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Booker v. Engelke

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

March 26, 2019

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-1, et seq., naming several officials within Virginia Department of Corrections ("VDOC"), Wallens Ridge State Prison ("WRSP"), and Greensville Correctional Center ("GRCC") as defendants.[1] Plaintiffs remaining claims assert that Defendants substantially burdened his sincere religious exercise in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). (See Mem. Op. & Order, Mar. 22, 2018 [ECF Nos. 67, 68].) Defendants filed a supplemental motion for summary judgment and brief in support [ECF Nos. 72, 73], and Plaintiff responded [ECF No. 78], making the matter ripe for disposition. After reviewing the record, I grant Defendants' supplemental motion for summary judgment and dismiss the action in its entirety.



         Plaintiff has been a religious adherent to the "Nation of Islam" during his incarceration at multiple VDOC prisons.[2] Plaintiff was 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 kinds of foods he eats. He may eat nearly all vegetables except for peas, collard greens, cabbage sprouts, and salads made from beet tops, turnip greens, or kale mustard greens. Kidney beans, lima beans, pinto beans, butter beans, great northern beans, and soy beans are also off limits. Lettuce, tomatoes, peppers, and onions may be consumed uncooked, but cabbage, broccoli, cauliflower, zucchini, squash, celery, cucumbers, and spinach must be cooked. Plaintiff also does not eat pork products, "scavengers of the sea, such as oysters, crabs, clams, snails, shrimps, eels, and catfish[, ]" or any fish weighing more than fifty pounds. He may not consume oils of any kind except vegetable oil, olive oil, or pure butter. He may eat whole wheat bread, but not cornbread, freshly baked breads, muffins, hot cakes, or white bread. "[P]roperly raised and slaughtered" beef, chicken, lamb, and baby pigeon are also permissible.


         Plaintiffs five remaining claims assert that the named Defendants "substantially burdened" his sincere religious exercise, namely his ability to eat a diet consistent with his own religious scruples, in violation of the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA").[3] Under the Free Exercise Clause and RLUIPA, the Government "substantially burdens" religious exercise when it "put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs, or . . . forces a person to choose between following the precepts of [his] religion and forfeiting [governmental] benefits, on the one hand, and abandoning one of the precepts of [his] religion ... on the other hand." Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006): see Patel v. B.O.P., 515 F.3d 807, 814 (8th Cir. 2008) ("When the significance of a religious belief is not at issue, the same definition of 'substantial burden' applies under the Free Exercise Clause . . . and RLUIPA."). Plaintiff seeks damages against Defendants in their individual capacities under 42 U.S.C. § 1983, as well as injunctive relief against Defendants in their official capacities under § 1983 and RLUIPA.[4]

         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 Ramadan, the holy month of fasting. Plaintiff participated in Ramadan while at GRCC, including in 2015. He was transferred to WRSP on September 23, 2015, two days before the Feast would be celebrated at WRSP with a pre-prepared Common Fare Feast lunch. Plaintiff assumed he would automatically be approved to observe the Feast at WRSP because he participated in Ramadan at GRCC. However, his name was not on the list of approved participants when lunch was served on September 25, so he was offered a regular Common Fare tray rather than the special Common Fare Feast tray. Plaintiff refused the regular Common Fare tray and skipped lunch that day. Plaintiffs faith allows him to make up a missed Feast, but his requests for a "make up" Feast in the fall of 2015 were unsuccessful. WRSP officials did offer Plaintiff a "make up" Feast nearly three years later, in July 2018, but Plaintiff declined because he was in the middle of another religious fast.

         Plaintiff faults defendant Corrections Officer Witt for acting "intentionally and with callous disregard" to Plaintiffs religious rights by offering him the regular Common Fare tray and refusing to get him a Common Fare Feast tray after Plaintiff told Witt that he was supposed to receive the Eid-al-Adha Feast tray because he is Muslim. He proffers that Witt should have consulted other WRSP staff and given a Common Fare Feast tray to Plaintiff within thirty minutes. Plaintiff faults defendant WRSP Warden Fleming for having "never placed any particular type of procedure to sign up for the ... [F]east." Plaintiff further faults Fleming and Defendant Ponton, one of VDOC's Western Region Administrators, for not authorizing a "make up" Feast meal in 2015.

