Gibson v. Zavaras et al

Filing 221

ORDER Affirming and Adopting Recommendations of United States Magistrate Judge. ORDERED that the First Recommendation of United States Magistrate Judge Mix 203 , is AFFIRMED and ADOPTED. ORDERED that Defendant Pachecos Motion for Summary Judgment 173 is GRANTED IN PART and DENIED IN PART pursuant to Fed. R. Civ. P. 56(b). ORDERED that the Second Recommendation of United States Magistrate Judge Mix 213 , is AFFIRMED and ADOPTED. ORDERED that Defendant Pacheco's Motion to Dismiss Plaintiff's Claims for Injunctive Relief as Moot 204 is GRANTED and that Plaintiff's case is DISMISSED pursuant to Fed. R. Civ. P. 12(b)(1) by Chief Judge Wiley Y. Daniel on 09/13/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02328-WYD-KLM
WELLMAN GIBSON,
Plaintiff,
v.
SGT. VERENA PACHECO,
Defendant.

ORDER AFFIRMING AND ADOPTING RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
I.

INTRODUCTION
THIS MATTER is before the Court on both Defendant Pacheco’s Motion for

Summary Judgment (ECF No. 173) and Defendant Pacheco’s Motion to Dismiss
Plaintiff’s Claims for Injunctive Relief as Moot (ECF No. 204). The motions were
referred to Magistrate Judge Kristen L. Mix for a Recommendation by Order of
Reference dated October 23, 2009. On March 14, 2012, Magistrate Judge Mix issued
a Recommendation (“First Recommendation”) that Defendant Pacheco’s Motion for
Summary Judgment be granted in part and denied in part. On April 16, 2012,
Magistrate Judge Mix issued a further Recommendation (“Second Recommendation”)
that Defendant Pacheco’s Motion to Dismiss Plaintiff’s Claims for Injunctive Relief as
Moot be granted. Both the First and Second Recommendations are incorporated
herein by reference. See 28 U.S.C. ' 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Mix advised the parties that they had fourteen (14) days to

serve and file written, specific objections to the First and Second Recommendations.
Both Plaintiff and Defendant Pacheco filed timely objections to the First
Recommendation which necessitates a de novo determination as to those specified
proposed findings or recommendations to which objection is made since the nature of
the matter is dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. ' 636(b)(1). No objections
were filed as to the Second Recommendation.
II.

BACKGROUND
Plaintiff is a pro se inmate in the Colorado Department of Corrections (“CDOC”)

and was incarcerated at the Arkansas Valley Correctional Facility (“AVCF”) at all
relevant times related to his claims. On November 5, 2009, Plaintiff filed an Amended
Complaint alleging that Defendant Pacheco violated his rights by revoking his Kosher
meal privileges at AVCF.1 Plaintiff asserts that the termination of his Kosher diet
infringed upon his ability to practice his religion while incarcerated, in violation of the
Free Exercise Clause of the First Amendment and the Religious Land Use and
Institutionalized Persons Act (ARLUIPA@). Plaintiff also claims that he was denied due
process prior to the termination of his Kosher meal privileges in violation of the
Fourteenth Amendment. Finally, Plaintiff alleges that the AVCF staff violated the Equal
Protection Clause of the Fourteenth Amendment by specifically targeting inmates who
received Kosher meals.

1

On September 22, 2010, by written order, I dismissed all other Defendants originally sued in this matter.
(ECF No. 112). Additionally, all of Plaintiff’s requests for relief were dismissed except for his demand for
permanent injunctive relief against Defendant Pacheco.

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III.

FIRST RECOMMENDATION
On September 30, 2012, Defendant Pacheco filed a Motion for Summary

