Jones v. Hobbs et al

Filing 112

OPINION AND ORDER that Hobbs and Freyder's objections to 107 Partial Report and Recommendations are OVERRULED; the defts' 95 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART; summary judgment is granted on pltf's claims for monetary damages asserted against the defts in their official capacities; these claims are dismissed with prejudice; summary judgment is denied in all other respects. Signed by Chief Judge J. Leon Holmes on 4/5/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
LARRY WAYNE JONES,
ADC #708998
v.

PLAINTIFF

No. 5:09CV00157 JLH

RAY HOBBS, Chief Deputy Director,
Arkansas Department of Correction; and
CHARLES FREYDER, Chaplain

DEFENDANTS

OPINION AND ORDER
Larry Jones brings this action against Ray Hobbs, the Chief Deputy Director of the Arkansas
Department of Correction, Charles Freyder, a Department of Correction chaplain, and other officers
of the Department of Correction, alleging violations of his rights under the free exercise and free
speech clauses of the First Amendment, the Fourteenth Amendment, and the Religious Land Use and
Institutionalized Persons Act. The defendants previously moved for summary judgment, and the
Court adopted the magistrate judge’s proposed findings and recommended partial disposition
dismissing a number of Jones’ claims as well as two of the defendants. Consequently, Jones’ only
remaining claims are those asserted against Hobbs and Freyder, in their official and individual
capacities, for denying his request for a special religious diet for sixteen months in violation of the free
exercise clause. The defendants have moved for summary judgment a second time. The magistrate
judge recommends that the motion be granted in part and denied in part. The defendants have
entered objections to the proposed findings and recommendations. For the following reasons, the
defendants’ objections are overruled and the motion for summary judgment is granted in part and
denied in part.

I.
It is undisputed that, in January of 2007, Jones became a non-denominational Christian and
requested a modified diet that would accord with his religious tenets. Jones testified that his religious
beliefs require him to abstain from animal products or any food that has touched a tray or plate that
also contains animal products. Prior to 2007, Jones received a vegan diet—which, when combined
with the prison’s vegetarian diet, was equivalent to the diet required by his religious beliefs—based
on a medical prescription for a food allergy. However, his prescription expired in January of 2007
and he was denied his requested diet. As noted, a vegetarian diet was available, but included butter,
cheese, and eggs, which was unacceptable and which, thereby, rendered the acceptable part also
forbidden. In April of 2008, Jones was provided with a diet that complied with his religious
restrictions.1 He concedes that he cannot offer any evidence that he suffered a physical injury as a
result of the prison’s refusal to provide him with the requested religious diet.2

1

There is a factual dispute about whether Jones began to receive a vegan diet based on a new
medical prescription or because of the prison’s decision to create a new vegan diet. Compare Doc.
#47, p. 9 (Jones’ affidavit testimony that his medical prescription allowed him to receive an
acceptable meal from April of 2005 until the date of the affidavit), with Doc. #98-8 (Yolanda Clark’s
affidavit testimony that Jones was provided a vegan diet which was created in May of 2008).
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The magistrate’s proposed findings and recommendations indicate that the parties do not
dispute that, during the sixteen months Jones was denied a vegan diet, other inmates were served
vegan meals. The defendants deny that this fact is undisputed and point to affidavit testimony to
support the proposition that Jones “was the first inmate to received the Vegan Diet.” Doc. #98-8.
Although Clark testified that Jones received “the Vegan Diet since its inception in May 2008[,]” she
does not indicate whether other inmates may have received a diet which was vegan in nature for other
reasons; for example, based on a medical prescription. Id. On the other hand, the Court has perused
the record and found no evidence supporting the conclusion that the undisputed evidence establishes
that other inmates received a vegan diet, or the equivalent of a vegan diet, from January of 2007 until
April of 2008.
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II.
A court should enter summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden,
the nonmoving party must respond by coming forward with specific facts establishing a genuine
dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
In deciding a motion for summary judgment, a court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins.
Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if
the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477
U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing
sufficient to establish a necessary element of the case on which that party bears the burden of proof,
the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106
S. Ct. at 2552.
III.
The defendants contend that they are entitled to summary judgment because qualified
immunity bars Jones’ free exercise claims asserted against them in their individual capacities, the
Prison Litigation Reform Act bars Jones’ request for monetary damages, and the Eleventh
Amendment bars Jones’ claims for monetary damages brought against them in their official capacities.

