Holsombach v. Norris et al

Filing 49

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION recommending that 36 Defendants' Motion for Summary Judgment be granted and that Plaintiff's claims be dismissed with prejudice. Objections to R&R due by 2/13/2009. Signed by Magistrate Judge Beth Deere on 1/30/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION

M A R K ANTHONY HOLSOMBACH A D C # 134723 V. L A R R Y NORRIS, et al. NO. 2:08CV00022-JMM-BD

P L A IN T IF F

DEFENDANTS

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District C o u rt Judge James M. Moody. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. If you are objecting to the proposed findings and recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose

b e f o re the United States District Judge, you must, at the same time you file your written o b je c tio n s , include a "Statement of Necessity" that sets forth the following: 1. 2. W h y the record made before the Magistrate Judge is inadequate. W h y the evidence to be proffered at the requested hearing b e f o re the United States District Judge was not offered at the h e a rin g before the Magistrate Judge. A n offer of proof setting forth the details of any testimony or o th e r evidence (including copies of any documents) desired to b e introduced at the requested hearing before the United S ta te s District Judge.

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From this submission, the United States District Judge will determine the necessity for an a d d itio n a l evidentiary hearing, either before the Magistrate Judge or before the District Judge. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. I n tr o d u c tio n : O n February 14, 2008, Plaintiff, who is currently confined to the Varner Super M a x Unit of the Arkansas Department of Correction ("ADC"), commenced this pro se a c tio n while he was confined at the ADC's Cummins Unit (docket entry #2). In his C o m p la in t, Plaintiff alleges that the ADC's Grooming Policy, ADC Directive 98-04, s u b s ta n t ia lly interferes with his right to free exercise of religion under the First

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A m e n d m e n t and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). In addition, Plaintiff claims that while he was confined at the East Arkansas Regional U n it ("EARU") of the ADC, Defendants Norris, Harmon, and Bell substantially in te rf e re d with his right to free exercise of religion under the First Amendment and R L U IP A by failing to maintain a Kosher kitchen and provide Plaintiff a Kosher diet. Plaintiff requests monetary damages and injunctive relief. O n October 16, 2008, Defendants Larry Norris, Greg Harmon, and James Bell f iled a Motion for Summary Judgment (#36). In the Motion, Defendants contend that: (1) Plaintiff failed to exhaust his claim that the ADC grooming policy violates his rights u n d e r the First Amendment and RLUIPA, as required by the PLRA; (2) Plaintiff cannot e sta b lis h that the ADC grooming policy violates his free exercise rights under either the F irs t Amendment or RLUIPA, as a matter of law; (3) Plaintiff cannot establish that D e f en d a n ts violated his free exercise rights under the First Amendment or RLUIPA for th e alleged failure to maintain a Kosher kitchen and provide Plaintiff a Kosher diet, as a m atter of law; (4) Defendants are entitled to sovereign immunity; (5) Defendants are e n title d to qualified immunity; and (6) respondeat superior does not apply to § 1983 a c tio n s . The Court conducted an evidentiary hearing in this matter on January 15, 2009. Plaintiff appeared pro se and testified. He also called as witnesses ADC inmates Truitte

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L its c h and Randal Stormes. Defendants appeared through counsel, and each Defendant te s tif ie d . Based upon the pleadings and evidence presented, the Defendants' Motion for S u m m a ry Judgment (#36) should be GRANTED.1 III. D is c u s s io n : A. S u m m a r y Judgment Standard

S u m m a r y judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not `rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.'"(quoting Krenik v. County of Le S u e u r, 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party

Because the Court finds that Plaintiff's free exercise claims fail as a matter of la w , it is not necessary to address the issues of sovereign immunity, qualified immunity, o r respondeat superior in this Recommendation. 4

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w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex, 4 7 7 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). B. E x h a u stio n

