GREEN v. HAWKINBERRY et al

Filing 82

MEMORANDUM OPINION AND ORDER granting 66 Defendants' Motion for Summary Judgment and denying 61 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge Cynthia Reed Eddy on 3/14/2016. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MUWSA GREEN,
Plaintiff,
v.
DEBRA A. HAWKINBERRY, CCPM,
BRIAN COLEMAN, FRANK LEWIS, and
EFRAIN REISNER,

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Civil Action No. 2: 13-cv-01208
United States Magistrate Judge
Cynthia Reed Eddy

Defendants.
MEMORANDUM OPINION AND ORDER1
Presently pending are the cross Motions for Summary Judgment filed by the parties (ECF
Nos. 61 and 66). The issues have been fully briefed and the factual record has also been
thoroughly developed. (ECF Nos. 67, 68, 69, 70, 72, 74, and 79). The motions are ripe for
disposition. For the reasons that follow, Plaintiff’s motion will be denied and Defendants’
motion will be granted.
Background
Plaintiff, Muwsa Green, pro se,

is a state prisoner currently incarcerated at SCI-

Somerset. Plaintiff alleges that from October 13, 2011 until November 24, 2014, while being
housed in the RHU/SMU Unit of SCI-Fayette, Defendants denied him a kosher diet, in violation
of his First Amendment rights to freely exercise his religion and in violation of the Religious
Land Use and Institutionalized Person Act (“RLUIPA”), 42 U.S.C § 2000cc-1(a).

1

The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF Nos.
13 and 20.
1

On October 13, 2011, Plaintiff filed an Inmate’s Request to Staff Member requesting to
be signed up for a “Jewish Bag.” (ECF. 61-2 at 21). On December 15, 2011, Green was
informed by Reverend Frank Lewis, the Facility Chaplancy Program Director, that he “was not
registered as a Jew[,] you must do so before getting the Kosher bag plus you need to study with
the Rabbi at least six months before you apply.” (Id.).
On December 19, 2011, Green filed an Inmate Request to Change Religious Form” and
requested Jewish reading material “so I can learn more about my religion.” (Id. at 20). On that
same day, Green filed an Inmate Religious Accommodation Request Form requesting a religious
diet.

In evaluating the request, Reverend Lewis wrote to the Religious Accommodation

Committee and explained that he received from Green the request for a Kosher Bag the same day
that Green requested to become Jewish and that “[h]e knows nothing about the Jewish Faith
other than what he has heard from other inmates in the SMU. I did not have the Rabbi interview
him because I personally know inmate Green and at this time I cannot recommend him for this
accommodation.” (ECF No. 69-1 at 21).
The request for a Kosher diet was denied by the Religious Accommodation Committee
and the denial was approved by the Deputy Secretary of the Department of Corrections (“DOC”)
due to a lack of a demonstrated sincerely held religious belief. (ECF. 61-2 at 21). On March 21,
2012, Green was notified by Reverend Lewis that his request for a Kosher Bag meal had been
denied “due to a lack of a demonstration of a sincerely held belief.” (Id. at 12). Green was
advised that he could reapply “one year from this date [March 21, 2012] when you can clearly
demonstrate the sincerity of your faith.” (Id.).

2

In September 2012, Green filed Grievance 429697 stating that he did not receive fast bags
for the Fast of Gedaliah or Yom Kippur. (Id. at 9). The grievance was denied and Green was
informed by Defendant Debra A. Hawkinberry, CCPM, that
[He] did not receive the fast bags because in the plan of action
from Central Office it says, “Only inmates who identify with the
broad Jewish faith who have demonstrated a sincerely held
religious belief, are formally registered as Jewish and who are
approved by the Jewish Chaplain, are permitted to take part in the
observance of these holy days.” On March 21, 2012, Inmate Green
was denied a Kosher Diet due to a lack of a demonstrated sincerely
held religious belief and therefore the Jewish Chaplain did not put
him on the list to receive fast bags. He needs to talk with the
Jewish Chaplain and become a student of the Jewish faith so that
he may participate in the future.
(Id. at 2). On February 5, 2013, Green filed an Inmate’s Request to Staff Member informing
Reverend Lewis that he would be in administrative custody (“AC”) on February 21, 2013, and
questioned why he could not “receive the Jewish Fest (sic) on February 24, 2013.” (Id. at 16).
Reverend Lewis informed Green that he would be getting the fast bags but “will not get the
Passover and Rosh [illegible] feast if you have had a Class #1 misconduct in six months.” (Id.)
In response, Green filed an Inmate’s Request to Staff Member addressed to Debra Hawkinberry
disputing that DC-ADM 819 stated that an inmate must be free of a Class 1 misconduct for six
months in order to participate in the religious ceremonial meals. (Id. at 14). Hawkinberry
responded that DC-ADM 819 does in fact state that “you must be free of a Class 1 misconduct
for 6 months in order to participate in the ceremonial meal.”2 She also informed Green that the

