Paynter et al v. Danberg et al

Filing 45

MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/24/2012. (lih)

IN THE lJ]\JITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DONALD COLE,
Plaintiff,
v.
CARL DANBERG, et aI.,
Defendants.

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) Civ. Action No. 1O-088-GMS
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MEMORANDUM
I. BACKGROUND
The plaintiff, Donald Cole ("Cole"), an inmate at the James T. Vaughn Correctional
Center ("VCC), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-l(a) .
(D.I. 1.) He appears pro se and was granted permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. (D.I. 11.) The matter proceeds on the amended complaint. (D.I. 18.)
Cole has been a practicing Muslim since 2001. He alleges that the Islamic community at
the VCC is treated differently than the Jewish community; Muslims are not provided with meals
that satisfy the requirements of religious diets; and he is not allowed to practice his religion in
violation ofRLUIPA and the equal protection clause of the First and Fourteen Amendments to
the United States Constitution.

II. REQUEST FOR COUNSEL
Cole seeks counsel on the grounds that he is unable to afford counsel, his imprisonment
hampers his ability to litigate, he has moved for class certification on behalf of all Muslims
incarcerated in the Delaware Department of Correction ("DOC"), as an inmate he is not allowed

to possess certain DOC materials, a trial will involve conflicting testimony, and he has made
repeated efforts to obtain counsel, to no avail. (D.1. 36.)
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. See Ray v. Robinson, 640 F.2d 474,477 (3d Cir. 1981); Parham v.

Johnson, 126 F.3d 454,456-57 (3d Cir. 1997). However, representation by counsel may be
appropriate under certain circumstances, if the court finds that the plaintiffs claim has arguable
merit in fact and law. Tabron v. Grace, 6 F.3d 147,155 (3d Cir. 1993)
The court should consider a number of factors when assessing a request for counsel,
including: (1) the plaintiffs ability to present his or her own case; (2) the difficulty of the
particular legal issues; (3) the degree to which factual investigation will be necessary and the
ability of the plaintiff to pursue investigation; (4) the plaintiffs capacity to retain counsel on his
own behalf; (5) the extent to which a case is likely to turn on credibility determinations; and (6)
whether the case will require testimony from expert witnesses. Tabron, 6 F.3d at 155-57; accord

Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d 492,499 (3d Cir. 2002).
Upon consideration of the record, the court is not persuaded that the request for counsel is
warranted at this time. Cole appears to have the ability to present his claims. Notably, this case
is in its early stages and, should the need for counsel arise later, one can be appointed at that
time. Therefore, the court will deny without prejudice to renew Cole's request for counsel. (D.1.
36.)

III. CLASS CERTIFICATION
Cole seeks class certification on the grounds that: (1) the nature of complaints dealing
with Muslim inmates indicates that there are numerous Muslin inmates within the DOC; (2) it is

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not required that the representative plaintiff has endured precisely the same injuries as those
sustained by the class members; (3) there are questions of law and fact common to the class; (4)
Cole will fairly and adequately protect the class with appointment of counsel; (5) the defendants
have acted, and refused to act, on grounds generally applicable to the class thereby making
appropriate injunctive and declaratory relief with respect to the class as a whole. (D.!. 37.)
Rule 23(a) of the Federal Rules of Civil Procedure provides that members of a class may
only sue on behalf of a class if: (1) the class is so numerous that joinder is impractical; (2) there
are common questions oflaw or fact; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) "the representative parties will fairly and
adequately protect the interests of the class." Fed. R. Civ. P. 23(a). A class may only be certified
if all four elements of Rule 23(a) are met. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d
305, 309 n.6 (3d Cir. 2008).
"Numerosity requires a finding that the putative class is so numerous that joinder of all
members is impracticable." See Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d
154, 168. 182 (2001); Fed. R. Civ. P. 23(a)(1). "No single magic number exists satisfying the
numerosity requirement," but the United States Court of Appeals for the Third Circuit generally
has approved classes of forty or more. Stewart v. Abraham, 275 F.3d 220,226-27 (3d Cir. 2001);
Moskowitz v. Lopp, 128 F.R.D. 624, 628 (E.D. Pa. 1989). The amended complaint refers in
general to the Muslim inmate population, but makes no reference to the number of putative class
members. Instead, it focuses only on Cole. A class of one fails to satisfy the numerosity
requirement.

