Baumgarten III v. Howard County Department of Corrections et al

Filing 16

MEMORANDUM. Signed by Judge J. Frederick Motz on 3/6/14. (c/m apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSEPH L. BAUMGARTEN, III,

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Plaintiff

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v

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HOWARD COUNTY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants

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Civil Action No. JFM-13-1493

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MEMORANDUM
Pending is self-represented plaintiff Joseph L. Baumgarten, III’s complaint under 42
U.S.C. § 1983 (ECF No. 1). Defendants Howard County Department of Corrections, Jack
Kavanagh, and Officer Ogunsola, by counsel, have filed a motion to dismiss. ECF No. 7.
Baumgarten has responded1 (ECF Nos. 12 & 15) and defendants have replied (ECF No. 13). No
hearing is needed to resolve the issues presented. See Local Rule 106.5 (D. Md. 2011). For
reasons to follow defendants’ motion to dismiss IS GRANTED IN PART AND DENIED IN
PART.
BACKGROUND
In this complaint, Baumgarten, currently confined at the Maryland Reception and
Diagnostic Center in Baltimore, Maryland, claims defendants hindered his religious practice
while he was a detainee at the Howard County Detention Center. Baumgarten, who identifies
himself as member of the Jewish faith alleges that he was repeatedly denied Kosher meals while
housed at the Howard County Detention Center. ECF No. 1. As redress, he seeks monetary
damages. Id.

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Plaintiff’s motion for extension of time to file a response (ECF No. 9) shall be granted nunc pro tunc.

I.

Background
This court reviews the facts and all reasonable inferences in the light most favorable to

the nonmoving party. See Scott v. Harris, 550 U.S. 372, 378 (2007); Erickson v. Pardus, 551
U.S. 89, 94 (2007). That review liberally construes plaintiff’s pleadings in light of the fact that
he is proceeding pro se.
Baumgarten, claims that on February 3, 2013, he wrote to Howard County Department of
Corrections for “repeatedly giving [him] non-Kosher food.” He was advised on February 13,
2013 that “it [would] be sorted out.” On March 29, 2013, he again wrote to the Department of
Corrections indicating he was still not being served Kosher food. He received a response on
April 8, 2013, indicating that “Due to the issues/work being done in the kitchen during this time
period...everyone received bag meals. This was an unavoidable situation.” ECF No. 1.
Baumgarten further alleges that on April 8, 2013, at breakfast he was given a regular
meal. Lt. Glover advised him that a Kosher meal was not available but they could substitute a
lunch or a dinner for a breakfast meal. Baumgarten states he never received the substitute meal.
Baumgarten states that the response to his grievance was that dietary indicated he had received a
Kosher breakfast. An additional Kosher breakfast was ordered and “should” be delivered in a
few days. Id.
On April 10, 2013, Baumgarten states that Defendant Ogunsola was handing out
breakfast when Baumgarten advised him that he was to get a juice with breakfast. Ogunsola
advised that he would need to verify plaintiff’s statements. He took the tray and returned with
another non-Kosher meal which looked like it had been “thrown across the room.” The response

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to Baumgarten’s grievance was that “this was an unfortunate incident. Measures are being taken
to ensure this doesn’t happen again.” Id.
Baumgarten avers that he personally spoke with Kavanagh who indicated he would meet
Baumgarten’s religious needs for Kosher meals and advised Baumgarten to stop filing
grievances regarding the issue. ECF No. 12. Baumgarten has also provided the court several,
but not all, of the grievances he filed regarding his efforts to be provided Kosher meals. Id.,
Exhibits. The grievance dated February 3, 2013, specified that Baumgarten is Jewish. He states
that he has been at the detention center since January 18, 2013. The grievance is difficult to read
but appears to indicate that despite it being noted he was to get a Kosher meal he had not been
provided one for approximately a week. The response to the grievance indicates that someone
met with Baumgarten and “a number of the issues (or ‘failures’) have been addressed. At a
meeting it was determined the tray would be Styrofoam. Otherwise items on the menu have been
reviewed for the proper kosher markings.” Id.
The next grievance form provided by Baumgarten, dated March 29, 2013, indicates that
he had lost 30 pounds since his arrival at the Detention Center and was continuing to have
difficulty receiving the approved Kosher meals. Id., p. 2. The notes regarding efforts at informal
resolution indicate, “Ms. Johnson said he get regular meal!”(sic) Further review indicated that
there was work being done in the kitchen which resulted in everyone getting bagged meals and
“the situation was unavoidable.” Id.
In a grievance dated April 8, 2013, Baumgarten indicated he failed to receive a Kosher
breakfast meal. Despite being advised a substitute would be provided, none was. Further review
indicated that Ms. Anthony in dietary stated Baumgarten had received a Kosher breakfast and

