. B); (11) an Institutional Classification Authority Hearing report (id. End. C); (12) grievance materials Baines filed in April 2015 (id. Encl D); and, (13) grievance materials Baines filed in September and October 2015 (id. Encl E.).

         At this stage, the Court is tasked with assessing whether Plaintiff "has 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). As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. In response, Baines submits: (1)an affidavit of a fellow inmate, Donald Osborne (Resp. Mot. Summ. J. Ex. 1, ECF No. 88-1 ("Osborne Aff.")); (2) some grievance materials (id. Encl. A); (3) Baines's own "Declaration to Supplemental Affidavit of Defendant Anthony Anderson" ("Declaration One, " ECF No. 89); and, (4) Baines's own "Declaration to Affidavit filed by Defendant Louise G. Goode" ("Declaration Two, " ECF No. 90).

         Furthermore, the facts offered by affidavit must be in the form of admissible evidence. See Fed. R. Civ. P. 56(e). In this regard, the statement in the affidavit or sworn statement "must be made on personal knowledge ... and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1). Summary judgment affidavits must also "set out specific facts." Fed.R.Civ.P. 56(e)(2). Therefore, "summary judgment affidavits cannot be conclusory or based upon hearsay." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990); see also Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)).

         In his Declarations, Baines makes a number of statements that are of no value in assessing the propriety of summary judgment. The majority of Baines's statements are cither conclusory, [12] do not set forth specific facts, have little to no bearing on the claims alleged in the Final Complaint, [13] or simply admit or deny statements from Defendants' Affidavits.[14] Thus, Baines's conclusory assertions will not be considered in evaluating the Motion for Summary Judgment. Moreover, Baines failed to swear to the contents of his Final Complaint under penalty of perjury, thus the allegations contained therein fail to constitute admissible evidence.[15]

         In addition, in his Brief in Opposition to Memorandum in Support of Defendants' Motion for Summary Judgment ("Brief in Opposition, " ECF No. 88), Baines only identifies as "Genuine Issues in Dispute" matters pertaining to Claims One, Five, and Six. Because Baines fails to identify any genuine issue of material fact in dispute for Claims Two, Three, and Four, the Court may rely on Defendants' undisputed facts relating to those claims. See Forsyth, 19 F.3d at 1537; Fed.R.Civ.P. 56(c)(3) ("The court need consider only the cited materials"). Nevertheless, in light of Baines's status as a pro se plaintiff, the Court will parse Baines's declarations for any factual support for these claims.

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


         A. Common Fare Diet

         Baines is confined in the GCC and "is a sincere believer in the religion of Islam." (Final Compl. 4.)[16] Baines was received at GCC from Keen Mountain Correctional Center on July 11, 2012. Baines was suspended from the Common Fare diet at Keen Mountain on May 17, 2012, but was approved for reinstatement to the Common Fare diet at GCC on August 31, 2012. (Goode Aff. ¶ 6.)

         "The VDOC created the Common Fare diet to meet the religious needs and restrictions of all known religions." (Engelke Aff. ¶ 4.) No pork or pork derivatives are used in the Common Fare diet. (Id.) "The Common Fare (CF) menu was designed to specifically meet the religious dietary needs of offenders whose dietary requirements cannot be accommodated with foods provided" by the regular menu ("Master Menu"). (Goode Aff. ¶ 4; Engelke Aff. ¶ 4.) Common Fare is not a vegetarian diet and includes proteins such as Kosher tuna, peanut butter, eggs, and soy-based proteins. (Engelke Aff. ¶ 4.) "Previously, sealed entrees were provided by outside vendors and included different protein sources [but t]hese were ... removed from the Common Fare menu in 2007." (Id.) "The current Common Fare menu has been analyzed and certified as meeting or exceeding minimum daily nutritional requirements." (Id.) Islamic leaders have confirmed that the Common Fare diet meets Islamic dietary guidelines. (Id. ¶ 5.) The proteins used in the Common Fare diet are Kosher, including Kosher tuna, and "do not contain any pork or pork derivatives, prohibited by the Halal diet." (Id.) "The Common Fare menu provides for fresh, uncooked fruits and vegetables, as required by the Halal diet." (Id.) Kosher tuna is an acceptable substitute for Halal meats. (Id.)

         "A diet is considered Halal if it consists of permitted food." (Id. ¶ 6.) Pork and blood are forbidden. (Id.) "Halal meat is certified for the very specific manner in which the meat is slaughtered and processed." (Id.) Engelke avers that he "explored the feasibility of providing offenders with a Halal diet, specifically including Halal meat [which requires specific methods of slaughter, storage, preparation, and serving], " but "found that this would be impractical and cost prohibitive." (Id.) "Not including the additional operating costs associated with the provision of a separate Halal diet, ... a Halal meal would cost approximately 25 to 30 percent more than a [Common Fare] meal... due to low demand and few production facilities in the United States." (Supp'l Engelke Aff. ¶ 5.) The Kosher foods the VDOC purchases "are lower in price due to greater demand." (Id.) "In addition to the prohibitive cost of purchasing Halal meat on the open market, the VDOC would be burdened with increased costs associated with providing separate storage facilities for the Halal meats, as well as separate cooking areas, designated ovens and separate cooking utensils." (Engelke Aff. ¶ 7.) Engelke explains that the VDOC already has a second kitchen area for the Common Fare diet and the institutions lack space or manpower to provide a third kitchen area specifically for Halal meats. (Id.) Presently, providing a Halal diet to VDOC inmates is not economically feasible. (Supp'l Engelke Aff. ¶ 5.)