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The magistrate concluded that the defendants were not entitled to summary judgment based on
qualified immunity or the PLRA. However, the magistrate found that the defendants were entitled
to summary judgment on the official capacity claims for monetary damages. The defendants have
filed objections to the magistrate’s proposed findings and recommendations. Upon a de novo review
of the record and for the reasons discussed below, the Court concludes that summary judgment is not
appropriate as to the defendants’ qualified immunity defense or based on their PLRA argument.
A.

Qualified Immunity
As the magistrate explained, the defendants are entitled to qualified immunity unless they

violated a statutory or constitutional right which was “clearly established” at the time. Ashcroft v.
al-Kidd, --- U.S. ----, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011). In the context of a free
exercise claim, the Court must first address “the threshold issue of whether the challenged
governmental action ‘infringes upon a sincerely held religious belief[.]’ ” Murphy v. Mo. Dep’t of
Corr., 372 F.3d 979, 983 (8th Cir. 2004) (quoting Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th Cir.
1996)). If so, the Court then applies the Supreme Court’s Turner factors to determine if the
regulation restricting the religious practice is “reasonably related to legitimate penological interests.”
Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 831 (8th Cir. 2009) (internal quotation marks
omitted) (quoting Murphy, 372 F.3d at 982 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct.
2254, 2261, 96 L. Ed. 2d 64 (1987))). The four factors that guide the Court’s analysis are: (1)
whether there is a valid rational connection between the prison regulation and the government interest
in justifying it; (2) whether there is an alternative means of exercising the right that remain open to
prison inmates; (3) whether the accommodation will have a significant “ripple effect” on guards and
other inmates and on the allocation of prison resources; and (4) whether there is an alternative that

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fully accommodates the prisoner at de minimis cost to valid penological interest. Turner, 482 U.S.
at 90.

If the impediment is not reasonably related to legitimate penological interests and,

consequently, the defendants violated Jones’ statutory or constitutional rights, then the Court must
determine whether the violated right was “clearly established.”
For the purposes of summary judgment, the defendants concede that Jones’ religious beliefs,
which require him to maintain a vegan diet, are sincerely held. See Doc. #96, p. 11; Doc. #102-3, p.
33. However, the defendants contend that their conduct did not infringe upon Jones’ religious beliefs
because they are not authorized to provide Jones with the specific diet he requested and they have
engaged in no action to impede or prevent him from receiving a satisfactory diet.
Jan Scussel, the Chief Legal Counsel for the Department of Correction, testified by affidavit
that the prison had an “Administrative Directive” concerning religious diets in effect during the time
Jones’ requested diet was denied. Doc. #98-6. Decisions about what religious diets were to be made
available were made by the chaplains, in connection with food services and Central Office
Administration. Id. Further, religious diets were to be approved by a dietician prior to being served.
Id. According to Scussel, Hobbs “had input on what could be a religious diet, but he was not
authorized to unilaterally order or fulfill ‘Special Religious Diet’ requests from inmates.” Id. Hobbs
confirmed in his testimony that chaplains, along with food services and the administration, have the
final authority to determine what religious diets were made available, Doc. #102-1, p. 12-13, but
stated that he had the power to change the prison’s policies regarding food service. Id. at p. 8-9.
Additionally, Hobbs testified that he could have told food services to provide the vegetarian diet to
Jones without the offensive ingredients. Doc. #102-2, p. 30. Hobbs also testified that he was aware
that Jones had stated in his religious affiliation update that he could not eat anything from a tray or

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plate that also contains animal foods. Id. at 31. Freyder testified by affidavit that he “had the
authority to forward [an] inmate’s request [for a ‘Special Religious Diet’] to the kitchen supervisor
for implementation.” Doc. #103-1. Nevertheless, according to Freyder, he “was not authorized to
forward an inmates request” for a “Special Religious Diet” that was not offered in the department.
Hobbs testified, however, that Freyder had recommended that the vegetarian diet was best suited to
Jones’ religious requirements. Doc. #102-2, p. 29-30.
Based on this evidence, the Court cannot say as a matter of law that the defendants’ conduct
did not impede Jones’ efforts to secure a diet which comported with the dictates of his religion.
Taken in the light most favorable to Jones, the evidence indicates that the defendants, along with
others, had the power to authorize a vegan diet pursuant to prison policy but neglected to do so after
Jones requested such a diet based on his religious convictions. Cf. Floyd v. Trice, 490 F.2d 1154,
1157 (8th Cir. 1974) (defendant need only be “partially responsible” for the alleged constitutional
violations). Furthermore, Hobbs was aware that Jones has requested a vegan diet and had the power
to order that prison staff provide Jones with a vegan diet regardless of the prison policy, but refused
to do so, in part, because Freyder had told him that a vegetarian diet was sufficient.
Because Jones has raised a fact question regarding whether the defendants infringed on his
sincerely held religious beliefs, the Court must apply the Turner factors to determine whether the
denial of Jones’ request for a vegan meal based was “reasonably related to legitimate penological
interests.”
First, the Court considers whether there is a valid rational connection between the prison
regulation and the government interest in justifying it. The prison’s directive on religious diets states
that the prison strives to meet recognizable religious diets in a manner that is cost efficient, fair, and

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comports with security needs. See Doc. #98-6. The defendants contend that two penological
interests identified in the directive would have been potentially impacted by Jones’ request for a vegan
diet. First, the defendants contend that providing Jones with a vegan diet would not have been
financially feasible because “[i]t would not be cost efficient for the ADC to accommodate every
inmate’s special diet request, as there are more than 15,000 inmates housed in the department, each
of who have varying preferences.” Second, the defendants contend that providing Jones with a
special diet could implicate jail security because “[i]f one inmate if offered something that the other
inmates are not, the inmate receiving the special or preferential treatment is at a risk from other
inmates, due to the perceived elevated status[,]” and because the security staff would be burdened
with additional security and monitoring assignments needed “to ensure the inmate’s safety, so that
other inmates did not attempt to take the special food from the inmate who had requested it.”
The magistrate recognized that fiscal concerns are generally legitimate, but concluded that the
fact that Jones was provided with a vegan diet before and after the sixteen month period at issue
undermined the defendants’ contention that to provide such a diet was not economically feasible. The
defendants respond by pointing out that Jones’ previous vegan diet was based on a medical
prescription. According to the defendants, this fact is crucial for two reasons. First, because inmates
do not normally “fight over” medical prescriptions, but are likely to fight when “one inmate,
presumably for no other reason than to say ‘I want it’ receive something he requests ‘just because.’
” Second, because each of the nearly 16,000 inmates do not have medical prescriptions for certain
diets, but each inmate could request a special diet simply because they wanted a special diet. The
defendants argue that the prison could not provide 16,000 special diets where the inmates’ basis for
the request is simply, “ ‘I want it.’ ”

