Paynter et al v. Danberg et al
MEMORANDUM - Signed by Judge Gregory M. Sleet on 6/6/14. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COMMISSIONER CARL DANBERG,
) Civ. Action No. 10-088-GMS
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 for ma pauperis pursuant to
28 U.S.C. § 1915. (D.I. 11.)
PROCEDURAL AND FACTUAL BACKGROUND
The case proceeds on the second amended complaint filed on March 14, 2012. (D.I. 47.)
The second amended complaint raises claims regarding Cole's right to practice his religion. Cole
claims: (1) he is denied his right to observe Islamic holidays; (2) the Islamic community is not
allowed to raise funds; (3) he is denied his right to congregational prayers; and (4) there is
The remaining defendants move for summary judgment on the grounds that: (1) they are
immune from suit for the claims raised against them in their official capacities by reason of the
Eleventh Amendment; (2) Cole failed to exhaust his administrative remedies; (3) the claims are
barred by the statute of limitations; and (4) Cole failed to establish constitutional and RLUIP A
violations. On January 24, 2014, the court gave Cole until on or before February 24, 2014 to
respond to the motion for summary judgment. (D.1. 70.) Cole was advised that the court would
rule on the papers submitted to the court if he did not file a response. Cole did not file a response
to the motion.
The Second Amended Complaint
The second amended complaint (D.I. 47) alleges as follows: From 1975 until 2004, the
Islamic community was permitted to observe two Islamic holidays, Eid al-Fitr (the end of
Ramadan) and Eid al-Adha (commemorates the sacrifice oflshamel by Abraham), with a "feast".
3.1.) In 2004, the defendant Ron Hosterman ("Hosterman") implemented procedures that
changed the manner in which the holidays were observed. (Id.
3.1.A.) Visitors were no
longer allowed to bring in outside food and changes were made to the meal. (Id.) Two years
later in 2006, Hosterman stopped the practice of serving cake and juice during religious
observances but allowed the Islamic community to observe the holiday by attending evening
chow as a group and having a special visit with their families. (Id.
3.1.B.) When the
defendant Perry Phelps ("Phelps") became the VCC warden, the visits were discontinued. 1 (Id.)
Neither the cake and juice, nor the family visits, are related to observance of the religious
holidays. (Id.) The matter of religious holidays was appealed to Phelps, along with a written
proposal, but the proposal was denied. (Id.
3.1.C.) The proposal was also submitted to the
defendant Chaplain Frank Pennell ("Pennell") by Inman Roderick Butler. (Id.
Phelps is no longer the warden at the VCC.
proposal was resubmitted in September 2010 via a letter request from Cole's spiritual leader,
Inman Bryan Paynter ("Paynter"), and it was again denied by Phelps. (Id.)
In 2010, Phelps implemented a policy that group prayers were not allowed in the housing
units and, in November 2010, Paynter submitted a written request to allow group gatherings for
prayer in the housing units. (Id.
3.111.A., B.) The request was denied. (Id.) Another
proposal was submitted in April 2011, and it was denied by Phelps. (Id.
request was submitted to Pennell for five daily prayers at the chapel when Pennell and/or a
security was present, and the request was denied. (Id.
Muslim inmates are no longer allowed to raise fund by selling bean pies, said funds used
to pay the obligatory religious taxes, give to charity, purchase Qurans, hadiths, books, and
videos, "as needed." (Id.
3 .II.) Phelps' prohibition against the fund-raising "creates an over-
whelming burden to [Cole] and all other inmates at the VCC." (Id.)
There is discrimination against the Islamic community, as follows: Cole has been
prevented from attending Friday services at the proper time and is not given equal time to
conduct the services as other faiths are given. (Id.
3.IV.1.) Phelps denied Cole's requests for
a halal diet, but Jewish inmates are provided a kosher diet. (Id.
3.IV.2.) Cole appealed to the
defendant former Commissioner Carl Danberg ("Danberg"), but no action was taken. (Id.)
Other organizations are allowed to hold an institutional account, but Hosterman denied the
Islamic community's request to hold an institutional account. (Id.
3.IV.3.) Christians are
allowed to attend twice yearly religious seminars which are held from 9:00 a.m. to 2:45 p.m. (Id.
