Horton et al v. State of Maryland et al

Filing 41

MEMORANDUM. Signed by Judge J. Frederick Motz on 6/23/2015. (c/m 6/24/2015)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRUCE W. KOENIG, #288937
Plaintiff,
v.

*
* CIVIL ACTION NO. JFM-13-3911

STATE OF MARYLAND, et al.
Defendants.

*
*****

MEMORANDUM
Procedural History
The original complaint for injunctive relief and damages was received for filing on
December 26, 2013. The remaining plaintiff1 alleges that he converted to Judaism and that
defendants at the North Branch Correctional Institution (“NBCI”) changed the kosher diet
menus, by removing all meat and replacing it with a 100% vegetarian diet. He contends that the
policy change was made to discourage inmates from signing up for the kosher diet and has acted
to limit the number of kosher diet entrees served. Plaintiff further alleges that half of the kosher
entrees served are “so foul smelling and tasting as to be inedible” and the meals are never served
hot. ECF No. 1.

He next claims that the areas where the meals are cooked and trays are

prepared at NBCI are unsanitary. Plaintiff additionally asserts that from April to December of
2013, defendants acted to openly voice their hatred of the Jewish religion and have discriminated
against Jewish inmates by not serving them desserts and condiments available to other NBCI
inmates. Plaintiff also contends that he has been targeted for “desecration” of his religious diet
tray. He further claims that his administrative remedy procedure (“ARP”) grievance forms were

1

On June 27, 2014, plaintiff Larry Horton was dismissed from the complaint for the failure
to comply with court order. ECF No. 15.

thrown away instead of being given to appropriate staff. In his amended complaint, plaintiff
additionally alleges that religious study sessions are only authorized to occur once a month and
are often cancelled and religious texts are unavailable.2

ECF No. 10. He alleges violations

under 42 U.S.C. § 1983 and the “substantial burdening [of his] religious exercise” under the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). ECF Nos. 1 & 10.
On October 24, 2014, defendants filed a motion to dismiss or, in the alternative, motion
for summary judgment. ECF No. 28. Although afforded several extensions of time, plaintiff has
not filed a response.3 The case is ready for consideration and defendants’ motion, construed as a
motion for summary judgment, may be resolved without oral hearing.

See Local Rule 105.6.

(D. Md. 2014).
Standard of Review
Because matters outside the pleadings will be considered, defendants’ motion shall be
treated as a motion for summary judgment. Summary judgment is governed by Fed. R. Civ. P.
56(a), which provides that: “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 of law.” The Supreme Court has clarified that this does not mean that any factual dispute
will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.

2

An amended complaint was received for filing on February 11, 2014. ECF No. 10. The
document reiterates the claims raises in the original complaint and seeks to add the names of two other
inmates as parties. Leave to amend to add these two individuals as plaintiffs was denied. ECF No. 15.
3

Plaintiff was granted three separate extensions and was to file an opposition by May 7,
2015. Plaintiff has been provided over seven months to file a response and has not filed an opposition.

2

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
The “party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
The court should “view the evidence in the light most favorable to ... the nonmovant, and draw
all reasonable inferences in [his] favor without weighing the evidence or assessing the witness'
credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644–45 (4th Cir. 2002).
The court must, however, also abide by the “affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to trial.” Bouchat, 346 F.3d at 526
(internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir.
1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).
In Anderson, 477 U.S. at 249, the Supreme Court explained that in considering a motion
for summary judgment, the “judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute
about a material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury
could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252.
The moving party bears the burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if the nonmoving party fails to make a
sufficient showing on an essential element of his or her case as to which he or she would have
the burden of proof. See Celotex Corp., 477 U.S. at 322–23. Therefore, on those issues on which
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the nonmoving party has the burden of proof, it is his or her responsibility to confront the
summary judgment motion with an affidavit or other similar evidence showing that there is a
genuine issue for trial.
Analysis
Defendants assert that NBCI maintains a religious dietary program under which inmates
with dietary mandates receive meals that conform to the “minimum dietary requirements” of
Jewish orthodoxy. ECF No. 28-1. The requirements include the separation of food items and
utensils for food preparation, washing, and storage. Meals under the religious diet program are
vegetarian in nature and each inmate working in the kosher food preparation area and all officers
are required to review the applicable religious diet program. They state that while confined at
NBCI, plaintiff’s meals were provided to him in compliance with prison regulations and to
ensure compliance with “kosher principles” and sanitary requirements, monthly inspections of
the kosher kitchen were conducted.

