Atkins v. Maryland Division of Correction et al

Filing 23

MEMORANDUM. Signed by Judge Paul W. Grimm on 8/24/2015. (c/m 8/28/2015 aos, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARVLAND

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RA ViVIONO ATKINS, #330632
Plaintiff,

Bv

*

'-----

D:PUTY

* CIVIL ACTION NO. I'WG-14-3312

v.
MAnVLAND DIVISION OF
COnRECTION
KATHLEEN GnEEN (WARDEN)
NORMAN HANCOCK (CHAPLAIN)
Defendants.

*
*
*

*****
MEMORANDUM
Petitioner

Raymond

Ii led claims asserting
rights to due process
29-month

period.

Atkins

is an inmate

that Defendants

denied

under the Fourteenth

Compl.,

ECF NO.1.

Defendants

summary judgment,
Because
Amendment
declaratory
2000ee,

his right to exercise

his religion

and violated

Amendment

against

all Defendants,

to appoint

ECF No. 17, and filed a request

the only

claims

Chaplain

to dismiss

Norman

that may
Hancock

motion

counsel,

his

ECF

for entry of default,

or, in the alternative,

motion

for

ECF No. 22.1

proceed
and

arc Atkins's
Atkins's

Land Use and Institutionalized

I (I) deny Atkins's

and has

when he was denied a kosher diet for a

ECF No. 18, which Plaintiff has opposed,

relief under the Religious

against

system

have filed a motion

I find that

claim

correctional

Atkins has filed two motions

Nos. 2 and 11, sought summary judgment,
ECF No. 21.

in the Maryland

claim

Persons

for summary

9

1983

for

First

statutory

Act, 42 U.S.C.

judgment,

9

(2) grant in

Plaintiff styles his opposition as a "Motion to Dismiss Defendants' Motion or Motion for
Summary Judgement." Defendants have neither tiled a reply with regard to their motion nor responded to
any of Plnintifl's mOlions. The time for doing so has passed. See Lac. R. 105.2(a). A hearing is not
necessary. See Lac. R. 105.6. The motions are ready for resolution.

"

part and deny in part Defendants'

motion to dismiss or, in the alternative,

judgment,

treated as a motion

default.

I will also grant Atkins's

2

motion

and (3) deny Atkins's

for summary judgment,

motions to appoint counsel and schedule

for summary

request

for entry of

further proceedings

in this case.
Procedural
This 42 U.S.c. Ii 1983 complaint
nominal

damages

was received

under "Church

for declaratory

for filing on October

Atkins states that when originally
Christian

IIistorv

incareerated

of God in Christ" ("Church

asserts

Atkins

claims

of the Church

change form with Chaplain

religious

Atkins

to the Eastern

that in January

alleges

affiliation

of God").

as a

that later in

and while confined

a kosher diet card.

Institution

and

Raymond

his religion

I-Ie claims, however,

("Eastern"),

Atkins

his diet card

Id.

of 2013, Chaplain

Hancock

advised

him to "submit

a

form, because his records showed him still being listed as

of God]"

Id.

Haneock's

office" and the changeover

He contends

that he "filed

that in May of 2013, he again requested

diet agreement/information

designated

he received

Correctional

punitive

ECF No. I. Plaintiff

of the Jewish religion"

in Hagerstown,

upon his request for a kosher diet.,,3

change preference

la member

2013.

Institution

that upon his transfer

"was confiscated

religious

Correctional

22, 2014.

in 2004 he officially

2009 he "began studying the teachings and traditions
at the Maryland

relief and compensatory,

forms,

which

he returned

the religious

was completed
a kosher

preference

in February

of

diet and was given

to the Chaplain's

office.

He

On March II. 2015, Atkins filed a "declaration for entry of default." ECF No. 21. He
claims that defendants failed to file a timely response. Defendants' dispositive motion was filed in a
timely manner. Therefore. the default request will be denied.
J
He alleges that he was first denied a kosher diet by defendant Haneoek in January of
2012, and the diet was subsequently denied by the Warden and Commissioner of the Division of
Correetion ("Division"). ECF No. I.

2

complains that his "religious diet agreement was rejected by the Chaplain on July 3, 2013," and
he tiled grievances to the Inmate Grievance Office ("Grievance Office").
April of 2014 an administrative
recommended

law judge

("ALl")

granted

Atkins claims that in

his grievance

in part and

that the Division of Correction consider his eligibility for a kosher diet.