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that additional kosher breakfasts had not been ordered but should be delivered in a few days. Id.,
p. 3. The grievance dated April 10, 2013, is illegible but the response indicates “an unfortunate
incident. Measures are being taken to ensure this doesn’t happen again.” Id., p. 4. Baumgarten
indicates he filed other complaints but does not have copies of same. Id.
STANDARD OF REVIEW
Defendants seek to dismiss plaintiff=s action pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.

In reviewing the complaint, the court accepts all well-pleaded

allegations of the complaint as true and construes the facts and reasonable inferences derived
therefrom in the light most favorable to the plaintiff.2 Venkatraman v. REI Sys., Inc., 417 F.3d
418, 420 (4th Cir. 2005); Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997); Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Rule 8(a)(2) of the Federal Rules of
Civil Procedure requires only a Ashort and plain statement of the claim showing that the pleader
is entitled to relief.@ Migdal v. Rowe Price-Fleming Int=l Inc., 248 F.3d 321, 325-26 (4th Cir.
2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (stating that a complaint
need only satisfy the Asimplified pleading standard@ of Rule 8(a)).
The Supreme Court of the United States has explained that a Aplaintiff=s obligation to
provide the >grounds= of his >entitlement to relief= requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.@ Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (internal citations omitted). Nonetheless, the complaint does not
need Adetailed factual allegations@ to survive a motion to dismiss. Id. at 555. Instead, Aonce a
claim has been stated adequately, it may be supported by showing any set of facts consistent with

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Because plaintiff is self-represented, his filings are “liberally construed” and “‘held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

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the allegations in the complaint.@ Id. at 555.
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S.662, 677-8 (2009) (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “But where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’ ” Id. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
Defendants argue that Baumgarten has failed to allege facts to demonstrate a policy or
custom of the County is the “moving force” behind the violation of rights as required under
Monell v. New York Dep’t of Social Servs., 436 U.S. 658, 694 (1978). Defendants argue that
plaintiff has only pointed to isolated incidents which are insufficient to support a Monell claim.
ECF No. 7.
Additionally, defendants argue that Baumgarten has failed to allege sufficient facts
showing Director Kavanagh had direct involvement in the facts alleged. Further, Officer
Ogunsola argues that his delivery of a food tray on one occasion is insufficient to show Ogunsola
deprived Baumgarten of his constitutional rights. Id.
Lastly, Defendants argue that Baumgarten has failed to allege a constitutional violation
and instead claim that Baumgarten alleges he wanted a particular meal and did not receive same
on four occasions. They argue he has failed to allege he required a kosher meal for religious
purposes and has failed to allege facts that show how the meal was not Kosher. Defendants
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indicate that “for instance, lacto-ovo vegetarian meals are available and wholly kosher, even if
not labeled a ‘kosher’ meal.” ECF No. 7, p. 3. Defendants note cases where courts have found
no violation of federal or constitutional rights where a prison system does not provide a special
kosher meals as an institutional policy. Id., p. 4.
ANALYSIS
The complaint is filed pursuant to 42 U.S.C. § 1983, which “ ‘ is not itself a source of
substantive rights,’ but provides ‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979)). A suit under § 1983 allows “a party who has been deprived of a federal right under the
color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege that: (1) a right
secured by the Constitution or laws of the United States was violated, and (2) that the alleged
violation was committed by a person acting under the color of state law. West v. Atkins, 487
U.S. 42, 48 (1988).
The Free Exercise Clause of the First Amendment applies to the states by virtue of the
Fourteenth Amendment. See Employment Division v. Smith, 494 U.S. 872, 876-77 (1990). It
provides that “Congress shall make no law ... prohibiting the free exercise” of religion. U.S.
Const. Amend. I. A prisoner, however, does not enjoy the full range of freedoms as those not
incarcerated; rather, state action violates a prisoner's constitutional rights if it burdens a
prisoner's religious rights and is not reasonably related to a legitimate penological interest. See
Turner v. Safley, 482 U.S. 78, 89 (1987). Lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction justified by the considerations

