United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Delaney Booker, a Virginia inmate proceeding pro se,
filed a verified second amended complaint (ECF No. 42-1)
pursuant to 42 U.S.C. §§ 1983 and 2000cc-l, et
seq.Plaintiff names numerous staff of the
Virginia Department of Corrections ("VDOC"),
Wallens Ridge State Prison ("WRSP"), and
Greensville Correctional Center ("GRCC") as
defendants.Plaintiff argues that defendants
substantially burdened his religious exercise, imposed cruel
and unusual punishment, and violated due process, in
violation of the First, Eighth, and Fourteenth Amendments and
the Religious Land Use and Institutionalized Persons Act
("RLUIPA"). Defendants filed a motion for summary
judgment, arguing, inter alia, the defense of
qualified immunity, and Plaintiff responded, making this
matter ripe for disposition. After reviewing the record, I
grant in part and deny in part Defendants' motion for
summary judgment, direct them to confer with Plaintiff about
his discovery request, and direct them to file another motion
for summary judgment.
has been a religious adherent to the "Nation of
Islam" during his incarceration at multiple VDOC
prisons. Plaintiff had been approved for the
VDOC's Common Fare Diet ("Common Fare") on
September 19, 2011. Common Fare is the VDOC's attempt at
a uniform menu to accommodate inmates' various religious
dietary beliefs at numerous VDOC facilities.
religious beliefs limit the types of foods he eats. Plaintiff
may eat nearly all vegetables, including Brussels sprouts,
egg plant, asparagus, okra, squash, rhubarb, "broccoli,
whitehead cabbage, cauliflower, spinach, rutabaga, garlic,
onions, cucumbers, tomatoes, peppers, etc." However,
Plaintiff may not eat collard greens, turnip salad, white
potatoes, black-eyed peas, field peas, speckled peas, red
peas, brown peas, split peas, beet top salads, kale mustard
salads, cabbage sprouts, kidney beans, lima beans, pinto
beans, butter beans, great northern beans, and soy beans.
Plaintiff notes that lettuce, tomatoes, peppers, and onions
may be consumed uncooked, whereas cabbage, broccoli,
cauliflower, zucchini, squash, celery, cucumbers, and spinach
need to be cooked.
also does not eat pork products, "scavengers of the sea,
such as oysters, crabs, clams, snails, shrimps, eels, and
catfish[, ]" and any fish weighing more than fifty
pounds. Plaintiff may not consume oils of any kind except
vegetable oil, corn oil, olive oil, or pure butter. Plaintiff
may eat butter beans; fish like mackerel, whiting, salmon,
perch, white buffalo, channel trout, and tuna; and
"properly raised and slaughtered" beef, chicken,
lamb, and baby pigeon. Plaintiff may eat whole wheat bread
but not combread, freshly baked breads, muffins, hot cakes,
or white bread. Plaintiff may eat cream cheese "instead
of other cheese on the market."
presents six claims in the second amended complaint. The
first five claims concern a substantial burden to his
religious exercise, and the sixth claim concerns the time
allowed to consume meals. Plaintiff seeks damages,
declaratory, and equitable relief.
The VDOC allows Muslim inmates to observe the Islamic holy
day Eid-ul-Adha (the "Feast"), which occurs
approximately two months after the Islamic holiday Ramadan.
Plaintiff observed Ramadan while at GRCC, but he was
subsequently transferred to WRSP.
Feast was recognized by a celebratory meal at WRSP on
September 25, 2015. Plaintiff had assumed that he would
automatically be pre-approved to observe the feast at WRSP
because he had participated in Ramadan at GRCC. Plaintiff did
not know before the Feast that WRSP had special sign-up
procedures in place requiring him to send a request for a
Common Fare Feast tray to his counselor. Consequently,
Plaintiff was offered a regular Common Fare tray and not a
special Common Fare Feast tray on September 25, 2015.
Plaintiff refused the regular Common Fare tray and skipped a
meal that day. Plaintiffs faith allows him to make up a
missed Feast, but his requests for a "make up"
Feast were unsuccessful.
faults defendant Officer Witt for "intentionally and
with callous disregard" to Plaintiffs religious rights
by offering him the Common Fare tray and refusing to get him
a Common Fare Feast tray. Plaintiff proffers that Witt should
have consulted other staff and delivered a Common Fare Feast
tray within thirty minutes. Plaintiff faults Warden Fleming
for having "never placed any particular type of
procedure to sign up for the ... [F]east." Plaintiff
further faults Warden Fleming and Ponton, the VDOC's
Western Region Administrator, for not authorizing a
"make up" Feast meal.
Suspension from Common Fare
December 15, 2015, Plaintiff received a generic notice that
an Institutional Classification Authority ("ICA")
hearing would be scheduled to determine his eligibility to
remain on Common Fare. Plaintiff learned at the hearing that
Sgt. Kimberlin had filed an incident report claiming he saw
Plaintiff take a regular tray on November 26, 2015, in
violation of the Common Fare Agreement
("Agreement"). Plaintiff denied taking a regular
tray and denied ever seeing Sgt. Kimberlin in the dining hall
that day. Plaintiff further argued that "even if he took
a Thanksgiving tray from the window[, ] it was not a regular
tray, but a Special Observance tray and it did not violate
the ... Agreement." Plaintiff believed that there were
no apparently unauthorized items on the Thanksgiving tray and
that his faith allowed him to eat the Thanksgiving tray,
regardless to whether it was classified as a non-Common Fare
tray. Unit Manager Reynolds, who served as the ICA,
determined Plaintiff violated the Agreement and recommended
suspension from Common Fare.
days later, Plaintiff was suspended from Common Fare for six
months. Thereafter on December 18, 2015, Plaintiff asked for
no-meat trays, which still provided various foods his faith
prohibited like biscuits, grits, crab cake, soy, unknown
bread, and collard greens.
faults Sgt. Kimberlin for falsely identifying him as an
inmate who took a Thanksgiving tray. Plaintiff faults Reynolds
for not producing a copy of the Agreement as evidence during
the ICA hearing. Plaintiff faults Warden Fleming, Reynolds,
and Assistant Warden Combs for suspending him from Common
Fare, and he faults Elam, a VDOC Western Region
Administrator, for upholding the suspension via an
Common Fare Menu, Regular Trays, and No-Meat Trays
staff implemented a new version of Common Fare in October
2015 that contained a "majority of the food items"
that violates Plaintiffs religious beliefs. These unholy
foods include "all types of beans, white potatoes, white
rice, white bread[, ] fresh hot cakes and carrots, ....
French toast, toast, eggs, oatmeal, farina[, ]... tuna cake
and peanut butter (when they do not contain soy) and
cabbage...." Plaintiff unsuccessfully sought the
following substitutions, all of which allegedly had been
served on prior iterations of Common Fare: brown rice, navy
beans, unbreaded fish, and alternate vegetables. Plaintiff
notes that these substitutions are already provided during
Islamic holidays. Plaintiff believes that there is
"nothing Kosher . about the Common Fare Diet as it
exists now." Plaintiff faults Engelke and Gregg for
creating and implementing the new un-Kosher Common Fare.
Plaintiff faults Warden Fleming, ...