HARRIS v. HOLMES

Filing 99

OPINION. Signed by Judge Noel L. Hillman on 1/23/2019. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
GARY HARRIS,
:
:
Plaintiff,
:
Civ. No. 14-460 (NLH)(JS)
:
v.
:
OPINION
:
CHRISTOPHER HOLMES, et al.,
:
:
Defendants.
:
______________________________:
APPEARANCES:
Gary Harris, No. 283029
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff pro se
Gregory R. Bueno, Esq.
Suzanne Marie Davies, Esq.
Office of the Attorney General
25 Market Street
Trenton, NJ 08625
Counsel for Moving Defendants
HILLMAN, District Judge
Plaintiff, Gary Harris, appearing pro se, 1 is in the custody
of the New Jersey Department of Corrections (“NJDOC”) and
currently incarcerated at South Woods State Prison (“SWSP”) in
Bridgeton, New Jersey.

Plaintiff claims that Defendants have

violated his rights under the First and Fourteenth Amendments of
the U.S. Constitution by not providing him with hot meals and

1

The Court appointed pro bono counsel to represent Plaintiff.
see ECF No. 71. Plaintiff later terminated that relationship.
See ECF Nos. 77, 79, 80.
1

adequate food during Ramadan, failing to accommodate sufficient
prayer time and provide prayer oil, preventing him from wearing
religious attire, and harassing him during 2012 and 2013. 2
Presently before the Court is the Motion for Summary
Judgment of Defendants Marcus Hicks, Christopher Holmes, Gary
Lanigan, Bettie Norris and Maggie Silva (the “Moving
Defendants”), 3 which is ripe for adjudication. 4

ECF No. 91.

For

the reasons that follow, the Court will grant the Motion.
I.

Factual Background
Plaintiff Gary Harris commenced this action by submitting a

Complaint to the U.S. District Court for the District of New
Jersey.

ECF No. 1.

Plaintiff asserts claims pursuant to 42

U.S.C. § 1983 for (1) violation of the First Amendment’s Free

2

Because Plaintiff has brought claims pursuant to 42 U.S.C. §
1983 for alleged violations of his constitutional rights, this
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§
1331 and 1343.
3

At all times relevant to the Complaint: Hicks was director of
the Office of Community Programs and Outreach Programs at NJDOC,
ECF No. 1, ¶ 10; Holmes was an administrator of SWSP, ECF No. 1
¶ 5; Lanigan was the Commissioner of NJDOC, ECF No. 1, ¶ 3;
Norris was Director of Operations for NJDOC, ECF No. 1, ¶ 14;
and Silva was the supervisor of the Office of Chaplain Services
for NJDOC, ECF No. 1, ¶ 11. All except Holmes maintained their
offices in Trenton and not at SWSP.
4

Plaintiff has failed to serve Defendants Farsi, Lanoza, Bolden,
and Easely. See ECF Nos. 11, 18. In addition, although it
appears that Defendants Selby, Ramano, Marcucci, Yusef, and
Moyer were served, see ECF No. 19, none of those defendants have
appeared in this litigation.
2

Exercise Clause; and (2) denial of Equal Protection in violation
of the Fourteenth Amendment against Hicks, Holmes, Lanigan,
Norris and Silva as well as defendants Mark Farsi, Greg Lanoza,
Mack Selby, Mark Ramano, John Marcucci, Dr. Yusef, Reverend
Moyer, Kevin Bolden, Easely, and John Does 1-10. 5
33-36.

