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Estes v. Clarke

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

June 5, 2018

BRUCE A. ESTES, Plaintiff,
HAROLD W. CLARKE, et al., Defendants.


          Elizabeth K. Dillon United States District Judge.

         Bruce A. Estes, a Virginia inmate proceeding with counsel, filed a civil action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, et seq., and the Virginia Religious Freedom Restoration Act (Virginia RFRA), Virginia Code § 57-2.02.[1] (Dkt. No. 73.) The parties filed cross-motions for summary judgment, and this matter ripe for disposition.[2](Dkt. Nos. 120, 124.) For the reasons stated herein, the court will grant in part and will deny in part each of the motions for summary judgment.

         I. BACKGROUND

         In his unverified second amended complaint, [3] Estes, who is Jewish, alleges that River North Correctional Center (River North), where he is currently incarcerated, and the Virginia Department of Corrections (VDOC) substantially burden his religious exercise by failing to provide him with kosher meals, prohibiting the blowing of the Shofar[4] on the high holidays of Rosh Hashanah (the Jewish new year) and Yom Kippur (the Day of Atonement), and refusing to recognize certain Jewish fast days. (2d Am. Compl. 2-3. 10-12, Dkt. No. 73.)

         A. Kosher Meals

         In support of his claim regarding kosher meals, Estes alleges that, as an Orthodox Jew, it is a central tenet of his Jewish beliefs that he should only eat kosher food, as mandated by Orthodox Jewish law.[5] VDOC and River North provide Jewish inmates who demonstrate religious sincerity and who wish to eat kosher with a common fare diet, which Estes receives. Estes avers that it is his belief that the common fare diet at River North does not comply with Orthodox Jewish kosher standards and is not an acceptable alternative to a kosher diet for a person with his religious beliefs, but he nonetheless participates in the common fare diet because River North does not provide any alternative religious diet to inmates. Estes states that he does not see the food labels, so he has no way to confirm whether the food provided on the common fare diet is actually kosher. (Estes Decl. ¶¶ 5, 9-13, Dkt. No. 122; Kranz Expert Rep. ¶ 21, Dkt. No. 123-1.)

         Estes filed an affidavit stating that even if the food used in the common fare diet is kosher when it is purchased, he believes VDOC engages in practices prior to serving the food to him that render the common fare diet food to be non-kosher. Estes, however, does not state that he has personally observed any of these alleged practices or that he has been in either the common fare diet or regular diet kitchens. By way of example, Estes believes that the common fare diet trays are washed in the same dishwashers as the regular diet food trays; the oven used to cook common fare food previously was used to cook regular diet food and is located in the regular diet kitchen area; the kitchen in which common fare diet food is prepared has never been certified as kosher by any authority on Jewish dietary laws; the preparation of common fare diet food is not supervised by any authority on Jewish dietary laws; common fare diet meals are served on the same steam tables as regular diet meals; and fruit on the common fare diet menu is sliced with non-kosher knives. (Estes Decl. ¶ 14, Dkt. No. 122.)

         VDOC developed the common fare diet to meet the dietary needs of offenders who, for religious reasons, require a kosher, Halal, or non-pork diet and whose dietary requirements cannot be accommodated with foods provided by the regular food diet. Preparation and service of common fare diet food items are governed by VDOC's Food Service Manual. River North is in “full compliance” with the guidelines set forth in the Food Service Manual. River North has two to three inmate workers who are assigned to work exclusively in the common fare diet area at the facility, and they are trained and knowledgeable in common fare diet procedures; however, they are not trained in Jewish dietary laws. Food Service Managers continually monitor the common fare diet food preparation areas and workers to ensure that the common fare diet policies are being followed. If a kitchen worker violated policy, he would be subject to discipline and loss of his job. (Engelke Aff. ¶¶ 4-5, Dkt. No. 126-2; Gregg Aff. ¶ 5, Dkt. No. 126-10; Morrison Aff. ¶¶ 4-5, Dkt. No. 126-12; Engelke Dep. 47, Dkt. No. 125-2.)

         Pursuant to VDOC policy, only authorized food items are served on the common fare diet menu.[6] All foods purchased and used for the common fare diet are consistent with or certified kosher by a recognized Orthodox Standard, such as a “U, ” “K, ” or “CRC, ” or they are certified halal. According to policy, River North staff verifies that the kosher food purchased for the common fare diet is kosher by visually inspecting the symbols on the packaging. All kosher and non-kosher food items are stored separately. The inmates working in the food storage area check for kosher labeling on the food items. (Engelke Aff. ¶ 6; Morrison Aff. ¶¶ 7-8.)

