Jones v. Bailey

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge.

         Demond Lawrance Jones, a Virginia inmate proceeding pro se and as a pauper under 28 U.S.C. § 1915, filed an amended verified complaint (ECF No. 37-1) pursuant to 42 U.S.C. §§ 1983 and 2000cc-1, et seq., and Virginia law. Plaintiff names several administrative and correctional staff of the Wallens Ridge State Prison ("WRSP") as defendants. Plaintiff alleges that Defendants are liable for violating the First and Eighth Amendments of the United States Constitution, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and state tort law by using excessive force, not allowing him to practice his religion, and retaliating against him. Defendants filed a motion for summary judgment, and Plaintiff filed a 257 page response, making this matter ripe for disposition. After reviewing the record, I grant in part and deny in part Defendants' motion for summary judgment and direct them to file another motion for summary judgment.

         I.

         A.

         Plaintiff states he is a sincere adherent to the religion Nation of Islam ("NOI"). Part of his religious beliefs include consuming a special diet, wearing a head cover called a Kufi, and praying five times a day with other NOI adherents.^[1] Islamic prayer, called "Salat, " requires Plaintiff to stand, bend, kneel, and be prostrate. Plaintiff complains he is unable to pray inside his cell due "to the restrictive cell size, " "nearby depiction of images in the form of family pictures, calendars, television programs, " and "disrespectful non-religious cell mates who[] interfere with such prayer spitefully and apathetically." Plaintiff also complains that during in-pod recreation time, he is forced to choose between praying and "recreation programs and privileges as phone calls, showers, schooling, [or] work assignments...."

         Plaintiff complains that he is not permitted to wear a Kufi in the pod.^[2] Plaintiff also complains that he is not allowed to congregate with other Muslims in his pod to pray five times a day or for "Taleem" to learn their religion. Instead, Plaintiff is allowed to congregate to pray with other NOI adherents once a week for "Jummah" prayer in the gym. Nevertheless, Plaintiff complains that Sgt. Smith prohibited Plaintiff from attending the Jummah service on September 26, 2014, and the "Savior's Day" service on February 26, 2016.

         Plaintiff complains that WRSP Food Service staff modified the Common Fare Diet ("Common Fare"). Common Fare had served Kosher and Halal foods that conformed to Plaintiffs religious dietary requirements. However, Plaintiff asserts that WRSP staff no longer serves foods on Common Fare that comport with his religious beliefs. For example, Plaintiff complains that, despite his religious objections, staff serves him pork-tainted peanut butter, tuna cake, and soy patties in barbeque sauce. Plaintiff specifically identifies seven "burdens" imposed by Common Fare: "pork byproducts"; "filler in fish (not Kosher)"; no whole fruits; "[e]xcessive eggs or (boiled eggs)"; "storing Common Fare foods with unkosher foods"; "[h]ard, uncooked beans (navy bean)"; and "unreal meats (genetically modified organism)."

         Plaintiff also complains that he was "forced" during Ramadan in 2016 to eat Common Fare trays specifically designed for NOI inmates instead of generic Common Fare trays. Plaintiff clarifies that his:

[R]eason for requesting Common Fare Diet on my contract during the month of Ramadan is to avoid hardship. Also, such meals are fixed and consistent as it is standard Kosher. On the made up NOI Common Fare, kitchen staff ha[s] exercised hate. Rice and beans are not properly cooked. Alteration to meals, excessive boiled eggs, missing items or portions of food, like bag third meal. Plaintiff was subjected to this for and during the 2016 [thirty] day month of Ramadan.

         Plaintiff concludes that that "kitchen staff... modified] our food almost on a daily basis, adding to it, taken away from it. This put a substantial burden on Plaintiffs sincere ability to fast and complete a [thirty] day religious obligation. Constant alteration of meals and denial of requested meal raises a legitimate issue of deprivation." Consequently, "Plaintiff could not fast on a number of days d[ue] to his inability." Plaintiff argues that WRSP "benefitted greatly" by receiving federal funds to provide Common Fare and charging him approximately $2.70 as an unpaid loan against his inmate trust account for the costs of two meals.

         In support of his retaliation claims against defendants Smith and Combs, Plaintiff describes his dissatisfaction with prison life, starting in 2010. Around "2010-2012, " a correctional officer ("C/O") and defendant Combs, who was then a Major but is now the Assistant Warden, acted "overly aggressive for no reason" toward Plaintiff and his cellmate during a routine institutional shakedown. Combs told the correctional officer to "get rid of all (Islamic material) stuff." When Plaintiff objected to the officers discarding his religious newspapers, Combs loudly said, "[I]f Plaintiff Jones attempts to teach Islam, he would bury Plaintiff Jones in segregation, " and the correctional officer said "he'll bust Plaintifff's] face." Consequently, Plaintiff decided not to attend NOIservices between 2010 and 2013. Plaintiff believes that decision is why he did not receive institutional charges between 2010 and 2013.

         In mid-2013, Plaintiff became the NOI program coordinator and minister, and Combs began "tactful schemes" to discontinue the NOI service. For example, on January 3, 2014, Plaintiff was segregated for an institutional charge and Combs had Plaintiff released into a "well known violent gang pod." Plaintiff was allegedly targeted for an attack by several gang members on orders from a sergeant, but other members of the gang informed Plaintiff. Undeterred, the sergeant, purportedly on Combs' orders, filed a "false" disciplinary charge and had Plaintiff moved into segregation.