IV.4.) The Islamic community requested the same allowances during the month of Ramadan
but Pennell and Hosterman only allow them to assembly from 9:00 a.m. to 11 :00 a.m. when they
must return to their cells. (Id.) Hosterman and Pennell will not allow the Islamic Community to
have a paid clerk, even though it is the largest. (Id. at ,-i 3.V.5.) Pennell provides the use of a
typewriter to Protestant and Catholic communities but refuses to do the same for the Islamic
community. (Id. at ,-i 3.IV.6.)
Cole has been a practicing Muslim since 1996. (D.I. 68, ex. A at 18.) He has a prayer
rug and a Quran. (Id. at 17.) At one time Cole had owned a kufi, but he gave it away because he
did not want it. (Id.) Cole would like have access to halal meat. (Id. at 20-21.) The VCC
provides fish entrees as well as vegetarian options. (Id. at 19.) Cole testified that vegetarian and
fish options do not conflict with his religious beliefs. (Id.)
According to Pennell, inmates are allowed to observe religious holidays each year in
accordance to facility operational needs that meet their religious obligations. (Id. at ex. B.)
There is a VCC policy that does not allow inmates to congregate in the housing units for any
purpose. (Id.) Inmates may gather for prayer on Fridays at Jummah and on Saturday at Taleem
services. (Id.) Cole testified that he attends services on Fridays and Saturdays for a group
gathering of prayer. (Id. at ex. A, 13-14.)
Cole observes Ramadan at the VCC. (Id. at 19.) Inmates who observe Ramadan gather
at 3 :00 a.m. to eat together, and they also gather for prayer. (Id.) Muslims inmates are provided
food on an alternate eating schedule to accommodate the observance of Ramadan. (Id.) Inmates
are also provided a bag lunch which they may eat in their room. (Id.) A May 3, 2011 memo
authored by Pennell refers to the authorization of congregational prayer after breakfast and before
evening meal during the month of Ramadan. (D.1. 38, ex. A.) It also refers to weekly
congregational prayer at Jummah and Taleem services. (Id.) In the memo, Pennell advises that
inmates may make up their prayers at the end of each day during the last prayer time or
throughout the day as an opportunity affords itself. (Id.) The memo concludes with "classes,
studies, programs, etc. have been granted to all recognized faiths within security requirements
and operational needs." (Id.)
According to Pennell, inmates are offered a yearly seminar. It is a universal seminar
which may be attended by inmates of all faiths. (D.I. 68, ex. B.) Over the years, inmates of all
faiths have attended and provide their input in the seminars. (Id.) In addition, the Muslin
community has various classes, program and services that equal or exceed some other faiths.
According to Pennell, bean pie fund-raising was discontinued because of an institutional
violation that was subject to an investigation. (Id.) There are no fund-raising opportunities for
any faith. (Id.) Inmates may give to charities through their accounts at their discretion. (Id.)
During his deposition, Cole asserted that funds are not distributed equally amongst the
various religions. (Id. at ex. A at 9.) He testified that saw a paper which showed the allocations
of funds to each religious organization, but he does not have this document, cannot recall when
he saw the document, cannot recall the content of the document, who authored it, or to whom it
was sent. (Id. at 9-10.)
Cole seeks the employment of a Muslim clerk. (Id. at ex. A at 22.) He testified that he
uses clerk services that are located at the chapel, that clerks have assisted him, and that he has
never had a problem receiving services. (Id. at ex. A at 22-23.) According to Pennell, there has
never been discrimination of Muslims for paid positions and through the years there inmates of
all faiths have been hired as clerks. (Id. at ex. B.)
Cole testified that he never had access to a typewriter while at VCC, but raised the issue
because he was unaware if other inmates or the Christian community had access to typewriters.
(Id. at ex. A at 23-24.)
Cole filed this lawsuit against Danberg, Pennell, Phelps, and Hosterman in their official
capacities. During his deposition, Cole testified that he named Pennell as a defendant because
"he was the head of the chaplain, head ofreligious organization." (Id. at 9.) Cole is unaware of
any decisions made by Pennell that personally impacted him. (Id. at 9-10.) Cole named
Hosterman as a defendant because he was the head of treatment administration services which
includes religion. (Id. at 10-11.) Cole is unaware of any decisions made by Hosterman that
personally impacted his practice ofreligion. (Id. at 11.) Cole named Phelps as a defendant
because he denied requests for an Eid feast and group gatherings for prayer in the housing units.
(Id. at 13.)
"The court shall grant summary judgment ifthe 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." Fed. R.
Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the clams in question. See Celotex Corp. v. Catrett, 477 U.S.
317 ( 1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 63 7 F .3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams
v. Borough of West Chester, Pa., 891F.2d458, 460-461 (3d Cir. 1989). Pursuant to Rule
56(c )(1 ), a non-moving party asserting that a fact is genuinely disputed must support such an
assertion by: "(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations ... ,
admissions, interrogatory answers, or other materials; or (B) showing that the materials cited [by
the opposing party] do not establish the absence ... of a genuine dispute ... " Fed. R. Civ. P.
56(c )(1 ).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only ifthe evidence is such that a
reasonable jury could return a verdict for the non-moving party. See Anderson, 477 U.S. at 247249. See Matsushita Elec. Indus. Co., 475 U.S. at 586-587 ("Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue
for trial."'). If the nonmoving party fails to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof, the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court will not grant the entry of summary judgment without considering the merits of
the defendants' unopposed motion. Stackhouse v. Mazurkiewicz, 951F.2d29, 30 (3d Cir. 1991)
(holding that a district court should not have granted summary judgment solely on the basis that a
motion for summary judgment was not opposed.").
The defendants are sued only in their official capacities. They move for summary
judgment to the extent that Cole raised claims against them pursuant to 42 U.S.C. § 1983. 2 The
second amended complaint seeks compensatory and punitive damages and declaratory and
The Eleventh Amendment of the United States Constitution protects an unconsenting
state or state agency from a suit brought in federal court by one of its own citizens, regardless of
the relief sought. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974). "[A]
suit against a state official in his or her official capacity is not a suit against the official but rather
is a suit against the official's office. As such, it is no different from a suit against the State
itself." Will v. Michigan Dep 't of State Police, 491 U.S. 58, 71 (1989) (internal citations
omitted); Ali v Howard, 353 F. App'x 667, 672 (3d Cir. 2009) (unpublished). Accordingly,
§ 1983 claims for monetary damages against a state official in his official capacity are barred by
the Eleventh Amendment. See id. In addition, RLUIP A does not allow for the recovery of
The defendants did not move for summary judgment as to the RLUIP A claims.
money damages. See Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012) (RLUIPA does not permit
an action against Defendants in their individual capacities).
However, the Eleventh Amendment permits suits for prospective injunctive relief against
state officials acting in violation of federal law. See Exparte Young, 209 U.S. 123 (1908). "This
standard allows courts to order prospective relief, as well as measures ancillary to appropriate
prospective relief." Frew v. Hawkins, 540 U.S. 431, 437 (2004) (internal citations omitted).
Accordingly, the defendants' motion for summary judgment is granted to the extent that the
defendants, in their official capacities, are immune from suit for all monetary claims and denied
as to the claims seeking injunctive relief for the alleged ongoing violations of RLUIP A and
Cole's constitutional rights as protected by 42 U.S.C. § 1983.
Exhaustion of Administrative Remedies
The defendants move for summary judgment on the grounds that Cole failed to properly
exhaust his administrative remedies as is required by the Prison Litigation Reform Act
("PLRA"). The defendants did not provide any evidence to support their position. The second
amended complaint alleges that all claims were submitted as grievances by either one individual
or several (group grievances) Muslim inmates at the VCC. (D.I. 47, if I.) All grievances were
denied and/or deemed non-grievable. (Id.) Afterwards, the Islamic leadership appealed several
times to each defendant for relief via written correspondence, and they were denied. (Id.)
The PLRA provides that "[n ]o action shall be brought with respect to prison conditions
under section 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted." 42
U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong."). The defendants have the burden of pleading and proving failure to exhaust
administrative remedies as an affirmative defense in a§ 1983 action. Ray v. Kertes, 285 F.3d
287, 295-96 (3d Cir. 2002).
There is no evidence in the record to support the defendants' position that Cole failed to
exhaust his administrative remedies on this issue. A mere affidavit would have sufficed.
