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Canada v. Gregg

United States District Court, W.D. Virginia, Roanoke Division

September 12, 2017

KELVIN A. CANADA, Plaintiff,
NATARCHA GREGG, et al., Defendants.

          Kelvin A. Canada, Pro Se Plaintiff;

          Nancy Hull Davidson, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Defendants.


          James P. Jones United States District Judge

         The plaintiff, Kelvin A. Canada, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5. Canada asserts that October 2015 changes to the religious diet provided to him by the Virginia Department of Corrections (“VDOC”) lacked sufficient nutrition and calories, causing him to suffer severe weight loss. After review of the record, I conclude that the defendants' Motion for Summary Judgment must be granted.


         Court records indicate that Canada is serving a life term in prison, imposed by a Virginia court. His claims in this action arose while he was incarcerated in Virginia, first at Red Onion State Prison (“Red Onion”) and later at Wallens Ridge State Prison (“Wallens Ridge”). On June 16, 2017, shortly after he filed this civil action, Canada was transferred to a prison in Rhode Island and is now incarcerated in South Carolina.

         To accommodate Canada's stated Islamic dietary beliefs, VDOC officials approved him to receive the Common Fare diet, starting in 2004. Common Fare is designed to meet all known religious dietary restrictions that cannot be met through the regular VDOC inmate menus. Common Fare meals exclude pork and pork derivatives and include only food items certified as kosher or halal, or otherwise consistent with these religious dietary requirements. Food storage, preparation, and serving, and cleaning of the kitchen and trays are compliant with all halal and kosher requirements. The VDOC's Food Service Dietician, N. Gregg, writes and approves four weeks of Common Fare menus for use by VDOC facilities.

         In October 2015, the Common Fare menu changed from all cold foods to both hot and cold foods. Canada alleges that before this menu change, all three of his daily Common Fare meals included four slices of bread and fresh fruit, and the diet met his nutritional needs. He complains that the 2015 menu change “created an immense dissipation in the daily caloric intake and portions served.” Compl. ¶ 4, ECF No. 1. He blames this nutritional deficiency on fewer bread slices, less fresh fruit, soybeans instead of tuna fish, and smaller food portions overall under the new menu. Canada alleges that the food service directors at Red Onion and Wallens Ridge also sometimes served rotten fruits and vegetables that he could not eat.

         Canada claims that after the Common Fare menu change, he began losing weight and experiencing “constant migraine headaches.” Id. at ¶ 8. He signed up for sick call to find out about the weight loss. Dr. Smith examined Canada and did blood work to test for hepatitis and diabetes. The doctor concluded that Canada “had no physical illness that was responsible for [his] weight los[s].” Id. at ¶ 10. Canada claims that he weighed 195 pounds before the menu change and by April 2016, he weighed 152 pounds. After his transfer out-of-state, he regained all the weight he had lost within eight months.

         Gregg states that the new Common Fare menu cycle provides inmates with a daily average of 2600 calories, a slight change from the 2900 calories provided under the previous menu cycle of only cold foods. She also reports that the current Common Fare diet meets or exceeds the recommended dietary allowances as defined by the Food and Nutrition Board of the National Academy of Sciences. Prison food service staff are to measure the food portions served to inmates to meet the quantities indicated on the Common Fare menus that Gregg has approved.

         Gregg denies that the new Common Fare menu provides reduced food portions overall. She states that the only portion change was the amount of bread served. Where inmates might have received four slices for certain meals under the old menu, they now receive two slices and/or some other starch item such as rice or potatoes. The new menu also includes cooked tuna cakes and cold tuna salad.

         S. Stallard, Food Service Director at Wallens Ridge, has sworn in an affidavit supporting the defendants' motion that the prison receives fresh fruits and vegetables weekly. Stallard or other staff check all outgoing Common Fare trays to ensure that “[n]o spoiled, rotten fruits or vegetables are served” to inmates. Stallard Aff. ¶ 5, ECF No. 33-2.

         The defendants do not dispute that Canada lost more than thirty pounds between October 2015 and the time he filed this case on June 8, 2016.[1] They offer evidence that at five feet ten inches tall, Canada was overweight before the Common Fare menu change, according to the U.S. National Institute of Health (“NIH”). At 162 pounds, Canada's body mass index (“BMI”) was 23.2, within the normal range, while at 199 pounds, Canada's BMI was 28.6, within the overweight range. V. Phipps, a nurse who reviewed Canada's medical chart, states that it includes no documentation that he complained to medical staff about migraine headaches after the menu change.

         Canada sues Gregg, the Food Service Directors at Red Onion and Wallens Ridge, and VDOC Director Harold Clarke. In his Complaint, Canada seeks monetary damages for alleged violations of his rights under RLUIPA and the First and Eighth Amendments.[2] He claims that the modified VDOC Common Fare diet “d[id] not accommodate his religious prerequisite” and caused him to lose more than forty pounds and to suffer “health problems and migraine ...

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