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The defendants’ objections miss the mark because the basis for Jones’ request for food was
not merely his personal preference, but rather his sincerely held religious beliefs. The defendants
point to no evidence tending to establish a realistic risk that each of the nearly 16,000 inmates might
ruin the prison financially by requesting unique meals based on sincerely held religious beliefs. In fact,
Hobbs testified that the prison’s directive regarding religious diets distinguishes between a request
for a diet based on a sincerely held religious belief and one based on a personal preference. Doc.
#102-1, p. 11. Similarly, the defendants point to no evidence that inmates would “fight [with another
inmate] over” a special diet provided to the inmate on the basis of that inmate’s sincerely held
religious beliefs. As the magistrate noted, Jones received a vegan diet before January of 2007 and
after April of 2008 without, apparently, sparking any security incidents or special protection needs.
Indeed, it is somewhat difficult to believe that most inmates would fight with Jones over a vegan
meal. See Love v. Reed, 216 F.3d 682, 691 (8th Cir. 2000). Finally, Hobbs testified that it would
be no more trouble to provide Jones with the diet based on his religious beliefs than it would be to
do so based on his medical needs. Doc. #102-3, p. 35. This testimony tends to undermine the
defendants’ efforts to distinguish between special diets based on religious views and special diets
based on medical needs.
Even if financial and security concerns may hypothetically justify the denial of an inmate’s
requested religious diet, as the prison directive itself contemplates, in the instant case there is evidence
that the denial of Jones’ request for a vegan diet was not rationally connected to any existing
economic or security concerns. Construing the evidence in the light most favorable to Jones, the
magistrate did not err in concluding that a genuine issue of material fact exists as to the first Turner
factor.

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Respecting the second Turner factor, the Court must determine whether an alternative means
of exercising his religious rights remain open to Jones. The defendants contend that Jones could
exercise his religious rights by praying, reading his Bible, request religious materials from the library,
take Bible correspondence courses, and have visits from a pastoral advisor. However, as the
magistrate noted, Jones testified that he has only a limited ability to study, pray, and counsel with
others. Further, Jones was unable to attend church services, access television or radio religious
programming, or purchase an appropriate diet through the prison’s commissary. Nonetheless, the
defendants contend that Jones’ alternative means of exercise his religious rights were sufficient.
If Jones sincerely believes that eating animal products or food which has touched animal
products is a serious violation of his religious tenets, it is difficult to see how his ability to pray, read
his Bible, or order religious items from the library would be sufficient to satisfy his religious
obligations regarding his diet. Nevertheless, even if the alternatives are no substitute for the dietary
edicts of Jones’ religion, the second factor favors the defendants if Jones was still able to practice
some of the tenets of his religion. See Iron Eyes v. Henry, 907 F.2d 810, 815 (8th Cir. 1990); Garza
v. Carlson, 877 F.2d 14, 16 (8th Cir. 1989) (citing Estate of Shabazz, 482 U.S. 342, 351-52, 107 S.
Ct. 2400, 2405-06, 96 L. Ed. 2d 282 (1987)). However, there appears to be a conflict between the
defendants’ account of Jones’ ability to pray, read the Bible, et cetera, and Jones’ testimony that his
ability to study, pray, and counsel with others is limited. Based on this record, the question cannot
be resolved as a matter of law. Regardless, even if the undisputed evidence established that Jones had
sufficient alternative means to practice his religion, this factor still must be balanced against the other
Turner factors.

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As to the third Turner factor, the Court must address whether providing Jones with a vegan
meal would have a significant “ripple effect” on guards and other inmates and on the allocation of
prison resources. The defendants reiterate their economic and security concerns, and also contend
that Jones’ request for a special diet, when given the sort of universality proper to a categorical
imperative, would implicate the fairness factor and burden the dietician. For the reasons discussed
in the analysis of the first Turner factor, the Court cannot say as a matter of law that continuing to
provide Jones with a vegan meal based on his religious beliefs rather than his medical prescription
would have a significant ripple effect with respect to any of the concerns articulated by the
defendants. Construing the evidence in the light most favorable to Jones, the magistrate did not err
in concluding that a material fact question exists as to the third Turner factor.
Finally, regarding the fourth Turner factor, the Court considers whether there is an alternative
way to fully accommodates Jones’ request for a vegan meal at de minimis cost to valid penological
interests. The defendants again focus on the economic feasibility of providing each inmate with a
special diet, especially where the request may require the prison to order special food. As the
magistrate noted, Jones argues that the prison could avoid this concern by applying a two step
process to all religious diet requests: First, determine if the belief is sincerely held; and, second,
determine if the request is feasible. Jones’ suggested alternative procedure would avoid the problem
of requiring that the requested religious diet already be “recognized.” However, Jones’ proposed
procedure appears similar in nature to the prison’s directive on religious diets since, presumably, the
chaplains, administrators, and food service personnel would have to collaborate to determine whether
a particular diet was feasible. That is, Jones’ second step would probably entail the same efforts as
those needed to “recognize” a particular religious diet pursuant to the prison’s directive. On the other