ECF No. 28-2, Kammauf Decl.

Moreover, they affirm,

that plaintiff’s meals were served to him in compliance with the sanitation and uniformity
required by prison regulations. Id.
Defendants further explain that since April 29, 2013, NBCI was placed on varying
lengths of “modified movements” or lockdown due to an increase in the number of inmate-oninmate assaults, as well as inmate-on-staff assaults.4 ECF No. 28-4, Gutillo Decl. and ECF No.
28-5, White Decl. Defendants affirm that during this time, inmate meals were often served as
bagged lunch or hot trays brought to the housing units. Inmates were provided their meals in
their cells.

In such cases, all kosher meals arrived in housing unit 4 on Styrofoam trays

completely sealed by cellophane wrap. The meals are removed from the dietary cart and then

4

Defendants point to an inmate-on-staff assault in August of 2013, that resulted in NBCI
being placed on lockdown through March of 2014. ECF No. 28-5, White Decl.

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handed to inmates through the cell pass-through. ECF No. 28-4, Gutillo Decl. Defendant
Gutillo denies throwing, shaking or “squishing” the meal items on plaintiff’s tray. Id.
Defendants next maintain that agency directives provide for religious service
programming to afford “inmates of all faiths with reasonable and equitable opportunities to
pursue religious beliefs and practices…” ECF No. 28-6. Congregate worship and study forums
are to be made available on a weekly basis unless the religion calls for less frequent congregation
or institutional resources cannot accommodate weekly congregation. Id. Defendants affirm that
no religious services were cancelled at NBCI during April of 2013 and during the months of
April through July of 2013, Jewish religious services were scheduled for every Saturday at noon
with the exception of June 29, 2013, because the institution was on lockdown. ECF No. 28-7,
Lamp. Decl. & ECF No. 28-8. On August 5, 2013, NBCI was placed on lock down until March
of 2014. ECF No. 28-5.5
According to defendants, inmates may request access to religious materials by sending a
request slip to the Chaplain’s office for religious materials on hand (Bibles, cards, and some
religious literature) or a religious material request form for materials that need to be ordered.
According to NBCI Chaplain Kevin Lamp, plaintiff did not submit any request slips or religious
material request forms in 2013. ECF No. 28-7, Lamp. Decl.
Defendants acknowledge that in November 2013, during the NBCI lockdown, the process
for turning in ARPs was “altered slightly” to require the inmate to turn in the grievance to the
day shift sergeant or officer-in-charge on the tier.

They maintain that from April 1, 2013, to

October 16, 2013, plaintiff filed a total of eight ARPs. ECF No. 28-5.
Defendants argue that on May 26, 2013, plaintiff filed an administrative remedy
procedure (“ARP”) grievance regarding his kosher meals, but as it contained multiple unrelated
5

Plaintiff was transferred from NBCI to WCI on January 15, 2014. ECF No. 28-5.

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issues it was dismissed for procedural reasons two days later. ECF No. 28-9. Plaintiff was
instructed to re-file the ARP with one issue.

On May 30, 2013, he filed another ARP alleging

that his prior ARP raised a claim of “religious persecution.” That ARP was too dismissed on
June 3, 2013. An appeal was filed to the Commissioner, who denied same on June 18, 2013.
Plaintiff filed a subsequent appeal to the Inmate Grievance Office (“IGO”) from the
Commissioner’s decision.