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With regard to typicality and commonality, Rule 23 does not require that the
representative plaintiff has endured precisely the same injuries that have been sustained by the
class members, only that the harm complained of be common to the class, and that the named
plaintiff demonstrate a personal interest or "threat of injury ... [that] is 'real and immediate,' not
'conjectural' or 'hypothetica1.'" Hassine v. Jeffes, 846 F.2d 169,177 (3d Cir. 1988) (quoting
O'Shea v. Littleton, 414 U.S. 488,494 (1974)). The amended complaint raises no claims other
than those on behalf of Cole. The only instance wherein the Muslim inmate population is
mentioned is the paragraph that states, generally, "Plaintiff and Muslim inmate population to no
avail has [sic] filed numerous complaints addressing issues raised in this complaint."

(D.I.~

12.)

Therefore, the court finds that Cole has not met the typicality and commonality requirement.
As to the fourth prong, the court notes that Cole is an incarcerated individual and appears
pro se. "[P]ro se litigants are generally not appropriate as class representatives." Hagan v.
Rogers, 570 F.3d 146, 159 (3d Cir. 2009) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th
Cir. 1975) ("it is plain error to permit [an] imprisoned litigant who is unassisted by counsel to
represent his fellow inmates in a class action")). Also, Cole requested counsel, and the court has
denied his request. Cole was one of many plaintiffs who initiated this case, but he is the only
who has not been dismissed. It is clear from his filings that he has the ability to proceed with this
case. He may not, however, represent the other plaintiffs or proceed as the class representative.
The court has denied Cole's request for counsel and, therefore, finds denial of class
certification is appropriate. See Hagan, 570 F.3d at 159 (noting that it was inappropriate for the
district court to deny class certification on the basis of inadequate representation without first
deciding the plaintiff s motion to appoint counsel as the district court had deferred any

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consideration of the plaintiffs motion to appoint counsel). Accordingly, for the above reasons,
the court will deny Cole's motion for determination that action is a class action, construed by the
court as a motion for class certification pursuant to Fed. R. Civ. P. 23(c)(I). (D.I. 37.)

IV. MOTION TO AMEND
Cole moves to amend. (D.1. 38.) Pursuant to Fed. R. Civ. P. 15(a), a party may amend its
pleading once as a matter of course within twenty-one days after serving it or, if the pleading is
one to which a responsive pleading is required, twenty-one days after service of a responsive
pleading or twenty-one days after service of a Rule 12(b), whichever is earlier. Otherwise, a
party may amend its pleading only with the opposing party's written consent or the court's leave.
Rule 15 provides that court should freely give leave to amend when justice so requires.
The motion will be granted. (D.1. 38.) Cole shall file a second amended complaint as set
forth in his motion within thirty (30) days from the date of this order.

V. MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR INJUNCTION
A. Background
Cole seeks injunctive relief to preclude defendants from implementing policies regarding
the ownership and wearing ofkufis that are not white. I (D.I.40.) A kufi is a traditional skull cap
and is associated with members of the Islamic faith. The defendant Warden Phelps ("Phelps")
opposes the motion (D.1. 41), and the defendants Carl Danberg, Michael Knight, David Pierce,

lIn Cole's reply he changes his theory somewhat, stating that his use oflanguage was
poor and that he intended to point out that: (1) wearing white kufis has never been an issue; (2)
he does not want to dispose of his colored kufi; and (3) the kufis for sale in the commissary are
all the same size and much too small for the vast majority of Muslim inmates. (See D.I. 43.)
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Michael Costello, Frank Pennell, and Ron Hosterman move to join his opposition (D.I. 44.) The
court will grant the motion to join.