D e f e n d a n ts first argue that Plaintiff failed to exhaust his claim that the ADC g ro o m in g policy violates his rights under both the First Amendment and RLUIPA as re q u ire d by the PLRA. The PLRA requires administrative exhaustion prior to the commencement of a la w s u it challenging prison conditions. "No action shall be brought with respect to prison c o n d itio n s under § 1983 of this title, or any other Federal law, by a prisoner confined in an y jail, prison, or other correctional facility until such administrative remedies as are a v a ilab le are exhausted." 42 U .S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 738, 1 2 1 S.Ct. 1819 (2001) (holding that available remedies "must be exhausted before a c o m p la in t under § 1983 may be entertained"). The Supreme Court has explained, h o w e v e r, that failure to exhaust is an "affirmative defense" under the PLRA and that " in m a tes are not required to specifically plead or demonstrate exhaustion in their c o m p la in ts ." Jones v. Block, 549 U.S. 199, 127 S.Ct. 910, 921 (2007). Here, Defendants argue that Plaintiff failed to appeal any of his grievances re g a rd in g his complaints about the ADC grooming policy, and therefore failed to fully

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e x h a u st his administrative remedies. However, Plaintiff stated in the attachments to his o rig in a l Complaint that several of his grievances "never came back from the Warden" (#2 a t p.62). In addition, at the evidentiary hearing, Plaintiff testified that he was unable to f u lly exhaust his administrative remedies regarding his complaints about the ADC g ro o m in g policy because he was never provided an "original copy" of the Warden/Center S u p e rv is o r' s Decision Form. Based upon Plaintiff's testimony, as well as Defendant Harmon's testimony, an in m a te must have the original copy of the Warden/Center Supervisor's Decision Form to a p p e al the decision to the Chief Deputy/Deputy/Assistant Director.2 Here, Plaintiff c la im s that he was provided only photo copies of the Decision Forms and, therefore, c o u ld not appeal those decisions. The Court finds that Plaintiff has created a genuine q u e s tio n of material fact on this issue. An inmate plaintiff cannot be barred from suit if he is prevented from exhausting h is administrative remedies. See Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) ( in m a te ' s failure to exhaust his administrative remedies was not a bar to suit because p ris o n officials prevented him from exhausting his administrative remedies). Here, P la in tif f has created a genuine issue as to whether he was prevented from appealing the d e c isio n s. There was no evidence offered by Defendants from which the Court could The ADC Grievance Procedure attached to Defendants' Motion for Summary J u d g m e n t provides that the appeal from the Warden "should be written in the space p rov ided on the original Warden/Center Supervisor's Decision Form" (#36-7 at p.8). 6
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c o n c lu d e that Plaintiff was provided with the original documents that were required to p e rf e c t an appeal and exhaust his administrative remedies. It is undisputed that if P la in tif f was not provided the original copy of the necessary Decision Form, he could not h av e appealed his grievances further. As a result, Defendants are not entitled to summary ju d g m e n t on this basis. C. A D C Directive 98-04

T h e ADC grooming policy contained in ADC Directive 98-04 requires that male in m a te s keep their hair cut above their ears. A separate provision prevents males from w e a rin g facial hair, other than a neatly trimmed mustache. See Fegans v. Norris, 537 F .3 d 897, 900-901 (8th Cir. 2008).3 Plaintiff, a Messianic Hebrew, claims that the g ro o m in g policy violates his right to free exercise under both the First Amendment and R L U IP A . Plaintiff testified that, according to the tenants of his religion, he may only " p o le " his hair once yearly, and he is allowed to cut his beard only during a time of illn e s s . T h e First Amendment provides that no law shall prohibit the free exercise of re lig io n . O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). A prison regulation is v a lid under the First Amendment, even if it restricts an inmate's constitutional rights, if it is "reasonably related to legitimate penological interests." Murphy v. Mo. Dep't of Corr.,

The Court notes that ADC Directive 98-04 was not introduced into evidence in th is matter. Defendant Norris testified, however, that there is an exception for inmates w ith medical conditions that are worsened by daily shaving. 7

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3 7 2 F.3d 979, 982 (8th Cir. 2004) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Courts evaluating First Amendment claims must first consider whether the challenged g o v e rn m e n ta l action infringes upon a sincerely held religious belief. Murphy, 372 F.3d at 9 8 3 . If the belief is sincerely held, the court must apply a reasonableness test "less re stric tiv e than that ordinarily applied to alleged infringements of fundamental c o n stitu tio n a l rights." O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). W h ile a rational-basis test applies to Plaintiff's constitutional claim, strict scrutiny a p p lie s to his claim under RLUIPA, 42 U.S.C. §§ 2000cc et seq. RLUIPA prohibits the g o v e rn m e n t from imposing a substantial burden on the religious exercises of an inmate, e v e n if the burden results from a rule of general applicability, unless the government d e m o n s tra te s that imposition of the burden on that person is: (1) in furtherance of a c o m p e llin g governmental interest; and (2) the least restrictive means of furthering that c o m p e l lin g interest. 42 U.S.C. § 2000cc-1 (2007). A government regulation is a " su b s ta n tia l burden" when it significantly inhibits or constrains conduct or expression that m a n if e sts some central tenet of a person's individual religious beliefs, meaningfully c u rta ils a person's ability to express adherence to a faith, or denies a person reasonable o p p o rtu n itie s to engage in religious activities cardinal to a person's religion. Murphy, 3 7 2 F.3d at 988. Courts must "[a]ccord great deference to the judgment and expertise of p ris o n officials, `particularly with respect to decisions that implicate institutional

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s e c u rity.'" Id. at 983 (quoting Goff v. Graves, 362 F.3d 543, 549 (8th Cir. 2004)). The c o u rt will evaluate Plaintiff's claims under the stricter RLUIPA standard. T h e United States Court of Appeals for the Eighth Circuit previously has held that h a ir length regulations are constitutional. Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th C ir. 1996). In addition, in Arnold v. Norris, 283 Fed. Appx. 417 (8th Cir. July 8, 2008) (un p u b .)(pe r curiam), the Eighth Circuit upheld the District Court's ruling that the ADC's h air length restrictions were valid under RLUIPA, despite their conflict with the inmate's re lig io u s beliefs. In Arnold, this District Court held that the ADC grooming policy r e q u ir e m e n t s were "supported by legitimate penological concerns" and were the least re stric tiv e alternatives available to accomplish the ADC's compelling interests. Arnold v. N o rr is, No. 1:06cv00029 HDY, slip. op at 4 (E.D. Ark. January 8, 2007). The Eighth Circuit Court of Appeals recently addressed the constitutionality of the A D C grooming policy in Fegans v. Norris, supra. In Fegans, the Court held that the ADC h a d a compelling interest in both safety and security to justify implementing the grooming p o lic y at issue in this case. Further, the Court­ specifically relying upon the testimony of L a r ry Norris­ held that the policy was the least restrictive means available to further those in te re sts and concluded that the policy did not violate either the First Amendment or R L U IP A . A t the evidentiary hearing conducted in this matter, Defendant Norris testified that th e grooming policy at issue was implemented to prevent inmates from being able to alter

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th e ir appearance in the event of escape and to prevent inmates from hiding contraband, in c l u d in g weapons, in their hair or beards. Defendant Norris also noted that inmates' h yg ie n e was a consideration for the implementation of the grooming policy. Defendant Norris testified that the ADC grooming policy allows female inmates to h a v e longer hair, but he explained that female inmates are not as likely to engage in violent b e h a v io r as their male counterparts, nor are they as likely to conceal contraband. Defendant Norris stated that while weapons are found almost every day in the ADC's male u n its , weapons are rarely found in the women's units. Here, Defendants do not challenge the sincerity of Plaintiff's religious beliefs. Rather, they assert that the ADC grooming policy is the least restrictive means to achieve th e compelling government interest of prison safety. C o u rts must give "due deference to the experience and expertise of prison and jail a d m in is tra to rs in establishing necessary regulations and procedures to maintain good o rd e r, security, and discipline" when reviewing a regulation under RLUIPA's compelling in te re s t standard. Fegans, 537 F.3d at 901. "Prison safety and security are compelling g o v e rn m e n t interests." Singson v. Norris, No. 08-1570, __ F.3rd __, 2009 WL 173229, *2 (8 th Cir. 2009). "RLUIPA does not elevate accommodation of religious observances over a n institution's need to maintain order and security." Id. (internal quotations omitted). "A p ris o n is free to deny inmate religious requests predicated on RLUIPA if they jeopardize th e effective functioning of an institution." Id. (internal quotations omitted).