Id. The IGO appeal was administratively dismissed on August 4,

2014, for the failure to properly exhaust the ARP process. ECF No. 28-10, Oakley Decl.
Mootness
Under § 1983, an actual controversy must exist at all times while the case is pending. See
Steffel v. Thompson, 415 U. S. 452, 459 n. 10 (1974). It is possible for events subsequent to the
filing of the complaint to make an injunctive relief request moot. See Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991). This is so even though such a case presented a justiciable
controversy at an earlier point in time and an intervening event rendered the controversy moot.
See Calderon v. Moore, 518 U.S. 149, 150 (1996). Indeed, “[w]here on the face of the record it
appears that the only concrete interest in the controversy has terminated, reasonable caution is
needed to be sure that mooted litigation is not pressed forward, and unnecessary juridical
pronouncements on even constitutional issues obtained…” See Lewis v. Continental Bank Corp,
494 U.S. 472, 480 (1990).
To the extent that plaintiff seeks injunctive relief, i.e. staff training and the cessation of
violations at NBCI, the claim for relief was mooted when he was transferred from NBCI in
January of 2014. No equitable relief may be granted.

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Constitutional Claims
ALawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal system.@
O=Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). With respect to the free exercise of
religion, prison 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
(1972). That retained 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 v. Safely, 482 U.S. 78, 89B 91 (1987). The test to determine if the
restrictions are justified requires examination of whether or not 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.
“The Free Exercise Clause of the First Amendment forbids the adoption of laws designed
to suppress religious beliefs or practices.” Morrison v. Garraghty, 239 F.3d 648, 656 (4th Cir.
2001). This encompasses policies that impose a substantial burden on a prisoner's right to
practice his religion. Lovelace v. Lee, 472 F.3d 174, 198 & n. 8 (4th Cir. 2006). Under the Free
Exercise Clause a prisoner has a clearly established right to a diet consistent with his religious
principles. Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014).
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,
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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) (2000).
A “substantial burden” is one that “put[s] substantial pressure on an adherent to modify
his behavior and to violate his beliefs,” or one that forces a person to “choose between following
the precepts of her religion and forfeiting [governmental] benefits, on the one hand, and
abandoning one of the precepts of her religion ... on the other hand,” Lovelace, 472 F.3d at 187
Therefore, for purposes of RLUIPA, a substantial burden on religious exercise occurs when a
state or local government, through act or omission, puts substantial pressure on an adherent to
modify his behavior and to violate his religious beliefs. Id.
Where, as here, plaintiff has failed to establish that the denial of kosher meals or the
infrequency of religious study sessions and access to religious material, if any, caused a
substantial burden on his ability to practice Judaism, no claim has been stated under the First
Amendment or RLUIPA.6 Defendants’ unopposed exhibits and declarations illustrate that the
available religious meal plan is provided in a neutral, sanitary and uniform manner.
Further, plaintiff’s claim regarding his lack of access to the ARP process fares no better.
The record belies his claim as it reveals that he was able to file a number of ARPs which were

6

Moreover, the Fourth Circuit Court of Appeals has recognized the well-established
principle that “inmates must be provided nutritionally adequate food, ‘prepared and served under
conditions which do not present an immediate danger to the health and well being of the inmates who
consume it.’” Shrader v. White, 761 F.2d 975, 986 (4th Cir. 1985) (citations omitted). The failure to
meet an inmate’s basic nutritional needs is considered cruel and unusual punishment because the inmate
relies on prison officials to provide food. Prisons and detention facilities are required to provide
“nutritionally adequate food that is prepared and served under conditions which do not present an
immediate danger to the health and well being of the inmates who consume it.” French v. Owens, 777
F.2d 1250, 1255 (7th Cir. 1985). Plaintiff does not allege that he experienced any physical harm from
the alleged foul-smelling and distasteful Kosher meals or the “desecration” of his meal tray..

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processed during the relevant time in question. In any event, the law in this Circuit dictates that
no constitutional entitlement to grievance procedures or access to such procedures is created
merely because such procedures are voluntarily established by a state. See Adams v. Rice, 40
F.3d 72, 75 (4th Cir. 1994). Therefore, plaintiff’s issue with his ability to file grievances during
the prison lockdown simply does not implicate a constitutional claim.
Conclusion
Having found no genuine dispute of material fact justifying a trial on the merits in this
case, the court shall grant defendants= motion for summary judgment by separate order.

Date: June 23, 2015

__/s/____________________
J. Frederick Motz
United States District Judge

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