Riley v. Beard et al
MEMORANDUM AND ORDER denying 80 Motion for Reconsideration. Signed by Honorable A. Richard Caputo on 7/28/2011 (Attachments: # 1 Appendix) (bg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:09-CV-230
JEFFREY A. BEARD, et al.,
On March 14, 2011, the Court issued an order (Doc. 78) rejecting in part the
magistrate judge’s recommendation that summary judgment be granted in the defendants’
favor on all claims brought by a pro se plaintiff against prison officials. The Court rejected the
recommendation to the extent it granted summary judgment to the defendants on claims
arising from the confiscation of the plaintiff’s dates, and the Court denied summary judgment
on these claims. The defendants contend that the Court erred in doing so, and presently
move for reconsideration (Doc. 80). Because the defendants failed to show they were
entitled to summary judgment on these claims, the Court did not err in rejecting the
magistrate judge’s recommendation and denying the motion. Thus, the Court will not
reconsider its prior ruling.
Nathan Riley, a pro se prisoner, filed a civil rights action against prison officials in
February of 2009, bringing constitutional claims pursuant to 42 U.S.C. § 1983 as well as the
Religious Land Use and Institutionalized Persons Act of 2000. These claims arose out of
several seemingly unrelated incidents; including being allegedly barred from religious feasts,
being allegedly transferred to a different facility in retaliation for filing a grievance, being
subjected to night lighting in his cell, and having dates confiscated from his cell.
Presently relevant are the claims arising from the plaintiff having dates confiscated
from his cell. In his verified compliant, the plaintiff avers that, beginning before his
incarceration, he has practiced his faith as an orthodox Sunni Muslim and has done so for
fifteen years. During the month of Ramadan, his faith requires that he fast between dawn
and sunset, and it is a central practice of his faith that he break the fast with dates each day
at sunset. He avers that on October 7, 2006, during Ramadan, a corrections officer searched
his cell and confiscated his approved bag of dates after the plaintiff explained that Muslim
inmates were permitted to keep dates to break the fast. Additionally, a lieutenant came over
and, after hearing the plaintiff’s explanation that he was authorized to possess the dates in
his cell, ordered the officer to throw the dates away. The lieutenant then issued a verbal
policy instructing the officers to confiscate dates. As a result of this policy, the plaintiff alleges
that his dates were taken every time he left his cell and that he was unable to break the fast
with dates for twenty-eight of the thirty days of Ramadan.
The defendants moved for summary judgment on all claims. The motion was referred
to a magistrate judge for a report and recommendation. The magistrate judge recommended
granting summary judgment on all claims, including the claims stemming from the
confiscation of dates.
The Court adopted the report recommending the grant of summary judgment in the
defendants’ favor on all claims, with one exception. As to the magistrate judge’s
recommendation that summary judgment be granted in the defendants’ favor on the claims
relating to the alleged confiscation of dates, the Court rejected it and denied summary
judgment. The defendants have moved for reconsideration of this decision.
A. Legal Standard for a Motion for Reconsideration
Motions for reconsideration are governed by Federal Rule of Civil Procedure 59(e).
A motion for reconsideration is not a procedural device enabling relitigation of issues already
decided. Its purpose is to correct manifest errors of law or fact or present newly discovered
evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A judgment may be
altered or amended if the party seeking reconsideration establishes at least one of the
following grounds: “(1) an intervening change in controlling law; (2) the availability of new
evidence that was not available when the court granted the motion for summary judgment;
or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.”
Max’s Seafood Café, by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “A
motion for reconsideration is not to be used as a means to reargue matters already argued
and disposed of or as an attempt to relitigate a point of disagreement between the Court and
the litigant.” Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002).
“Because federal courts have a strong interest in the finality of judgments, motions for
reconsideration should be granted sparingly.” Continental Casualty Co. v. Diversified Indus.,
Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).
B. The Court Did Not Commit Procedural Error Requiring Reconsideration
The plaintiff did not file his opposition to the defendants’ summary judgment motion,
although he did object to the magistrate judge’s report and recommendation. Despite the
plaintiff’s lack of response to the defendants’ motion, the Court rejected the magistrate
judge’s recommendation that summary judgment be granted in the defendants’ favor on the
claims arising from the date confiscation and denied the motion. The defendants raise three
procedural objections: (1) the Court should have deemed the plaintiff to have waived his right
to object to the report and recommendation; (2) the Court should not have given weight to
the fact that the defendants did not object to the report and recommendation; and (3) the
Court should not have denied the motion for summary judgment where the plaintiff failed to
(1) The Court did not Err in Failing to Deem the Plaintiff to Waive Objections
The defendants first contend that because the plaintiff did not oppose the motion for
summary judgment, he should have been deemed to waive his objections. Regardless of
whether the plaintiff waived his right to object, the Court is free under 28 U.S.C. § 636(b)(1)
“to accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Even in the absence of objections, the Court would have rejected the
magistrate judge’s recommendation granting summary judgment relating to the date
confiscation, and thus there is no clear error of law requiring reconsideration.