Judgment requesting dismissal of all of Plaintiff’s claims. On March 14, 2012, in a
detailed and thorough Recommendation, Magistrate Judge Mix recommended that the
Motion for Summary Judgment be granted as to Plaintiff’s equal protection, due process
and RLUIPA claims, but denied as to Plaintiff’s First Amendment claim. More
specifically, as to the First Amendment claim, Magistrate Judge Mix concluded that a
genuine issue of material fact exists with respect to whether Defendant Pacheco
complied with the CDOC’s religious diet regulations.
By way of background, Magistrate Judge Mix found that in June 2006, Plaintiff
began participating in the religious diet program at AVCF. In order to receive a
religious diet, all inmates were required to comply with CDOC regulations governing
these special diets. Magistrate Judge Mix noted that
[u]nder these regulations, the inmate was required to submit
a Request for a Religious Diet form, and sign a Religious
Diet Participation Agreement (the “Agreement”). In June
2006, Plaintiff completed the requirements to participate in
the Kosher diet program, and began receiving Kosher meals.
In order to continue receiving a religious diet, inmates
were required to comply with the terms listed in the
Agreement. This requirement applied to all inmates
participating in the program, regardless of the type of
religious diet that they received. CDOC’s “two strikes”
policy applied when the inmate violated the terms of the
Agreement. After the first violation, or first “strike,” the
inmate received a written warning, but could continue to
participate in the program. If the inmate violated the terms
of the Agreement a second time within a year of the first
violation, the inmate was removed from the religious diet
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program. However, the inmate could reapply one year after
his second “strike,” and could be reinstated. Plaintiff’s
Kosher diet was terminated on September 3, 2009, pursuant
to the “two strikes” policy.
(First Recommendation at 3-4).
On September 23, 2008, Plaintiff received his first strike when a CDOC
correctional officer observed Plaintiff putting food into his shirt while in the facility chow
hall. Plaintiff was given written notice that if he violated the Agreement a second time
within a year, his Kosher diet would be terminated. On September 3, 2009, Plaintiff
received his second strike when a correctional officer observed him eating cookies with
his Kosher lunch. When asked if cookies were part of the Kosher diet plan, Defendant
Pacheco confirmed they were not. Defendant Pacheco drafted the CDOC Religious
Diet Non-Compliance Report, and Plaintiff’s Kosher diet was terminated. (First
Recommendation at 5-6).
As of September 28, 2011, Plaintiff had not attempted to reapply for the Kosher
diet program. However, relevant to Defendant Pacheco’s Motion to Dismiss Plaintiff’s
Claims for Injunctive Relief as Moot, on March 13, 2012, Plaintiff submitted another
request for a Religious Diet, and signed the Religious Diet Participation Agreement.
This request was granted, and on March 20, 2012, Plaintiff’s Kosher meals were
reinstated.
A.

Standard of Review

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” See Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A movant who bears the burden at
trial must submit evidence to establish the essential elements of its claim or affirmative
defense. In re Ribozyme Pharms., Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111
(D. Colo. 2002). In contrast, if the movant “does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary judgment stage by
identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115
(10th Cir. 2001) (internal quotations omitted).
The non-moving party may not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Fed. R. Civ. P. 56(e). An issue
is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
When reviewing a motion for summary judgment, a court must view the evidence in the
light most favorable to the non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708,
715 (10th Cir. 2010).
B.

Equal Protection Claim

Plaintiff claims that the CDOC’s Religious Diet Participation Agreement violates
equal protection because it is used to target individuals who receive Kosher diets. In
response, Defendant Pacheco asserts that all applicants for the religious diet program
(not just those receiving Kosher meals) must adhere to the terms of the Agreement. In
her Recommendation, Magistrate Judge Mix first noted that Plaintiff failed to
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demonstrate the requisite personal participation in order to sustain a section 1983 claim
against Defendant Pacheco. She found that “[t]here is no indication that Defendant
Pacheco was a party to the memorandum used as evidence to support Plaintiff’s equal
participation claim.” (First Recommendation at 10). Second, Magistrate Judge Mix
concluded that “the memorandum does not demonstrate intent sufficient to support a
violation of equal protection.” (First Recommendation at 11). Thus, Plaintiff failed to
satisfy his burden of demonstrating that discriminatory intent was the motivating factor
in revoking his Kosher diet, or that he was treated differently from similarly situated
inmates.
In his objection, Plaintiff argues that Defendant Pacheco failed to submit any
evidence that the Memorandum targeted all religious diets equally, not just Kosher
diets. (Objection at 1). However, I note that Magistrate Judge Mix thoroughly detailed
and discussed all of Defendant Pacheco’s proffered evidence showing that all inmates,
regardless of the particular religious diet they receive, must comply with the
Agreement’s terms and “two strikes” policy. (See First Recommendation at 12).
Specifically, in support of her position, Defendant Pacheco submitted evidence from the
prison’s Food Service and Laundry Programs Administrator along with the CDOC’s
official “Request for Religious Diet” form and the text of the Agreement itself. Based on
my review of the record, I agree with Magistrate Judge Mix that there is no genuine
issue of material fact with respect to whether Defendant Pacheco intentionally and
purposefully discriminated against Plaintiff because of his religious beliefs. Plaintiff=s
objection is overruled and summary judgment is entered in favor of Defendant Pacheco
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on the equal protection claim.
C.