         The common fare diet does not mix meat and dairy. The only meat offered on the common fare diet menu is tuna. Fruits and vegetables offered at VDOC facilities are routinely inspected for freshness, and they are properly cleaned before serving. When it is time for meal preparation, the common fare diet kitchen worker will retrieve the food items that he needs and take them to the common fare diet room. Common fare diet meals are prepared in an area separate from the regular diet meal preparation, with separate utensils and with designated common fare diet equipment. There is a common fare diet cooler area and a common fare diet warming area. Hot common fare diet meals are prepared on designated hot plates, steamers, or kettles in a designated area of the kitchen. The same steam table is used for both common fare diet and regular diet food, but it is not used for both diets at the same time. The steam table is cleaned and sanitized between uses. The oven used for preparing certain common fare diet food items is located in the regular diet area, but is labeled “common fare only” and is utilized only for cooking common fare diet food items. There is also a tilt skillet that is exclusively for preparation of common fare diet food items. Kosher and non-kosher food items are kept separate at all times. The common fare diet food is not prepared outside the common fare kitchen except when using the oven. (Engelke Aff. ¶ 7; Morrison Aff. ¶¶ 8-10.)

         After inmates finish eating a common fare diet meal, they place their trays into a tray slot that is connected to the “tray room.” The regular diet trays are cleaned first, and then the dishwasher is broken down; taken apart; washed, rinsed, and sanitized inside and out; and put back together to then be used for cleaning the common fare diet trays, lids, and cups. The common fare diet trays are placed on drying racks labeled for common fare diet use. All eating utensils are disposable. Cooking utensils are cleaned in a separate common fare diet sink. (Morrison Aff. ¶¶ 11-13.)

         According to the only expert in the case, Orthodox Rabbi Yossel Kranz, [7] “the common fair diet provided by VADOC to inmates at River North, including Mr. Estes, does not comply with the laws of Kashrut [kosher], and the common fare diet is not an acceptable diet for Jewish inmates who follow the laws of Kashrut.” (Kranz Expert Rep. ¶ 11.) While he did not inspect any VDOC facility for purposes of his report, he “would not certify River North's common fare kitchen as kosher.” (Id. ¶ 18.) Rabbi Kranz explains that the laws of Kashrut require that food be prepared with “rabbinical oversight or supervision by a Jew knowledgeable in the laws of Kashrut and strictly adherent to those laws in one's personal life” and that such supervision does not occur at River North. (Id. ¶¶ 21-22.) He explained that it is assumed that a person without a personal commitment to Judaism and kosher food cannot be entrusted with the responsibility of protecting the integrity of the laws of Kashrut. (Id.) As an example, such supervision is required in restaurants that are certified kosher. (Kranz Dep. 26, Dkt. No. 126-15.) Supervision is, in other words, “part and parcel of the laws of kosher ….” (Id. at 38.) Notably, it is “undisputed that there is no rabbinical supervision and there is no specific training as to Jewish dietary laws” at River North. (Defs.' Opp'n to Pl.'s Mot. Summ. J. 12; Dkt. No. 132.) Defendants point out, however, that Rabbi Kranz agrees that “supervision doesn't make things kosher; it just ensures that they are kosher.” (Kranz Dep. 27.)

         It is also undisputed that kosher food can become non-kosher depending upon how it is prepared and handled. The parties differ, though, as to whether VDOC procedures render the kosher foods non-kosher. Defendants note the separation of the foods, utensils, etc., and their cleaning procedures. They also note the separate areas for storage and preparation and the cleaning of any shared spaces between common fare and other diets. On the other hand, Rabbi Kranz notes likelihoods, possibilities, and risks of contamination or non-compliance, but cannot be definitive. His report notes that: VDOC procedures “do not create an environment that is likely to comply with the laws of Kashrut”; the method of cooking “invites a host of problems”; and there is a “risk of impermissible contact between those common fare items and nonkosher food residue . . . potentially rending those common fare food items and utensils not kosher . . . .” (Kranz Expert Rep. 14, 15, 19.) He proposes that, in lieu of North River's kitchen use of rabbinical supervision, VDOC could use kosher prepackaged meals as an alternative.