He

alleges that after resubmitting another application to the Chaplain, he was placed on the kosher
diet on September I, 2014. Atkins complains that his right to exercise his religion was denied
and that his Fourteenth

Amendment

rights to due process were violated when he was

continuously denied a kosher diet for a 29-month period. Id.
In his supplemental complaint Atkins contends that on October 30, 2014, he was moved
to the west side compound of Eastern, where he was unable to receive a kosher diet for nineteen
days, forcing him to go without food for three days and to "modify his diet for the remaining
time spent on the west side."

Supplemental Compl., ECF No. 14. lie claims that, when he

returned to the east side compound at Eastern, his kosher diet was "cold or served without the
main course." Id.
Standard of Review
Because mallers outside the pleadings will be considered, defendants'
treated as a motion for summary judgment.

motion will be

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
maller 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

3

.'

supported motion for summary judgment;
genuine issue of ma/erial fact.

the requirement

IS

that there be no

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, 522 (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 non movant, and draw
all reasonable inferences in [his)lavor without weighing the evidence or assessing the witnesses'
credibility." Dennis v. Columbia Colleton Med. Or., Inc., 290 F.3d 639, 645 (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 Drewill v. Prall, 999 F.2d 774, 778-79 (4th Cir.
1993), and citing Celotex Corp, v. Catrell, 477 U.S. 317, 323-24 (1986)).
In Anderson, 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."

477 U.S. at 249.

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 lavors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented."
252.

4

Id. at

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 Celolex Corp., 477 U.S. at 322-23. Therefore, on those issues on which
the nonmoving party has the burden of proof, it is his or her responsibility

to confront the

summary judgment motion with an aflidavit or other similar evidence showing that there is a
gcnuine issuc for trial.
Analysis
There is no dispute that prior to his transfer to Eastern on August 19, 2011, Atkins had
been receiving a kosher diet.

Defendants state, through the declaration of Chaplain Hancock,

that "an inmate may change his religious preferences bimonthly using a religious preferences
registration form.

The change becomes effective thc first week of odd numbered months."

Hancock Decl., ECF No. 18-2. Defendants state that on August 23, 2011, Atkins signed for his
receipt of Eastern's orientation handbook, which describes the requirements regarding religious
preference change requests.

Switalski Decl., ECF No. 18-1. They state that a kosher diet "is

available to inmates who have designated their religious faith as Jewish or as another recognized
faith group that has thc same basic tenets that require a kosher diet." ECF No. 18-2. In addition,
"a lacto-ovo vegetarian diet is also available at [Eastern)" for inmates who register to receive that
diet. Defendants claim that an inmate must
request approval to participate in the Religious Diet Program ... by completing a
requcst form and submitting the completed request form to the administrative
chaplain or his designee. If a request for [Religions Diet Program] participation is
approved, a copy of the approved request is forwarded to the correctional food
service manager and the completed paperwork is forwarded to Case Management
to be included in the inmate's base file.

5

[d.

Defendants state, through the declaration of Eastern's Dietary Department Manager, that
"[i]t is the policy of the [Division] to afford Jewish inmates the opportunity to exercise their
religious beliefs to the fullest extent possible consistcnt with institutional security and budgetary
constraints"

White Decl., ECF No. 18-3. They note that the kosher meal is more costly than a

regular meal due, in part, to the requirement that it be prepared in a "blessed area." Jd.
Defendants state that at the time of Atkins's
preference was registered as a Christian;

2011 transfer to Eastern, his religious

and his possession of a kosher meal card "was not a

proper method of registering for kosher meals or declaring his faith as Jewish."

ECF No. 18-2.

Hancock states that on July 26, 2012, he was informed by another Eastern Chaplain that Atkins
wanted to be on a kosher diet.

Ilancock states that he sent Atkins a letter explaining that a

request for a kosher diet was set up for the Jewish faith group and as he was registered as a
Christian with a prior history of Christian-group afIiliations, none of which were Jewish, he did
not qualify for the kosher diet. Hancock states he informed Atkins that "if he wanted to receive a
kosher diet for health reasons, he could contact the Medical Department for a list of various diets
to help with certain conditions."

ECF No. 18-2. Hancock asserts that on August 2, 2012, he

received "a request slip from Atkins complaining that he was not on a kosher diet 'after being at
[Eastern] for almost a year.'"