B. Standard of Review
A party seeking a preliminary injunction must show: (1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief. Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004) (citation omitted). "Preliminary injunctive relief is 'an extraordinary remedy' and
'should be granted only in limited circumstances.'" Id. (citations omitted). Because of the
intractable problems of prison administration, a request for injunctive relief in the prison context
must be viewed with considerable caution. Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir.
2009) (not published) (citing Goffv. Harper, 60 F.3d 518,520 (8th Cir. 1995)).

c. Discussion
The Islamic community at the VCC are allowed to possess kufis. The kufis were initially
received from visitors or through the mail. In the 1990's the policy changed and kufis could only
be purchased through the commissary. According to Cole, the kufis purchased from the
commissary were of poor quality and tore when cleaned. In 2001, the Islamic community
received a gift of kufis. The kufis were sent through the mail to the defendant Chaplain Frank
Pennell ("Chaplain Pennell") who delivered them to the Imam, who then issued one to each
member. According to Cole, the superb quality of the donated kufis negated the need to purchase
the inferior quality kufis offered at the prison commissary. When an inmate was released, he left
his kufi behind to be given to a new member of the Islamic community. Cole states that there

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have been no incidents at the VCC causing a security concern with regard to a certain kufi style
or color.
On May 3, 2011, Chaplain Pennell sent a memo to the Islamic community in response to
a request to conduct a congregation prayer and stated that, "security, operational needs, and
facility management and movement of our institution take priority." (D.1. 40, ex.) Chaplain
Pennell explained that the authorization of congregational prayer during Ramadan is a privilege,
and with the "new fiscal restraints of not using over time, etc. we could see this go away." (Id.)
Chaplain Pennell goes on to state that he "would hope and pray that you and your community
would start to be grateful for all the allotted times you have, as others, and stop pressing the
limits." Finally, he lists all the privileges given to those in the Islamic community and concludes
that, "all these could vanish for each of us as we continue to press our limits." (Id.) According
to Cole, three days after the memo was sent, Chaplain Pennell and the defendant Ron Hosterman
("Hosterman") informed the Imam that the Islamic community had until January 1,2012 to
dispose of all non-white kufis and that thereafter kufis must be purchased from the commissary.
Cole contends the disposal/purchase kufi policy was enacted in retaliation for his filing the
instant lawsuit. He seeks an order restraining the defendants from implementing the policy.
In an AprillMay 2008 institution publication, inmates were reminded that colored towels
and clothing were not allowed, were no longer sold in the commissary, and had to be sent out.
(D.I. 41, ex. 1.) The issue of all-white inmate attire was addressed in a July/August 2011
institution publication. The article stated that a ruling was made to extend the deadline but, by
the end of the year 2011, all noncompliant headgear must be sent out and all headgear must be
white. (Id. at ex. 2) The NovemberlDecember 2011 publication contains an announcement that

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the transition period to all white items, including kufis, is over. It reiterates that all noncompliant
kufis must be sent out and in the future must be white. (Id. at ex. 3.)
The First Amendment provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ...." U.S. Const. amend. 1.
Prisoners do not forfeit this right by reason of their conviction and confinement in prison, but the
right is limited. See DeHart v. Horn, 227 F.3d 47,50-51 (3d Cir. 2000). To establish a violation
of the Free Exercise Clause, Cole must show that he was prevented from engaging in his religion
without any justification reasonably related to legitimate penological interests. Turner v. Safley,
482 U.S. 78, 89 (1987). To determine whether a restriction is reasonably related to legitimate
penological interests, the court weighs four factors: (1) there must be a "valid, rational
connection" between the prison regulation and the legitimate governmental interest put forward
to justify it; (2) whether inmates retain an alternative means of exercising the circumscribed
right; (3) the costs that accommodating the right would impose on other inmates, guards, and
prison resources generally; and (4) whether there are alternatives to the regulation that fully
accommodate the prisoner's rights at de minimis cost to valid penological interests. See DeHart,
227 F.3d at 51.
The evidence of record does not demonstrate a violation of Cole's free exercise rights
with regard to the disposal policy of colored kufis and requirement that the Islamic community
wear white kufis. Notably, Cole is not totally precluded from possessing a kufi and, therefore,
not impeded in practicing his religion. Given the record before the court, Cole has not
demonstrated the likelihood of success on the merits. In addition, there is no indication that, at

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the present time, Cole is in danger of suffering irreparable harm. Accordingly, based upon the
foregoing analysis, Cole's motion for a temporary restraining order will be denied. (D.I. 40.)

VI. CONCLUSION
For the above reasons, the court will deny without prejudice to renew Cole's request for
counsel; will deny Cole's motion to certify class; will grant Cole's motion to amend; will deny
Cole's motion for a temporary restraining order; and will grant the defendants' motion for
joinder. (D.I. 36,37,38,40,44.)
An appropriate order will be issued.

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1.1

,2012

Wilmington, Delaware

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