(2) The Court Did Not Err By Accepting the Magistrate Judge’s Conclusion that
the Defendants May Have Violated the Plaintiff’s Rights
The magistrate judge had concluded that the defendants violated the plaintiff’s First
Amendment rights, but recommended granting the motion for summary judgment on the
grounds that the plaintiff did not file a brief opposing the motion. (Doc. 66 at 15.) The Court
disagreed that summary judgment may be granted on the basis of failing to oppose the
summary judgment motion. The Court reasoned that “the magistrate judge concluded that
the defendants’ conduct violated the plaintiff’s rights. [The defendants] do not object to this
conclusion, and it is not plainly erroneous.” The defendants argue that because they were
not aggrieved by the recommendations, they had no duty to object to the magistrate judge’s
conclusion and the Court erred in accepting the magistrate judge’s determination.
Regardless, because the Court has determined that the defendants have not shown
they were entitled to summary judgment on the claims arising from the date confiscation, the
Court did not clearly err in denying summary judgment, and reconsideration on this ground
(3) The Court Did Not Err in Denying Summary Judgment Where the Plaintiff
Failed to Oppose the Defendants’ Motion
Finally, the defendants argue that the Court erred in denying the motion because the
plaintiff failed to oppose the motion. Local Rule 7.6 provides that a party’s failure to file a
brief in opposition to an opponent’s motion results in that party being deemed not to oppose
the motion. Invoking this rule, the defendants argue that the Court should have granted
summary judgment in their favor as a consequence of plaintiff’s failure to file a brief in
However, the local rule must be read in light of Federal Rule 56, which requires that
a movant be “entitled” to summary judgment. The Third Circuit has held that failure to
oppose a motion for summary judgment is not, in itself, reason to grant the motion. See
Anchorage Assoc. v. Virgin Island Bd. of Tax Review, 922 F.2d 168 (3d Cir. 1990). Rather,
when the moving party does not have the burden of proof, it is “entitled” to judgment in its
favor when “the deficiencies in the opponent’s evidence designated in or in connection with
the motion” are such that as a matter of law, judgment must be entered in its favor.
Here, the movants failed to show an absence of evidence warranting summary
judgment in their favor, and thus reconsideration is not warranted.
C. First Amendment Claim
Under the First Amendment’s Free Exercise Clause, as applied to the states through
the Due Process Clause of the Fourteenth Amendment, inmates have the right to freely
exercise their religion unless that exercise in inconsistent with legitimate penological
objectives. DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000) (citations omitted). To establish
that a prison official’s denial or restriction violates the Free Exercise Clause, an inmate must
first show that the restriction “contravenes [his] sincere religious beliefs.” Africa v.
Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981). Even so, reasonable restrictions on free
exercise will be upheld when the restriction is rationally related to legitimate penological
interests. See id. at 51 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
In evaluating whether a restriction is rationally related to legitimate penological
interests, courts apply the four factor test set out by the Supreme Court in Turner v. Safley,
482 U.S. 78 (1987). At this stage, the defendants must make a showing:
While the ultimate burden of persuasion with regard to the reasonableness of
a regulation resides with those challenging it, Overton v. Bazzetta, 539 U.S.
126, 132 (2003), the defendant administrators must “put forward” the
legitimate governmental interest alleged to justify the regulation, Turner, 482
U.S. at 89, and “‘demonstrate’ that the policy drafters ‘could rationally have
seen a connection’ between the policy and [that interest].” Wolf v. Ashcroft,
297 F.3d 305, 308 (3d Cir. 2002). “[T]his burden, though slight, must ‘amount
[ ] to more than a conclusory assertion.’” Id. (citation omitted).
Jones v. Brown, 461 F.3d 353, 360-61 (3d Cir. 2006).