The chaplain states, however, that according to Department of

Public Safety and Correctional Serviccs ("Department")

records, Atkins was still listed as a

Christian. Jd.
On February 25, 2013, Hancock received a request from Atkins to change his religious
preference to Judaism,"

Jd.

Hancock sent the registration form to Atkins and two days later

While assigned to the Maryland Correctional Training Center in August of 20 10, Atkins
was signcd up for thc Master Cycle Menu. ECF No. 18-1.

6

Atkins signed it to changc his religious preference to Judaism.

ECF No. 18-1. Hancock noted

that the change would take place in March 01'2013. ECF No. 18-2. On May 13,2014, Hancock
rcceived an email from Eastern staff stating that Atkins wanted kosher meals.

In response,

Hancock sent Atkins an application for the Religious Diet Program with instructions to complete
it and to send it to the Chaplain's office. On Junc 3, 2013, Hancock received an application for
Atkins's religious diet. Id.
Hancock acknowledges,
Department representative

however that on July 3, 2013, after communicating

with

Rabbi Axelrod, he informed Atkins that "he was ineligible for the

kosher platform since he was not converted to thc Jewish faith prior to incarceration and/or he
was not born of a Jewish mother." Hancock states that after receiving the proposed July 2, 2014,
Grievance Office decision and order finding Atkins's grievance "meritorious

in part," he and

Department representative Rabbi Tobesman, who replaced Rabbi Axelrod, met with Atkins and
gave him a revised diet application to complete.

On July 15,2014, the completed application

was faxed to Rabbi Tobesman, and on July 31, 2014, Atkins was approved to receive kosher
meals. Id.
Defendants state that around that same time, on July 28, 2014, Atkins was sanctioned
with a l20-day

segregation

term for violating Division rules, and when he came off of

disciplinary segregation on October 30,2014,
compound.

the only beds available were on the Eastern west

ECF No. 18-3, ECF No. 18-4, and ECF No. 18-5. The following day, Hancock sent

out a memo "removing Atkins from the kosher meal platform because a kosher kitchen is not
available on the West Compound," ECF No. 18-2, and sent an email to an Eastcrn staffer that
Atkins needed to go back to the east compound or be transfcrrcd to another institution to receive

7

his kosher diet5
(where

ECF No. 18-6.

he remained

commissary.

until November

ECF No. 18-1.

not kosher approved

Defendants

week.

ECF No.

portions

Hancock

18-1.

argue

"substantiating

that Atkins

proceeding

Id. Atkins filed another grievance
No. 18-11.

Defendants

requirements

diet.

as untimely.

previously

to Judaism

requested

was dismissed

regarding

transfer back

require

is served

uniform

with all meal

procedure

ECF No. 18-9.
dismissed

gnevance

Atkins appealed

after Atkins failed to

by the office.

Oakley Decl., ECF

grievance

because

religion

of the Division,

ECF

Id.

complaining

It was dismissed

County.

a kosher diet in March 01'2013.

that he had not received

"[a]ccording

for the purpose

meals does not qualify an inmate as eligible for the Religious
tiled an appeal with the Commissioner

at Eastern

remedy

it in May 01'2013.

from another

ECF No.

by the Circuit Court for Somerset

not receiving

tiled another

ECF No. 18-12 at 5.

changing

that were

Id.

filed an administrative

state that he withdrew

On June 20, 2013, Atkins
his kosher

served

Office, which was administratively

documentation"

A subsequent

items from the

his kosher meals, seven days a

menu, that the main course

to Atkins include hot meals.

contend

kosher

items from the commissary

that all meals

his kosher meals, but it was dismissed

No. 18-10.

could purchase

issued a memo placing Atkins back on the kosher diet.

with the approved

that decision to the Grievance
provide

Atkins

ECF No. 18-1 and ECF No. 18-7. Alier Atkins's

Defendants

plans, and meals delivered

regarding

17, 2014),

that while housed on the west compound

state that since that time, Atkins has received

in accordance

Defendants

observed

Atkins did in fact purchase

meal items.

to the east compound,
18-2.

Switalski

Diet Program."

who dismissed

to [Department]

of receiving

kosher

Id. at 10. Atkins

the appeal.

Id. at 4. An

White states that the west compound does not have a blessed food preparation area as
well as inmate workers who have been trained to prepare kosher meals. ECl' No. 18-3. Switalski asserts
that serving kosher meals is not possible on the west compound of Eastern because it is separate from the
east compound where the kosher kitchen is located. ECl' No. 18-1.