         B. Costs of Alternatives

         Defendants claim that the proposed alternatives are not only necessary, but also too costly. They state that VDOC used to provide prepackaged meals to certain offenders three times a week, but it proved too costly. (Engelke Aff. ¶ 10.) Prior to implementing the common fare diet, prepackaged meals were provided to Nation of Islam inmates at one correctional facility. Based on that experience, defendants estimate that the daily cost to provide kosher prepackaged meals per offender would be $8.50 and the current VDOC budget is $2.10. (Id.) The federal government is said to incur costs of $6.19 per inmate per day for prepackaged meals. (Id. ¶ 11.) Defendants state that the common fare diet is available at 17 facilities and that VDOC serves meals to approximately 30, 066 inmates. (Robinson Aff. ¶ 8, Dkt. No. 126-11.) However, only 3, 000 inmates receive the common fare diet. (Engelke Aff. ¶ 10.) There is no information, however, regarding the number of offenders that want a kosher meal for religious reasons or the estimated cost of providing kosher prepackaged meals, and defendants did not ascertain that information. (Engelke Dep. 29, 92, 102.) Defendants do assert that an Orthodox Jewish organization considers there to be 18 VDOC Orthodox Jewish offenders, if you include Estes. (Morris Aff. ¶ 4, Dkt. No. 126-13.) The annual cost if all of these offenders requested prepackaged meals would be an increased cost of $42, 048 (at a cost of $8.50 per day per offender). Without prepackaged meals, VDOC estimates an annual cost of over $100, 000 for each of the facilities that serve the common fare diet (17 of them) to hire individuals to supervise all of the common fare meals. (Robinson Aff. ¶ 8.)

         C. Passover

         In support of his claim regarding Passover, Estes states that the common fare diet meals which are provided to him on the Jewish holiday of Passover are not kosher-for-Passover in accordance with Orthodox Jewish standards. Estes does not explain how the common fare diet's Passover meals violate his religious beliefs, but Rabbi Kranz describes the Orthodox Jewish standards pertaining to Passover. Rabbi Kranz states that to “make even the most mundane kitchen kosher-for-Passover is a truly difficult task, and the procedures are intricate and complex and require expertise and supervision to be done correctly.” He explains that, in any kitchen, all interior surfaces of the oven and stovetop must be treated with a blow torch; the oven must be made to glow red hot for a specified time; every exposed surface in the kitchen, including the outside surface of the oven, stovetop, counter top, cabinet shelves, and storage shelves, but excluding the ceiling, floor, and doors, must be cleaned and then covered; and all utensils made of metal and glass, and all pots, pans, plates, cups, and dishes must be placed in boiling water under proper supervision for a specified time. (Estes Decl. ¶ 15; Kranz Expert Rep. ¶¶ 26-27.)

         During Passover, River North offers Passover meals from the common fare diet menu that are free of leavened food items, legumes, and grains. Matzah is substituted for leavened food items. In addition to the Passover meals offered at the facility, inmates have access to kosher-for-Passover meals from the commissary. In 2015, the kosher-for-Passover commissary selection was limited to kosher matzah, kosher chocolate, macaroons, and gefilte fish because inmates at Security Level 4 facilities, such as River North, did not have access to microwaves to be able to cook hot meals on their own. In 2016, River North had microwaves available to inmates and, thus, chicken and matzo ball soup, beef stew, and chicken with potatoes were added to the kosher-for-Passover commissary selections. In 2017, VDOC also approved donations of kosher-for-Passover food for individual inmates from various groups and synagogues. (Kanode Aff. ¶¶ 14-15, Dkt. No. 126-1.)

         D. Shofar

         In support of his claim regarding the Shofar, Estes states that Jewish law mandates the blowing of the Shofar during prayer services on the high holidays of Rosh Hashanah and Yom Kippur. Estes requested permission to use a Shofar on these days, and VDOC and River North have refused his requests based on concerns that the horn could be used as a weapon or create a health concern if inmates were allowed to possess it. (Estes Decl. ¶¶ 22-23; 2d Am. Compl. 10-11.)

         E. Fasting Days

         In support of his claim regarding fasting days, Estes states that Jewish law mandates observance of several fast days each year which end at nightfall when fasts are then broken. Estes avers that VDOC does not recognize the three fast days of: Asara b'Tevet, Shivah Asar B'Tammuz, and Tisha b'Av.[8] He states that he has requested that VDOC and River North accommodate his religious exercise by serving him dinner after the conclusion of these fast days and that their refusal to do so “forces [him] to violate core religious Jewish doctrine.” The second amended complaint argues that Estes cannot simply refuse his common fare diet trays on these fast days because doing so would risk his suspension or removal from the common fare diet as inmates are required to take at least seventy-five percent of common fare meals served each month. The ...

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