Paynter et al v. Danberg et al
Filing
87
MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 9/14/2015. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD COLE,
Plaintiff,
v.
COMMISSIONER CARL DANBERG,
et al.,
Defendants.
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) Civ. Action No. 10-088-GMS
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MEMORANDUM OPINION
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 pauper is pursuant to
28 U.S.C. § 1915. (D.I. 11.)
I.
PROCEDURAL AND FACTUAL BACKGROUND
A.
Procedural 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, as
follows: (1) Count 1, denial of the right to observe Islamic holidays; 1 (2) Count 2, denial of
religious fundraising; (3) Count 3, denial of the right to congregational prayers; and (4) Count 4,
1
0n June 6, 2014, the defendants were granted summary judgment on all 42 U.S.C.
§ 1983 claims that predate January 29, 2008 and all RLUIPA claims that predate January 29,
2006, as time-barred. The time-barred claims include all claims raised in Count 1, the denial of
the right to observe Islamic holidays. Notably, the record reflects that Muslim inmates at the
VCC celebrate religious holidays including Ramadan, Eid-ul-Fitr, and Eid al-Adha. (See D.I. 38,
ex. A; D.I. 68, ex. A at 19 and ex. B; D.I. 83, ex. C.)
religious discrimination. The defendants are sued only in their official capacities. The second
amended complaint seeks declaratory and injunctive relief. 2
The remaining defendants Carl Danberg ("Danberg"), Perry Phelps ("Phelps"), Frank
Pennell ("Pennell"), and Ron Hosterman ("Hosterman") move for summary judgment (D.I. 80)
on the grounds that: (1) the evidence does not contain any genuine issues as to whether Cole's
rights were violated under either 42 U.S.C. § 1983 or RLUIPA; (2) Cole failed to establish
discrimination with regard to the Muslim clerk claim; (3) Cole failed to provided a basis for the
denial of access to a typewriter discrimination claim; (4) Cole failed to show that the policy
concerning prayer or time for religious services places a substantial burden on the exercise of his
religion; (5) the policy prohibiting institutional accounts and fundraising does not place a
substantial burden on Cole's exercise ofreligion; and (6) Cole has failed to show that funds for
religious groups are not distributed equally. 3 (D.I. 81.) Cole opposes the motion. 4 (D.I. 83.)
B.
Factual Background
Cole has been a practicing Muslim since 1996. (D.I. 68, ex. A at 18.) He has a prayer
rug and a Qur'an, but no longer owns a kufi having given it away. (Id. at 17.)
2
0n June 6, 2014, the court granted the defendants' motion for summary judgment on the
42 U.S.C. § 1983 and RLUIPA monetary claims raised against them in their official capacities.
(D.I. 72.)
3
While the defendants move for summary on this issue, it is nowhere to be seen in the
second amended complaint and Cole did not mention the issue in his opposition to the motion for
summary judgment. The court will not analyze the issue as Cole seeks no relief with regard to
distribution of funds to religious groups.
4
Cole indicates that he was unable to produce documents because he was denied access to
the office that contained all his records, grievances, etc. (See D.I. 83 at 7, exs. A-C.)
2
On May 28, 2009, Phelps approved and/or authorized: (1) each faith practice to give to
charities, offerings and/or tithes through their own giving; (2) bean pies for purchase through the
commissary; and (3) Eid-ul-Fitr5 and Eid al-Adha. 6 (D.I. 83, ex. C.) A request for an Eid feast
was denied. 7 (D.I. 68, ex. A at 13.) On the same date, Phelps denied: (1) approval to sell items
or pursue fundraisers; (2) approval to have Islamic oils and siwak; 8 and (3) the use of outside
food or special Islamic inmates to prepare food. (Id.)
According to Pennell, bean pie fund-raising was discontinued because of an institutional
violation that was subject to an investigation. (Id.) According to Hosterman, the policy was
discontinued due to .issues with fraud and theft associated with fundraising and institutional
accounts for groups at the VCC. (D.I. 82.) There are no fundraising opportunities for any faith.
(D.I. 68, ex. B.) Inmates may give to charities through their accounts at their discretion. (Id.)
A VCC policy does not allow inmates to congregate in the housing units for any purpose.
(Id. at ex. B) According to Cole, congregational prayer benefits his religion because when
praying together you receive "27 more times more blessings." (D.I. 68, ex. A at 14.) Inmates
may gather for prayer on Fridays at Jummah and on Saturday at Taleem services. (Id. at ex. B.)
5
An important religious holiday celebrated by Muslims that marks the end of Ramadan,
the Islamic holy month of fasting. See https://en.wikipedia.org/wiki/Eid_al-Fitr (Aug. 6, 2015).
6
The second of two religious holidays celebrated by Muslims each year. See https://en.
wikipedia.org/wiki/Eid_al-Adha (Aug. 6, 2015).