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underlying our penal system.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Inmates
retain a right to reasonable opportunities for free exercise of religious beliefs without concern for
the possibility of punishment. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). That right is not
unfettered. Prison restrictions that impact on the free exercise of religion but are related to
legitimate penological objectives do not run afoul of the constitution. See Turner, 482 U.S. at 8991.
The test to determine if the restrictions are justified requires examination of whether there
is a rational relation between the asserted governmental interest and the regulation in question. In
addition, this court must examine: whether there are alternative means of exercising the right
asserted; whether accommodation of the right will impact on the orderly operations of the prison;
and whether readily available alternatives to the regulation would be less restrictive. See id.
An additional consideration in this case is the standard provided by the Religious Land
Use and Institutionalized Persons Act (RLUIPA). The Act provides in part that:
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution ... even if the
burden results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person-(1) is in
furtherance of a compelling government interest; and (2) is the least
restrictive means of furthering that compelling government interest.
42 U.S.C. § 2000cc-1(a). RLUIPA establishes a statutory protection for the free exercise of
religion that exceeds the requirements of the Free Exercise Clause of the First Amendment. See
Madison v. Virginia, 474 F.3d 118, 127 (4th Cir.2006) (stating that RLUIPA “requires the States
to provide prisoners with religious accommodations that are not compelled by the Constitution”).
“‘RLUIPA adopts a ... strict scrutiny’ standard.” Couch v. Jabe, 679 F.3d 197, 203 (4th Cir.
2012) (quoting Lovelace v. Lee, 472 F.3d 174, 198 n. 8 (4th Cir. 2006)). Under RLUIPA, the
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“plaintiff bears the burden of persuasion on whether the policy or practice substantially burdens
his exercise of religion. If the plaintiff satisfies this requirement, the government must then prove
that the challenged policy is the least restrictive means of furthering a compelling governmental
interest.” Couch, 679 F.3d at 200 (internal citations omitted).
Baumgarten alleges that he is Jewish.

A reasonable inference from the documents

presented is that a requirement of his religion is he eats Kosher meals and that he was in fact
approved for same. He alleges, however, he was repeatedly--not simply on four occasions-denied a Kosher meal. He indicates that he was unable to eat and lost a substantial amount of
weight in a relatively short period of time. Baumgarten claims he was denied a religious meal
regularly over the several months he was detained at the Detention Center and despite his efforts
to resolve the problem, insufficient corrective action was taken. If the evidence supports a
finding that the deprivations were isolated incidents rather than a custom or policy,
Baumgarten’s claim may fail. Such evidence, is however, not before the court.
Similarly, defendants may be correct in their assertion that a correctional facility may
escape liability in denying religious meal accommodations based on security or financial
concerns.

Defendants, however, have provided no information regarding their policy for

providing or denying religious meals to inmates at the detention center. Their bald statement that
a lacto—ovo vegetarian diet is sufficient to fulfill Baumgarten’s religious dietary requirements,
is unsupported by an affidavit to that effect, or any documentation that Baumgarten was actually
provided a lacto-ovo vegetarian diet.
While the court agrees that Baumgarten has failed to set out sufficient facts as to
Defendant Ogunsola who simply delivered a meal tray to Baumgarten on one occasion, the court

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disagrees that Baumgarten has failed to state a claim regarding the remaining defendants. In
light of the foregoing, the court finds Baumgarten has alleged sufficient facts to withstand
defendants’ Kavanagh and Howard County Department of Correction’s motion to dismiss.
Ogunsola’s motion to dismiss shall be granted. A separate Order follows.

Date

_/s/________________________________
J. Frederick Motz
United States District Judge

March 6, 2014

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