8

appeal was tiled and referred to the Office of Administrative Hearings and was heard before an
AU on January 14, 2014. ECF No. 18-13 at 2. The AU issued a decision on April I, 2014,
which granted Atkins's grievance in part and recommended that the Division consider Atkins's
eligibility for a kosher diet pursuant to the Emergency Directive, "balancing the Grievant's
sincere desire to fully participate in Judaism, including the dietary requirements, with the valid
penological interests of the institution."

ECF No. 18-13 at 16. The ALl's decision was affirmed

by the Secretary of the Department. ECF No. 18-10.
The Executive Director for the Grievance Offiee states that Atkins has tiled seven
grievances with the office, and the one concerning his kosher diet, tiled on September 25, 2013,
was referred for a hearing.

Id. On November 10,2014, Atkins tiled a grievance regarding his

transfer to the west compound of Eastern and his inability to obtain a kosher diet. ECF No. 18-6.
Defendants state that Atkins did not tile a grievance as to his denial of the kosher diet while
housed on the west compound. See ECF No. 18-10.
In his veri tied opposition, Atkins claims that his "identitication

as Christian upon his

admission to prison in 2004 did not make his later Jewish beliefs insincere."

ECF No. 22. He

claims that prison officials denied him his right to a kosher diet and seemingly claims that
defendant Hancock's decision to deny him a kosher diet after he had submitted the religious
preference and dietary request deprived him of exercising his sincere religious beliefs under the
First Amendment.

He further claims that, after he tiled this action, he attempted to appeal the

Warden's denial of his grievance (denial of kosher diet in October and November 2014) to the
Commissioner

but did not reeeive a response.

Atkins further alleges that Warden Green

personally participated in the denial of his kosher diet as she is the "overseer" at Eastern, denied
his grievance, and had knowledge of the violation of his rights.

9

Threshold
Defendants

Considerations

assert that the Division

1983 and the State of Maryland
Amendment.

They are correct.

is not a person within the meaning

has not waived

SS

within the meaning

1-101(g) and 3-201.

of 42 U.S.c.

Police, 491 U.S. 58, 64-65, 70-71 (1989).
under the Eleventh

Amendment

1'.

immunity

S

Moreover,

[S

"from a

Neither

1983] suit in federal

conduct.

Spiegal,

1416,

1423-24

Farmer

is not liable.

1'.

impose

Under

S

(unpublished);

Larson

(10th Cir. 1997).

regard

to the

(3rd Cir. 2000); see also Pennhursl
Consequently,

participated

1983, individual

the complaint

in violating

1'.

Absent

1'.

subjective

Orliz, 307 Fed. Appx.

his

liability must be based on

knowledge,

The mere fact that Green denied Atkins's

See Whilinglon

liability.

1'.

grievance

1'.

a prison

Quinones,
does not

179, 193 (10th Cir. 2009)

Meek, 240 Fed. Appx. 777, 780 (lOth Cir. 2007) (unpublished).

Under ShaH' v. Slroud, 13 F.3d 791 (4th Cir. 1994), supervisory
prison administrator

from liability

Brennan, 511 U.S. 825, 846 (1994); see Johnson

145 F.3d 164, 168 (4th Cir. 1998).
alone

are immune

See Wrighll'. Collins, 766 F.2d 841, 850 (4th Cir. 1985); see also Foole

118 F.3d

official

See

Department.

for want of jurisdiction.

rights under color of the law.

personal

the Eleventh

court without

Atkins also has failed to show how Warden Green personally
constitutional

under

a state nor an agency ofa

state agencies

Halderman, 465 U.S. 89, 100-01 (1984).

against Division is subject to dismissal

S

of 42 U.S.C.

1983. See Will v. Michigan Dep ~ olSlale

c.H. v. Oliva, 226 F.3d 198,201

nature of'the relief sought."

Slale Sch. & limp.

its sovereign

The Division is a state agency of the Maryland

Md. Code. Ann., Corr. Servs., Art.,
state is a "person"

& 1983

under 42 U.S.C.

under

S

1983 if a plaintiff can establish

liability

may attach to a

three elements:

(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed "a pervasive and unreasonable
risk" of

10

constitutional injury to citizens like the plaintiff; (2) that the supervisor's response
to that knowledge was so inadequate as to show "deliberate indifference to or tacit
authorization of the alleged offensive practices;" and (3) that there was an
"atlirmative causal link" between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Id. at 799 (citations omitted).

Under the first prong of Shaw, the conduct of the supervisor's

subordinates must be "pervasive and unreasonable," meaning that the "conduct is widespread, or
at least has been used on several different occasions and that the conduct engaged in by the
subordinate poses an unreasonable risk of harm of constitutional injury."

Id. In establishing

"deliberate indifference" under Shaw's second prong, a plaintiff "[ 0 ]rdinarily ...

cannot satisfy

his burden of proof by pointing to a single incident or isolated incidents, for a supervisor cannot .
. . reasonably be expected to guard against the deliberate criminal acts of his properly trained
employees when he has no basis upon which to anticipate the misconduct."
v. Porler, 737 F.2d 368, 372-73 (4th Cir. 1984)).

Id. (quoting Slakan

Deliberate indifference, however, may be

satislied by showing "a supervisor's continued inaction in the face of documented widespread
abuses"

Id. Atkins has not made such a showing of supervisory liability here.

Defendants also assert that Atkins's
"properly"

exhaust available administrative

claims must be dismissed due to his failure to
remedies.

The Prisoner Litigation Reform Act

("PLRA") provides, in pertinent part:
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions under
section 1983 of this title, 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.

S

1997e. The Supreme Court has interpreted the language of this provision broadly,

"hold[ing] that the PLRA's exhaustion requirement applies to all inmate suits about prison life,

I1

whether they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong." Porter v. Nliss/e, 534 U.S. 516, 532 (2002). Thus, the
exhaustion provision plainly extends to Atkins's allegations.

His complaint must be dismissed,

unless he can show that he has satisfied the administrative exhaustion requirement under the
I'LRA or "that defendants have forfeited their right to raise non-exhaustion as a defense." See
Chase \'. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003).
The I'LRA's exhaustion requirement is designed so that "prisoners pursue administrative
grievances until they reccive a final denial of their claims, appcaling through all available stages
in the administrative process"

Chase, 286 F. Supp. 2d at 530; Booth v. Chllrner, 532 U.S. 731,

735 (2001) (aftirming dismissal of prisoner's claim for failure to exhaust where he "never sought
intermediate

or Cull administrative

review after prison authority denied relief');

Thomas v.

Woo/11m, 337 F.3d 720, 726 (6th Cir. 2003) (noting that a prisoner must appeal administrative
rulings "to the highest possible administrative level"); Pozo v. McCalightry, 286 FJd 1022, 1024
(7th Cir. 2002) (prisoner must follow all administrative steps to meet the exhaustion requirement,
but need not seek judicial review in state court).
In Maryland, filing a request for administrative remedy with the Warden of the prison
where an inmate is incarcerated

is the first of three steps in the Administrative

Remedy

Procedure process provided by the Division to its prisoners. If this request is denied, the prisoner
has thirty calendar days to file an appeal with the Commissioner of Correction.

If this appeal is

denied, the prisoner has thirty days in which to tile an appeal to the Executive Director of the
Grievance Ot1ice. See Md. Code Ann. Corr. Servo ~~ 10-206, 10.210 and Code of Maryland
Regulations, Title 12 ~ 07.01.05; see a/so Maryland Division of Corrections Directive 185-002,

12

S VI.N

I.
Administrative remedies must, however, be available to the prisoner, and this court is

"obligated to ensure that any defects in administrative exhaustion were not procured from the
action or inaction of prison oflicials." Aqllilar-Avellaveda

v. Terrell, 478 F.3d 1223, 1225 (10th

Cir. 2007). The Fourth Circuit has addressed the meaning of "available" remedies:
[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it. See
Aqllilar-Avellaveda v. Terrell. 478 F.3d 1223. 1225 (10th Cir. 2007); Kobo v.
Stepp, 458 FJd 678, 684 (7th Cir. 2006). Conversely, a prisoner does not exhaust
all available remedies simply by failing to follow the required steps so that
remedies that once were available to him no longer are. See Woodford v. Ngo, 548
U.S. 8 J, 89 (2006). Rather, to be entitled to bring suit in federal court, a prisoner
must have utilized all available remedies "in accordance with the applicable
procedural rules," so that prison officials have bcen given an opportunity to
address the claims administratively. Id. at 87. Having done that, a prisoner has
exhausted his available remedies, even if prison employees do not respond. See
Dole \'. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).
Moore v. Bennelle, 517 F.3d 717, 725 (4th Cir. 2008); see also Blake v. Ross, 787 F.3d 693, 70001 (4th Cir. 2015) (finding inmate's belief that he exhausted administrative

remedies was a

reasonable interpretation of investigative and grievance procedures).
The record shows that Atkins exhausted his original claims regarding the denial of his
kosher diet but did not complete the grievance process before filing his supplemental complaint
as to his claim that he was denied his kosher diet for seventeen days in 2014. A prisoner must
complete the administrative

review process in accordance with applicable procedural rules,

including deadlines, as a precondition to bringing suit in federal court. See Woodford, 548 U.S. at
88: Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003) (finding dismissal is required under

S

1997e(a) if an inmate has failed to exhaust all available administrative remedies prior to filing
suit).