On summary judgment the movant bears the burden of showing that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). Where the nonmoving party has the burden of proof, the
moving party may simply point out to the court that "the nonmoving party has failed to make
a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Here, the defendants have failed to show that there is no genuine issue of material
fact and that they are entitled to judgment as a matter of law. While in their briefing, the
defendants characterize the confiscation of dates as a one-time error, see Doc. 49 at 14,
they do not introduce any competent evidence to suggest that the confiscation happened
only one time.1 The plaintiff contends, in his verified complaint,2 that his dates were
confiscated multiple times and that he was prevented from breaking his fast with dates for
twenty-eight out of thirty days. (See Complaint, Doc. 1 at ¶ 6.) While the defendants’
declaration discusses one such instance, it fails to establish that this was the only instance,
and to the extent that they claim only one such instance exists, there are issues of fact.
Moreover, the defendants do not squarely address the plaintiff’s First Amendment
claim in their argument. For example, they do not claim that his dates were confiscated in
Only paragraphs 5 and 6 of the defendants’ statem ent of m aterial facts touches on the date
confiscation. Both paragraphs cite to the declaration of Lisa Hollibaugh, the Assistant to the Superintendent of
the facility. (See Doc. 48, Ex. 3.) In Hollibaugh’s declaration, she sim ply notes that there was a grievance filed
(attached as an exhibit) relating to the confiscation of dates on October 7, 2006. Nowhere does the declaration
note that this was the sole grievance filed in connection with date confiscation. Thus, even though this
statem ent of fact is deem ed adm itted by the plaintiff in accordance with Local Rule 56.1, it fails to show that
there was a one-tim e error instead of m ultiple confiscations as the plaintiff contends.
A verified com plaint m ay be considered an affidavit. See 10B W right, Miller & Kane, Federal Practice
and Procedure: Civil 3d § 2738; Reese v. Sparks, 760 F.2d 64, 67 n.3 (3d Cir. 1985) (holding that when
treating a pro se prisoner’s verified am ended com plaint as an affidavit in opposition to the m otion for sum m ary
judgm ent, as the district court treated it, a genuine issue of m aterial fact was created precluding sum m ary
judgm ent); Ratner v. Young, 465 F. Supp. 386, 389 n.5 (D.V.I. 1979) (“W hile Rule 56 says that the pleadings
in the case m ay be considered in a sum m ary judgm ent proceeding, the extent to which they m ay be so
considered is dependent upon whether they are verified. A party’s sworn pleading is the equivalent of an
affidavit in such a proceeding.”) On sum m ary judgm ent, a court m ay, but need not, consider any m aterials in
the record. Fed. R. Civ. P. 56(c)(3).
accordance with a neutral prison policy rationally related to legitimate penological objectives.
They do not argue that the plaintiff’s practice of breaking the fast with dates does not stem
from a sincerely held religious belief. They do not show the court that the plaintiff’s claim fials
for lack of evidence on these elements. Fatally, they do not proffer any legitimate interest
that denying the plaintiff his dates served.3
Instead, their argument misconstrues the nature of the plaintiff’s claim. Their
argument boils down to this: a claim based on so trifling an injury as having dates taken
should be considered inactionable.4 They argue that summary judgment should be based
on the principle of de minimus non curat lex.5 While this argument has some rhetorical
thrust, taken to its logical conclusion it makes no sense in the First Amendment free exercise
Of course, the defendants contend that the denial happened only once and was the result of an
error; the plaintiff subm its that there were m ultiple confiscations resulting from a policy. Thus, there are
m aterial issues of fact to be tried.
Indeed, if one long string of citations to cases is om itted, the defendants’ entire argum ent on the
plaintiff’s claim s relating to the dates is about 200 words. It is reproduced below:
Plaintiff claim s that security staff confiscated dates from his RHU cell in 2006 and this
violated his First Am endm ent rights. (Cplt., ¶¶ 5-7). Plaintiff grieved this confiscation to final
grievance review and his grievance was upheld. The Departm ent’s Chief Grievance Officer
acknowledged staff’s error and advised plaintiff that staff would be instructed on how not to com m it
the error again. Plaintiff rem ains dissatisfied, however, presum ably because his request for
dam ages was not upheld by the Chief Grievance Officer. Under these circum stances, the erroneous
one-tim e confiscation of dates from plaintiff’s cell was de minimis and for this reason defendants’
m otion for sum m ary judgm ent should be granted. Celotex Corp. v. Catrett, supra.
Plaintiff’s claim does not dem onstrate any harm from the one-tim e confiscation of his dates.
He m ay have been annoyed that they were taken and he was “deprived” of their enjoym ent, but this
is an insufficient basis upon which to base a federal claim . Indeed, in various contexts, the courts
have recognized that allegations of de minimis harm should not be recognized as actionable.
