SUTTON v. DELANEY et al

Filing 80

AMENDED MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/29/14. 5/30/14 ENTERED AND COPIES E-MAILED TO COUNSEL, LEGAL.(lvj, ) Modified on 5/30/2014 (lvj, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
OLAF SUTTON,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.
A M E N D E D

CIVIL ACTION
NO. 11-7005

M E M O R A N D U M1

EDUARDO C. ROBRENO, J.

MAY 29, 2014

Table of Contents
I.

INTRODUCTION .............................................. 3

II. STANDARD OF REVIEW ........................................ 8
III. MOOTNESS .................................................. 9
IV. ARAMARK DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT .......... 13
A.

State Action Analysis .................................. 14

B.

Plaintiff’s First Amendment Claims ..................... 16

1.

Claims Against Aramark ................................ 17

2.

Claim Against Flaherty in Official Capacity ........... 21

3.

Claim Against Flaherty in Individual Capacity ......... 23

C.

Fourteenth Amendment Claims ............................ 25

1.

Claim Against Aramark ................................. 25

2.

Claim Against Flaherty in Official Capacity ........... 31

3.

Claim Against Flaherty in Individual Capacity ......... 31

1

The Amended Memorandum replaces the Memorandum filed
on May 20, 2014, (ECF No. 77) which contained certain
typographical errors. Other than correcting those typographical
errors, the Amended Memorandum is identical to the previous
Memorandum. The Order filed on May 20, 2014, (ECF No. 78)
remains unaltered and in full force and effect.
1

D.

RLUIPA Claims Against Aramark Defendants ............... 34

1.

Claim Against Aramark ................................. 34

2.

Claim Against Flaherty in Individual Capacity ......... 38

3.

Claim Against Flaherty in Official Capacity ........... 39

V.

CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ............. 40

A.

First Amendment Claims ................................. 40

1.

Claims Against the City ............................... 41

2.

Claims Against All Defendants in Official Capacities .. 44

3.

Claims Against All Defendants in Individual Capacities 45

B.

RLUIPA Claims .......................................... 48

1.

Claims Against the City ............................... 49

2.

Claims Against All Defendants in Official Capacities .. 51

3.

Claims Against All Defendants in Individual Capacities 52

VI. CONCLUSION ............................................... 52

2

I.

INTRODUCTION
Olaf Sutton (“Plaintiff”) is an inmate in the
Philadelphia Prison System (“PPS”) and a practicing Muslim.
Compl. ¶¶ 1, 21, ECF No. 30.

As a Muslim, Plaintiff’s religion

prohibits eating meat unless the meat is Halal.2 Plaintiff was
incarcerated in the Curran-Fromhold Correctional Facility
(“CFCF”) on March 26, 2010, and transferred to Philadelphia
Industrial Correctional Center (“PICC”) on or about January 2,
2012.

Compl. ¶ 20; Pl.’s Resp. Aramark Mot. Summ. J., Ex. 8,

Sutton Mem. 104.

Both facilities are in the PPS.

A brief overview of the PPS’s religious alternative
meal system is necessary to understand Plaintiff’s claims.

The

PPS offers two types of religious diets: vegetarian and kosher.
Pl.’s Resp. Aramark Defs.’ Mot. Summ. J., Ex. 9, Pl. Dep. 28:912, ECF No. 68.

Muslim inmates are offered vegetarian meals and

Jewish inmates are offered kosher meals that occasionally
contain meat.

Compl. ¶ 28; Aramark Defs.’ Mot. Summ. J. 21

(“The prisons accommodate the free exercise of Judaism by
providing Kosher meals, which occasionally include Kosher
meat.”).

2

Halal is the Arabic word for “permissible.” In
regards to food, there are certain foods which are forbidden for
Muslims to eat under Islamic law and certain methods of animal
slaughter which would make otherwise permissible meats
impermissible.
3

The prison’s chaplain is responsible for deciding
which inmates are entitled to receive religious diets and
creating a list of those inmates for the prison’s food provider.
See Pl.’s Resp. City Defs.’ Mot. Partial Summ. J. 5, ECF No. 70.
Aramark is the food provider for the PPS and is tasked with
preparing meals for each prisoner in compliance with the
chaplain’s list.

See Aramark Defs.’ Mot. Summ. J. 8-9, ECF No.

59.
On September 21, 2010, following a request by
Plaintiff, the prison’s chaplain placed Plaintiff on a special
diet to accommodate his religious practice.

Compl. ¶ 28.

Plaintiff is not a vegetarian and desires to eat meat.
29.

Compl. ¶

According to Plaintiff, his religion permits him to eat the

meat contained in the kosher meals.3
J. 8.

Aramark Defs.’ Mot. Summ.

The prison’s chaplain, however, denied Plaintiff’s

request to be placed a kosher diet and instead placed him on a
vegetarian diet.

Id.; Compl. ¶ 28.

As a result, Plaintiff’s

approved diet does not contain any meat.

Compl. ¶ 55.

Although Plaintiff was placed on a vegetarian diet, he
claims that on several occasions during his incarceration at

3

Generally speaking, Kosher food complies with Muslim
Halal restrictions and would thus be permissible, under Islamic
rules, for a Muslim to eat. The Court accepts that the meats in
the non-vegetarian non-Kosher meals were not Halal and the meats
in the Kosher meals would be Halal, as the parties themselves
have not indicated otherwise.
4

CFCF and PICC, he was not served vegetarian meals.

Compl. ¶ 33.

Specifically, Plaintiff claims that he was not served several
religious alternative breakfasts in October 2010, any vegetarian
meals from January 2, 2012, to January 9, 2012, and any
vegetarian meals from December 20, 2012, to January 1, 2013.
Compl. ¶ 31; Pl. Dep. 40:16-22.

According to Plaintiff, during

the first and last weeks of 2012, he was forced to choose
between eating and violating the tenants of his religion.

Pl.

Dep. 42:10-23; Pl.’s Resp. Aramark Mot. Summ. J., Ex. 8, Sutton
Mem. 104.
Lastly, in May 2011, Plaintiff commenced a hunger
strike to protest what he believes to be a discriminatory
religious alternative meal system.
Mot. Partial Summ. J. 4.

See Pl.’s Resp. City Defs.’

Plaintiff alleges that his free

exercise rights were violated by the conduct of two prison
officials in relation to his hunger strike.

Compl. ¶¶ 50, 51.

In the early morning hours of May 12, 2011, Plaintiff was
brought to the prison’s mental health unit by a prison employee.
Compl. ¶ 50.

Later that morning, another prison employee

entered Plaintiff’s cell, allegedly with food that violated
Plaintiff’s religious dietary restrictions, and told Plaintiff
to stop his hunger strike or be brought to the “hole.”4

4

Compl. ¶

The Court takes this as a reference to the prison’s
Restricted Housing Unit (“RHU”).
5

51.

Plaintiff drank some of the orange juice that was on the

tray and the prison employee left Plaintiff’s cell.
50.

Plaintiff was never brought to the RHU.

Compl. ¶

Compl. ¶ 50.

Plaintiff commenced this litigation by filing a pro se
complaint. ECF No. 3.

After obtaining counsel, Plaintiff filed

two amended complaints. ECF Nos. 6, 30.
complaint contains six counts.5

The second amended

The counts include civil rights

violations pursuant to 42 U.S.C. §§ 1983 and 1988 (Count I),
violations of the Fourteenth Amendment (Count II), violations of
the First Amendment (Count III), violations of the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”) (Count
IV), intentional and negligent infliction of emotional distress
(Count V), and conspiracy to deprive Fourteenth and First
Amendment rights (Count VII).
defendants.

Plaintiff names several

For organizational purposes, the Court will divide

the defendants into two groups: City Defendants6 and Aramark
Defendants.7

5

The sixth numerical count is mislabeled in the
Complaint as “Count VII.”
6

The City of Philadelphia (the “City”); Louis Giorla
(“Giorla”); John P. Delaney (“Delaney”); Phyllis Taylor
(“Chaplain Taylor”); Sergeant Gamgemi; and Sergeant Pote.
7

Aramark Correctional Services, Inc. (“Aramark”) and
Walter Flaherty (“Flaherty”).
6

On May 18, 2012, the Aramark Defendants filed a motion
to dismiss.

ECF No. 9.

Following the motion, the Court

dismissed Counts I, V, and VII.
40.

Order, Sept. 6, 2012, ECF No.

The City Defendants did not file a motion to dismiss.
On March 20, 2014, the Aramark Defendants informed the

Court that Plaintiff was transferred from PICC to SCI Graterford
on November 27, 2013. Aramark Defs.’ Supp. ¶. 6, ECF No.74.

As

of March 12, 2014, however, Plaintiff has been incarcerated at
SCI Camp Hill, which is located on the outskirts of Harrisburg.8
Pl.’s Resp. Aramark Defs.’ Supp., Ex. A, 4.

Plaintiff argued

that he would likely be incarcerated again in the PPS because he
had an upcoming trial in the Court of Common Pleas of
Philadelphia County.

Id. at 2.

Plaintiff has since pled guilty

to those charges and was transferred back to a Pennsylvania
Department of Corrections facility.

Plaintiff’s sentence

stemming from this new guilty plea will run concurrent to his
previous sentence and will not require him to serve any time
within the PPS.
Pending before the Court are Aramark Defendants’
Motion for Summary Judgment and the City Defendants’ Motion for
Partial Summary Judgment.

Plaintiff has filed responses to both

motions (ECF Nos. 68, 70, 75) and the Aramark Defendants have

8

SCI Graterford and SCI Camp Hill are both part of the
Pennsylvania Department of Corrections, not the PPS.
7

filed a reply (ECF. 72) to Plaintiff.

The motions are ripe for

disposition.
II.

STANDARD OF REVIEW
Summary judgment is appropriate if there are no
genuine disputes of material fact and the moving party is
entitled to judgment as a matter of law.

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

“A motion for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.”

Am. Eagle Outfitters v.

Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
A fact is “material” if proof of its existence or non-existence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248.
In undertaking this analysis, the court views the
facts in the light most favorable to the non-moving party.
“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.”

Pignataro v. Port

Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)).

While the moving party bears the initial burden of
8

showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party who
must “set forth specific facts showing that there is a genuine
issue for trial.”

III.

Anderson, 477 U.S. at 250.

MOOTNESS
The Aramark Defendants argue that Plaintiff’s claims
for injunctive relief are moot because Plaintiff is no longer
incarcerated in the PPS.9

Plaintiff initially responded that his

claims for injunctive relief are not moot under the “capable of
repetition” doctrine.

Pl.’s Resp. Aramark Defs.’ Supp. 2-3.

Plaintiff claimed that the “capable of repetition” doctrine is
applicable because he will likely be incarcerated in the PPS
during the adjudication of his upcoming trial in Philadelphia.
Subsequently, however, Plaintiff pled guilty and has been
transferred out of the PPS.
76.

Status Report, May 7, 2014, ECF No.

Plaintiff’s counsel indicate that as a result of

Plaintiff’s guilty plea his “sentences will be served in the
Pennsylvania Department of Corrections system, and not at all in
Philadelphia.”

Status Report.

It is well settled that this Court may only adjudicate
“live” cases or controversies.

Abdul-Akbar v. Watson, 4 F.3d

9

Specifically, Aramark argues that it does not serve
food at the SCI Graterford Prison.
9

195, 206 (3d Cir. 1993).

“[A] case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.”
U.S. 486, 496 (1969).

Powell v. McCormack, 395

Nonetheless, the “capable of repetition”

doctrine holds that a claim is not moot if “(1) the challenged
action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected
to the same action again.”

Weinstein v. Bradford, 423 U.S. 147,

149 (1975).
The first element of the “capable of repetition”
doctrine is satisfied here because the challenged action—service
of meat-containing religious alternative meals to Jewish
inmates, but not Muslim inmates—was “in its duration too short
to be fully litigated.”

Id.

Nonetheless, the Court must still

determine whether there is a reasonable expectation that
Plaintiff will face the same discrimination in the future.
Generally, courts have held that an inmate’s release
from a correctional institution makes his or her claims for
injunctive relief moot.

See, e.g., id. (holding former

parolee’s claims were moot because plaintiff was released from
parole supervision); Doe v. Delie, 257 F.3d 309, 314 (3d Cir.
2001) (holding plaintiff’s claims for injunctive relief against
defendant-prison officials were moot because plaintiff was no
10

longer incarcerated at the institution where his claims
originated); Abdul-Akbar, 4 F.3d at 206 (holding former inmate’s
claims for injunctive relief were moot because inmate was
released from incarceration); Hontz v. Berks Cnty. Prison, No.
12-2663, 2012 WL 5199370 (E.D. Pa. Oct. 19, 2012).

In such

cases, courts focus on the reasonableness of the probability
that the plaintiff would be subject to the same harms.
For example, in Abdul-Akbar the plaintiff filed a §
1983 claim against the prison alleging that the legal resources
in the prison’s library were inadequate.
197.

Abdul-Akbar, 4 F.3d at

The plaintiff was released before his claim was

adjudicated.

Id.

Nonetheless, the district court granted an

injunctive remedy against the defendant prison.

Id. at 200-01.

The Third Circuit vacated the district court’s injunctive relief
order because the plaintiff’s claim was moot.

Id. at 206-07.

Specifically, the court held that the plaintiff did not satisfy
the “capable of repetition” doctrine because nothing in the
record supported the assumption that the plaintiff would be
incarcerated in the future in the same prison.

Id.

The court

went on to state that “[s]uch conjecture as to the likelihood of
repetition has no place in the application of this exceptional
and narrow grant of judicial power.”

Id. at 207.

Of particular note in Delie, the plaintiff sought
injunctive relief against employees of the prison where he was
11

incarcerated.

Doe v. Delie, 257 F.3d at 312.

Shortly before

oral arguments the plaintiff informed the Third Circuit that his
conviction was pending a re-trial.

Id. at 313.

The plaintiff’s

conviction was overturned and he was released from prison before
a decision was reached.

Id.

As a result, the court held that

the plaintiff’s claims for injunctive relief were rendered moot
by his release and the “capable of repetition” exception did not
apply.

Id. at 313-14.

Specifically, the court stated, “as a

result of his acquittal, we simply cannot conclude that there is
a reasonable likelihood that he would be subjected to the same
conduct.”

Id. at 314.
Finally, in the seminal case of Weinstein, the

plaintiff continued to challenge certain procedures of the North
Carolina Board of Parole after he was released from parole.
Weinstein, 423 U.S. at 147-48.

The Supreme Court explained that

the plaintiff had no interest in the procedures used by the
North Carolina Board of Parole after the date that he was
released from supervised parole.

Id. at 148.

After laying out

the two-part test of the “capable of repetition” doctrine, the
Court held that “there is no demonstrated probability” that the
plaintiff would again be under the supervision of the North
Carolina Board of Parole.

Id. at 149.

As Plaintiff has pled guilty, been transferred out of
the PPS, and is not subject to additional incarceration within
12

the PPS, it would be mere speculation to hold that Plaintiff
will be incarcerated in the PPS again.

Thus, much like the

Plaintiff in Delie, the capable of repetition exception will not
apply here.

Delie, 257 F.3d at 312.

Accordingly, Plaintiff’s

claims for injunctive and declaratory relief are rendered moot.
As each of Plaintiff’s claims also raise a claim for monetary
damages, the Court will still address the defendants’ motions
for summary judgment.10

IV.

ARAMARK DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Aramark has moved for summary judgment on Counts II,
III, and IV.

In Counts II and III, Plaintiff alleges violations

of the First and Fourteenth Amendments pursuant to 42. U.S.C. §
1983.

In order to address Counts II and III, the Court must

first determine whether Aramark can be considered a state actor
for the purposes of constitutional protections.11

The Court will

separately address Plaintiff’s RLUIPA claim.

10

The Court notes that in Aramark Defendants’
supplemental filing, they do not argue that Plaintiff’s claims
would be mooted in full. Aramark Defendants only assert that
Plaintiff’s claims for injunctive and declaratory relief would
be rendered moot.
11

To establish a section 1983 claim, a plaintiff “must
demonstrate a violation of a right secured by the Constitution
and the laws of the United States [and] that the alleged
deprivation was committed by a person acting under the color of
13

A.

State Action Analysis

Aramark is a private corporation, not a government
entity.

As such, Aramark can only be liable for constitutional

violations under § 1983 if it can fairly be considered to act
under color of state law.

See Kneipp v. Tedder, 95 F.3d 1199,

1204 (3d Cir. 1996); see also Pugh v. Downs, 641 F. Supp. 2d
468, 472 (E.D. Pa. 2009) (Robreno, J.).

There are several

judicially created tests to determine whether a party acts under
color of state law.

The four most commonly applied tests are:

(1) the close nexus test, see Blum v. Yaretsky, 457 U.S. 991,
1004 (1982), (2) the symbiotic relationship test, see Burton v.
Wilmington Parking Auth., 365 U.S. 715, 725 (1961),(3) the joint
action test, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 941
(1982), and (4) the public function test, see Terry v. Adams,
345 U.S. 461, 468–470 (1953).

See also Pugh, 641 F. Supp. 2d at

472.
Citing Evans v. Newtown, 382 U.S. 266 (1966),
Plaintiff argues that Aramark is a state actor because Aramark
performs a traditionally exclusive government function by
state law.” Kneipp, 95 F.3d at 1204. Section 1983 permits
plaintiffs to sue private parties as long as such parties acted
under color of state law. Thus, the threshold inquiry is to
determine whether Aramark and Flaherty acted under color of
state law.

14

providing food services to inmates.
Mot. Summ. J. 11.

Pl.’s Resp. Aramark Defs.’

Aramark contends that as a private company it

merely contracts with the state to provide food.
Mot. Summ. J. 8.

Aramark Defs.’

According to Aramark, the traditional function

of deciding what meals individual prisoners receive remains with
the City.

Id. at 12.

Citing to several cases outside of the

Third Circuit, Aramark argues that it is “well-established case
law . . . that Aramark is not a state actor.”

Aramark Defs.’

Resp. Pl.’s Resp. 4, ECF 72.
Courts in this district, however, have held that
Aramark can be considered to act under color of state law by
taking on the traditionally exclusive government function of
providing food services to prisoners.

See Williams v. Giorla,

No. 11-6565, 2013 WL 3982348, at *5-6 (E.D. Pa. Aug. 2, 2013);
McCullum v. City of Philadelphia, No. 98-5858, 1999 WL 493696,
at *2-3 (E.D. Pa. July 13, 1999) (“The court finds that Aramark
acted under color of state law for purposes of § 1983 by
performing the traditional government function of providing food
service at a prison.”); Talley v. Amarker, No. 95–7284, 1996 WL
528867, at *2-4 (E.D. Pa. Mar.7, 1996); see also Jubeh v. Dart,
No. 11-3873, 2011 WL 6010267, at *2 (N.D. Ill. Nov. 29, 2011)
(listing courts that have held that Aramark can be considered a

15

state actor).12

Aramark does not dispute that it has contracted

with the City to provide food services in the PPS.

As a result,

Aramark can fairly be considered to have acted under color of
law because it performs a function that is a traditionally
exclusive government function, that of providing meals to prison
inmates.
Accordingly, the Court holds that Aramark acted under
color of state law and can be sued under § 1983.

B.

Plaintiff’s First Amendment Claims

Plaintiff claims that Walter Flaherty13 (in his
official and individual capacities) and Aramark violated
Plaintiff’s free exercise rights under the First Amendment by

12

Aramark’s current counsel, Thomas J. Mckenzie, was
counsel of record for Aramark in Williams where the court held
that “Aramark was acting under color of state law in the
preparation of food for inmates.” Williams, 2013 WL 3982348, at
*5.
Regrettably, counsel in the present case did not bring
this adverse case law to the Court’s attention, even to
distinguish it. Counsel should review the Pennsylvania Rules of
Professional Conduct, notably Rule 3.3(a)(2) which states that
“[a] lawyer shall not knowingly: fail to disclose to the
tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel.”
13

Flaherty is the Regional Manager of Aramark
Correctional Services at the PPS.
16

failing to consistently provide Plaintiff with vegetarian meals.
Compl. ¶ 83; Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. 7.14
1.

Claims Against Aramark

In order for an entity such as Aramark to be liable
under § 1983, a plaintiff must provide evidence that the alleged
constitutional deprivations resulted from the defendant’s
official policy or custom.

Natale v. Camden Cnty. Corr.

Facility, 318 F.3d 575, 583 (3d Cir. 2003).

Under § 1983, such

an entity cannot be held liable under the theory of respondeat
superior.

Id.

Moreover, Aramark can only be held liable under

§ 1983 if one of its policies or customs was the “moving force”
behind the alleged constitutional violation.

City of Canton,

Ohio v. Harris, 489 U.S. 378, 379 (1989); Murray v. Allen, No.
10-1014, 2010 WL 4159261, at *3 (E.D. Pa. Oct. 21, 2010); see
also McCullum v. City Of Philadelphia, No. 98-5858, 2000 WL
329203, at *1 (E.D. Pa. Mar. 23, 2000) (“[Under § 1983,] “a
policy or custom includes practices that are so permanent and

14

Plaintiff's response indicated that Plaintiff is not
pursuing a claim under the First Amendment free exercise clause
for an alleged failure by Aramark to serve Halal meat. Pl.’s
Resp. Aramark Defs.’ Mot. Summ. J. 7. Accordingly, the Court
will not review whether Aramark’s failure to serve Halal meat
constitutes a violation Plaintiff’s free exercise rights.
17

well established as to constitute a custom or usage with the
force of law.”).15
In McCullum, the prisoner-plaintiff claimed that
Aramark was liable for constitutional violations under § 1983
because an Aramark employee attacked him.
329203, at *1.

McCullum, 2000 WL

The district court dismissed the plaintiff’s

claim because the plaintiff failed to show that the Aramark
employee acted pursuant to any of Aramark’s policies or customs.
Id. at *2.

Although the plaintiff’s complaint alleged that

Aramark “as a matter of policy or practice” failed to train,
supervise, and discipline its employees, the court concluded
that the plaintiff failed to present evidence showing that any
Aramark policy was the cause.

Id. at *1.

Presently, Plaintiff contends that Aramark violated
his free exercise rights by failing, on multiple occasions, to
provide him with vegetarian meals.

Compl. ¶¶ 30-33.

Additionally, Plaintiff alleges that an Aramark employee, on one
occasion, told him to remove non-Halal meat from a breakfast
tray and “eat the rest.”

Compl. ¶ 35.

In both of these claims,

however, Plaintiff has failed to present any evidence showing
15

An “official policy or custom” may be set by lawmakers
or by those “whose edicts or acts may be fairly said to
represent official policy.” Monell v. Dep't of Soc. Servs., 436
U.S. 658, 694 (1978). The Court notes that Plaintiff’s
allegations do not involve the edicts or acts of a senior policy
maker at Aramark.
18

that an Aramark policy or custom was the cause of these alleged
incidents.
First, the remark by an unidentified Aramark employee,
like the single attack in McCullum, amounts to an isolated
event.

Plaintiff has presented no evidence suggesting that the

unnamed Aramark employee acted pursuant to any Aramark policy or
custom.

See City of Canton, 489 U.S. at 379.

Therefore, the

Court finds that this single event does not trigger liability
under § 1983.
Aramark’s alleged failure to serve Plaintiff several
vegetarian meals, however, poses a more complex issue.
Plaintiff claims that Aramark failed to serve him vegetarian
breakfast meals on multiple occasions in October 2010, any
vegetarian meals from January 2, 2012, to January 9, 2012,16 and
any vegetarian meals from December 20, 2012, to January 1, 2013.
Compl. ¶ 31; Pl. Dep. 40:16-22.

According to Plaintiff,

Aramark’s failure to serve at least 40 vegetarian meals amounts
to a policy.17

Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. 13.

16

According to Plaintiff, he was transferred from CFCF
to PICC on January 2, 2012 but his religious alternative meals
“did not follow.” Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. Ex.
8, Sutton Mem. 104.
17

Plaintiff has inconsistently approximated the amount
of times he was not served the proper religious alternative
meal.
For example, Plaintiff stated in his deposition that he
was not served vegetarian meals “maybe 20 times,” but “it [could
have] been more . . . .” Pl. Dep. 48: 11-17. In his response
19

Aramark contends that none of its policies or customs
can be considered the moving force behind these missed meals.
Aramark Defs.’ Mot. Summ. J. 8.

On the contrary, Aramark

asserts that it has policies in place to ensure that prisoners
receive their appropriate meals.

For example, “if a prisoner

does not receive the appropriate meal that the City of
Philadelphia instructs [Aramark] to serve, that prisoner may
reject the meal and a meal which is compliant with that
prisoner's diet menu will be provided . . . .”
Mot. Summ. J., Ex 7, Flaherty Aff. ¶ 5.

Aramark Defs.’

Aramark also argues

that Plaintiff’s missed meals amount to a de minimis burden on
his free exercise rights.

Aramark Defs.’ Mot. Summ. J. 13.

To

support its argument, Aramark asserts that since the Plaintiff
initially requested a religious alternative diet, he has been
served the correct meal over 99% of the time.

Id. at 12 - 13.

Reviewing the evidence in the light most favorable to
Plaintiff, the Court finds that Plaintiff has failed to present
sufficient evidence that could lead a reasonable jury to
conclude that Aramark’s failure to occasionally provide
vegetarian meals was the result of any of Aramark’s policies or
customs.

The missed meals from January 2, 2012, to January 9,

to Aramark’s Motion for Summary Judgment, Plaintiff states that
he was denied vegetarian meals at least 40 times. Pl.’s Resp.
Aramark Defs.’ Mot. Summ. J. 13.
20

2012, appear to be an administrative error flowing from
Plaintiff’s transfer from CFCF to PICC.

Although Plaintiff

alleges that he was not served religious alternative breakfasts
in October 2010, and any vegetarian meals from December 20, 2012
to January 1, 2013, he fails to show how this indicates Aramark
itself had a policy or custom which caused this alleged
failure.18

Furthermore, Plaintiff has not responded to Aramark’s

contention that it served the correct vegetarian meals to
Plaintiff over 99% of the time.

Therefore, Aramark has shown

that it has a policy of providing Plaintiff with the proper
meals.

Accordingly, the Court will grant Aramark’s Motion for

Summary Judgment with regard to Plaintiff’s free exercise claims
against Aramark.

2.

Claim Against Flaherty in Official Capacity

Plaintiff sued Flaherty in both his official and
individual capacities.

Plaintiff’s official capacity suit

against Flaherty, however, is the equivalent of a suit against
Aramark.

See Will v. Mich. Dep't of State Police, 491 U.S. 58,

18

On January 1, 2013, Plaintiff told the prison’s
chaplain that he was not being served vegetarian meals. Pl.
Dep. 42:10-23. Aramark’s prompt resumption of vegetarian meal
service on the same day that it was informed of the error
strongly suggests that it is Aramark’s policy and custom to
serve inmates the correct meals.
21

71 (1989) (A suit against an individual in his or her official
capacity “is not a suit against the official, but rather a suit
against the official's office.”); Kentucky v. Graham, 473 U.S.
159, 165 (1985). (“Official-capacity suits . . . ‘generally
represent only another way of pleading an action against an
entity of which an officer is an agent.’”) (quoting Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).

Other

courts in this district have consistently held that official
capacity claims against employees of private entities acting
under color of state law are merely claims against the employer.
See, e.g., DeJesus v. Aramark Food Serv., Inc., No. 13-5734,
2014 WL 144732, at *4 (E.D. Pa. Jan. 14, 2014) (“DeJesus's
claims against Kramer in his official capacity pursuant to §
1983 will be dismissed with prejudice because these claims are
viewed as claims against Aramark.”); see also Clarke v. Whitney,
907 F.Supp. 893, 895 (E.D. Pa. 1995) (“[A] suit against a
defendant in his or her official capacity is simply another way
to sue the defendant's employing entity.”).
In this regard, Plaintiff’s free exercise claim
against Flaherty in his official capacity is no different than a
suit against Aramark.

Will, 491 U.S. at 71.

Accordingly, the

Court will grant Flaherty’s Motion for Summary Judgment with
regard to Plaintiff’s free exercise claims under Count III.

22

3.

Claim Against Flaherty in Individual Capacity

To establish individual liability under § 1983 a
plaintiff must show that the individual defendant was personally
involved in the alleged constitutional violations.

Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Personal

involvement can be established by showing that the defendant
actually participated in the alleged violation or had knowledge
and acquiesced in the violation.

Id.

Plaintiff is required to

prove personal involvement with “appropriate particularity.”
Id.
Private persons, jointly engaged with state officials
in the prohibited action, are acting “under color” of
law for purposes of the statute. To act “under color”
of law does not require that the accused be an officer
of the State. It is enough that he is a willful
participant in joint activity with the State or its
agents.
Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970) (citation
and some quotation marks omitted).
Flaherty will not be held liable in his individual
capacity under § 1983 because Plaintiff has not offered
sufficient evidence for a reasonable jury to conclude that
Flaherty was personally involved in disrupting the service of
vegetarian meals.

Indeed, Plaintiff has not presented any

evidence showing that Flaherty personally participated in the
alleged violation of Plaintiff’s free exercise rights or had
23

actual knowledge that Plaintiff was not being served his
vegetarian meals.
Plaintiff contends that he submitted grievances to
Flaherty describing the alleged First Amendment violations and
speculates that Flaherty received those grievances.
83; Pl. Dep. 54:1-8.

Compl. ¶

The Third Circuit, however, has held that

merely receiving grievances is generally insufficient to
establish actual knowledge.

Rode, 845 F.2d at 1208; Carter v.

Smith, No. 08-279, 2009 WL 3088428, at *5 (E.D. Pa. Sept. 22,
2009) (“[A]s a general matter the [Third Circuit] has been
reluctant to assign liability to prison officials based solely
on the denial of prisoner grievances.”).

Plaintiff, at most,

contends that because Flaherty is the Regional Manager of
Aramark at the PPS, he is personally involved in any
constitutional violation committed by Aramark employees working
there.

Such reasoning lacks the appropriate particularity that

is required to establish personal involvement.
F.2d at 1207.

See Rode, 845

Accordingly, the Court will grant Flaherty’s

Motion for Summary Judgment with regard to Plaintiff’s free
exercise claims under Count III.

24

C.

Fourteenth Amendment Claims
Plaintiff claims that Aramark and Flaherty (in his

official and individual capacities) violated rights under the
Equal Protection Clause of the Fourteenth Amendment.
Resp. Aramark Defs.’ Mot. Summ. J. 14.

Pl.’s

The basis of Plaintiff’s

claim is that the Aramark Defendants maintained or had actual
knowledge and acquiesced in a discriminatory policy by providing
Jewish inmates with religious alternative meals containing meat
while providing Muslim inmates with a religious alternative diet
that did not contain meat (despite requests for meat from those
inmates).

Id.
1.

Claim Against Aramark

To establish a violation of the Equal Protection
Clause a plaintiff must show that he or she “received different
treatment from that received by other individuals similarly
situated.”

Suber v. Guinta, 927 F. Supp. 2d 184, 201 (E.D. Pa.

2013) (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d
Cir.1990)).

Additionally, a plaintiff must show that the

defendant was motivated by a discriminatory intent.

Id.

A

“[d]iscriminatory intent ‘implies that the decision-maker . . .
selected or reaffirmed a particular course of action at least in
part because of, not merely in spite of, its adverse effects
25

upon an identifiable group.”

Antonelli v. New Jersey, 419 F.3d

267, 274 (3d Cir. 2005) (quoting Personnel Adm'r of Mass. v.
Feeney, 442 U.S. 256, 279 (1979)) (internal quotations omitted);
see also Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997)
(“To succeed on an equal protection claim, a plaintiff in a
section 1983 claim must show that officials intentionally acted
in a discriminatory manner.”).
The facts giving rise to Plaintiff’s equal protection
claim are not novel.

For example, in Williams v. Morton, 343

F.3d 212 (3d Cir. 2003), a Muslim prisoner claimed that his
equal protection rights were violated because the prison
allegedly provided Jewish inmates with kosher meals containing
meat, but refused to provide Muslim prisoners with religious
meals containing meat.

Id. at 221. The Third Circuit dismissed

the equal protection claim because the kosher meals did not
actually contain meat.

Id. at 221-22.

In this regard, the

plaintiff was not treated differently from Jewish inmates.
at 222.

Id.

Nonetheless, the Third Circuit noted that if the kosher

meals contained meat, then the four-part balancing test set
forth in Turner v. Safley, 482 U.S. 78 (1987), would be
applicable to determine the constitutionality of the prison’s
religious alternative meal policy.

Id. at 221 (“Turner is

equally applicable to Prisoners' equal protection claims.”).

26

In a more recent case, the Ninth Circuit, handling an
almost identical equal protection claim from a Muslim prisoner,
held that summary judgment was inappropriate where the lower
court did not analyze the prison’s justification for not serving
Muslim prisoners meat under the four-part Turner analysis.
Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008).

In

Shakur, the Ninth Circuit held that the factual record was not
sufficiently developed to determine whether the disparate
treatment among Muslim and Jewish prisoners was reasonably
related to legitimate penological interests.
893.

Id. at 891-92,

The only justification offered by the defendants was cost

considerations.

Id. at 891-92.

The court remanded the case to

further develop the factual record.

Id. at 892.

Finally, in De Hart v. Horn, 227 F.3d 47 (3d Cir.
2007), a Buddhist prisoner claimed that his equal protection
rights were violated because the prison accommodated the
religious dietary practices of Jewish inmates but refused to
accommodate Buddhist dietary practices.
61.

De Hart, 227 F.3d at

Notwithstanding the defendant’s argument that the record

was “devoid of any evidence of a discriminatory intent,” the
Third Circuit concluded that a “fair inference could be drawn
from the record . . . that the relevant disparity in treatment
was the result of deliberate choice.”

Id. at n.10.

The court

went on to remand the case for further factual findings because
27

the defendants failed to offer any legitimate penological
justifications for making distinctions among religious
prisoners.

Id. at 61.

Unlike the cases cited above, Aramark does not have
complete authority to decide what types of meals are served at
the City’s prisons.

Aramark Defs.’ Mot. Summ. J. 21.

The

City’s chaplain is responsible for determining which inmates are
entitled to receive religious diets and the city determines the
content of those meals.

Id.

Additionally, Aramark contends

that under the terms of its contract with the City, it cannot
unilaterally change an inmate’s diet or add new food items to
the prison’s meal plans without the City’s approval.

Id.

In

light of its contractual obligations with the City, Aramark
argues that it cannot and does not possess a discriminatory
intent.

Id.
Aramark cannot avoid constitutional obligations,

however, merely by acting pursuant to a contract with the City.
See, e.g., Verdi v. City of Phila., 553 F.Supp. 334, 335-36
(E.D. Pa. Dec. 22, 1982) (citing Lugar, 457 U.S. at 941-42).

In

Verdi, the plaintiff landowner sued the City of Philadelphia and
Liberty (a private demolition corporation) under § 1983 for
violating his due process rights under the Fifth and Fourteenth
Amendments by demolishing his parent’s property without notice.
Id. at 336.

Liberty argued that it did not act under color of
28

state law and could not be liable for constitutional violations
under § 1983 because it did not exercise any decision-making
power and was simply following the City’s instructions.

Id.

The Court held, applying Lugar, that even though Liberty was
following the City’s policies, it was still a joint participant
in seizing the plaintiff’s property.

Id. at 337.

As a result,

the plaintiff was considered a state actor and could be liable
for violations of the plaintiff’s due process rights under the
Fourteenth Amendment.

Id.; see also Lugar, 457 U.S. at 941-42.

In the case sub judice, Plaintiff has presented
sufficient evidence for a reasonable jury to find that Aramark
was jointly responsible for maintaining a discriminatory
religious alternative meal system and possessed a discriminatory
intent.

First, unlike the kosher meals in Williams, Aramark

concedes that its kosher meals occasionally contain meat.
Aramark Defs.’ Mot. Summ. J. 21.

Plaintiff can thus show that

he is being treated differently than similarly situated Jewish
inmates.
Second, Plaintiff has produced a series of emails
between Chaplain Taylor and Flaherty to show that Aramark was
aware that Muslim inmates were being treated differently.
Resp. Aramark Defs.’ Mot. Summ., Exs. 4, 5, 6, Chaplain E-

29

Pl.’s

Mails.19

Chaplain Taylor explains to Flaherty that Muslim

inmates are complaining that the kosher diet for Jewish inmates
contains meat, but the religious alternative diet for Muslims
does not.

Id.

As a result, Plaintiff claims that Aramark was,

at a minimum, aware of the discriminatory policy and acquiesced
in maintaining it.

Pl.’s

Resp. Aramark Defs.’ Mot. Summ. J.

14.
Aramark’s discriminatory intent can be inferred from
its awareness of the religious meal system’s effects on Muslim
inmates and its apparent indifference to that disparate
treatment.

Aramark has failed to show that it took any measures

to address the concerns of Muslim inmates with the City’s prison
system.

Accordingly, a reasonable jury could find that Aramark

was a willful participant in maintaining a religious alternative
meal system that violates Plaintiff’s equal protection rights.
Finally, Aramark fails to point to evidence or make
arguments that would enable the Court to perform the Turner
analysis.

See Williams, 343 F.3d at 221 (remanding to district

19

In one email, Taylor describes Plaintiff’s
dissatisfaction with the vegetarian diet and asks, “if [they]
can add eggs, peanut butter, fish, etc. to the non-meat diet?”
Pl.’s Resp. Aramark Defs.’ Mot. Summ. J., Ex. 4. Although no
responses from Flaherty were provided, Plaintiff contends that
these emails show that Aramark participated in developing the
discriminatory meal policy. Pl.’s Resp. Aramark Defs.’ Mot.
Summ. J. 14-15.

30

court where Turner analysis had not been performed).
Accordingly, the Court will deny Aramark’s Motion for Summary
Judgment with regard to Plaintiff’s equal protection claim
against Aramark.
2.

Claim Against Flaherty in Official Capacity

As discussed above, page 23 supra, any claim against
Flaherty in his official capacity is deemed a claim against
Aramark and thus will be dismissed as merely repetitive of that
claim.

3.

Claim Against Flaherty in Individual Capacity

To establish individual liability under § 1983, a
plaintiff must show that the individual defendant was personally
involved in the alleged constitutional violations.
F.2d at 1207.

Rode, 845

A plaintiff can establish personal involvement by

showing that a defendant had actual knowledge and acquiesced to
a constitutional violation. Stoneking v. Bradford Area Sch.
Dist., 882 F.2d 720, 725 (3d Cir. 1989); see also Pollock v.
City of Philadelphia, No. 06-4089, 2008 WL 3457043 (E.D. Pa.
Aug. 8, 2008).

31

As discussed above, Plaintiff must prove purposeful
discrimination.

Thomas v. Cianfrani, No. 01-3096, 2009 WL

1704471 (E.D. Pa. June 17, 2009).

Because it is often difficult

for plaintiffs to produce evidence of discriminatory intent,
courts often infer such intent from the totality of the
circumstances.

See, e.g., Meadows v. Atl. Richfield Co., No.

84-0711, 1986 WL 9896 (E.D. Pa. Sept. 10, 1986).

Moreover,

purposeful discrimination is often found when actions are taken
only with respect to a particular class of people.

See, e.g.,

Indus. Design Serv. Co. v. Upper Gwynedd Twp., No. 91-7621, 1993
WL 19756 (E.D. Pa. Jan. 27, 1993) (citing Snowden v. Hughes, 321
U.S. 1, 8 (1944)).
Flaherty contends that he cannot be held liable because he
was not personally involved in any of Plaintiff’s alleged
constitutional violations.

Aramark Defs.’ Mot. Summ. J. 18.

According to Flaherty, “the sole basis for Plaintiffs claim is
that Walter Flaherty is in charge of ARAMARK’s food service at
the prison.”

Id. at 18-19.

Plaintiff, on the other hand, argues that Flaherty’s
discriminatory intent can be inferred from his apparent
acquiescence in a policy that facially discriminated against
Muslim inmates.

Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. 14-15.

According to Plaintiff, Flaherty was aware of the policy and its
effects on Muslim inmates, but did nothing to stop it.
32

Plaintiff’s proffered evidence includes emails from Chaplain
Taylor to Flaherty discussing the policy and its effects on
Muslim inmates.
5, 6.

Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. Ex. 4,

In one email, Chaplain Taylor suggests to Flaherty that

another option should be added in lieu of the vegetarian diet to
accommodate Muslim inmates.
Summ. J. Ex. 4.

Pl.’s

Resp. Aramark Defs.’ Mot.

In light of Flaherty’s apparent inaction,

Plaintiff claims that Flaherty was personally involved in
maintaining a discriminatory policy that violated his equal
protection rights.
Flaherty is incorrect to state that “the sole basis
for Plaintiffs claim is that Walter Flaherty is in charge of
ARAMARK’s food service at the prison.”

Id. at 18-19.

Plaintiff

has presented sufficient evidence to show that Flaherty was
aware of how the religious alternative meal policy affected
Muslim inmates.

Additionally the email contained in Exhibit 4,

wherein Chaplain Taylor asks about the possibility of creating
an additional diet for Muslims, is evidence such that a
reasonable juror could find that Flaherty has policy-making
authority within Aramark.
Furthermore, Flaherty did not present any evidence
showing that he took actions to address the religious
alternative meal policy.

Flaherty’s intent to discriminate can

be inferred from his apparent deliberate indifference.
33

For

these reasons, a reasonable jury could find that Flaherty’s
apparent indifference evidences intent to discriminate and that
he acquiesced in a discriminatory policy.
1207.

See Rode, 845 F.2d

Accordingly, the Court will deny Flaherty’s Motion for

Summary Judgment with regard to Plaintiff’s equal protection
claim against him in his individual capacity.

D.

RLUIPA Claims Against Aramark Defendants

Plaintiff claims that the Aramark Defendants violated
RLUIPA by failing to serve him vegetarian meals on several
occasions.

Pl.’s Resp. City Defs.’ Mot. Partial Summ. J. 5.

As

a result, Plaintiff argues that he was forced to choose between
violating his religious beliefs and not eating.

Pl. Dep. 42:10-

23; Pl.’s Resp. Aramark Mot. Summ. J., Ex. 8, Sutton Mem. 104.

1.

Claim Against Aramark

Section 3 of RLUIPA states that “[n]o government shall
impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . .”
U.S.C. § 2000cc-1(a).

42

“A plaintiff-inmate bears the burden to

show that a prison institution's policy or official practice has
substantially burdened the practice of that inmate's religion.”
34

Washington v. Klem, 497 F.3d 272, 277-78 (3d Cir. 2007).
According to the Third Circuit, a substantial burden exists
where an inmate “is forced to choose between following precepts
of his religion and forfeiting benefits otherwise generally
available to other inmates versus abandoning one of the precepts
of his religion in order to receive a benefit . . . .”
280.

Id. at

A substantial burden also exists where “the government

puts substantial pressure on an adherent to substantially modify
his behavior and to violate his beliefs.”

Id.

Citing to

RLUIPA’s legislative history, the Third Circuit has explained
that what constitutes a “substantial burden” should be defined
broadly.

Id.
Here, the issue is whether Aramark’s failure to serve

Plaintiff his vegetarian diet on multiple occasions amounts to a
“substantial burden” and whether this is pursuant to a “policy
or official practice.”

The Third Circuit has observed that

prisoners have a “constitutional right not to be forced into a
Hobson's choice of eating food that offends one's religious
beliefs, or eating very little or not at all.”

Norwood v.

Strada, 249 F. App'x 269, 272 (3d Cir. 2007) (non-precedential);
see also Jupiter v. Johnson, No. 10-01968, 2011 WL 4527803 (M.D.
Pa. Apr. 26, 2011) (“A prisoner who is consistently not provided
meals in accordance with his religious beliefs is substantially
burdened in the exercise of his religion.”).
35

In Norwood, the prisoner-plaintiff was not served his
appropriate halal diet for three days during an emergency prison
lockdown.

Id. at 270 n.1.

The district court granted the

defendant’s motion for summary judgment and held that the brief
denial of religious meals did not substantially burden the
plaintiff’s religion.

Id. at 270-71.

The Third Circuit agreed

and concluded that the three day time period, especially under
the lock down circumstance, constituted “a mere de minimis
intrusion.”

Id. at 272.

As discussed above, it remains unclear exactly how
many times Plaintiff was not served his vegetarian meals.
Plaintiff claims that he was not served several breakfasts in
October 2010, any vegetarian meals from January 2, 2012, to
January 9, 2012, and any vegetarian meals from December 20,
2012, to January 1, 2013.

Compl. ¶ 31; Pl. Dep. 40:16-22.

Specifically, during the first and last week in 2012, Plaintiff
argues that he was forced to make a “Hobson’s choice” between
eating and violating his religious beliefs.

Pl. Dep. 42:10-23;

Pl.’s Resp. Aramark Mot. Summ. J., Ex. 8, Sutton Mem. 104.

On

the other hand, Aramark contends that Plaintiff’s missed meals
constitute a de minimis intrusion, not a substantial burden.
Aramark Defs.’ Mot. Summ. J. 19.

To support this argument,

Aramark points to several cases where courts have held that the
failure to serve religious meals, even up to seven days, is not
36

a substantial burden on an inmate’s religious practice.

Id. at

20.
Unlike the emergency lock-down situation in Norwood,
Aramark has failed to explain why the vegetarian meals were not
served.

Aramark has, however, shown it has policies in place to

ensure that prisoners receive the appropriate meals.
Flaherty Aff. ¶ 5.

See

Furthermore, when Plaintiff has raised the

issue of a stoppage in meal service, the evidence indicates
Aramark has corrected it promptly.

Pl. Dep. 72:24-74:4.

Even if Plaintiff could prove that the stoppage in
vegetarian meals presented a “substantial burden,” he has failed
to present evidence that this is due to a “policy or official
practice” of Aramark.

See Washington, 497 F.3d at 277-78.

To

the contrary, the available evidence indicates that Aramark has
a practice of ensuring the proper meals are delivered and
policies in place to effect that practice.

Accordingly, the

Court will grant Aramark’s Motion for Summary Judgment as to
this claim, and Plaintiff’s RLUIPA claim against Aramark will be
dismissed.

37

2.

Claim Against Flaherty in Individual Capacity

RLUIPA allows plaintiffs to “obtain appropriate relief
against a government.”

42 U.S.C. § 2000cc–2.

Government is

defined as “(i) a State, county, municipality, or other
governmental entity created under the authority of a State; (ii)
any branch, department, agency, instrumentality, or official of
an entity listed in clause (i); and (ii) any other person acting
under color of State law[.]”

Id. § 2000cc–5(4)(A).

The Third

Circuit has held that RLUIPA does not apply to government
employees in their individual capacities.

Sharp v. Johnson, 669

F.3d 144, 153 (3d Cir. 2012), cert. denied, 133 S. Ct. 41
(2012).
In Sharp, the Third Circuit explained that Congress
enacted RLUIPA pursuant to its spending power.

Id. at 154.

In

doing so, Congress attached conditions to the receipt of federal
funds.

Id.

The Third Circuit, however, drew a distinction

between state employees and the state, which is the actual
recipient of federal funds.

Id. at 155.

Thus, the Third

Circuit concluded that state officials cannot be held liable
under RLUIPA in their individual capacities because they are not
a party to the “contract” with the federal government.
153.

Id. at

Applying Sharp to the instant matter, Flaherty, like the

38

state employee in Sharp, cannot be held liable under RLUIPA in
his individual capacity.
Accordingly, the Court will grant the Aramark
Defendants’ Motion for Summary Judgment with regard to
Plaintiff’s RLUIPA claim against Flaherty in his individual
capacity.
3.

Claim Against Flaherty in Official Capacity

As discussed above, page 23 supra, Plaintiff has
failed to present any evidence showing that Flaherty caused the
service of vegetarian meals to be disrupted.

Accordingly, the

Court will grant Aramark’s Motion for Summary Judgment with
regard to Plaintiff’s RLUIPA claim against Flaherty in his
official capacity.

39

V.

CITY DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

In his response to the City Defendants’ Motion for
Partial Summary Judgment, Plaintiff states that he is
withdrawing his negligent and intentional infliction of
emotional distress claims, conspiracy claims, and claims against
Defendants Giorla and Delaney.20
Partial Summ. J. 4.

Pl.’s Resp. City Defs.’ Mot.

As a result, the remaining claims against

the City Defendants include only the First Amendment claims in
Count III, RLUIPA claim in Count IV, and Fourteenth Amendment
claim in Count II.

City Defendants have moved for summary

judgment on the First Amendment Claims and RLUIPA Claim, not the
Fourteenth Amendment Claim.

A.

First Amendment Claims

Plaintiff claims that the City and individual
defendants Chaplain Taylor, Sergeant Gamgemi, and Sergeant Pote
violated his free exercise rights under the First Amendment.
Pl.’s Resp. City Defendants Mot. Partial Summ. J. 8-9.

20

“Plaintiff is also withdrawing his negligent and
intentional infliction of emotion [sic] distress claims.
Plaintiff also is withdrawing his claims against Defendants
Giorla and Delaney and his conspiracy claims.” Pl.’s Resp. City
Defs.’ Mot. Partial Summ. J. 4.
40

Specifically, Plaintiff claims his free exercise rights were
violated by the City and Chaplain Taylor for their failure to
provide him with vegetarian meals on several occasions and by
Sergeant Gamgemi and Sergeant Pote for their attempts to
suppress his hunger strike.

1.

Id.

Claims Against the City

As discussed above, page 17 supra , the City cannot be
held liable under § 1983 unless its policies or customs caused
Plaintiff’s alleged injuries. See Monell, 436 U.S. at 694.
Accordingly, Plaintiff must show that the City’s employees were
acting pursuant to an official policy or custom when they
violated Plaintiff’s free exercise rights.
With regard to Plaintiff’s missed vegetarian meals,
Plaintiff has failed to show that any of the City’s policies or
customs caused Plaintiff to miss his vegetarian meals.

The

evidence shows that Chaplain Taylor—an employee of the City—is
tasked with preparing a list, for Aramark, of inmates who are
entitled to receive religious alternative diets.

Aramark is

then responsible for preparing the appropriate meals for each
inmate.
Plaintiff claims that there were occasional lapses in
this system.

Specifically, Plaintiff claims that he did not
41

receive meals on “at least 40 occasions,” including the first
and last weeks in 2012.
Summ. J. 8-9.

Pl.’s Resp. City Defs.’ Mot. Partial

As noted above, it is unclear exactly why the

service of Plaintiff’s vegetarian meals was disrupted.
Nonetheless, Plaintiff has not provided any evidence, even when
taken in the light most favorable to Plaintiff, which shows that
any of these disruptions flowed from any of the City’s policies,
customs, or practices.
The lapse in service when Plaintiff was transferred
from CFCF to PICC—the first week in 2012—appears to be an
administrative error.

Although it is unclear why the vegetarian

meal service was disrupted in the last week of 2012, the service
immediately resumed after Plaintiff complained to Chaplain
Taylor.

Pl. Dep. 43:2-9.

Chaplain Taylor’s quick resolution of

the problem and the immediate resumption of vegetarian meal
service demonstrate the City’s commitment to ensuring that
inmates receive the appropriate meals.
Plaintiff also claims that his free exercise rights
were violated by the City when Sergeant Gamgemi and Sergeant
Pote allegedly attempted to suppress Plaintiff’s hunger strike.
Pl.’s Resp. Aramark Defs.’ Mot. Summ. J. 10.

Plaintiff

commenced a hunger strike in May because he was dissatisfied
with the contents of his vegetarian meals and believed that the
vegetarian meals violated his equal protection rights.
42

Id. at

6.

Plaintiff alleges that Sergeant Gamgemi violated his free

exercise rights by bringing him to the prison’s mental health
unit in the early morning hours of May 12, 2011.

Compl. ¶ 50.

Likewise, Plaintiff alleges that Sergeant Pote violated his free
exercise rights by giving him a regular breakfast tray and
advising him to eat or be brought to the RHU.

Id. at ¶ 51.

Notably, Sergeant Pote left Plaintiff’s cell after Plaintiff
drank some orange juice, Pl. Dep. 71:18-22, and Plaintiff was
never brought to the RHU.

Id. at 72:1.

Regardless of whether Sergeant Gamgemi or Sergeant
Pote’s actions violated any of Plaintiff’s constitutional
rights, Plaintiff has failed to present any evidence showing
that Sergeant Gamgemi and Sergeant Pote acted pursuant to a City
policy or custom.

As a result, the City cannot be held liable

for the isolated actions of either Sergeant Gamgemi or Sergeant
Pote.
Accordingly, the Court will grant the City Defendants’
Motion for Summary Judgment with regard to Plaintiff’s First
Amendment claims against the City.

43

2.

Claims Against All Defendants in Official
Capacities

Plaintiff’s official capacity claims against Sergeant
Gamgemi, Sergeant Pote, and Chaplain Taylor are the equivalent
of claims against the City.

See Will, 491 U.S. at 71 (A suit

against an individual in his or her official capacity “is not a
suit against the official, but rather a suit against the
official's office.”); Kentucky, 473 U.S. at 165 (“Officialcapacity suits . . . ‘generally represent only another way of
pleading an action against an entity of which an officer is an
agent.’”) (quoting Monell, 436 U.S. at 690 n. 55; see also Duffy
v. Cnty. of Bucks, 7 F. Supp. 2d 569, 578 (E.D. Pa. 1998)
(noting that claims against county correctional officers in
their official capacities were effectively claims against the
county).

Plaintiff’s free exercise claims against Sergeant

Gamgemi, Sergeant Pote, and Chaplain Taylor in their official
capacity are no different than suits against the City.
491 U.S. at 71.

Will,

Analysis here would render the same results as

above in which the City does not have liability.

Accordingly,

the Court will grant the City Defendants’ Motion for Summary
Judgment with regard to all claims against defendants in their
official capacities.

See Kentucky, 473 U.S. at 165.

44

3.

Claims Against All Defendants in Individual
Capacities

The Free Exercise Clause of the First Amendment states
that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof....” U.S.
Const. amend. I.

Prisoners have a constitutional right not to

be forced to eat foods that violate their religion.

See

Williams, 343 F.3d at 219; De Hart, 227 F.3d 47, 52 (3d Cir.
2000); see, e.g., Norwood v. Strada, 249 F. App'x 269, 271 (3d
Cir. 2007) (“[C]ases generally indicate that prison
administrators must provide an adequate diet without violating
an inmate's religious dietary restrictions in order not to
unconstitutionally burden free exercise rights.”).

Likewise,

prison administrators violate an inmate’s free exercise rights
by forcing them to engage in activities that violate their
religion.

Williams v. Bitner, 455 F.3d 186, 194 (3d Cir. 2006).
In Bitner, the plaintiff was a Muslim prisoner who

refused to work as a cook in the prison’s kitchen on a day when
the prison’s kitchen was serving roast pork.

Id. at 187-88.

According to the plaintiff, his religion prohibits him from
consuming or aiding others in the consumption of pork.
187.

Id. at

As a result of his refusal to prepare pork, the plaintiff

was disciplined by prison officials.

45

Id. at 188-89.

The

plaintiff sued the prison officials that disciplined him for
violating rights under the Free Exercise Clause and RLUIPA.
at 189.

Id.

In denying the prison officials motion for summary

judgment, the district court held that the plaintiff had offered
sufficient evidence to establish violations of the First
Amendment and RLUIPA.

Id.

The Third Circuit affirmed.

Id. at

194.
Plaintiff claims that Sergeant Gamgemi and Sergeant
Pote violated his free exercise rights by attempting to suppress
his hunger strike.

Although Plaintiff has not alleged that his

hunger strike was required by his religion, Plaintiff
nonetheless claims that his free exercise rights were violated.
According to Plaintiff, Sergeant Gamgemi violated his
free exercise rights by bringing him to the prison’s mental
health unit in the middle of the night on May 12, 2011.
¶ 83.

Compl.

Plaintiff has not alleged, or offered evidence of, any

other interactions with Sergeant Gamgemi.

As such, Plaintiff

has failed to show that his religious practice was burdened by
any of Sergeant Gamgemi’s actions.
Sergeant Pote’s actions, however, present a more
complex issue.

Plaintiff claims that on the morning of May 12,

2011, Sergeant Pote entered his cell with a “regular” breakfast
meal that contained “forbidden food.”

Compl. ¶ 84.

According

to Plaintiff, Sergeant Pote told Plaintiff to eat breakfast or
46

be brought to the RHU.
J. 7.

Id.; Pl.’s

Resp. City Defs.’ Mot. Summ.

Sergeant Pote left Plaintiff’s cell after Plaintiff drank

some orange juice that was on the tray.

Compl. ¶ 84.

Plaintiff

was never brought to the RHU.
Plaintiff claims that Sergeant Pote’s threat on the
morning of May 12, 2011, deprived him of his free exercise
rights.

Plaintiff claims that, like the plaintiff in Bitner,

Plaintiff was forced to choose between punishment and violating
his religious beliefs.

Unlike the Plaintiff in Bitner, however,

Plaintiff was neither punished nor forced to violate his
religious beliefs.21

Even when taking the evidence in the light

most favorable to Plaintiff, that Sergeant Pote was satisfied
with Plaintiff’s choice to drink the orange juice indicates that
Sergeant Pote neither intended to nor actually did burden
Plaintiff’s religious beliefs.
Lastly, Plaintiff claimed that Chaplain Taylor
violated Plaintiff’s free exercise rights.

Plaintiff, however,

has presented no evidence showing that Chaplain Taylor was
personally involved in failing to serve Plaintiff meals that
complied with his religious dietary restrictions.

On the

contrary, Plaintiff has presented evidence that Chaplain Taylor
promptly assisted Plaintiff in obtaining vegetarian meals when

21

Plaintiff does not show that his religion prohibited
him from drinking the orange juice.
47

the meal service stopped as soon as it was brought to Chaplain
Taylor’s attention.

Pl. Dep. 72:24-74:4.

Accordingly, the Court will grant City Defendants
summary judgment with regard to the claims against Chaplain
Taylor, Sergeant Gamgemi, and Sergeant Pote in their individual
capacities, and each of these claims will be dismissed.
B.

RLUIPA Claims
Plaintiff claims that City Defendants violated RLUIPA

by failing to serve Plaintiff with vegetarian meals on several
occasions.

Pl.’s Resp. City Defs.’ Mot. Partial Summ. J. 8-9.

As a result, Plaintiff argues that he was forced to choose
between violating his religious beliefs and not eating. Pl. Dep.
42:10-23; Pl.’s Resp. Aramark Mot. Summ. J., Ex. 8, Sutton Mem.
104.

48

1.

Claims Against the City

A prison's failure to provide meals that comply with
inmates' religious dietary restrictions can give rise to
constitutional claims.

Williams, 343 F.3d at 215–16.

As

discussed above, in the context of RLUIPA a plaintiff must prove
that there was a “substantial burden” placed on his or her
religious practice.

42 U.S.C. § 2000cc-1; see also Kretchmar v.

Beard, 241 F. App'x 863, 865 (3d Cir. 2007).

The plaintiff must

show that this burden was caused by “a prison institution's
policy or official practice.”

Washington, 497 F.3d at 277-78.

An inmate’s religious practice is substantially burdened if he
or she is forced to choose between following the precepts of the
religion or receiving a benefit.

Id. at 280.

A prisoner who is

consistently not provided meals in accordance with his religious
beliefs is substantially burdened in the exercise of his
religion.

See id.; see also Jupiter v. Johnson, 3:10-CV-01968,

2011 WL 4527803, at *16 (M.D. Pa. Apr. 26, 2011).
In the instant matter, the City has delegated the
function of providing food to Aramark.

The City, however,

retained the ultimate authority to determine which inmates are
entitled to receive vegetarian or kosher diets and what foods
those diets would include.
Partial Summ. J. 5.

See Pl.’s Resp. City Defendants Mot.

On September 21, 2010, the Plaintiff was

49

placed on a vegetarian diet to allow Plaintiff to comply with
his Muslim faith. Compl. ¶ 28.
Plaintiff alleges that he was not served his
vegetarian meals on several occasions, including the first week
in January 2012 and the last week in December 2012.

As a

result, Plaintiff claims that he was forced into a “Hobson’s
choice” between eating and violating his religion or going
hungry.

Pl. Dep. 42:10-23; Pl.’s Resp. Aramark Mot. Summ. J.,

Ex. 8, Sutton Mem. 104.

As explained above, Plaintiff has

failed to show that any of these violations stemmed from a
policy or official practice of the city.

At best, Plaintiff’s

evidence shows that the occasional lapses were clerical errors
and minor oversights which were quickly corrected when brought
to the attention of the city, and thus would not be violative of
RLUIPA.

See, e.g., Shidler v. Moore, 409 F. Supp. 2d 1060, 1068

(N.D. Ind. 2006) (holding prison’s clerical error of designating
inmate as Christian rather than Muslim, thus preventing him from
engaging in communal worship for 39 days, did not violate RLUIPA
as it was unintentional and corrected when brought to the
defendant’s attention); see also Alster v. Goord, 745 F. Supp.
2d 317, 342 (S.D.N.Y. 2010) (occasional oversights in providing
meals does not violate RLUIPA).
Plaintiff also alleges that Sergeant Pote’s demand
that Plaintiff eat should trigger liability for the City under
50

RLUIPA.

Even if Plaintiff’s allegations are true, they do not

trigger liability for the City for two reasons.

First,

Plaintiff does not provide any evidence that Sergeant Pote was
acting pursuant to a City policy or official practice.

Second,

Plaintiff does not show that he actually faced a “Hobson’s
choice,” in that his decision to drink the orange juice neither
violated his religious beliefs nor resulted in punishment.
Accordingly, the Court will grant the City’s Motion
for Summary Judgment with respect to Plaintiff’s RLUIPA claim
against the City, this claim will be dismissed.

2.

Claims Against All Defendants in Official
Capacities

Plaintiff’s official capacity claims against Sergeant
Gamgemi, Sergeant Pote, and Chaplain Taylor are the equivalent
of claims against the City.

See Will, 491 U.S. at 71.

Analysis

here would not change the City’s liability as set forth above.
Accordingly, the Court will grant the City Defendants’ Motion
for Summary Judgment with regard to all claims against
defendants in their official capacities.
at 165.

51

See Kentucky, 473 U.S.

3.

Claims Against All Defendants in Individual
Capacities

As discussed above, defendants cannot be held liable
in their individual capacities under RLUIPA.
153.

Sharp, 669 F.3d at

Accordingly, the Court will grant summary judgment for

City Defendants with regard to Plaintiff’s RLUIPA claims against
all defendants in their individual capacities.

VI.

CONCLUSION
The Court will grant in part and deny in part Aramark
Defendants’ Motion for Summary Judgment.

The Court will grant

summary judgment to all Aramark Defendants as to Plaintiff’s
First Amendment Claims and Plaintiff’s RLUIPA Claims.

The Court

will grant summary judgment as to Flaherty in his official
capacity.

The Court will deny Aramark Defendants’ summary

judgment motion as to the remainder of Plaintiff’s equal
protection claims against Aramark and against Flaherty in his
individual capacity.

The Court will also grant the City

Defendants’ Motion for Partial Summary Judgment.

All claims

against the City Defendants under the First Amendment and RLUIPA
are dismissed.

52

Accordingly, Plaintiff may proceed on his equal
protection claims for monetary damages against all City
Defendants as they did not move for summary judgment on that
issue.
All of Plaintiff’s claims for injunctive or declaratory
relief are moot and, accordingly, are dismissed.
In sum, Counts III, IV, and V are dismissed.22

To the

extent they seek monetary damages for a violation of the Equal
Protection Clause of the Fourteenth Amendment, Counts I, II, and
VI may proceed.
An appropriate order accompanies this opinion.

22

Count V is dismissed pursuant to agreement by
Plaintiff.
53