Therefore, Atkins's

claims regarding the denial of his kosher diet while at the west

13

compound is unexhausted and is dismissed.
Constitutional Claim
"Lawful 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

1'.

Estate of Shabazz, 482 U.S. 342, 348 (1987) (quoting Price v. Johnston, 334 U.S. 266,

285 (1948».

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
ofpunisillnent.

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 arc related to legitimate
penological objectives do not run afoul of the constitution.
89-91 (1987).

See Turner

1'.

Safely, 482 U.S. 78,

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.

See Jehovah v. Clarke, --- F.3d ---, 2015 WL 4734716 (4th Cir. July 9,2015,

amended Aug. II, 2015) (applying Turner factors to evaluate prisoner's claim that authorities
violated his free exercise rights under the First Amendment).
"The Free Exercise Clause of the First Amendment forbids the adoption oflaws 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

14

principles.

Wall v. Wade, 741 F.3d 492, 498-500 (4th Cir. 2014).

An additional consideration in this ease is the standard provided by the Religious Land
Use and Institutionalized Persons Act ("Act"). 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--( I) 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.

S 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," Love/ace, 472 F.3d at 187 (quoting Thomas v. Review
Bd. of Ind. Emp'l Sec. Div., 450 U.S. 707, 718 (1981 », or one that forces a person to "choose
between following thc 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," Id. (quoting

Sherberl v. Verner, 374 U.S. 398,404 (1963)). The Fourth Circuit concluded that "for purposes
of [the Act], a substantial burden on religious exercise occurs when a state or local government,
through act or omission, 'putts] substantial pressure on an adherent to modify his behavior and to
violate his religious beliefs.'"

Id. (quoting Thomas, 450 U.S. at 718).

Atkins may not, however, seek damages under the Act. Congress has not authorized
damages claims against state officials under it. See Wall, 741 F.3d at 496 n.5; see a/so Sossamon
v. Texas. 563 U.S. 277,131 S. Ct. 1651, 1658-1659 (2011) (prohibiting damages claims against
state officials in their official capacity under the Act); Selby v. Caruso, 734 F.3d 554, 561 (6th
Cir. 2013) (plaintiff could not state a claim against State for damages under the Act);

15

,

Wrendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009) (same for individual capacity);
McCremy v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013) (finding "inmate is not entitled to
monetary damages under [the Act] for a suit against correctional

officer in his individual

capacity"); Easterling v. Pollard, 528 Fed. Appx. 653, 656 Oth Cir. July 22, 2013) (same);
lv/aloney v. Ryan, No. 03-314, 2014 WL 1230432, at *5 n.3 (D. Ariz. Mar. 25, 2014) (discussing
that Fourth, Fifth, Seventh and Eleventh Circuit have hcld that individuals cannot be liable for
damages under the Act). Therefore, defendants are entitled to summary judgment to the extent
Atkins is secking monetary damages under the Act. Atkins's claim for declaratory relief against
defendants will proceed.
[n addition, Atkins's

S

1983 claim against Chaplain Hancock will proceed. Plainly, there

is a material dispute as to whether Hancock's decision to deny Atkins a kosher diet in June of
2013, after Atkins had complied with policy requirements by submitting the required forms to
register his religious preference as Judaism and to apply for a kosher diet plan under the
Religious Diet Program, constituted arbitrary and capricious behavior which violated the First
Amendment.
Conclusion
For the above reasons, defendants'

motion to dismiss or for summary judgment,

construed as a motion for summary judgment,

will be granted in part and denied in part.

Atkins's claim for declaratory relief against defendants will proceed.
proceed against defendant Hancock.

Atkins's

granted. A separate Order follows.

16

His

motions for appointment

S

1983 claim will

of counsel will be

lSI

Date: August 24, 2015

Paul W. Grimm
United States District Judge

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