         The VDOC has clear guidelines regarding preparation and service of the Common Fare food items. (Anderson Aff. ¶ 4.) Food service workers, including inmate kitchen workers must be trained and supervised in the proper handling of Common Fare food. (Id.) Food Operations Director Anthony Anderson avers that he continually monitors the food preparation and service areas. (Id.) The daily cost of the Common Fare diet is higher than the regular diet ranging from $3.29 to $5.19 per inmate compared with $2.10 for the regular diet. (Id. ¶ 5.)

         B. Administration of and Participation in the Common Fare Diet

         Because of the increased financial and administrative burden incurred in the provision of the Common Fare diet, "the VDOC has strict guidelines in place to ensure that the offenders receiving [the Common Fare] are participating in the diet because they have a sincere desire to adhere to their religious tenets." (Id.) Offenders who wish to receive the Common Fare diet are reviewed to determine whether they hold a sincere religious belief that requires the Common Fare diet instead of the regular diet. (Goode Aff. ¶ 6.) Each participant is required to sign a Common Fare Agreement prior to participating in the Common Fare diet. (Id.)

         An offender's participation in the Common Fare diet is closely monitored and violations of the rules may result in an offender's suspension or removal. (Id. ¶ 7.) Goode explains that:

Violations include: failing to pick-up a minimum amount of seventy-five percent of meals served per month; being observed eating, trading or possessing unauthorized food items from the main line; being observed giving away or trading a [Common Fare] food item; purchasing or being observed eating food items from the commissary inconsistent with the dietary restrictions of the [Common Fare] program; and not attending services or other religious activities at least twice per month (if available).

(Id.) A violation of the Common Fare Agreement results in a suspension of six months for the first violation, suspension of one year for the second violation, and a suspension of four years for the third violation. (Id.) The VDOC has procedures to correctly identify any inmate violating the terms of the special diet agreement, and any GCC staff member observing an inmate committing a violation is required to document the offense with an incident report. (Id. ¶ 8.) Violations of the Common Fare Agreement are reported to the Institutional Classification Authority ("ICA") by the food service department. (Id.) The Food Operations Director is responsible for the documentation of the provision of Common Fare meals and ensures that the Common Fare Diet Attendance Log is completed for each meal for offenders receiving the diet. (Id.)

         Anderson explains:

Every Friday, a checklist of approved [Common Fare] participants is downloaded from the VDOC database and printed to be used by the Line Supervisor for the upcoming week, which runs Sunday through Saturday. When an offender comes to pick up his [Common Fare] tray, he hands in his ID card, his name is marked on the checklist, and his ID is handed back to him. At the end of the month, the number of trays picked up by each offender, as logged onto the checklist, is totaled. If an offender did not pick up 75% of his [Common Fare] trays, I forward his name to an Assistant Warden who refers the information to the appropriate Institutional Classification Authority (ICA). The ICA then determines if the offender's failure to pick up his tray(s) is justified, or if he should be recommended for suspension from [the Common Fare].

(Anderson Aff. ¶ 6.) The checklist is provided as a matter of routine to administrative staff for appropriate action. (Id. ¶ 7.) Upon notice of a violation of the Common Fare Agreement, the offender is served with a Notice of ICA hearing. (Goode Aff. ¶ 8.)

         "The difference in price for providing a [Common Fare] diet to an offender versus a regular diet is a substantial distinction for budget considerations and poses a financial burden on the institution." (Id. ¶ 14.) GCC "is required to manage a food budget and deter manipulative behavior." (Id.) Without serious and established consequences to eating outside the restrictions of the Common Fare diet, prisoners with no religious interest will ask to participate. (Id.)

         C. Baincs's Suspension from the Common Fare Diet

         Anderson provides a copy of the Common Fare food tray checklist from GCC for the dates November 30 through January 3, 2014. (Anderson Aff. Encl. A, at 1.) The checklist reflects that Baines picked up only 68 meals of the required 70 during the December 2014 reporting period. (Id.) An ICA Hearing Notification form was served on Baines advising him that a hearing was scheduled to take place on or after March 6, 2015. (Goode Aff. ¶ 9; see id. Encl. B, at 1.) By copy of this notice, Baines was informed of his due process rights for the hearing. (Goode Aff. ¶ 9; see Id. Encl. B, at 1.)

         Rodney T. Garrette, former Unit Manager, served as the ICA on March 20, 2015. (Goode Aff. ¶ 10.)[17] Documentation from Food Service indicated that Baines picked up only 68 trays out of the 93 meals served during December 2014. (Id.) Because the Common Fare Agreement required that inmates pick up at least 75% of their Common Fare meals, the ICA recommended that Baines be suspended from the Common Fare diet for six months. (Id.; Id. Encl. C, at 1.) Louise Goode, the Assistant Warden at GCC, approved that recommendation on March 20, 2015. (Goode Aff. ¶ 10; id. Encl. C, at 1.)

         Donald Osborne, an inmate employed in "S2 Food Service, " avers that he worked in food service during December 2014. (Osborne Aff. ¶¶ 1-2.) During that time, Osborne was assigned the responsibility to check the Common Fare Attendance sheet for prisoners who received their Common Fare meals. (Id. ¶ 2.) Osborne avers that Baines "received all of his Common Fare trays for the month(s) of November-December 2014" and Osborne "personally checked off 'Every' Common Fare tray he received." (Id. ΒΆΒΆ ...

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