McCoy (ID 76894) v. Aramark Correctional Services et al

Filing 121

MEMORANDUM AND ORDER denying 72 plaintiff's Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 09/19/2018. Mailed to pro se party Deron McCoy, Jr. by regular mail. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, JR.,
Plaintiff,
v.

Case No. 16-3027

ARAMARK CORRECTIONAL SERVICES,
et al.,
Defendants.

MEMORANDUM & ORDER
This matter comes before the court upon plaintiff DeRon McCoy, Jr.’s Motion For Summary
Judgment Against Defendant Cheryl Allen (Doc. 72). Under Fed. R. Civ. P. 56, plaintiff moves for
summary judgment because he claims he has proven as a matter of law that defendant Allen violated his
constitutional rights and no issues of material fact remain. For the reasons explained below, plaintiff’s
motion is denied.
I.

Background

Plaintiff’s Third Amended Complaint, filed June 14, 2017, claims that plaintiff’s First
Amendment right to practice his religion was violated when he sought and was refused kosher meals
that would comply with his sincerely held Orthodox Jewish religious beliefs. Plaintiff brought claims
under 42 U.S.C. § 1983 and pursuant to the Religious Land Use and Institutionalized Persons Act of
2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc-5 against various defendants, including defendant
Allen. Defendant Allen is employed by the Kansas Department of Corrections (“KDOC”) as a dietician.
II.

Legal Standards
a. Pro Se Litigants

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Where a plaintiff proceeds pro se, the court construes his filings liberally and holds them to less
stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 F. App’x 600,
601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the Federal and Local Rules
of practice and the court does not assume the role of advocating for plaintiff. United States v. Porath,
553 F. App’x 802, 803 (10th Cir. 2014).
b. Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no genuine
issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th
Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The party moving for summary judgment has the burden to show “the lack of a genuine issue of
material fact.” Ascend Media Prof’l Servs., LLC v. Eaton Hall Corp., 531 F. Supp. 2d 1288, 1295 (D.
Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden
then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.”
Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986))).
The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation,
or on suspicion and may not escape summary judgment in the mere hope that something will turn up at
trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by
referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find

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for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F. Supp. 2d at 1295 (citing Adams v. Am.
Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a “disfavored
procedural shortcut”—it is an “integral part of the Federal Rules as a whole, which are designed to secure
the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting
Fed. R. Civ. P. 1).
III.

Discussion

Plaintiff’s argument that he is entitled to summary judgment centers largely on his belief that the
Martinez report proves that defendant Allen worked with other named defendants to develop and
implement the Certified Religious Diet (“CRD”) menu in various KDOC facilities, and that the CRD
menu as implemented, violates his First Amendment right to practice his Orthodox Jewish beliefs.
Plaintiff wants to receive TV-dinner style prepackaged meals, instead of the CRD meals.
Plaintiff’s reliance on the Martinez report is based more specifically on the KDOC Internal
Management Policy and Procedure (“IMAP”) 10-106 titled “Standardized Menu, Ensuring Nutritional
Adequacy of Diets, and Meal Service Schedules” (Doc. 41-4, at 1–8) and IMAP 10-119 titled “Medical
and Religious Diets and Vegetarian Alternative Diet” (Doc. 41-5, at 1–9). These documents explain the
procedures that are followed to establish and implement meals in KDOC facilities. Because the
documents refer to KDOC’s dietician and that position’s responsibilities, plaintiff argues that defendant
Allen, who is or was a KDOC dietitian when he filed this case, is responsible for the alleged violation
of his rights.
But at the summary judgment stage, unlike at the motion to dismiss or motion for judgment on
the pleadings stage of the case, plaintiff bears the burden of arguing and proving his case. There are
various issues of fact and law that remain. For example, to prevail on both his RLUIPA and § 1983
claims, plaintiff must prove the sincerity of his alleged religious beliefs. In the various motions already

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decided by the court in this case, defendants have presented evidence that brings the sincerity of
defendant’s religious beliefs into question. Plaintiff has changed his religious preferences multiple times
in recent years. Defendants have also presented evidence that plaintiff purchases non-Kosher items from
the commissary.
Likewise, the Martinez report raises an issue of material fact as to whether plaintiff’s rights were
ever violated. The KDOC policies plaintiff relies on show that a Rabbi signed off on the CRD menu,
certifying that it is Kosher.

Although the Rabbi was not responsible for ensuring that Kosher

requirements were in fact implemented, the Martinez report provides evidence that they were.
The procedures outlined in the Martinez report require KDOC facilities to comply with all Kosher
meal preparation requirements. For example, separate trays are to be used, food and supplies are to be
stored and prepared in separate areas from non-Kosher meals, and no meat is to be served. The report
likewise reports that these procedures are in fact implemented at Lansing Correctional Facility—the
facility where plaintiff was housed when the report was drafted. The Martinez report outlines several
unannounced site visits, during which defendant Patricia Berry, KDOC’s food service contract manager,
investigated whether food was being stored and prepared in compliance with KDOC policies.
As defendant Allen argues, plaintiff’s statement of uncontroverted facts is largely supported only
by his own affidavits or allegations. This case has not proceeded to discovery, but the evidence that is
available—largely the Martinez report—raises issues of material fact about plaintiff’s allegations.
Defendant Allen states that “[t]he only role [she] used to have regarding the Kansas correctional facilities
was to review meal menus and determine that they had appropriate nutritional and caloric content,
consistent with her professional training and her contract with the Department.” If this statement is true,
then defendant Allen had nothing to do with whether plaintiff received Kosher meals. She was
responsible only for determining whether the menus provided to her provided adequate nutrition to

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inmates. The court agrees that an issue of material fact remains about whether defendant Allen was
involved at all in any potential violation of plaintiff’s constitutional rights, or any substantial
government-induced burden on his free exercise of religion.
While plaintiff’s allegations were sufficient to survive a motion to dismiss and a motion for
judgment on the pleadings, he has not shown that he is entitled judgment as a matter of law against
defendant Allen. Because various material issues of fact and law remain, plaintiff’s motion is denied.
IT IS THEREFORE ORDERED that plaintiff’s Motion For Summary Judgment Against
Defendant Allen (Doc. 72) is denied.
Dated September 19, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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