Johnson v. Lewis et al

Filing 31

ORDER granting in part and denying in part 27 Motion to Dismiss for Failure to State a Claim, Plaintiff has sufficiently stated a claim against Defendant Solomon in his official capacity for purposes of receiving prospective injunctive relief in this action, but all other Defendants and claims are dismissed. Signed by District Judge Robert J. Conrad, Jr on 12/16/2014. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-148-RJC
ZANE JOHNSON,

)
)
Plaintiff,
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)
vs.
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)
)
ROBERT C. LEWIS, Director of
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Prisons, et al.,
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Defendants.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on a motion to dismiss by Defendants Ruppel,
Clark, Parker, Rice, and Solomon. (Doc. No. 27).
I.

BACKGROUND
Pro se Plaintiff Zane Johnson, a North Carolina state inmate currently incarcerated at

Lanesboro Correctional Institution (“Lanesboro”), filed this action on March 8, 2013, pursuant to
42 U.S.C. § 1983, and he filed an Amended Complaint on December 19, 2013.1 On June 9,
2014, Defendants filed the pending motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 27). On June 13, 2014, the Court
entered an Order granting Plaintiff fourteen days in which to file a response to the motion to
dismiss. (Doc. No. 29). On July 1, 2014, Plaintiff filed his response to the motion to dismiss.
(Doc. No. 30).

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On December 3, 2013, this Court entered an Order requiring Plaintiff to re-submit the
Complaint because the Complaint in its current form was illegible. (Doc. No. 15).
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Although Plaintiff does not identify in his Amended Complaint the legal claims he
purports to bring, Plaintiff alleged in the original Complaint that Defendants are violating his
First Amendment right to the free exercise of his religion and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1 to 2000cc-5, by denying him
a proper kosher diet in accordance with his religious beliefs as a Hebrew Israelite. In the
Amended Complaint, Plaintiff alleges that his claims arose at Central Prison in Raleigh, North
Carolina, and that the violations are continuing at Lanesboro. Plaintiff names as Defendants
George Solomon, identified as Director of the North Carolina Division of Prisons; “Mr. Ruppel
and Mrs. Clark,” identified as the Head of Kitchen Staff at Lanesboro; Jackie Parker, identified
as the Head Dietician for the North Carolina Division of Prisons with an address at 218 W.
Morgan Street in Raleigh, North Carolina; Betty Liles, identified as having an address in
Kernersville, North Carolina; and James Rice, identified as being employed at Central Prison in
Raleigh, North Carolina. Plaintiff does not indicate whether the named Defendants are being
sued in their individual capacities, their official capacities, or both. Plaintiff sets forth the
following allegations in the Amended Complaint:
My claim is that the Hebrew Israelites are [being fed from a] tray like [regular
inmates] when the tray[s] are supposed to be order[ed] from a Kosher kitchen
[due] to germs and no[t] getting the proper food like the five basic meats turkey,
steak, chicken, baked fish. Now [Central Prison in Raleigh] is feeding right.
Lanesboro plus Maury plus Scotland is feeding from a Kosher veggie menu and it
[is] no[t] fair to lose … weight by being starved and forced of the diet due to the
non-meat menu. I showed the court where Kosher meat vs. allow and [sic] temp
tray is the kosher real way to feed Hebrew Israelite d[ue] to the menu from the
Hebrew Israelite community Pub. [Raleigh] Dept. African Hebrew Israelite of
Jerusalem P.O. Box 465 Dimona Israel 866000. I would love to honor my
religion and the real forthcoming of the real food. They got people running off
[from their] religion because of a veggie menu made up [by Raleigh] that in
violate [sic]. Because the judge rule to serve Kosher but he thought it was going
to be true Kosher not made up.
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(Doc. No. 16 at 4). For relief, Plaintiff states that he wants to be paid $1000 a day “for the time I
have suffered and order [Raleigh] to go to the non-air temporary tray so we can get the Kosher
meat tray not hand-made with a bag that [sic] fruit, cheese, bread, juice Real to go with the trays
of the truck.” (Id.). Furthermore, in his response to the motion to dismiss, Plaintiff states, “My
reason for suing is to get the proper kosher diet which is the reg level one kosher and the sub for
the non-meat and the vegan kosher for the vegan.” (Doc. No. 30 at 1).
II.

STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim, the Court must accept the factual

allegations of the claim as true and construe them in the light most favorable to the non-moving
party. Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 189 (4th Cir. 2010). To survive the
motion, the “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, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be “plausible on its face,” a plaintiff must
demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. A
plaintiff therefore must “articulate facts, when accepted as true, that ‘show’ that the plaintiff has
stated a claim entitling [it] to relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. 662 at 678).
III.

DISCUSSION
A. The Right to Free Exercise of Religion under the First Amendment
Plaintiff, who identifies himself as a Hebrew Israelite, alleges that Defendants have

violated his right to the free exercise of his religion under the First Amendment and RLUIPA by
failing to feed him a kosher diet that is compliant with the tenets of his faith. “The Free Exercise
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Clause of the First Amendment forbids the adoption of laws designed to suppress religious
beliefs or practices,” and “[i]ts protections . . . extend [ ] to the prison environment.” Morrison v.
Garraghty, 239 F.3d 648, 656 (4th Cir. 2001) (citations omitted). To state an actionable claim
under the Free Exercise Clause, a plaintiff must show both that he sincerely held a religious
belief and that the defendant’s actions substantially burdened his religious freedom or expression
of his belief. Blue v. Jabe, 996 F. Supp. 499, 502 (E.D. Va. 1996) (citing Wisconsin v. Yoder,
406 U.S. 205, 215-16 (1972)). The Supreme Court has defined “substantial burden” in various
ways, including “putting substantial pressure on an adherent to modify his behavior and violate
his beliefs,” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981), and
forcing an individual to “choose between following the precepts of [his] religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of [his] religion . . . on the other
hand.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). Finally, inmates’ First Amendment rights
must be balanced with prisons’ institutional needs of security, discipline, and general
administration. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Therefore, a prison
regulation impinging on inmates’ constitutional rights is valid if it is reasonably related to
legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987). Indeed, the role
of the federal judiciary is not to micro-manage state prisons or to determine how a particular
prison might be more beneficently operated; the expertise of prison officials must be given due
deference. See Sandin v. Conner, 515 U.S. 472, 482 (1995).
B. The Right to Free Exercise of Religion under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”)
Under RLUIPA, the government is prohibited from imposing a “substantial burden on the

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religious exercise of a person residing in or confined to an institution” unless the government
demonstrates that the imposition of that burden furthers a “compelling governmental interest” by
the least restrictive means. 42 U.S.C. § 2000cc-1(a)(1)-(2). Although RLUIPA does not define
the term “substantial burden,” the United States Court of Appeals for the Fourth Circuit has held
that a “substantial burden on religious exercise occurs [under RLUIPA] when a state or local
government, through act or omission, ‘put[s] substantial pressure on an adherent to modify his
behavior and to violate his beliefs.’” Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006)
(quoting Thomas, 450 U.S. at 718 (1981). “On the opposite end of the spectrum . . . a
government action or regulation does not rise to the level of a substantial burden on religious
exercise if it merely prevents the adherent from either enjoying some benefit that is not otherwise
generally available or acting in a way that is not otherwise generally allowed.” Adkins v.
Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). “Religious exercise” in this context includes “any
exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42
U.S.C. § 2000cc-5(7)(A).
In establishing a claim under RLUIPA, inmates must first show that they have sought to
engage in an exercise of religion and, second, that the prison has engaged in a practice that
substantially burdens that exercise of religion. See Smith v. Ozmint, 578 F.3d 246, 250-51 (4th
Cir. 2009) (citing Lovelace, 472 F.3d at 186). Once the inmate has alleged a substantial burden,
the prison must demonstrate that the practice in question is the least restrictive means of
furthering a compelling governmental interest. Id. Additionally, while RLUIPA authorizes
injunctive and declaratory relief, it does not waive a state’s Eleventh Amendment immunity, nor
does it authorize suits for money damages against prison officials, whether in their official or