[citations om itted] The one-tim e error was corrected by the plaintiff’s grievance and the “value” of his
dates am ounts to de minimis harm , if harm at all.
Accordingly, defendants’ m otion for sum m ary judgm ent should be granted on the dates
issue. Celotex Corp. v. Catrett, supra.
“The law does not concern itself with trifles.”
In other words, a requirement that harm be objectively significant makes little sense
in the First Amendment context, when the government action infringes on religious practices
resulting from sincerely held beliefs. See Lee v. Weisman, 505 U.S. 577, 594 (1992) (“but
the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing
that . . . [it is] of a de minimis character.”); Employment Division v. Smith, 494 U.S. 872, 88687 (1990) (“Repeatedly and in many different contexts, we have warned that courts must not
presume to determine the place of a particular belief in a religion or the plausibility of a
religious claim.”) (plurality opinion); United States v. Seeger, 380 U.S. 163, 184-85 (1965)
(“Religious experiences which are as real as life to some may be incomprehensible to others
. . . [A court’s] task is to decide whether the beliefs professed by [an individual] are sincerely
held and whether they are, in his own scheme of things, religious.”); Sch. Dist. of Abington
Twp., PA v. Schempp, 374 U.S. 203, 240–41 (1963) (Brennan, J., concurring) (“Today the
Nation is far more heterogenous religiously . . . . [i]n the face of such profound changes,
practices which may have been objectionable to no one in the time of Jefferson and Madison
may today be highly offensive to many persons, the deeply devout and the nonbelievers
alike.”); DeHart v. Horn, 227 F.3d 47, 56 (3d Cir. 2000) (“It would be inconsistent with a long
line of Supreme Court precedent to accord less respect to a sincerely held religious belief
solely because it is not held by others.”); Makin v. Colorado Dept. of Correction, 183 F.3d
1205, 1213 (10th Cir. 1999) (“Should defendants be implicitly inviting use to question the
validity or importance of these other aspects of Ramadan as described by [the plaintiff], we
heartily reject their invitation.”); Mather v. Village of Mundelein, 864 F.2d 1291, 1297 (7th Cir.
1989) (Coffey, J., concurring) (“The constitutional values of respect for freedom of religious
conscience and of religious tolerance . . . mean that we must demonstrate consideration for
others’ beliefs and feelings in religious matters even when they are not the same as ours.”);
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1113-14 (9th Cir. 2010) (“[T]he theory
of the ‘de minimus constitutional violation’ . . . operates on an ad hoc basis to protect the
religious preferences of the majority when those preferences conflict with the constitutional
rights of the minority. Of course, the more disenfranchised the religious minority, the more
likely it is that such a defense will succeed. But our constitutional protections are of little
value if courts refuse to employ them on behalf of members of the most marginalized and
detested religious groups . . . .”) (Reinhardt, J., dissenting).
There is, however, a requirement that the harm be subjectively significant (that is, it
meaningfully interferes with the adherent’s practice of his faith, even if the “harm” would
appear small to a nonbeliever), and de minimus intrusions into religious activities may not
be actionable. For example, in Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999), the
Seventh Circuit held that the unavailability of pork-free meals on three out of 810 occasions
constituted only a de minimis burden on a prisoner’s religious exercise and thus was not a
violation of the Free Exercise Clause. There, the Court noted that the evidence did not
suggest that the unavailability of a non-pork tray on three isolated occasions was anything
other than mere institutional shortage, and noted that the plaintiff had “not alleged a routine
or blanket practice of denying him pork-free meals.” Id. Here, however, the plaintiff has
alleged a practice of confiscating his dates. Moreover, here, unlike in Rapier, the plaintiff has
claimed that the confiscations prevented him from engaging in a central practice of his faith.6
In Rapier, the extremely rare denial of a pork-free tray simply meant that the plaintiff skipped
a meal, while here, the plaintiff suggests that he was repeatedly stymied from participating
in a religious ritual. The plaintiff has averred that breaking the fast with dates is a central
practice, and that he was unable to do so as the result of repeated confiscations. These
issues of fact preclude summary judgment.
In their brief supporting their motion for reconsideration, the defendants argue that the
record lacks evidence supporting the plaintiff’s claims except the “bare allegation of his
complaint that the confiscation of dates violated his rights.” (See Doc. 81 at 12.) As noted
above, the Court disagrees that the allegations are “bare.” The complaint is verified, and the
plaintiff alleges that breaking the fast with dates is a central practice of his faith, which he
has adhered to for many years, and he was prevented from doing so by the defendants’
actions. This evidence is sufficient to create issues of fact; the plaintiff need not resort to
outside expert “proof” aside from his own averments. See Koger v. Brian, 523 F.3d 789, 799
(7th Cir. 2008) (“[C]lergy opinion has generally been deemed insufficient to override a
prisoner’s sincerely held religious belief.”); Ford v. McGinnis, 352 F.3d 582, 593-94 (2d Cir.
2003) (holding that the role the Eid ul Fitr feast played in a prisoner’s practice of Islam was
determinative of whether there had been a substantial burden, and not the testimony of
Muslim clerics as to the proper celebration of the feast); Jackson v. Mann, 196 F.3d 316,
320-21 (2d Cir. 1999) (holding that it was the sincerity of a prisoner’s beliefs, and not the
decision of Jewish religious authorities, that determined whether the prisoner was an
The plaintiff alleges that a central practice of his faith is breaking the fast with dates.
adherent of Judaism entitled to a kosher meal).
Even had the record been devoid of evidence showing that the plaintiff’s sincerely
held religious beliefs were impinged on, the Court would still deny the motion for summary
judgment on the alternative ground that the motion failed to notify the plaintiff that he should
produce evidence on his First Amendment claim.
A motion for summary judgment must give a plaintiff fair notice of the grounds on
which it seeks relief, so that the plaintiff may marshal evidence adequate to address the
claimed deficiencies in its proof. “[A] party has no obligation to respond to grounds that the
moving party does not raise in a summary judgment motion.” Carter v. Beard, 392 F. App’x
82, 84 (3d Cir. 2010) (holding the district court erred in granting summary judgment on the
ground that the plaintiff had received adequate process where the defendants did not raise
the issue in their summary judgment motion and thus the plaintiff was not put on notice to
develop a factual record) (quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997)); see also
Edwards v. Honeywell, Inc, 960 F.2d 673, 674 (7th Cir. 1992).7
Here, the sole ground on which the defendants moved was their contention that
confiscating dates is, as a matter of law, de minimis harm and therefore not actionable.
Because the defendants neglected to point out to the Court that the plaintiff lacked evidence
(for example) showing that his free exercise was impinged, or that the restriction was not
reasonably related to a legitimate penological interest, the Court may not grant judgment in
their favor based on plaintiff’s failure to introduce evidence supporting these elements.
Having determined that the de minimis grounds raised by motion did not warrant the granting
The Court is providing all unpublished opinions cited to in this opinion as an appendix.
of judgment in the defendants’ favor, the Court correctly denied the motion. See Brobst v.
Columbus Servs. Int’l, 761 F.2d 148, 154 (1985) (reversing grant of summary judgment given
without notice and on grounds different from those asserted in support of motion), cert.
denied, 484 U.S. 1043 (1988).
Additionally, the Court denies the motion for summary judgment because the plaintiff
still has, at least,8 a remaining RLUIPA claim relating to the date confiscation. The
defendants did not address the RLUIPA claim relating to the date confiscation, and the Court
may not grant summary judgment on claims not raised by motion. See Gibson v. Mayor &
Council of City of Wilmington, 355 F.3d 215, 223 (3d Cir. 2004); Washington v. Klem, No.
3:01-cv-2432-JEJ, Docket No. 89, Att. 3 at 4 (unreported opinion of the Third Circuit Court
of Appeals dated Jun. 29, 2004) (holding that it was error for the district court to dismiss a
prisoner’s RLUIPA claim where “the defendants did not address the religious claims in their
summary judgment motion [and] [t]hus, [the plaintiff] had no reason to believe [the claim
would be disputed]”). For this reason as well, the Court correctly denied summary judgment
on the claims implicated by the date confiscation.
Because the Court correctly denied the defendants’ motion for summary judgment as
to the claims relating to date confiscation, the Court’s order rejecting the magistrate judge’s
report and recommendation to the extent that it recommended granting summary judgment
on all claims was not erroneous.
Therefore, the defendants’ motion requesting
The com plaint also alleges that Defendant Greenfield violated Riley’s due process rights.
reconsideration of that order will be denied. An appropriate order follows.
July 29, 2011
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY A. BEARD, et al.,
NOW, this 29th day of July, 2011, IT IS HEREBY ORDERED that the defendants’
motion for reconsideration (Doc. 80) is DENIED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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