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hand, there is evidence that the prison had only two “recognized” religious diets: one for Jews and
Muslims. See Doc. #102-1, p. 12. To the extent that the prison required a requested religious diet
to be one mandated by a “recognized” religion, Jones’ alternative procedure would be vastly superior
from a constitutional vantage. The Court doubts that the prison’s directive regarding religious diets
can be interpreted to only provide diets required by “recognized” religions. Nevertheless, because
the similarities (and differences) between Jones’ proposed alternative and the prison’s directive are
murky, the Court concludes that the magistrate did not err in finding that a genuine issue of material
fact exists as to the fourth Turner factor.
Regardless of whether Jones has identified a truly distinct procedure that creates a de minimis
cost to the prison’s economic and security interests, the Court cannot say as a matter of law that the
Turner factors balance in the defendants’ favor and, consequently, that the denial of Jones’ request
for a vegan diet did not run afoul of Jones’ constitutional rights.
Next, the Court must determine whether Jones’ right to a diet which comported with the
requirements of his religious beliefs was not clearly established. The defendants point out that Jones
previously initiated a lawsuit against them, and others, alleging that he was deprived of a special
religious diet based on his different religious beliefs from those he adopted in January of 2007. A jury
trial resulted in a verdict for the defendants. Based on this verdict, the defendants contend that they
reasonably believed that they were not violating Jones’ rights when his request for a vegan diet was
denied for sixteen months.
Prior to 2007, however, it was “well settled that jail and prison inmates ‘have the right to be
provided with food sufficient to sustain them in good health [and] that satisfies the dietary laws of
their religion.’ ” Kind v. Frank, 329 F.3d 979, 981 (8th Cir. 2003) (quoting McElyea v. Babbitt, 833

11

F.2d 196, 198 (9th Cir.1987)). The prior defense verdict does not as a matter of law shield the
defendants from liability for subsequent denials of this right. Perhaps the jury concluded that the
plaintiff had failed to show that his request was not based on sincere religious beliefs. However, the
instant action is based on different religious beliefs than the earlier case. In light of the wellestablished rule that “prison inmates are entitled to reasonable accommodation of their religious
dietary needs,” Love, 216 F.3d at 689, the Court cannot say as a matter of law that Jones’ right to
a diet suiting his religious beliefs was not a clearly established right.
Therefore, the magistrate correctly denied summary judgment as to the defendants’ qualified
immunity defense to Jones’ free exercise claims.
B.

Prison Litigation Reform Act and Sovereign Immunity
As noted, the magistrate held that the PLRA did not bar Jones’ claims, and that Jones was

entitled to proceed against the defendants in their official capacities for injunctive relief. However,
the magistrate found that the defendants were entitled to summary judgment on Jones’ official
capacity claims seeking monetary damages. In their objections, the defendants offered no criticisms
regarding the magistrate’s discussion regarding the PLRA and sovereign immunity defense. The
Court adopts the magistrate’s analysis as to these issues.
CONCLUSION
For the foregoing reasons, Hobbs and Freyder’s objections to the proposed findings and
recommendations are OVERRULED. The defendants’ motion for summary judgment is GRANTED
IN PART and DENIED IN PART. Document #95. Summary judgment is granted on Jones’ claims
for monetary damages asserted against the defendants in their official capacities. These claims are
dismissed with prejudice. Summary judgment is denied in all other respects.

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IT IS SO ORDERED this 5th day of April, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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