7
Eid means festival or holiday in Arabic, but without a full name most likely refers to Eid
al-Fitr. See https://en.wikipedia.org/wiki/Eid (Aug. 12, 2015).
8
A stick obtained from a plant that grows around Mecca and the Middle East area that is
widely used among Muslims to clean their teeth. See http://www.missionislam.com/health/
siwak.htm (Aug. 11, 2015).
3
Cole testified that he attends services on Fridays and Saturdays for a group gathering of prayer.
(Id at ex. A, 13-14.) A May 3, 2011 memo authored by Pennell that discusses the denial of a
request for a congregational prayer schedule, states that the security, operational needs, facility
management and movement at the VCC take priority. (D.I. 38, ex. A.) The memo points out the
authorization of congregational prayer after breakfast and before evening meal during the month
of Ramadan. (Id.) It also refers to weekly congregational prayer at Jummah and Taleem
services. (Id.) In the memo, Pennell advises inmates that they may make up their prayers at the
end of each day during the last prayer time or throughout the day as opportunity affords. (Id.)
The memo concludes with "classes, studies, programs, etc. have been granted to all recognized
faiths within security requirements and operational needs." (Id.)
Cole testified that the meat served is not Halal and this contradicts his religious beliefs.
(Id. at 20.) Other things are served, such as fish on Fridays, vegetables and bread, but nothing
that replaces the meats. (Id. at 19-21) Cole testified that the Qur'an does not state he should be a
vegetarian, but for him to eat meats and fish; that is "everything under the sun except for swine."
(Id.)
According to Pennell, inmates are offered a yearly seminar. The seminar is universal and
may be attended-by inmates of all faiths. (D.I. 68, ex. B.) Over the years, inmates of all faiths
have attended and offered their input in the seminars. (Id.) In addition, the Muslim community
has various classes, programs, and services that equal or exceed some other faiths. (Id.)
According to Hosterman, the VCC makes efforts to have all services start and end on
time. (D.I. 82.) The timing of all services is subject to the operation and security conditions at
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that time. (Id.) Because institutional conditions are not static, the schedule must be flexible to
ensure the facility is safe and secure. (Id.)
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.) Cole does not know how the
clerks are selected. (Id. at ex. A at 23.) According to Pennell, there has never been
discrimination of Muslims for paid positions and, through the years, inmates of all faiths have
worked as clerks. (Id. at ex. B.) Hosterman states that clerks are not chosen to serve inmates of
their faith, but are chosen to work for the VCC and to perform duties as needed for the facility.
(D.I. 82.) The clerks are hired for the entire inmate population. (D.I. 68, ex. B.)
Cole testified that he has not had access to a typewriter while at VCC, and he does not
know if other inmates have access to a typewriter. (D.I. 68, ex. A at 23 .) He wants the use of a
typewriter for memos and for a proper letterhead. (Id.) Cole does not know ifthe Christian
community has access to typewriters. (Id. at 24.) According to Hosterman, typewriters are
reserved for employees and inmate workers. (D.I. 82.)
II.
LEGALSTANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." 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
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to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 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., 891 F.2d 458, 460-461 (3d Cir. 1989). Pursuant to Rule
56(c)(l), 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)(l).
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.
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III.
DISCUSSION
The First Amendment's protection of the right to exercise religious beliefs extends to all
citizens, including inmates. O'Lone v. Estate ofShabazz, 482 U.S. 342, 348 (1987). Cole raises
free exercise ofreligion, RLUIPA, and religious discrimination claims. Cole's free exercise and
equal protection claims required him to prove that the defendants' conduct was not "reasonably
related to legitimate penological interests" under the four factor test set forth in Turner v. Safley,
482 U.S. 78, 89 (1987). See DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000) (The Turner
analysis is "equally applicable" to equal protection claims.).
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." DeHart, 227 F. 3d at 51. If so, the court must then apply the fourfactor test set forth in Turner v. Safley, to determine whether the curtailment at issue is
"reasonably related to penological interests." Id. Four factors determine whether a prison
regulation that infringes on an inmate's First Amendment rights is reasonable and, therefore,
constitutionally valid. First, is there "a 'valid, rational connection' between the prison regulation
and the legitimate governmental interest put forward to justify it[?]." Turner, 482 U.S. at 89.
Second, are there "alternative means of exercising the right that remain open to prison
inmates[?]" Id. at 90. Third, what "the impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the allocation of prison resources
generally[?]" Id. And fourth, do there exist "obvious, easy alternatives" suggesting that the
regulation is "an 'exaggerated response' to prison concerns[?]" Id. The burden of persuasion in
challenging the reasonableness of a prison regulation ultimately rests on the inmate, but the
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prison has the "slight" burden of demonstrating the first Turner factor. See Sharp v. Johnson,
669 F.3d 144, 156 (3d Cir. 2012), cert. denied, _U.S._, 133 S.Ct. 41 (2012).
Cole also raises claims under RLUIPA. See 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: "l) 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
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