         2. Suspension from Common Fare Meal Plan

         On December 15, 2015, Plaintiff received notice that an Institutional Classification Authority ("ICA") hearing would be scheduled to determine whether he could continue receiving Common Fare. At the hearing, Plaintiff learned that defendant Sgt. Kimberlin had filed an incident report claiming that on November 26, 2015, he saw Plaintiff take a regular meal tray in violation of the Common Fare Agreement ("Agreement"). Plaintiff denied taking a regular tray and denied 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 his faith allowed him to eat the Thanksgiving meal, regardless of whether it was classified as a non-Common Fare tray. Defendant Unit Manager Reynolds, who served as the ICA, determined Plaintiff violated the Agreement and recommended he be suspended from Common Fare. He was suspended from Common Fare for six months beginning on December 18, 2015. Plaintiff faults Defendant Sgt. Kimberlin for intentionally interfering in his religious exercise by falsely accusing Plaintiff of taking an unauthorized meal tray. He also faults Fleming, Reynolds, and Defendant WRSP Assistant Warden Combs for suspending him from Common Fare, as well as Defendant Elam, another of VDOC's Western Region Administrators, for upholding the suspension via an administrative appeal.[5]

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

         In October 2015, the VDOC implemented a new Common Fare menu featuring a "majority of the food items" that Plaintiff believes violate his 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 during earlier iterations of Common Fare: brown rice, navy beans, unbreaded fish, and different vegetables. Plaintiff notes that these substitutions are already provided during Islamic holidays. He believes that there is "nothing Kosher about the Common Fare Diet as it exists now."[6] Plaintiff faults Defendant Engelke, the VDOC's Director of Food Services, and Defendant Gregg, the State Dietician, for creating and implementing the new un-Kosher Common Fare menu. He faults Defendants Fleming, Pearson, Broyles, Anderson, Creque, and Ponton for not correcting these issues after being informed via the administrative grievance process. Defendant Pearson was GRCC's Warden, Defendant Broyles was the Food Operations Manager at WRSP, Anderson was the Food Operations Director at GRCC, and Defendant Creque was the Food Operations Manager and Supervisor at GRCC. Plaintiff also faults Defendants Phillips and Tapps, both institutional ombudsmen at GRCC, for their responses to his grievances.

         4. The Agreement

         To participate in Common Fare, inmates must apply and be approved by their prison's ICA, as well as the VDOC's Central Classification Services. Inmates' applications are reviewed to determine whether they demonstrate a sincere religious need to consume foods served on Common Fare rather than foods served on the Master Menu. If approved for Common Fare, inmates must agree to the rules of participation by reading and signing an Agreement. Inmates who refuse to sign the Agreement will not receive Common Fare.

         Before June 2018, violations of the Agreement included: failing to take at least seventy-five percent of meal trays served in any given month; being observed eating, trading, or possessing unauthorized food items not served on the Common Fare menu; being observed giving away or trading a Common Fare food item; purchasing or being observed eating food items from the commissary inconsistent with the dietary requirements of Common Fare; and failing to attend services or other religious activities at least twice per month, if available at the inmate's facility. .Breaking any one of these rules would result in the following sanctions: the first violation was six months' suspension, the second violation was twelve months' suspension, and the third (or more) violation was four years' suspension from Common Fare. The Agreement was revised in March and June 2018. Although inmates who request the Common Fare diet must still sign an Agreement promising to not pick up or eat a non-Common Fare meal tray, and to not trade or possess unauthorized food items from the main line, they are no longer required to pick up a certain number of Common Fare trays each month or to attend religious services in order to stay on the Common Fare meal plan. Additionally, involuntary removal or suspension from Common Fare is no longer a permissible sanction for violating the Agreement. Rather, the inmate shall be assessed the cost of the Common Fare meal, which is currently $0.70 per meal, for each violation. An inmate who cannot afford to pay for the meal will have the cost charged as a loan to his Inmate Trust Account.

         Plaintiff objects to having to sign the Agreement before receiving foods in conformity with his religious beliefs. He complains that the Agreement creates its "own dietary laws and requirements that [P]laintiff is either forced to deal with or don't have anything to consume .. . [except for] prohibited food . . ., which forced [P]laintiff to violate his religious beliefs." He also argues that the old Agreement was designed to take away his religious diet "without regard to whether [P]laintiff violated any of his [own sincere] religious dietary laws." He further argues that the former Agreement forced "[P]laintiff to attend a [religious] service even though that religious service may not be in conformance with the proper teachings or may differ on points of views that [P]laintiff sincerely does not agree with." He asserts this claim against Defendant Engelke, whose signature is on the Agreement.

         5. Pork-Cont ...

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