Due Process

Plaintiff claims that his constitutional right to due process was violated because
he received no notice or opportunity to be heard prior to the termination of his Kosher
diet. Plaintiff argues that he was not violating the terms of the Agreement when he
received the “two strikes” that ultimately removed him from the religious diet program.
Magistrate Judge Mix accurately noted that to state a due process claim, a
plaintiff must both show that he possesses a protected liberty interest and that he was
not afforded the appropriate level of process. (First Recommendation at 13). She
also stated that “[c]ourts have consistently recognized that receiving a Kosher diet while
incarcerated does not constitute a protected liberty interest sufficient to sustain a due
process claim.” (First Recommendation at 14). Thus, because Plaintiff failed to
establish the existence of a protected liberty interest, Magistrate Judge Mix
recommended that summary judgment be entered on Plaintiff’s due process claim.
Plaintiff objected stating that “[a] due process procedure, hearing with evidence
would have made this whole process in court moot.” (Objection at 1). While Plaintiff’s
objection may be factually accurate, I agree with Magistrate Judge Mix that his claim
does not meet the threshold requirements of a valid due process claim. Because it is
well settled that there is no protected liberty interest in receiving a Kosher diet while in
prison, Plaintiff’s objection is overruled, and summary judgment is properly entered on
Plaintiff’s due process claim.
D.

First Amendment
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In her First Recommendation, after a detailed analysis, Magistrate Judge Mix
found that “a genuine issue of material fact exists as to whether CDOC employees at
AVCF, including Defendant Pacheco, complied with regulations governing religious
diets when they removed Plaintiff from the religious diet program.” (First
Recommendation at 17). Thus, Magistrate Judge Mix recommended that summary
judgment be denied as to this claim.
On March 21, 2012, Defendant Pacheco filed a timely objection to this portion of
the First Recommendation. However, also on March 21, 2012, Defendant Pacheco
separately filed her Motion to Dismiss Plaintiff’s Claims for Injunctive Relief as Moot
because Plaintiff was again participating in the Kosher diet program. The only
remaining claims in the action are claims for injunctive relief—that Plaintiff be placed
back on the Kosher diet. Thus, in the objection, Defendant Pacheco states that should
Magistrate Judge Mix grant the motion to dismiss Plaintiff’s injunctive claims, her
objection would be moot. Since Magistrate Judge Mix’s Second Recommendation
grants Defendant Pacheco’s motion to dismiss injunctive relief, I find that Defendant
Pacheco’s instant objection is moot.
Accordingly, no proper objections having been filed, I am vested with discretion
to review this portion of the First Recommendation Aunder any standard [I] deem[]
appropriate.@ Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that
Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
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findings"). Nonetheless, though not required to do so, I review this portion of the First
Recommendation to "satisfy [my]self that there is no clear error on the face of the
record."2 See Fed. R. Civ. P. 72(b), Advisory Committee Notes.
After my review, I am satisfied that there is no clear error on the face of the
record. I find that Magistrate Judge Mix’s conclusion that that there are genuine issues
of material fact as to Plaintiff’s First Amendment claim is thorough, well reasoned and
sound. I agree with Magistrate Judge Mix that the Defendant’s motion for summary
judgment should be denied as to Plaintiff’s First Amendment claim.
E.

RLUIPA

Finally, Magistrate Judge Mix noted that
[t]o survive a motion for summary judgment, a plaintiff must
provide evidence of the following three elements: (1) that
the plaintiff wishes to engage in a religious exercise; (2) that
this wish is motivated by a sincerely-held belief; and (3) that
the exercise is subject to a substantial burden imposed by
the government.
(First Recommendation at 23).3 As to the second element of Plaintiff’s RLUIPA claim,
Magistrate Judge Mix concluded that Defendant Pacheco failed to meet her burden of
showing that there is no genuine issue of material fact as to whether Plaintiff is
motivated by sincerely-held religious beliefs. However, as to the third element of
Plaintiff’s RLUIPA claim—whether Plaintiff’s exercise of Judaism is subject to a
substantial burden—Magistrate Judge Mix found that Plaintiff failed to establish that the
2

Note, this standard of review is something less than a "clearly erroneous or contrary to law"
standard of review, Fed R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).
3

I note that Defendant does not contest Plaintiff’s ability to meet the first element of a RLUIPA claim.