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B ase d upon Defendant Norris's testimony at the evidentiary hearing in this matter, a s well as the established law in this Circuit, the Court concludes that, while the ADC g ro o m in g policy conflicts with Plaintiff's sincerely held religious beliefs, it does not v i o la te his free exercise rights under either the First Amendment or RLUIPA. See also N e w in g h a m et al. v. Magness et al., No. 5:06CV00275 WRW, slip. op., 2007 WL 748372 (E .D . Ark. March 18, 2008) (dismissing Plaintiffs' claims that the ADC grooming policy v io la te d their free exercise rights and RLUIPA because the policy was the least restrictive a ltern a tiv e available to accomplish compelling security concerns). As a result, Defendants a re entitled to summary judgment on this claim. D. K o s h e r Kitchen and Kosher Diet

P la in t if f also claims that while he was confined at the EARU, Defendants Norris, H a rm o n , and Bell substantially interfered with his right to free exercise of religion under th e First Amendment and RLUIPA by failing to maintain a Kosher kitchen and provide P la in tif f a Kosher diet. The Court will address these claims separately. 1. K o s h e r Kitchen

A c c o rd in g to Plaintiff's Complaint and his testimony at the evidentiary hearing, D e f e n d a n ts failed to maintain a strictly Kosher kitchen at the EARU. Specifically, P la in tif f alleges that Kosher food trays and main-line food trays are washed together, and th a t pork is cooked in the same kitchen where Kosher meals are prepared. At the hearing, P lain tiff testified that he also had heard that inmates regularly use utensils from the main

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f o o d line to steal peanut butter from the Kosher kitchen, thereby contaminating the tins of K o s h e r peanut butter. Importantly, Plaintiff testified that he had never been inside the E A R U Kosher kitchen. Because Plaintiff lacked personal knowledge of the workings of th e Kosher kitchen, Plaintiff called ADC inmates Truitte Litsch and Randal Stormes to te stif y on his behalf. Inm ate Litsch worked in the EARU Kosher kitchen between 2004 and 2006. Mr. L its c h stated that main-line kitchen staff sometimes entered the Kosher kitchen wearing a p ro n s "contaminated" with animal blood. He also testified that items such as peanut b u tte r were often stolen from the Kosher kitchen, and that the thieving inmates often d ipp ed non-Kosher utensils into the tins of otherwise Kosher peanut butter. In m a te Stormes worked in the EARU kitchen during 2006. Mr. Stormes testified th a t main-line food items sometimes were placed on Kosher trays, and that main-line k itc h e n staff entered the Kosher kitchen on many occasions. Mr. Stormes also stated that in m a te s often engaged in inappropriate behavior in the Kosher kitchen that contaminated th e Kosher kitchen. Defendant Bell, as food services manager for the EARU, also testified on this issue. Defendant Bell explained that there is a policy in place at the EARU to maintain a separate K o sh e r kitchen. Inmate staff members are instructed to keep main-line food and utensils s e p a ra te from the Kosher kitchen. Kosher meals are not cooked in the same pots, or serv ed with the same utensils, as main-line meals. Kosher food trays are different colors