Id., ¶¶ 3-17,

According to the Complaint, Plaintiff sues the

defendants in both their official and individual capacities. 6

5

Plaintiff asserts in his opposition brief that he is bringing
claims pursuant to the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 2000cc et seq., and the Eighth
Amendment. ECF No. 94 at 4. Neither claim is alleged in the
Complaint, which only raised First and Fourteenth Amendment
claims under 42 U.S.C. § 1983. See ECF No. 1. In screening the
Complaint, the Court identified a claim pursuant to 42 U.S.C. §
1983 and allowed that claim to proceed. See ECF No. 6.
Plaintiff filed a Motion for Extension of Time to file a Motion
to Amend the Complaint along with a proposed amended complaint.
ECF Nos. 29, 31. The Court granted Plaintiff’s request and
issued an order providing that “[t]he deadline to file motions
to amend pleadings is extended to May 16, 2016.” ECF No. 35.
Plaintiff, however, never filed a motion to amend the Complaint
after receiving leave of court to do so. There is thus no
RLUIPA or Eighth Amendment claim before the Court. The Court
notes, however, that even if the proposed amended complaint were
properly filed and before the Court, such a complaint would be
dismissed because it lacks allegations of personal involvement
by the defendants or any involvement alleged is limited to the
sort for which liability will not lie, i.e. the receipt of or
failure to respond to a grievance, report, appeal, or letter.
See infra at 19. Further, as to the request for injunctive
relief against the proposed new defendant Rasul Suluki, a former
employee of the NJDOC, the Court would be unable to grant
injunctive relief against Mr. Suluki, as he is no longer
employed by the NJDOC.
6

The Moving Defendants argue that the claims brought against the
defendants in their official capacities are barred by the
Eleventh Amendment or because they are not “persons” subject to
suit under § 1983. ECF No. 91-1 at 5-6. Although the Eleventh
3

Id. at 1.

Plaintiff seeks declaratory and injunctive relief,

compensatory damages, punitive damages, and reasonable costs. 7
Id., ¶ 40.
Plaintiff alleges that the Defendants violated his
Constitutional rights with respect to his adherence to the
Islamic faith.

Plaintiff categorizes the Defendants’ alleged

wrongdoing pursuant to his religious beliefs as the (1) failure
to provide hot meals and adequate food; (2) failure to
accommodate sufficient prayer time and prayer oil; and (3)
failure to permit donning of kufi caps during prison recreation.

Amendment bars suits for monetary damages and certain types of
injunctive relief against state defendants in their official
capacities, it does not bar prospective injunctive relief. See
Edelman v. Jordan, 415 U.S. 651, 666-67 (1974). The same
analysis applies to the Moving Defendants’ argument that they
are not “persons” subject to suit under § 1983. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989).
Because the Court will grant judgment as a matter of law in
favor of the Moving Defendants without regard to the nature of
their status as defendants, the Court need not consider whether
Plaintiff is requesting prospective injunctive relief or
otherwise address this issue.
7

The Moving Defendants argue that the Prison Litigation Reform
Act (“PLRA”) precludes compensatory damages because Plaintiff
has suffered no physical injury. See ECF No. 91-1 at 27-28
(citing 42 U.S.C. § 1997e(e)). The PLRA requires that “a
prisoner demonstrate physical injury before he can recover for
mental or emotional injury.” Mitchell v. Horn, 318 F.3d 523,
533 (3d Cir. 2003). It, however, does not, “limit a prisoner’s
ability to obtain nominal or punitive damages.” See id. at 533.
Because the Court will grant judgment in favor of the Moving
Defendants, the Court need not address whether it should
liberally construe Plaintiff’s request for damages as requesting
nominal damages or whether Plaintiff has otherwise sustained his
burden to move forward on his damages claims.
4

Id., ¶¶ 18-31.

Plaintiff alleges that these violations occurred

in 2012 and 2013.
At all times relevant to this action, Plaintiff has been
incarcerated at SWSP in Bridgeton, New Jersey, a correctional
facility owned and operated by NJDOC.

ECF No. 91-2, ¶ 13.

Plaintiff is an adherent of the Islamic faith and has considered
himself Muslim throughout his incarceration.

Id., ¶ 14.

Plaintiff identifies as a follower of Sunni Islam.
A.

Id., ¶ 15.

Religious Dietary Restrictions

Plaintiff asserts his belief that according to the Islamic
faith, he must follow certain dietary restrictions year round.
Id., ¶ 16.

These include complete restrictions on eating pork,

drinking alcohol, and use of drugs.

Id., ¶ 16.

In addition to

general dietary restrictions described above, Plaintiff also
stated there are specific dietary restrictions associated with
the holy month of Ramadan.

Id., ¶ 17.

Specifically, Plaintiff

testified that he is required to fast during Ramadan.

Id.

Plaintiff describes the fasting practices during Ramadan as
follows:

Once the “Fajr prayer” (dawn) prayer “comes in,”

Plaintiff is not to consume any foods or liquids until night
time.

In essence, Plaintiff must fast completely from one hour

before sunrise until sunset.

Id., ¶¶ 18-19.

Plaintiff explains that some Muslims are excused from the
Ramadan fast, like those who are on medications, are too old,
5

have a disability, or otherwise would endure a hardship if they
had to fast.

ECF No. 91-4, Dep. at 33.

Plaintiff identifies no

other dietary requirements as part of his religion or for the
practice of Ramadan.

Plaintiff does not claim that having the

same caloric intake during fasting days as during non-fasting
days is required or suggested by, or indeed in any way related
to, the Islamic faith. 8

ECF No. 91-2, ¶ 57.

Before Ramadan in 2012, Defendant Hicks, who at the time
served as the Director of the NJDOC’s Office of Community
Programs and Outreach Services, issued a memorandum to all the
prisons’ administrators regarding preparation for Ramadan.

In

this memo, he instructed the facilities that:
a. Inmates participating in Ramadan should be provided
the standard meal package for breakfast and dinner as
provided to the general inmate population and should be
diversified as much as possible.
b. Ritualistic elements should be provided equally for
all approved religious services throughout the NJDOC.
Defendant Hicks also instructed the facilities that the
purchasing of dates “is the appropriate and required food
provision for those observing Ramadan.”
c. Movement schedules and meal schedules are to be
made available and distributed to “all appropriate custody
8

On September 4, 2013, non-defendant SWSP Associate
Administrator Derick Loury issued an inter-office memorandum
regarding the provision of meals during Ramadan in 2013. ECF
No. 91-2, ¶ 54. In this memo, Loury quotes Chapter 2,
Revelations 185 of the Qu’ran, and states that “[n]o where in
the tenets of the faith does it indicate that fasting means
receiving the same amount of food you would normally eat in a
twenty-four hour period.” Id., ¶¶ 55, 56. Plaintiff offers no
evidence to rebut this basic assertion.
6

and civilian staff that are involved in the preparation and
oversight of Ramadan observance in order to avoid any
possible delays or discrepancies in services.”
Id., ¶ 22.

On July 11, 2012, non-moving Defendant SWSP Food

Service Supervisor Mark Ramano issued an inter-office memorandum
to all food service staff regarding food preparation during
Ramadan.

Id., ¶ 24.

This memo directed food service staff to

deliver breakfast 20 to 30 minutes before meal time.

Id.

It

also directed staff to deliver the dinner meals at approximately
6:00 to 6:30 p.m.

Id., ¶¶ 23-24.

Ramano ordered that at

service time, the hot portions of meals will be placed in
aluminum trays, while the cold portions will be placed in a
hinged tray.

Id., ¶ 25.

temperature control.

The memo also addressed food

Specifically, Ramano ordered that the

aluminum trays be placed on steam tables with approximately a
half inch of water and the control dial to be set no higher than
“3”.

Id., ¶ 26.

The cold portions of the meal (hinged trays)

were ordered to be placed in the milk dispensers until
distribution time.

Id., ¶ 27.

This memo also confirmed that during preparation for
Ramadan, a meeting was held between Dr. Yusef (chaplain), Food
Services and the SWSP Administration.

Id.

At that meeting, it

was decided that even though it was not required, Food Services
would provide the additional foods for the express purpose of
making up the calories lost without being served lunch (which
7

cannot be served to Muslim inmates due to their fasting).

Id.,

¶ 29.
Plaintiff testified that from approximately July 20 to
August 19, 2012, and July 11 to August 9, 2013 (Ramadan in 2012
and 2013, respectively), Food Services gave him as part of his
dinner “two slices of bread” and did not give him enough food to
make up for the calories lost from not being able to eat lunch
(a loss he attributes to the Ramadan fast) as part of his
dinner.

Id., ¶ 20.

During Ramadan in 2012 and 2013, however,

Plaintiff and the Muslim population received the standard
breakfast and dinner packages, which included a rotating menu
for both breakfast and dinner.

Id., ¶ 30.

In addition to being afforded the standard breakfast and
dinner menus, the Muslim population at SWSP, including
Plaintiff, was given two slices of bread, two servings of peanut
butter, two servings of jelly, and was served cold cereal in
place of hot cereal.

Id., ¶ 31.

Plaintiff expressed his

personal distaste for the aforesaid combination of food
provided.

Id., ¶ 21.

Plaintiff states that he would have liked

a “double tray” at dinner.

ECF No. 91-4, Dep. at 38.

None of

the named Defendants played any role in preparing Plaintiff’s
food at any time period relevant to the litigation.
2, ¶ 40.

8

ECF No. 91-

During Ramadan in 2012 and 2013, Plaintiff received his
breakfast meals at about 3:00 a.m., whereas the general
population inmates would receive their breakfast meals around
5:00 a.m.

Id., ¶ 35.

Plaintiff would receive hot water in the

morning during Ramadan. 9

Id., ¶ 36.

During Ramadan, as during

the rest of the year, however, Plaintiff would buy additional
food from the commissary.

ECF No. 91-4, Dep. at 41.

Plaintiff

encountered difficulty preparing the food he purchased at the
commissary, which sometimes requires hot water, because hot
water was not provided during Ramadan in 2012 and 2013 in the
evening.

Id. at 42-43.

water has been provided.

Plaintiff states that since then, hot
Id. at 44.

Plaintiff testified that his body went through changes
during the month of Ramadan due to dietary restrictions.
No. 91-2, ¶ 38.

ECF

Plaintiff did not seek any medical assistance

for these symptoms.

Id., ¶ 39.

In response to questioning about how, in his view, his
exercise of his Islamic beliefs was frustrated by the kinds of
meals provided or in what instances hot water was provided,
Plaintiff testified that he felt disrespected that he was not
being given access to hot water.

Id., ¶ 41.

9

As of Ramadan 2016, Plaintiff now receives hot water with both
the morning and evening meals. Id., ¶ 63.
9

B.

Access to Prayer Time, Prayer Oil, and Kufis

Plaintiff testified that both during Ramadan and nonRamadan days, there have been instances where non-defendant
corrections officers in “Facility 3” have told him that he is
not allowed to pray in the recreation yard.

Id., ¶ 43.

Plaintiff states that since October 2015, he has been housed in
“Facility 1,” where he has not had any issue with getting
sufficient prayer time.

Id., ¶ 42.

Plaintiff admits that Defendants Silva and Norris are
completely uninvolved in Plaintiff’s claims regarding the
ability to pray, id., ¶ 44, and that none of the Defendants
directed corrections officers to interfere with Plaintiff’s
prayers.

Id., ¶ 46.

Plaintiff testified that he wrote to Defendants Holmes and
Lanigan about “the conditions . . . that were happening at the
Jumuah [prayer] services and about praying in the yard.”
45.

Id., ¶

Plaintiff states that he directed correspondence to

Defendants Holmes and Lanigan about “Muslims congregating . . .
Muslims being able to pray in the yard . . . Muslims not being
able to wear kufis [religious headwear] . . . .”

He states that

after submitting this correspondence, he is now allowed to wear
kufis.

Id., ¶ 47.

According to Plaintiff, receiving these

letters or grievances is the only involvement by Defendants

10

Holmes and Lanigan with regard to his prayer time and kufi
claims.

Id., ¶ 48.

No fact establishes that any named defendant created or
enforced a policy or directive, or otherwise participated in or
ordered anyone else to participate in, any restrictions on
Plaintiff’s ability to pray in the recreation yard or elsewhere.
Id., ¶ 49.

As of the date of Plaintiff’s deposition, he is

allowed to wear a kufi.

Id., ¶ 64.

Plaintiff testified that in either 2012 or 2013, both
during Ramadan and at other unspecified times, he was not
allowed to retain prayer oil as part of his personal property.
Id., ¶ 50.

In 2012 and 2013, however Plaintiff had access to

prayer oils through the prison chaplain.

Id., ¶ 51.

Despite

being asked to explain each Defendant’s involvement with regard
to the allegations about prayer oils, Plaintiff provided no such
explanation.

Id., ¶ 53.

He testified that he wrote to some

unidentified administrators regarding the oils.
Dep. at 81.

ECF No. 91-4,

In addition, Plaintiff stated in his deposition

that the prayer oil issue is likely moot because the oils would
soon be available at the commissary.

Id. at 80.

Since October

7, 2016, NJDOC inmates have been permitted to purchase prayer
oil at prison commissaries and keep it in their cells.
91-2, ¶ 65.

11

ECF No.

C.

Harassment

Plaintiff testified that he was wrongfully identified as a
gang member i.e., designated as being part of a Security Threat
Group (“STG”) in October 2006.

Id., ¶ 59.

Plaintiff is not

identified in the NJDOC face sheet system as a member of a STG.
Id., ¶ 58.

Despite testifying extensively about his placement

on STG and his efforts to have this status revoked, Plaintiff
cannot identify any act of harassment carried out directly by
any of the Defendants.

Id., ¶ 60.

No named Defendant directed

anyone to harass Plaintiff as a result of his being identified
as a STG member.

Id., 61.

The purported harassment is

unrelated to Plaintiff’s religious beliefs.
II.

Id., ¶ 62.

Standard of Review
Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A disputed

fact is material when it could affect the outcome of the suit
under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.

Id. at 250.
12

The Court should view the

facts in the light most favorable to the non-moving party and
make all reasonable inferences in that party’s favor.

Hugh v.

Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
v. Carrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

Once the moving party has

satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
If the court determines that “the record taken as a whole
could not lead a rational trier or fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)).

Rule 56 mandates the entry of

summary judgment against the party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.

Celotex Corp., 477 U.S. at 322.

13

A thorough and comprehensive review of the docket makes
clear that no material fact is in dispute as to the dispositive
issues in this case.

Much of the undisputed facts are provided

by Plaintiff in his deposition testimony.

Although he attempts

to refute his own sworn deposition testimony by declaration, see
ECF No. 95, the use of such a declaration to dispute a
litigant’s own sworn testimony is precluded by the sham
affidavit doctrine.

See Baer v. Chase, 392 F.3d 609, 624 (3d

Cir. 2004) (A party “may not create a material issue of fact to
defeat summary judgment by filing an affidavit disputing his or
her own sworn testimony without demonstrating a plausible
explanation for the conflict.”).

Here, Plaintiff presents no

explanation for the conflicting testimony.

As such, summary

judgment is appropriate.
III. Discussion
Plaintiff has brought his constitutional claims pursuant to
42 U.S.C. § 1983, which provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
“To establish a claim under 42 U.S.C. § 1983, [a plaintiff]
must demonstrate a violation of a right secured by the

14

Constitution and the laws of the United States [and] that the
alleged deprivation was committed by a person acting under color
of state law.”
1993).

Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.

“The first step in evaluating a section 1983 claim is to

‘identify the exact contours of the underlying right said to
have been violated’ and to determine ‘whether the plaintiff has
alleged a deprivation of a constitutional right at all.’” Nicini
v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).
“A defendant in a civil rights action ‘must have personal
involvement in the alleged wrongs to be liable,’ and ‘cannot be
held responsible for a constitutional violation which he or she
neither participated in nor approved.’” Baraka v. McGreevey, 481
F.3d 187, 210 (3d Cir. 2007).

See Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005); Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988).

Further, supervisory liability cannot be

imposed under § 1983 by respondeat superior.

See Ashcroft v.

Iqbal, 556 U.S. 662 (2009); Monell v. Department of Social
Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
(1976); Durmer v. O'Carroll, 991 F.2d 64, 69 n.14 (3d Cir.
1993).

“Absent vicarious liability, each Government official,

his or her title notwithstanding, is only liable for his or her
own misconduct.”

Iqbal, 556 U.S. at 677.

A plaintiff must show

that an official's conduct caused the deprivation of a federally
15

protected right.

See Kentucky v. Graham, 473 U.S. 159, 166

(1985); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970) (A
plaintiff “must portray specific conduct by state officials
which violates some constitutional right.”).
A.

First Amendment Free Exercise Claim

The First Amendment prohibits the government from burdening
the free exercise of religion, but the First Amendment is only
implicated if the governmental burden on religion is
“substantial,” which essentially means that the state may not
compel an individual to act contrary to his religious beliefs.
Anspach v. City of Phila., Dep’t of Public Health, 503 F.3d 256,
272 (3d Cir. 2007).

The Supreme Court has defined a

“substantial burden” as one that “put[s] substantial pressure on
an adherent to modify his behavior and to violate his beliefs.”
Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707,
718 (1981).
Although inmates retain First Amendment rights, those
rights are not without reasonable limitations.
of Shabazz, 482 U.S. 342, 348 (1987).

O’Lone v. Estate

“The limitations on the

exercise of constitutional rights arise both from the fact of
incarceration and from valid penological objectives – including
deterrence of crime, rehabilitation of prisoners, and
institutional security.”

Id.

16

“The mere assertion of a religious belief does not
automatically trigger First Amendment protections.”
Horn, 227 F.3d 47, 51 (3d Cir. 2000).

DeHart v.

Rather, only “those

beliefs which are both sincerely held and religious in nature
are entitled to constitutional protection.”

Id.

“[I]f a

prisoner’s request for a particular diet is not the result of a
sincerely held religious beliefs, the First Amendment imposes no
obligation on the prison to honor that request . . . .

It is in

this way that prisons are protected from random requests for
special diets by inmates who alleged dietary restrictions are
not the result of their religious convictions but rather their
secular predilections.”
1.

Id.

Ramadan Dietary Restrictions

No rational factfinder could conclude on this record that
Plaintiff’s religious beliefs about fasting during the period of
Ramadan, which Court accepts as sincere, have been substantially
burdened by any moving defendant. 10

Specifically, it is

undisputed that Plaintiff’s belief is that he must fast from
approximately one hour before sunrise until sundown during the
month of Ramadan.

Plaintiff admits that he was not prevented

from doing this, and that his meals were provided at least one

10

The allegations regarding the purported failure to provide hot
meals and adequate food are raised against defendants Hicks,
Holmes, Silva, and Norris. ECF No. 1, ¶¶ 18-19, 23.
17

hour before sunrise and then after sundown during Ramadan.
Plaintiff admits that he received sufficient and adequate food
during Ramadan, including additional food at the dinner meal to
make up for the missed lunchtime meal.
While Plaintiff contends he was frustrated when he did not
receive hot water at dinner to make food that he purchased at
the commissary and would have preferred not to receive peanut
butter and jelly, his concerns, even if true, are not legally
material.

Plaintiff fails to establish how the provision of hot

water is integral to his ability to practice his sincerely held
belief of fasting during Ramadan, or how the provision of peanut
butter and jelly substantially burdens his beliefs.
Nor does Plaintiff state that, as a sincerely held
religious belief, he must have the same caloric intake during
fasting days as during non-fasting days as part of the Islamic
faith.

Id., ¶ 57.

Because the undisputed facts demonstrate

that Plaintiff cannot establish a substantial burden on any
sincerely held religious belief as it relates to his dietary
restrictions during Ramadan, the Court will enter judgment in
favor of the Moving Defendants and against Plaintiff on this
issue.
2.

Prayer Time

The Court also concludes that Plaintiff’s religious beliefs
regarding participating in prayer time have not been
18

substantially burdened by the named defendants in this lawsuit.
Specifically, Plaintiff admits that non-defendant corrections
officers were the persons who may have prevented him from
participating in certain prayers during his recreational time.
Plaintiff admits that none of the named defendants prohibited
him from participating in his prayers or directed the nondefendant corrections officers to interfere with his prayers. 11
With regarding to Defendants Holmes and Lanigan, Plaintiff
testified that their only involvement in his prayer time claim
was related to the filing of grievances.

Receiving a grievance,

responding to it, or not responding to it is not sufficient
personal involvement to create § 1983 liability.

“Permitting

supervisory liability where a defendant, after being informed of
the violation through the filing of grievances, reports or
appeals, failed to take action to remedy the alleged wrong is
not enough to show that the defendant has the necessary personal
involvement.

Allowing only a letter sent to an official to be

sufficient to impose supervisory liability would permit an
inmate to subject defendants to potential liability in any case
in which the prisoner merely transmitted correspondence to the
official.”

See, e.g., Iaccarino v. Grace, No. 06-cv-63, 2006

11

Plaintiffs admits that Moving Defendants Silva and Norris are
uninvolved in Plaintiff’s prayer claims.
19

U.S. Dist. LEXIS 9444, *3 (M.D. Pa. Jan. 25, 2006) (citing Rizzo
v. Goode, 423 U.S. 362 (1976), and other cases).
Because the undisputed facts establish that none of the
named defendants were personally involved in any alleged
deprivation of prayer time, Plaintiff has failed to establish a
claim against them and the Court must enter judgment in favor of
the Moving Defendants and against Plaintiff on this issue.
3.

Access to Prayer Oils

Plaintiff states that he was prevented from retaining
prayer oil as part of his personal property and keeping it on
his person.

During 2012 and 2013, however, Plaintiff admits

that he had access to the religious oils through the prison
chaplain, and that the religious oils are now sold in the
commissary.

Plaintiff identifies no sincerely held religious

belief that would require him to keep prayer oils on his person
or to have continuous access to them, and further, Plaintiff
admits that this issue may now be moot because the oils can be
purchased at the commissary.
When asked to explain how each named defendant was involved
in the religious oil issue, Plaintiff could provide no such
explanation, and therefore, it appears that the Moving
Defendants have no personal involvement in any alleged
constitutional violation arising from access to religious oils.

20

Plaintiff stated that he filed prison grievances with certain
non-defendant administrators — not any of the named defendants.
Even if Plaintiff could establish that a sincerely held
religious belief to retain religious oil on his person was
substantially burdened, none of the named Defendants had any
personal involvement in that burden, and for the reasons stated
supra, judgment must be entered in favor of the Moving
Defendants and against Plaintiff on this issue.
4.

Religious Attire

Plaintiff’s alleged sincerely held religious belief
regarding the donning of kufis during recreation time has not
been substantially burdened by the named defendants in this
lawsuit.

Plaintiff alleged that he was sometimes encumbered

from donning his kufi during recreation time.

First, Plaintiff

has failed to demonstrate that wearing a kufi during recreation
time is a sincerely held religious belief.

Second, Plaintiff

states that this issue is now moot because he is allowed to wear
a kufi during recreation time.

Finally, Plaintiff admits that

none of the named defendants prevented him from wearing a kufi
in the recreation yard and identifies only non-defendant
corrections officers as causing that temporary prohibition.
Even if Plaintiff could establish that his alleged
sincerely held religious belief to wear a kufi during recreation
time was substantially burdened, none of the named Defendants
21

had any personal involvement in that burden, and judgment must
be entered in favor of the Moving Defendants and against
Plaintiff on this issue.
5.

Harassment

Plaintiff originally alleged that Defendants Holmes and
Lanigan subjected Plaintiff to threats and assaults by gang
members and prison staff because he was allegedly listed on a
Security Threat Group list.

Plaintiff admits, however, that

neither Defendants Holmes nor Lanigan harassed or directed
another to harassed him, and that the alleged harassment is
unrelated to his religion and beliefs.

Plaintiff states that he

wrote to Defendants Holmes and Lanigan to be removed from the
list; however, such a fact is insufficient to establish § 1983
liability against them.
Because the Moving Defendants are not personally involved
in any alleged harassment (to the extent that Plaintiff has even
plausibly alleged a constitutional violation), and because any
such alleged harassment is unrelated to Plaintiff’s religion and
exercise of religious beliefs, the Court will enter judgment in
favor of the Moving Defendants and as against the Plaintiff on
this issue.
B.

Fourteenth Amendment Equal Protection Claim

“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its
22

jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S.
202, 216 (1982)).

To state an equal protection claim, a

plaintiff must allege that he was treated differently than other
similarly situated inmates, and that this different treatment
was the result of intentional discrimination based on his
membership in a protected class, such as religious affiliation.
See id.; Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir.
2016).
Generally, prison officials cannot discriminate against
inmates of different religions.
(1972).

Cruz v. Beto, 405 U.S. 319

An inmate cannot obtain relief if the difference

between the defendants' treatment of him and their treatment of
[inmates of another religion] is 'reasonably related to
legitimate penological interests.'" DeHart, 227 F.3d at 61.
Plaintiff makes no allegation in his Complaint or provides
any fact to establish that any similarly situated individual was
treated differently than he was treated, nor does he identify an
impermissible consideration that purportedly played a part in
the challenged decision in this case. 12

12

Like his First Amendment

Plaintiff, for the first time, argues in his opposition brief
that “Jewish inmates are given all three of their normally
23

claims, Plaintiff fails to identify any personal involvement by
any named defendant that would subject them to § 1983 liability
for any alleged equal protection violation.

For these reasons,

the Court will grant judgment in favor of the Moving Defendants
and against Plaintiff.
C.

Dismissal of Non-Served Defendants

Plaintiff has failed to effect service on Defendants Farsi,
Lanoza, Bolden, and Easley.

See ECF Nos. 11, 18.

A plaintiff

in a civil action in federal court must complete service of his
complaint within 120 days of filing or within a period
prescribed by the District Court.

See Fed. R. Civ. P. 4(m);

Mathies v. Silver, 450 F. App’x 219, 221 (3d Cir. 2011)
(affirming district court’s dismissal of action in which
plaintiff failed to effect service).

If the plaintiff fails to

complete service within the specified time, Rule 4(m) requires
the Court to determine whether the plaintiff has shown good

allotted meals at the time of breaking the fast when they
observe their holidays.” ECF No. 94. But, “it has been settled
law that an inmate cannot state an equal protection claim by
pointing to some instance where the prison accommodated some
other religious practice — or even the same religious practice
by another religious group — and demanding an identical
accommodation.” Small v. Wetzel, 12–cv–83, 2014 WL 295714, *2
(W.D. Pa. Jan. 24, 2014) (citing Cruz v. Beto, 405 U.S. 319, 322
n.2 (1972)). Moreover, Plaintiff provides no factual support
for his allegation and furthermore, fails to provide any facts
to demonstrate any defendant’s personal involvement in such an
alleged violation even if one occurred.
24

cause for the failure.

See Mathies, 450 F. App’x at 221; Boley

v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997).
The Court finds that Plaintiff has not demonstrated good
cause for the failure to serve these defendants.

Specifically,

Plaintiff knew of his failure to serve these defendants, see ECF
Nos. 11, 18, failed to ask the Court for an extension of time in
which to serve the defendants, and has failed to prosecute the
claims alleged against these defendants.
In such circumstances, the district court may either
dismiss the claims against the defendants or grant a
discretionary extension.

See Mathies, 450 F. App’x 221; Boley,

123 F.3d at 758; see also D.N.J. Local R. 41.1(a) (providing for
sua sponte dismissal of civil actions for want of prosecution).
The Court will dismiss without prejudice the claims against
these defendants.

If Plaintiff believes he has good cause for

his failure to serve these defendants, Plaintiff may within
thirty (30) days file a written statement which sets forth
detailed arguments to demonstrate good cause for consideration
by the Court along with a request to reinstate the defendants
who have not been served and effect service.
D.

Failure to Prosecute Served Defendants

Plaintiff named in the Complaint and served Defendants
Selby, Ramano, Marcucci, Yusef, and Moyer.

See ECF No. 19

(summons returned executed as to these defendants).
25

These

defendants have never appeared or participated in this
litigation.

Despite this, however, Plaintiff has failed to move

for a default or default judgment against them or made any
attempt to prosecute this action against them since they were
served over three years ago.

Therefore, pursuant to Local Rule

41.1(a), the Court will provide notice of its intent to dismiss
these defendants without prejudice unless good cause is shown by
affidavit or declaration.
IV.

See D.N.J. Loc. R. 41.1(a).

Conclusion
The Court will grant the Moving Defendants’ Motion for

Summary Judgment and enter judgment in the Moving Defendants’
favor and against Plaintiff, dismiss without prejudice the
action against Defendants Farsi, Lanoza, Bolden, and Easley for
failure to effect service, and issue a notice to Plaintiff of
the Court’s intent to dismiss without prejudice Defendants
Selby, Ramano, Marcucci, Yusef, and Moyer for failure to
prosecute pursuant to Local Rule 41.1(a).
Plaintiff may file within thirty (30) days an affidavit or
declaration demonstrating good cause for his failures to serve
and prosecute this action against the aforementioned defendants.
An appropriate order follows.

Dated: January 23, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

26