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terms of the Agreement and the “two strikes” policy constitute a substantial burden.
First, Plaintiff has failed to carry his burden of
demonstrating that the Agreement requires participation in
an activity prohibited by a sincerely-held religious belief.
On the contrary, the Agreement and “two strikes” policy
actually require the inmate to commit to, and refuse to
waiver from, conduct motivated by sincerely-held religious
dietary beliefs. Plaintiff has also failed to show that the
“two strikes” policy prevents participation in conduct
motivated by a sincerely-held religious belief, again
because the “two strikes” policy actually requires an inmate
to abide by the dietary restrictions imposed by his religion.
Finally, Plaintiff has not demonstrated that the “two strikes”
policy places substantial pressure on the prisoner to not
engage in conduct motivated by his sincerely-held religious
belief or to engage in conduct contrary to his sincerely-held
religious belief. See Abdulhaseeb, 600 F.3d at 1315; 42
U.S.C. § 2000-1(a).
(First Recommendation at 28).
In his objection, Plaintiff asserts that “dietary restrictions are a religious mandate”
and that Defendant Pacheco has “not shown their [sic] two strikes policy is least
restrictive since it has been shown to have massive holes in it.” (Objection at 3).
Plaintiff offers no further argument nor any explanation in support of this objection.
After carefully reviewing the proffered evidence and the controlling law, I agree
with Magistrate Judge Mix that CDOC’s religious diet program and Agreement do not
place substantial pressure on a prisoner to engage in conduct contrary to his or her
sincerely-held religious belief. “Instead, the policy places pressure on the inmate to
conform to a diet motivated by a sincerely-held religious belief at the risk of losing his
religious diet privileges.” (First Recommendation at 28). “Although an inmate may be
denied a religious diet pursuant to the ‘two strikes’ policy, it is only after the inmate has
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strayed from the requirements of this religious diet twice that his diet is revoked.” (First
Recommendation at 28).

Accordingly, after carefully reviewing Magistrate Judge

Mix=s Recommendation and Plaintiff=s objection, I overrule the objection and agree with
Magistrate Judge Mix that summary judgment should be entered on Plaintiff=s RLUIPA
claim.
IV.

SECOND RECOMMENDATION
On March 21, 2012, Defendant Pacheco filed a Motion to Dismiss Plaintiff’s

Claims for Injunctive Relief as Moot. In the motion, Defendant Pacheco requests
dismissal of this case in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction due to the mootness of Plaintiff’s sole remaining demand for
permanent injunctive relief. On April 16, 2012, Magistrate Judge Mix issued a Second
Recommendation that the Motion to Dismiss be granted. Magistrate Judge Mix
reasoned that since Plaintiff applied for the reinstatement of his Kosher diet, “his own
actions have resulted in the inability of the Court to provide injunctive relief, because the
Plaintiff’s injury is now merely a past injury that has already been remedied.” (Second
Recommendation at 8). Moreover, Magistrate Judge Mix found that “there is no
reasonable expectation that Plaintiff will be subject to the same actions alleged to have
resulted in the revocation of his Kosher diet in this case. While Plaintiff's own future
conduct may result in the imposition of more ‘strikes’ and perhaps even another
revocation of his Kosher diet, this is not only entirely within his control, but too
speculative to raise a reasonable concern.” (Second Recommendation at 8).
No objections were filed to the Second Recommendation. Accordingly, having
carefully reviewed the Second Recommendation, I am satisfied that there is no clear
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error on the face of the record. I find that Magistrate Judge Mix’s Second
Recommendation is thorough, well reasoned and is adopted. Defendant Pacheco’s
Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is granted due to the mootness of
Plaintiff’s request for injunctive relief.
V.

CONCLUSION
For the reasons stated above, it is
ORDERED that the First Recommendation of United States Magistrate Judge

Mix (ECF No. 203), filed March 14, 2012, is AFFIRMED and ADOPTED.
In accordance therewith, it is
FURTHER ORDERED that Defendant Pacheco’s Motion for Summary Judgment
(ECF No. 173) is GRANTED IN PART and DENIED IN PART pursuant to Fed. R. Civ.
P. 56(b). The motion is granted to the extent that judgment shall be entered in favor of
Defendant Pacheco on Plaintiff’s equal protection, due process and RLUIPA claims
only. The motion is denied in all other respects. It is
FURTHER ORDERED that the Second Recommendation of United States
Magistrate Judge Mix (ECF No. 213), filed April 16, 2012, is AFFIRMED and
ADOPTED.
In accordance therewith, it is
FURTHER ORDERED that Defendant Pacheco’s Motion to Dismiss Plaintiff’s
Claims for Injunctive Relief as Moot (ECF No. 204) is GRANTED and that Plaintiff’s
case is DISMISSED pursuant to Fed. R. Civ. P. 12(b)(1).
Dated: September 13, 2012

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BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge