Banks v. Booher et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 23 MOTION to Dismiss for Failure to State a Claim filed by Laurel H. Harry, Craig Copper, Ulrich Klemm, Bradley Booher, Henry Hansard. For the reasons described above, the case will proceed on plaintiffs RLUIPA claims for injunctive relief, and First Amendment claims for injunctive and monetary relief, against all defendants. An appropriate order follows. Signed by District Judge Joseph F Saporito, Jr on 3/5/25. (ms)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARVIN BANKS, et al.,
Plaintiffs,

CIVIL ACTION NO. 1:24-cv-00474

v.

(SAPORITO, J.)

BRADLEY BOOHER, et al.,
Defendants.
MEMORANDUM
Plaintiffs Marvin Banks, Dale Arnold, and Carl L. Varner proceed

pro se in a fee-paid case challenging the Pennsylvania Department of
Corrections (“DOC”) policy for observance of Native American holidays.
Defendants1 move to dismiss the operative complaint (Doc. 23), and
plaintiffs request appointment of counsel (Docs. 19, 27). For the reasons
described below, the Court will grant defendants’ motion in part, permit
plaintiffs to proceed on First Amendment and Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claims, and deny plaintiffs’
request for appointment of counsel without prejudice.

The Defendants are five DOC employees: Laurel R. Harry,
Reverend Ulrich Klemm, Craig Copper, Bradley Booher, and Henry
Hansard.
1

Case 1:24-cv-00474-JFS-SA

I.

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BACKGROUND
At the time of the complaint, plaintiffs were all incarcerated at SCI-

Benner Township, although Banks has since been transferred to SCIFayette. The complaint alleges as follows: plaintiffs are of Native
American descent and practice Native American religious traditions.
These traditions include the observation of equinoxes and solstices,
including the Green Corn Feast, held annually in August or September.
As described in the complaint, the Green Corn Feast traditionally
involves gathering “foods like corn, beans and squash,” fishing from a
river in accordance with sacred traditions, and hunting for “buffalo, deer,
turkey, moose, etc.,” to “provide . . . a great feast” to be eaten communally.
Celebration “on the wrong day[] or in the wrong manner is to bring
misfortune to the creator and ancestors.” Plaintiffs allege that according
to their religious belief, the Green Corn Feast “must be celebrated with
communal foods[. T]hese foods include meat like buffalo, deer, [and]
moose,” as well as fish, wild rice, corn, beans, and squash. See (Doc. 14,
¶¶ 13-18).
Prior to January 2023, the DOC accommodated religious inmates
by offering “Ceremonial Meals,” along with “time [and] space in which to

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celebrate as a religious community.” For these meals, the DOC served a
special menu and allowed qualifying inmates to purchase from a
supplemental menu. Under this prior policy, the DOC “typically”
supplied2 buffalo, turkey, corn, beans, squash, fry bread, and fresh fruit,
among other foods, for Native American religious celebrations.
In January 2023, the DOC eliminated “Ceremonial Meals,” and
began offering “Fellowship Meals.” Although the inmates would have
“input” on the meal to be served by the prison, they would no longer be
permitted to purchase optional menu items. Faith groups would be
permitted to eat together “and afterwards engage in [30] minutes of
fellowship” if communal gatherings were permitted in the prison at that
time.
When these Fellowship Meals were offered, plaintiffs refused to
select a meal from the general menu, believing that such a choice would
“shame and disrespect their religion” because “there is no other
alternative to the Green Corn Feast.” Plaintiffs allege that Bradley

2 Plaintiffs allege that the DOC “supplied” these foods, but also that

they were “able to pay” for the foods. See (Doc. 14, ¶¶ 22-23). It is unclear
whether the foods were included in the DOC’s own revised menu, or
whether they were among the supplemental items available for purchase.
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Booher and Henry Hansard, the Superintendent and Chaplain at SCIBenner Township, refused to permit them to gather communally for 30
minutes as contemplated by the policy. Plaintiffs further allege that
unspecified defendants discriminated against them by “allow[ing] the
Jewish community to purchase Matz[o] bread for their feasts.”
Plaintiffs filed the operative complaint on May 29, 2024, asserting
First Amendment free exercise claims, Fourteenth Amendment equal
protection claims, and RLUIPA claims, against all defendants. Following
the dismissal of several claims3 at the screening stage pursuant to 28
U.S.C. § 1915A, plaintiffs now proceed on RLUIPA claims for injunctive
relief, and First and Fourteenth Amendment claims for injunctive and
monetary relief. Defendants move to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6).
II.

MOTION TO DISMISS
“Under Rule 12(b)(6), a motion to dismiss may be granted only if,

accepting all well-pleaded allegations in the complaint as true and
viewing them in the light most favorable to the plaintiff, a court finds the

3 The Court dismissed all individual capacity RLUIPA claims, and

all claims for monetary damages against defendants in their official
capacities. See (Doc. 17).
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plaintiff ’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen

Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555–56 (2007)). In deciding the motion, the Court may
consider the facts alleged on the face of the complaint, as well as
“documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept
the fact allegations in the complaint as true, it is not compelled to accept
“unsupported conclusions and unwarranted inferences, or a legal
conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d
160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195
(3d Cir. 2007)). The Court also disregards allegations made only in a prior
complaint, see Argentina v. Gillette, 778 F. Appx 173, 175 n.3 (3d Cir.
2019), and any new factual allegations made in the brief opposing the
motion to dismiss, see Hughes v. United Parcel Serv., Inc., 639 F. App’x
99, 104 (3d Cir. 2016) (citation omitted).
Defendants offer four arguments for dismissal under Rule 12(b)(6).
A. Personal Involvement
First, defendants seek dismissal of all claims against Craig Copper,

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Bradley Booher, and Henry Hansard, for lack of personal involvement in
the alleged violations. To avoid dismissal for failure to state a claim, a
civil rights complaint must state the conduct, time, place, and persons
responsible for the alleged violations. Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005). Further, “[c]ivil rights claims cannot be premised on a
theory of respondeat superior. Rather, each named defendant must be
shown . . . to have been personally involved in the events or occurrences
which underlie a claim.” Millbrook v. United States, 8 F. Supp. 3d 601,
613 (M.D. Pa. 2014) (citation omitted). As explained by the Third Circuit
Court of Appeals:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Defendants seek dismissal of the claims against Copper because
plaintiffs only allege that he offered “collaborative assistance” in
implementing the religious meals policy. Defendants ignore the exhibit
cited for that allegation, an email chain from February 24-25, 2022, in

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which Copper states that he is “[l]ooking forward to working through” the
new policy, and defendant Klemm thanks Copper for his “assistance” in
implementing the policy. See (Doc. 14-1 at 12). To the extent plaintiffs’
allegation of “collaborative assistance” was unclear, the e-mail chain
sufficiently supports an inference of Copper’s personal involvement.
Defendants seek dismissal of Booher and Hansard, the SCI-Benner
Township officials, arguing that the claims against them are based on
their supervisory roles and/or their involvement in responding to post hoc
grievances. However, plaintiffs plainly allege that Booher and Hansard
denied them the opportunity to gather communally during the Green
Corn Feast, which they allege is essential to their religion. (Doc. 14, ¶¶
15, 32). These allegations support an inference of personal involvement
as to plaintiffs’ RLUIPA and First Amendment claims, so dismissal is not
appropriate on this ground. 4
B. First Amendment/RLUIPA
Next, defendants seek dismissal of the First Amendment and

None of plaintiffs’ allegations suggest Booher’s or Hansard’s
involvement in permitting Jewish inmates to have Matzo bread, which is
the basis of plaintiffs’ Fourteenth Amendment claims. However, those
claims will be dismissed in their entirety, see Section II.C, infra.
4

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RLUIPA claims on the ground that plaintiffs have not plausibly alleged
a substantial burden on their religious practice.
“Inmates clearly retain protections afforded by the First
Amendment . . . including its directive that no law shall prohibit the free
exercise of religion.” O’Lone v. Shabazz, 482 U.S. 342, 348 (1987).
However,

a

regulation

limiting

prisoners’ religious

exercise

is

constitutional if the record shows that it is “reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
RLUIPA offers broader protection than the First Amendment. See

Holt v. Hobbs, 574 U.S. 352, 361 (2015). The statute forbids the
government from imposing “a substantial burden” on a prisoner’s
religious exercise unless the government “demonstrates that imposition
of the burden on that person (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering
that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). A
substantial burden under RLUIPA exists where: (1) a follower is forced
to choose between following the precepts of his religion and forfeiting
benefits otherwise generally available to other inmates versus
abandoning one of the precepts of his religion to receive a benefit; or (2)

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the government puts substantial pressure on an adherent to
substantially modify his behavior to violate his beliefs. Washington v.

Klem, 497 F.3d 272, 280 (3d Cir. 2007). Both the First Amendment and
RLUIPA require that the beliefs in question are “sincerely held” and
religious in nature. See Holt, 574 U.S. at 360-61.
Defendants assert that “the elimination of optional menu items
does not amount to a substantial burden placed on plaintiffs’ religious
beliefs.” But while defendants present this statement as settled law, their
own supporting authorities show that it is a fact-dependent inquiry. In

Banks v. Secretary, Pennsylvania Department of Corrections, the Third
Circuit held that a Muslim inmate could sustain an issue of material fact
as to whether a “feast meal” was essential to his religious practice. 601
F. App’x 101, 105-06 (3d Cir. 2015). In Davis v. Heyns, the Sixth Circuit
affirmed a finding that a vegan meal did not substantially burden a
Muslim inmate’s religion, noting that the plaintiff did not contest that
the vegan meal satisfied the requirements of halal. No. 17-1268, 2017 WL
8231366, at *2-3 (6th Cir. Oct. 16, 2017). Both conclusions rested on the
factual question of whether the meals burdened the inmates’ religious
practice as reflected in the records of those cases.

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Here, plaintiffs allege that the Green Corn Feast must be
celebrated with certain foods because of their belief that improper
observance feast brings misfortune to the creator or one’s ancestors.
Defendants do not appear to contest the sincerity or the religious nature
of that belief. Rather, their argument seems to assume that because
certain foods were denied to other religious inmates in other cases,
plaintiffs have no plausible claim to religious foods of their own. But
dietary restrictions can be a sincerely held religious belief protected by
RLUIPA and the First Amendment. See, e.g., Banks, 601 F. App’x at 605;

DeHart v. Horn, 227 F.3d 47, 49-51 (3d Cir. 2000) (provision of soy milk
to Buddhist inmate observing vegetarian diet). Whether such protection
attaches in a particular case is a factual question, and accordingly,
several courts have permitted claims challenging the Fellowship Meals
policy to proceed past the pleading stage. 5

See, e.g., Mitwalli v. Harry, No. 1:24-CV-00336 (M.D. Pa., filed
Dec. 27, 2024) (Muslim inmate alleging entitlement to pork); Williams v.
Little, No. 1:23-CV-00037, 2023 WL 4144567, at *3, 14-16 (W.D. Pa. June
5

23, 2023) (Muslim inmate alleging entitlement to halal meat and various
celebratory food items); Sanchez v. Harry, No. 2:22-CV-01682 (W.D. Pa.,
filed Nov. 28, 2022) (Hebrew Israelite inmate alleging entitlement to
lamb, herbs, unleavened bread, and grape juice).
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Next, defendants request dismissal because in November 2023, the
DOC further revised its policy to permit inmates to purchase “one shelfstable food item.” Even if the Court were to take judicial notice of the
updated policy6, that would not show that the policy was followed in
plaintiffs’ case, or that the shelf-stable item alleviates any substantial
burden to their religious practice. Moreover, plaintiffs also allege that
they were substantially burdened by their inability to celebrate the
Green Corn Feast communally, so the claims would proceed against
Booher and Hansard regardless of the food dispute. While a developed
factual record may ultimately show that the claims lack merit, there is
no basis for dismissal at the pleading stage.
C. Fourteenth Amendment
Third,

defendants

seek

dismissal

of

plaintiffs’ Fourteenth

Amendment equal protection claims. Plaintiffs must allege that they
were intentionally treated differently from similarly situated persons

6 The Court acknowledged the updated policy in a prior order, but

only to make the point that any future motion for preliminary injunctive
relief should address the policy in force at the time of the motion. See
(Doc. 17 at 4 n.5) (citing Williams v. Little, No. 1:23-CV-01005 (Doc. 3610) (M.D. Pa. Feb. 27, 2024)).
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because of membership in a particular protected class, such as a religious
group. See Bradley v. United States, 299 F.3d 197, 206 (3d Cir. 2002).
Persons are similarly situated “when they are alike in all relevant
aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)
(citation omitted).
Plaintiffs’ claim is premised on their allegation that defendants
“allowed the Jewish community to purchase Matz[o] bread for their
feasts.” However, the complaint does not support an inference that the
Jewish inmates7 are or were similarly situated to plaintiffs. The Jewish
inmates were allegedly accommodated with a single, apparently shelfstable item (see Doc. 14-1 at 17); plaintiffs’ religion allegedly requires a
“feast” of communal foods for which “there is no other alternative,”
including “meat like buffalo, deer, moose,” as well as fish, wild rice, corn,
beans, and/or squash. Based on these allegations, the groups are not
“alike in all relevant aspects.”8 See Smith v. Kyler, 295 F. App’x 479, 484

Although not explicitly stated, the Court infers that plaintiffs
believe the similarly situated inmates are Jewish inmates at SCI-Benner
Township who were permitted to purchase Matzo bread despite the
Fellowship Meals policy.
7

8 The complaint does not indicate that plaintiffs requested, or would

(continued on next page)

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(3d Cir. 2008) (an equal protection claim based on religion requires
“similarly situated faiths”); McCray v. Passaic Cnty. Jail, No. CIV.A. 136975 WJM, 2013 WL 6199202, at *4 (D.N.J. Nov. 27, 2013) (without
allegations of similar dietary needs, complaint did not support an
inference that Jewish and Muslim inmates were similarly situated).
Moreover, nothing in the complaint suggests plaintiffs were treated
differently because of their religion itself, as opposed to the demands that
their requests would apparently place on the prison. See, e.g., Ellis v.

United States, No. CA 08-160, 2011 WL 3290217, at *10 (W.D. Pa. June
17, 2011) (“The mere fact that a deliberate choice was made by
Defendants to deny certain Halal meat . . . while special Kosher foods
were provided to Jewish inmates at Passover, does not in itself mean that
the choice was made with discriminatory intent.”), report and
recommendation adopted, 2011 WL 3298508 (W.D. Pa. Aug. 1, 2011).

have accepted, a shelf-stable item comparable to what the Jewish
inmates allegedly received. To the contrary, plaintiffs attach a partial list
of proposed shelf-stable offerings produced in Williams v. Little, No. 1:23CV-00037 (Doc. 99-61) (W. D. Pa., Feb. 1, 2024), which they explicitly
reject as unacceptable because they are “not [plaintiffs’] religious way.”
(Doc. 14-1 at 15-16); see also (Doc. 25-3) (Plaintiffs’ brief arguing that the
Green Corn Feast “requires fresh organic traditional food. This
requirement cannot be met by any shelf-stable item.”)
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Accordingly, plaintiffs’ Fourteenth Amendment claims will be dismissed.
D. Qualified Immunity
Finally, defendants seek dismissal based on qualified immunity.
The doctrine of qualified immunity protects government officials “from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(citation omitted). However, the Third Circuit has cautioned courts that
it is “generally unwise to venture into a qualified immunity analysis at
the pleading stage as it is necessary to develop the factual record in the
vast majority of cases.” Newland v. Reehorst, 328 F. App’x 788, 791 n.3
(3d Cir. 2009) (unpublished).
Defendants do not explain their argument for qualified immunity,
beyond asserting that plaintiffs’ claims do not violate a “clearly
established right of Native American/Indigenous inmates to have
particular food items for the Green Corn Feast.” See (Doc. 24 at 11-12).9

9 To the extent defendants maintain there is no clearly established

right because the beliefs of “Native American/Indigenous” inmates (or the
Green Corn Feast specifically) are insufficiently religious in nature, the
argument is totally undeveloped and will not be addressed. See Burns v.
(continued on next page)
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Several courts have concluded that inmates have no clearly established
right to demand specific food items, such as halal meat. 10 However, the
Third Circuit, and district courts within the circuit, have recognized a
clearly established First Amendment right to “religiously acceptable
meals,” which cannot be infringed “without sufficient justification”
pursuant to Turner v. Safley, 482 U.S. 78 (1987). See Potts v. Holt, 617
F. App’x 148, 152 (3d Cir. 2015) (unpublished). 11
Collectively, these authorities suggest a question of fact as to
whether qualified immunity applies here. Presuming no clearly
established right to a “feast” of the exact foods that plaintiffs demand,

Pa. Dep’t of Corr., 642 F.3d 163, 176 (3d Cir. 2011) (“The burden of
establishing qualified immunity falls to the official claiming it as a
defense.”).

See, e.g., Molina v. Little, No. 1:23-CV-00257, 2024 WL 3548453,
at *4 (W.D. Pa. July 26, 2024); Rogers v. United States, No. CA 08-149,
10

2011 WL 3290208, at *5 (W.D. Pa. June 17, 2011) (listing cases), report
and recommendation adopted, 2011 WL 3298422 (W.D. Pa. July 29, 2011).
11

See, e.g., Cruz v. Auker, No. 1:21-CV-655, 2024 WL 3597047, at

*5 (M.D. Pa. July 30, 2024) (acknowledging clearly established “right to
religious meals”); Jupiter v. Johnson, No. 3:10-CV-01968, 2011 WL
4527803, at *15 (M.D. Pa. Apr. 26, 2011) (finding clearly established
“right of a prisoner to a diet consistent with his religious beliefs”), report
and recommendation adopted, 2011 WL 4527791 (M.D. Pa. Sept. 28,
2011).
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the complaint plausibly states a claim that defendants violated plaintiffs’
clearly established right to a “religiously acceptable meal” in some form,
subject to any justification for this policy that emerges from a developed
factual record. Accordingly, the remaining claims12 will not be dismissed
on this ground.
III.

APPOINTMENT OF COUNSEL
Plaintiffs request that the Court appoint them counsel. Unlike in a

criminal case, a prisoner has no constitutional or statutory right to
appointed counsel in a civil case. Parham v. Johnson, 126 F.3d 454, 45657 (3d Cir. 1997). Under the in forma pauperis statute, however, a federal
court may request that an attorney represent an indigent person on a pro
bono basis. See 28 U.S.C. § 1915(e)(1); see also Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.
1993).
In this case, although plaintiffs allege that they are “unable to
afford counsel,” they have paid the full filing and administrative fees to
commence this action and have not been granted leave to proceed in

This reasoning applies equally to plaintiffs’ RLUIPA claims,
because RLUIPA offers “greater protection” than the First Amendment.
See Holt, 574 U.S. at 360-61.
12

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forma pauperis. Accordingly, the request will be denied without
prejudice. See Mitchell v. Henry, 255 Fed. App’x 684, 686 (3d Cir. 2007)
(declining to appoint counsel in fee-paid appeal).
IV.

CONCLUSION
For the reasons described above, the case will proceed on plaintiffs’

RLUIPA claims for injunctive relief, and First Amendment claims for
injunctive and monetary relief, against all defendants. An appropriate
order follows.

s/Joseph F. Saporito, Jr.

Dated: March 5, 2025

JOSEPH F. SAPORITO, JR.
United States District Judge

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