Because it is the defendants' burden to prove the exhaustion defense, see Brown v. Croak, 312
F.3d 109, 111 (3d Cir. 2002), the court will deny summary judgment on the grounds of failure to
Statute of Limitations
The defendants argue that Cole's § 1983 claims for discrimination regarding observance
of religious holidays, deprivation of funds, denial of a paid clerk, halal meats, and access to a
typewriter are time-barred. The original complaint was received and docketed on February 3,
2010 and is considered by the court as filed on January 29, 2010. 3
The computation of time for complaints filed by pro se inmates is determined according
to the "mailbox rule." The complaint is deemed filed as of the date it it delivered to prison
officials for mailing to the court. See Houston v. Lack, 487 U.S. 266 (1988) Burns v. Morton,
134 F.3d 109, 112 (3d Cir. 1998); Gibbs v. Decker, 234 F. Supp. 2d 458, 463 (D. Del. 2002).
The original complaint is dated November 20, 2009, and the envelope it was mailed in is postmarked February 2, 2010. Therefore, the original complaint was delivered to prison authorities
for mailing some time between November 20, 2009 when it is dated, and February 2, 2010, the
date of the postmark of its envelope. No explanation is provided for the lengthy delay from the
time the original complaint is dated until it was mailed. Therefore, the court relies upon Fed. R.
Civ. P. 6(d) in the computation of time and adds three days prior to the February 2, 2010
postmark, that date being Saturday, January 30, 2010. Because January 30, 2010 falls on a
Saturday, the court considers that the original complaint was delivered to prison officials in
Delaware for mailing on Friday, January 29, 2010.
For purposes of the statute of limitations, § 1983 claims are characterized as personal
injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1983). In Delaware,§ 1983 claims are
subject to a two-year limitations period. See 10 Del. C. § 8119; Johnson v. Cullen, 925 F. Supp.
244, 248 (D. Del. 1996). Section 1983 claims accrue "when plaintiff knows or has reason to
know of the injury that forms the basis of his or her cause of action." Id. Claims not filed within
the two-year statute of limitations period are time-barred and must be dismissed. See Smith v.
State, 2001 WL 845654, at *2 (D. Del. July 24, 2001).
RLUIPA does not contain its own statute of limitations period. 4 However, for civil
actions "arising under an Act of Congress enacted after [December 1, 1990]," the appropriate
limitations period is four years. 28 U.S.C. § 1658 (2006); Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382 (2004) (holding that four year statute oflimitations applies ifthe plaintiffs
claim against the defendant was made possible by a post-1990 enactment). See also First Korean
Church ofN.Y., Inc. v. Cheltenham Twp. Zoning Hearing Bd. & Cheltenham Twp., 2012 WL
645992 (E.D. Pa. Feb. 29, 2012) (explaining, "courts have applied the four-year catch-all statute
of limitations of 28 U.S.C. § 1658(a) to RLUIPA claims"), aff'd, 2013 WL 362819 (3d Cir. Jan.
If a defendant's conduct is part of a continuing practice, an action is timely so long as the
last act evidencing the continuing pattern falls within the limitations period. Brenner v. Local,
514, 927 F.2d 1283, 1295 (3d Cir. 1991). "[T]he "continuing violation doctrine" focuses on
"affirmative acts of a defendant," and is not "a means for relieving plaintiffs from their duty to
The defendants did not address RLUIPA's statute of limitations.
exercise reasonable diligence in pursuing their claims." 5 Cowell v. Palmer Twp., 263 F.3d 286,
293, 295 (3d Cir. 2001). The continuing violations doctrine is an "equitable exception to the
timely filing requirement." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). It is
well-settled that the continuing violations doctrine "will not stop the ticking of the limitations
clock [once] plaintiff obtained requisite information [to state a claim]. On discovering an injury
and its cause, a claimant must choose to sue or forego that remedy." Barnes v. American
Tobacco Co., 161F.3d127, 154 (3d Cir. 1998) (quoting Kichline v. Consolidated Rail Corp.,
800 F.2d 356, 360 (3d Cir. 1986)); see also Lake v. Arnold, 232 F.3d 360, 366-68 (3d Cir. 2000).
Here, Cole does not allege that he was unaware of the alleged wrongs that occurred in
2004 and 2006. Thus, he was on notice of his alleged injuries stemming from the occurrences in
those years before this action was filed in January 2010. Hence, the claims that are time-barred
include the § 1983 claims that: (1) Hosterman implemented procedures that prevented Cole from
observing Eid al-Fitr and Eid al-Adha when, in 2004, Hosterman stopped food from being
brought in by guests and instead ordered the kitchen staff to prepare cake and juice (D.I. 47,
I.A.); and (2) two years later (i.e., 2006), Hosterman stopped cake and juice from being served
and ordered the Islamic community to attend evening chow as a group to take the place of a feast
and, following the meal, the Muslim inmate was allowed a special visit with family and friends
LB.). In addition, the RLUIP A claims based upon the 2004 allegations are time-barred.
However, because it is not clear on what date the 2006 claims accrued, the court cannot say that
the 2006 RLUIP A claims are also time-barred.
The defendants do not address the continuing violation doctrine and, instead, discuss
For these reasons, the court will grant the defendants' motion for summary judgment for
the§ 1983 claims predating January 29, 2008 and the RLUIPA claims predating January 29,
2006 as time-barred.
Cole raises free exercise of religion, equal protection, and RLUIP A claims. When
bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal
right, and that the person who caused the deprivation acted under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). When a prisoner claims that his right to exercise religion has
been curtailed, a court must determine as a threshold matter whether the prisoner has alleged a
belief that is "both sincerely held and religious in nature." De Hart v. Horn, 227 F .3d 4 7, 51 (3d
Cir. 2000). If so, the court must then apply the four-factor test set forth in Turner v. Safley, 482
U.S. 78 (1987), to determine whether the curtailment at issue is "reasonably related to
penological interests." 6 DeHart, 227 F.3d at 51.
Four factors determine whether a prison regulation rationally relates to legitimate
penological objectives. Turner v. Safley, 482 U.S. 78, 89-91 (1987)). First, there must be a
"valid, rational connection" between the regulation and the legitimate governmental interest put
forward to justify it. Id. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second,
where inmates have alternative means of exercising the asserted right, courts should be
"particularly conscious" of the deference owed to corrections officials in establishing prison
regulations. Id. at 90. Third, if accommodation of the asserted right will have a significant effect
on other inmates, prison staff, or the allocation of prison resources, courts should be particularly
deferential to the informed decisions of corrections officials. Id. Fourth, an absence ofready
alternatives is evidence of the reasonableness of a regulation. Id. The burden of persuasion in
challenging the reasonableness of a prison regulation ultimately rests on the inmate, but the
prison has the "slight" burden of demonstrating the first Turner factor. See Sharp v. Johnson,
669 F .3d at 156 ..
Cole also raises claims under RLUIP A, alleging a "substantial burden on [his] religious
exercise." 42 U.S.C. § 2000cc-1. Under RLUIPA, "[a] plaintiff-inmate bears the burden to show
that a prison institution's policy or official practice has substantially burdened the practice of that
inmate's religion." Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007). "A substantial
burden exists where: "1) a follower is forced to choose between following the precepts of his
religion and forfeiting benefits otherwise generally available to other inmates versus abandoning
one of the precepts of his religion in order to receive a benefit; OR 2) the government puts
substantial pressure on an adherent to substantially modify his behavior and to violate his
beliefs." Heleva v. Kramer, 330 F. App'x 406, 409 (3d Cir. 2009) (unpublished) (quoting
Washington v. Klem, 497 F.3d at 280). If a plaintiff shows that prison administrators' action or
inaction has imposed a substantial burden on the exercise of his religion, the administrator must
establish that the challenged conduct furthers a compelling governmental interest and that it is
the least restrictive means of furthering that interest. Washington, 497 F .3d at 283.
The record as it now stands, does not provide facts upon which the court can evaluate the
Turner factors. Indeed, there is scant evidence regarding the prison policies at issue and the
governmental interest put forward to justify them. The record is also void of evidence to enable
the court to determine whether Cole's rights were substantially burdened under RLUIPA.
Because the court cannot conduct a proper Turner or RLUIP A analysis, the motion for summary
judgment will be denied without prejudice to renew to further develop the record. See Daley v.
Lappin, 2014 WL 306932, at *3-4 (3d Cir. Jan. 29, 2014).
For the above stated reasons, the court will grant in part and deny in part the defendants'
motion for summary judgment. (D.I. 67.) The defendants' motion for summary judgment will
be: (1) granted to the extent that the defendants, in their official capacities, are immune from suit
for all monetary claims and denied as to the claims seeking injunctive relief for the alleged
ongoing violations ofRLUIPA and Cole's constitutional rights as protected by 42 U.S.C. § 1983;
(2) granted as to 42 U.S.C. § 1983 claims predating January 29, 2008 and RLUIPA claims
predating January 29, 2006 as they are time-barred; and (3) denied in all other respects. The
parties will be given leave to file renewed motions for summary judgment.
An appropriate order will be entered.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?