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f ro m the main-line food trays and are never washed with main-line food trays. Further, a s u p e rv is o r is positioned in the kitchen to maintain the division between the main-line k itc h e n and the Kosher kitchen. While Defendant Bell acknowledged that inmates often s te a l items from the Kosher kitchen, he also testified that those inmates are reprimanded f o r their misconduct and may be dismissed from working in the kitchen. B ase d upon the evidence presented, the Court concludes that Defendants are e n titled to summary judgment on this claim. ADC officials have taken reasonable m e a su re s to maintain a Kosher kitchen at the EARU. Further, it appears that Defendants e m p lo y reasonable measures to maintain a division between the main-line food preparation a n d Kosher food preparation. Although Plaintiff has presented evidence that inmates so m etim es deviate from this policy, Defendant Bell testified that these inmates are p u n is h e d if they engage in such behavior. The ADC is required to maintain a Kosher k itc h e n . Defendants cannot be held, however, to an absolute standard. They must take re a s o n a b le measures, but are not liable for random incidents of misconduct by inmates. Accordingly, Plaintiff has failed to establish that Defendants have imposed a s u b s ta n tia l burden on his religious exercises so as to create a genuine issue of material fact o n this issue. See Murphy, 372 F.3d at 988 (under RLUIPA plaintiff inmate must "show, a s a threshold matter, that there is a substantial burden on his ability to exercise his r e l ig i o n " ) .

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2.

K o s h e r Diet

P la in tif f also complains that: (1) Defendants do not know how to categorize Kosher fo o d s; (2) Kosher foods are not labeled properly; and (3) Defendants do not prepare K o s h e r food in the proper manner. Plaintiff introduced twenty-two food labels at the e v id e n tiary hearing in this matter. Inmate Stormes testified that he provided these labels to P la in tif f and that they were removed from food items in the EARU Kosher kitchen. Although Plaintiff testified that most of the food items at issue were Kosher, he also q u e stio n e d whether items such as powdered eggs and grits were Kosher because the labels (o r portions of labels) inmate Stormes provided lacked Kosher labels. Further, although P la in tif f acknowledged that the bread that is provided at the EARU is Kosher, he c o m p la in e d that it was "festival bread" that should not be served on a daily basis. Plaintiff h a s failed to create a material question of genuine fact on this issue. F irs t, Plaintiff's belief that Defendants do not know how to categorize or label K o s h e r food is unfounded. Plaintiff testified that he is familiar with several of the s ym b o ls used to identify Kosher foods, but that he does not know all of the Kosher sym b o ls. Further, Plaintiff had no direct knowledge as to how Kosher food items were p re p a re d at the EARU and could not provide a cogent explanation as to why he believed th e grits, for example, were not Kosher, except that the partial label inmate Stormes gave h im lacked a designation that he recognized as indicating that the grits were Kosher.

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B y contrast, Defendant Bell testified that he has received training to determine w h e th e r a particular item should be categorized as Kosher, and that he personally inspects th e food delivered to the EARU kitchen on a weekly basis to determine whether the food is properly categorized. Plaintiff failed to present any evidence to the contrary. Finally, Plaintiff's complaint that he was provided "festival bread" on a daily basis w h ile housed at the EARU fails to provide any support for his free exercise claims. If a n yth in g , such evidence strengthens the Defendants' argument that they made reasonable e f f o rts to ensure that inmates requesting a Kosher diet were provided Kosher food. T h e heart of Plaintiff's complaint seems to be that the Kosher food now being s e rv e d at the ADC is unappetizing and that the ADC Defendants have begun to serve u n p a la ta b le Kosher meals to discourage inmates from requesting the Kosher diet. Unfortunately for Plaintiff, these claims are not at issue in this lawsuit. Based upon the e v id e n c e presented, Plaintiff has failed to create a genuine question of material fact with re g a rd to his complaints about the EARU Kosher diet. Because Plaintiff has failed to e sta b lis h that Defendants' conduct imposed a substantial burden on his religious exercise, D e f e n d a n ts are entitled to summary judgment on this claim.4

The Court notes that Plaintiff acknowledged that he was provided a Kosher diet f o r the nearly two years he was housed at the EARU in the grievances he submitted while h o u s e d at the Varner Super Max Unit of the ADC (#36-5 and #36-6). 15

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IV .

C o n c lu s io n : T h e Court recommends that Defendants' Motion for Summary Judgment (#36) be

G R A N T E D and that Plaintiff's claims be DISMISSED with prejudice. D A T E D this 30th day of January, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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