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Booker v. Engelke

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

March 22, 2018

M.E. ENGELKE, et al., Defendants.


          Hon. Jackson L. Kiser Senior United States District Judge

         Walter 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.[1]Plaintiff names numerous staff of the Virginia Department of Corrections ("VDOC"), Wallens Ridge State Prison ("WRSP"), and Greensville Correctional Center ("GRCC") as defendants.[2]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.[3] 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.



         Plaintiff has been a religious adherent to the "Nation of Islam" during his incarceration at multiple VDOC prisons.[4] 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.

         Plaintiffs 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.

         Plaintiff 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."


         Plaintiff 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.

         1. Eid-ul-Adha

         Feast 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.

         The 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.

         Plaintiff 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.

         2. Suspension from Common Fare

         On 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.

         Three 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.

         Plaintiff faults Sgt. Kimberlin for falsely identifying him as an inmate who took a Thanksgiving tray.[5] 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 administrative appeal.

         3. The Common Fare Menu, Regular Trays, and No-Meat Trays

         WRSP 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."[6] Plaintiff faults Engelke and Gregg for creating and implementing the new un-Kosher Common Fare. Plaintiff faults Warden Fleming, ...

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