DC-ADM 819, Section 1, E(1)(b), entitled “Ceremonial Meals” states in pertinent part as
follows, “[i]nmate participants in ceremonial meals must be free of Class I misconducts (refer to
Department policy DC-ADM 801, “Inmate Discipline”) for a period of six months.” DC-ADM
819, Religious Activities, Effective Date 2/1/2013.
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2

Chaplain’s “rounds are individual counseling, not a service.” (Id.).
On March 1, 2013, Green filed his second request for a “Kosher Bag.” Green stated that
he had “been a Jewish believer for a year now.” (Id. at 29). On May 13, 2013, Reverend Lewis
informed Green that the Religious Accommodation Committee again had denied his “request for
a Kosher Bag . . . because of your failure to demonstrate a sincerely held religious belief. You
will not be able to apply for this meal again until May 17, 2014.” (Id. at 24).
Green filed Grievance 462020 on May 30, 2013, regarding the denial of his second
request for a Kosher Bag. Green stated, “I’ve have been practicing and participating in the
Jewish religion, all activity for over two years now. This above denial constitute bias.” (Id. at 6;
ECF No. 32-2 at 6). On June 10, 2013, Green’s grievance was denied for the following reasons:
The first time that he applied for the Kosher bag, he was denied
because he had just changed his religious preference to Jewish and
knew absolutely nothing about the Jewish faith. Exactly one year
later, he applied again. Since he is in the Restricted Housing Unit
(RHU), he is unable to attend the Jewish services and the time he
sees the Rabbi is limited. This has hindered the development of
his understanding of his faith. He filed a grievance in 9/25/13 (sic)
because he was not allowed to join in Jewish holidays because the
Rabbi did not think that he had progressed enough in his studies.
The Rabbi did not recommend him for the Kosher bag this time.
Inmate Green does not have enough understanding of the Jewish
faith to understand how much he does not know about it. It is his
responsibility to work with the Rabbi to chart a course of study so
that he will qualify in the two ways he can: his knowledge of the
Jewish faith and the daily rituals that he must perform. When the
Rabbi recommends him, the institution will as well.
(Id.; ECF No. 69-1. at 12). Green’s appeal of that decision was denied on August 6, 2013. The
Final Appeal Decision, written by Chief Grievance Officer Dorina Varner, explained the denial
as follows:
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An investigation was conducted into your denial of the Kosher bag.
According to Reverend Lewis, you submitted a religious
accommodation request for a Kosher bag and were denied on
2/21/2012 because you lacked a demonstrated sincerely held
religious belief. You resubmitted a religious accommodation
request form on 5/17/2013 and it was denied. According to the
FCPD you have only been Jewish for one year and the Rabbi does
not recommend you for the Kosher bag at this time.
(ECF No. 61-2 at 26; ECF No. 32-2 at 2).
On July 12, 2013, Green’s request to participate in the fast of 9th of Av on July 16, 2013
was approved. (ECF No. 61-2 at 15). The summary judgment record evidence also reflects that
Green was approved to participate in the Fast of Gedaliah, which occurred on September 8, 2013
(Id. at 28), the 25-hour fast for Yom Kippur, which occurred from sunset on September 13, 2013
to sundown on September 14, 2013 (ECF No. 61-2 at 5), and the Fast of 9th Av on August 4,
2014 (Id. at 4). On August 6, 2014, Green informed Reverend Lewis that he never received the
Fast of 9th Av on August 4, 2014. Reverend Lewis replied that “[t]he dietician said that
everyone in the RHU & SMU took trays and didn’t fast.” (Id. at 7).
On September 18, 2014, Green filed his third Religious Accommodation Request Form
for a kosher diet. Green stated that he “participate[s] in all the Jewish Holidays, and read Jewish
materials, ask question when the Rabbi come around. And I am not trying to rebel against my
religion by eating non-kosher foods.” (ECF No. 61-2 at 25; ECF No. 47-1 at 3). On September
22, 2014, Green was informed by Reverend Lewis that he was listed on “all feasts.” (ECF No.
61-2 at 17). The summary judgment record evidence reflects that on November 24, 2014,
Green’s request for a Kosher diet was approved. (ECF No. 69-1).
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Standard of Review
Summary judgment is appropriate if the “movant shows 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). Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647
(3d Cir. 2007). A factual dispute is genuine if a reasonable jury could find for the non-moving
party, and is material if it will affect the outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “the
judge's function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Marino
v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or
make credibility determinations). Rather, the court must consider all evidence and inferences
drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d
641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively identify those
portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323–24. The moving party can discharge the burden by showing that “on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003); see also
Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to material facts,” but
must show sufficient evidence to support a jury verdict in its favor. Boyle v. Cty. of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 586 (1986)). However, if the non-moving party “fails to make a showing sufficient
to establish the existence of an element essential to [the non-movant's] case, and on which [the
non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of summary
judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp.,
477 U.S. at 322–23; Jakimas v. Hoffman–La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
Notably, these summary judgment rules do not apply any differently where there are
cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated
by the Court of Appeals for the Third Circuit, “ ‘[c]ross-motions are no more than a claim by
each side that it alone is entitled to summary judgment, and the making of such inherently
contradictory claims does not constitute an agreement that if one is rejected the other is
necessarily justified or that the losing party waives judicial consideration and determination
whether genuine issues of material fact exist.’ ” Id. (quoting Rains v. Cascade Indus., Inc., 402
F.2d 241, 245 (3d Cir. 1968)). 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. Washington v. Klem, 497 F.3d 272, 278 (3d Cir. 2007). For the purposes of RLUIPA, a
substantial burden exists where: (1) a follower is forced to choose between following the
precepts of his religion and forfeiting benefiting otherwise generally available to other inmates
versus abandoning one of the precepts of his religion in order to receive a benefit; or (2) the
government puts substantial pressure on an adherent to substantially modify his behavior and to
violate his beliefs. Id. at 280. RLUIPA also does not confer any “privileged status on any
particular religious sect, and singles out no bona fide faith for disadvantageous treatment.”
Cutter, 544 U.S. at 724.
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Discussion
I.