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individual capacities. Rendelman v. Rouse, 569 F.3d 182, 187-89 (4th Cir. 2009); accord
Sossamon v. Texas, 131 S. Ct. 1651, 1663 (2011). Finally, to state a RLUIPA claim against an
individual, a plaintiff must establish that the individual acted with the requisite intent. Lovelace,
472 F.3d at 194-95. In the RLUIPA context, the Fourth Circuit has held that such a claim
requires more than negligence and is satisfied only by intentional conduct. Id. at 194 (“We
conclude that simple negligence, the lowest common denominator of customary tort liability,
does not suffice to meet the fault requirement . . . RLUIPA.”) (internal quotation marks omitted).
For the following reasons, the Court finds that Defendants’ motion to dismiss shall be
granted to the extent that Defendants are being sued in their individual capacities and to the
extent that Plaintiff is seeking damages. Here, neither the original Complaint nor the Amended
Complaint indicates whether the moving Defendants have been sued in their individual
capacities only, in their official capacities only, or both. The Court will assume for purposes of
the motion to dismiss that Plaintiff has sued the named Defendants in both capacities. For a
defendant to be held liable under Section 1983 in his individual capacity, the plaintiff must
demonstrate that the defendant personally participated in the alleged denial of rights. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7 (1978). There can be no liability under Section 1983
based on respondeat superior or other theories of vicarious liability. Id. Liability under Section
1983 attaches only upon personal participation by a defendant in the constitutional violation.
Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). A supervisor may be liable for
constitutional violations of subordinates if the supervisor participated in, directed, or knew of the
violations and failed to act to prevent them. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994).

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Here, to the extent that the moving Defendants have been sued in their individual
capacities, they are all entitled to be dismissed because Plaintiff neither mentions any of them by
name nor attributes any action or inaction to them that resulted in denying his ability to exercise
his religion. Specifically, Plaintiff does not allege that any of the named Defendants had actual
knowledge that Plaintiff was not being served a kosher diet. Indeed, beyond being named as
Defendants, the movants are simply not mentioned anywhere in the factual allegations of either
the original Complaint or the Amended Complaint. “Vague and conclusory allegations of
official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”
Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Iqbal, 556 U.S. at 678 (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Because Plaintiff does not allege that any of the moving Defendants personally participated in
denying him a kosher diet, Plaintiff’s claims against the moving Defendants in their individual
capacities will be dismissed.
The Court finds, however, that to the extent that Plaintiff has sued Defendants in their
official capacities, Plaintiff’s claims of a First Amendment and RLUIPA violation survive as to a
claim for prospective injunctive relief under Ex Parte Young, 209 U.S. 123, 159-60 (1908).2 See
Browning v. Seifert, No. 1:13cv23, 2014 WL 1048494, at *18 (N.D. W. Va. Mar. 18, 2014)
(holding that the plaintiff stated a claim against the defendants for prospective injunctive relief
where the plaintiff, a Hebrew Israelite, alleged that he was being provided a vegetarian diet
rather than a true kosher diet). The Court must take Plaintiff’s allegations as true, and construe

2

To the extent that Plaintiff is seeking injunctive relief with regard to his claims arising while at
Central Prison, his claim for injunctive relief is moot since he has been transferred away from
Central Prison.
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all inferences in his favor. He specifically alleges that his faith is Hebrew Israelite, that as a
Hebrew Israelite he is entitled to a kosher diet, and that he is not being provided a kosher diet
that is compliant with the tenets of his faith. He complains that he is, instead, merely being fed a
vegetarian diet. These allegations are sufficient to state a plausible claim for a violation of the
First Amendment and RLUIPA.3 Typically, in a claim for injunctive relief, the government
official who is responsible for carrying out the requested relief would be named as a defendant.
In the context of prison litigation, that official is usually the warden of the institution where the
inmate is incarcerated. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Plaintiff
has not named as a defendant the warden of Lanesboro, but he has named George Solomon,
Director of the North Carolina Division of Prisons. Here, the Court will allow Plaintiff’s claim
to go forward against Defendant Solomon in his official capacity for prospective injunctive
relief. However, all remaining Defendants and claims will be dismissed from this action.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Defendants’ Motion to Dismiss, (Doc. No. 27), is DENIED in part and
GRANTED in part. Plaintiff has sufficiently stated a claim against Defendant
Solomon in his official capacity for purposes of receiving prospective injunctive

3

The Court takes judicial notice that, in another case with similar facts, the District of
Connecticut recently held that a vegetarian diet satisfied the Hebrew Israelite inmate’s religious
requirement for a kosher diet after prison officials “provided evidence, in the form of affidavits
from the Department of Correction’s Director of Religious Services and Chief of Food Services,
that an attempt to accommodate the plaintiff's dietary requests [by providing kosher meat] would
involve significant costs and present serious security and administrative problems.” Wortham v.
Lantz, No. 3:10-cv-1127 (DSJ), 2014 WL 4073201, at *4 (D. Conn. Aug. 13, 2014). However,
the Court’s determination in that action was made on summary judgment after the parties had
developed the record with evidence.
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relief in this action, but all other Defendants and claims are dismissed.

Signed: December 16, 2014

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