         Sometime around March 2014, Combs asked Plaintiff, "How did you like C-building?" which made "Plaintiff realize[] his life was in danger." Plaintiff wrote a letter to the then-warden of WRSP and the chief of the VDOC's Special Investigation Unit to inform them of his fear. Around that same time, Combs, then the Assistant Warden, purportedly used rival gang members to disrupt the NOI service. Although usually separated, these competing gang members would fight when allowed to congregate during the NOI service. Plaintiff believes Combs orchestrated the fights as a pretext to suspend NOI services for six months.

         In September 2014, Plaintiff told a lieutenant that Sgt. Smith was repeatedly planting contraband in inmates' cells and then charging them for possessing contraband. As a result of Plaintiffs tip, Sgt. Smith was reassigned from C-building to D-building.

         Later in September 2014, Sgt. Smith plotted a "verbal assault" and prevented Plaintiff from attending Jummah service. Sgt. Smith "trash[ed] and confiscate[ed] religious material, Final Call newspapers, and one book[, ] Message to the Black Man." Sgt. Smith told Plaintiff it "won't be long before Plaintiff would be paid back for what he did." Plaintiff tried to pursue administrative remedies about these issues, but the grievance was "high jack[ed]...[, ] which hindered Plaintiff from litigating, " all allegedly on Combs' orders.

         On October 8, 2015, defendants Sgt. Ferguson^[3] and C/O Bailey chose to search Plaintiffs cell. During the search, C/O Bailey tossed a prayer rug and Holy Quran on the cell floor and seized rechargeable batteries and a Kufi. Plaintiff objected, accusing Combs of ordering the search because of Plaintiff s religious beliefs and to "fabricate a situation." C/O Bailey allegedly shouted, "Fuck Islam." Plaintiffs Kufi was confiscated as contraband.

         Next, Sgt. Ferguson and C/O Bailey escorted Plaintiff, who was handcuffed behind his back, "forcefully" toward the staircase while Sgt. Ferguson ordered C/O Bailey to falsely charge Plaintiff with "threatening." Once they reached the breezeway, the officers pushed Plaintiffs head against the wall and pummeled him, including hits to his lower back. Even after he lost consciousness and fell to his knees, the officers continued to "knock Plaintiff around." At some point, these officers resumed the escort and Plaintiff resumed consciousness, at which point he requested medical treatment for his "injury[, ] pain[, ] and suffering."^[4] Plaintiff alleges generally that "medical attention was denied." Plaintiff denies ever posing a threat to either officer or breaking any institutional rule. Plaintiff wants Combs found liable as a "bystander" for ordering the alleged attack.

         Plaintiff was ultimately taken to the D-building segregation unit. C/O Bailey explained to defendant Sgt. Smith that Plaintiff was there for "running his mouth." Sgt. Smith replied, "I was going to get him, " and repeatedly called Plaintiff "a bitch." Plaintiff claims that Sgt. Smith's statements were retaliation because of "past encounters" and on Combs' orders because of Plaintiff s religion.

         On October 8, 2015, Officer Smith charged Plaintiff with a false "threatening" charge. Again, Plaintiff believes it was retaliation for the events from September 2014, to keep Plaintiff from acting as a minister for NOI services, and to lengthen Plaintiffs time in segregation.

         On February 26, 2016, Sgt. Smith denied Plaintiff entry into the NOI service to celebrate Savior's Day. Sgt. Smith ordered another officer to aim a gun at Plaintiff and yelled at Plaintiff, "Didn't I tell you, you weren't going to program!" On June 6, 2016, Plaintiff signed a contract to receive Common Fare during the approximately thirty-day long Islamic holiday of Ramadan. However, he was served the NOI Common Fare meals, not the regular Common Fare meals, which allegedly violated Plaintiffs religious rights because it "limited the variety or selections to eat[, ] subjecting Plaintiff... who w[as] striving to complete such a[n] already strenuous eating habit the privilege to enjoy rights funded by the federal government and by (RLUIPA)." Plaintiff was ultimately charged the costs of the Common Fare meals he ate during Ramadan's fasting hours.

         Plaintiff accuses Warden Fleming of having been informed, by both him and the former warden, of Combs' retaliatory "acts of religious deprivation, false institutional cell searches, personal searches, institutional charges, and constan[t] segregation." Plaintiff faults Warden Fleming for not authorizing an investigation as Plaintiff had requested. Plaintiff also faults Warden Fleming for "never correcting staff, never disciplining staff, never investigating inmate complaints on staff, " thereby "creat[ing] the custom of action by WRSP employees."

         B.

         The VDOC created Common Fare to satisfy inmates' various religious dietary needs and restrictions, and thus, no pork products are to be used. In accordance with the VDOC Food Service Manual, WRSP offers Common Fare to inmates whose religious dietary needs cannot be met by the regular menu. Common Fare meals at WRSP are prepared in an area separate from the regular menu preparation area, with separate utensils, and with designated Common Fare equipment. The hot meals are prepared in designated cooking vessels in a designated area of the kitchen.

         On September 29, 2015, WRSP began offering a new CF menu, as directed by the VDOC Food Services Director. The new menu includes hot food items at most meals with only a few cold meals each week. Prior to this change, Common Fare meals were served cold except for three hot meals each month.

         Kufis are approved for possession by male inmates and must be worn in the same manner, time, location, and circumstances as non-religious head covers. All head covers are regulated for security reasons. For example, inmates are allowed to wear head covers during outside recreation because they are thoroughly searched before and after outside recreation. However, inmates may not wear head covers during recreation in the pod because there is no pod-wide search required ...