First Amendment Claim
Green first claims that Defendants violated his First Amendment right to the free exercise

of religion by failing to provide him with acceptable Kosher meals. The First Amendment
provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .” U.S. CONST. amend. I. Despite their incarceration, prisoners
have a First Amendment right to practice their religion. Bell v. Wolfish, 441 U.S. 520, 544
(1979); DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000). However, these constitutional rights are
limited by the fact of incarceration as well as valid penological objectives. See O’Lane v.
Shabazz, 482 U.S. 342, 348 (1987) (free exercise rights are “necessarily limited by the fact of
incarceration, and may be curtailed in order to achieve legitimate correctional goals or maintain
prison security.”). The evaluation of penological objectives in this context is “committed to the
considered judgment of prison administrators,” and to ensure appropriate deference to those
judgments, courts reviewed challenged prison regulations under the overall reasonableness test of
Turner v. Safley, 482 U.S. 78 (1987).
The Turner reasonableness analysis focuses on four factors: (i) whether there is a rational
connection between the challenged prison regulation and the legitimate governmental interest;
(ii) whether there are alternative means of exercising the religious rights that remain open to the
plaintiff; (iii) what impact will accommodation of the asserted constitutional right have on the
prison officials, general prison resources and other inmates; and (iv) whether there are any ready
available alternatives for furthering the governmental interest. Turner, 482 U.S. at 89-90,

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reaffirmed in Overton v. Bazzetta, 59 U.S. 126, 131 (2003). See also Beard v. Banks, 548 U.S.
521, 535 (2006) (plurality opinion).
The Turner analysis is, however, conducted as a second step only; as such, the analysis is
warranted if the allegations made by plaintiff demonstrate that a constitutionally protected
interest is at stake. DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000). “The mere assertion of a
religious belief [by a prisoner] does not automatically trigger First Amendment protections . . .
[O]nly those beliefs which are sincerely held; and religious in nature are entitled to constitutional
protection.” Id. (quoting Africa v. Com. of PA, 662 F.2d 1025, 1029-30 (3d Cir. 1981), cert.
denied, 456 U.S. 908 (1982)). If either of these two requirements is not satisfied, the Court need
not conduct a Turner analysis. Id. at 51.
Green unquestionably satisfies the second requirement. He professes to be Jewish and to
follow the Jewish faith. It is the first requirement, whether his religious beliefs were sincerely
held during the time in question, which is at issue in this litigation. “[I]f a prisoner’s request for
a particular diet is not the result of sincerely held religious beliefs, the First Amendment imposes
no obligation on the prison to honor that request.” Id. at 52.
Prison officials are allowed to make inquiries regarding the sincerity and religious nature
of an inmate’s belief when the inmate requests special treatment. Id. at 52 n.3. “If the request is
not a constituent part of a larger pattern of religious observance on the part of the inmate . . . the
asserted religious basis may be rejected as pretext.” Id. Prison officials must be given some
leeway in terms of time to investigate the sincerity of an inmate’s religious beliefs.
It is clear from the summary judgment record that Defendants took adequate steps to
investigate the sincerity of Green’s religious beliefs. Certainly Green initiated the process of
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requesting a religious accommodation by his first request on December 19, 2011. Defendants
questioned the sincerity of Green’s first request as it was received on the same day as Green
notified DOC that he was changing his religious preference. DC-ADM 819, Section 4(e),
Religious Accommodations, specifically provides that “when reviewing the inmate’s request, the
following issues shall be considered: . . . (5) any evidence that indicates a lack of sincerity on the
part of the inmate (e.g., inmate does not attend faith group services, lacks a general
understanding of major faith teachings, lacks a recommendation from the Faith Group Leader,
etc); . . . .) Green’s second request was not approved based on the recommendation of the Rabbi
who did not believe that Green had enough understanding of the Jewish Faith to participate in
Jewish holidays. Notably, Green’s development of his understanding of his faith was hindered
somewhat because he was in the RHU where he was unable to attend the Jewish services and had
limited contact with the Rabbi.
Green’s third request for a Kosher diet was approved after he had demonstrated to the
Rabbi and his Faith Group Leader that his beliefs were sincere, that he was participating in all the
Jewish holidays, requesting and reading Jewish material, and asking questions of the Rabbi
Under these circumstances, and based on the summary judgment record evidence, the
Court cannot find fault with the decisions and actions of Defendants. Defendants Coleman and
Hawkinberry appropriately relied upon the recommendation of the Faith Group Leader, Reverend
Lewis, Rabbi Reisner, and the Religious Accommodation Committee regarding the sincerety of
Plaintiff’s religious beliefs.

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II.

RLUIPA Claim
RLUIPA prohibits the government from imposing a substantial burden on any religious

exercise of a person residing in or confined to an institution unless the burden furthers “a
compelling governmental interest,” and does so by “the least restrictive means.” 42 U.S.C. § 2.
RLUIPA, however, does not allow for the recovery of money damages. See Sharp v.
Johnson, 669 F.3d 144, 154 (3d Cir. 2012) (“RLUIPA does not permit an action against
defendants in their individual capacities . . . [t]hus RLUIPA cannot impose direct liability on
Defendants.”) See also Laskaris v. Thornbaugh, 661 F.2d 23, 25-26 (3d Cir. 1981) (explaining
that the Eleventh Amendment bars a suit for damages against state officials in their official
capacities). Therefore, the only relief potentially available to Green for his RLUIPA claims is
injunctive or declaratory, but to the extent that Green seeks that relief against defendants at SCIFayette, his claims are moot because he was transferred to SCI-Somerset.3 He no longer presents
a live case or controversy for injunctive relief regarding the policies or practices at SCI-Fayette
because an injunction where he is no longer imprisoned would not provide him meaningful
relief. See Abdul-Akbar v. Watson, 4 F.3d 195, 207-07 (3d Cir. 1993). On this record, any future
incarceration of Green at SCI-Fayette, is speculative, so his case does not present an issue
capable of repetition, yet evading review regarding the relief against the SCI-Fayette defendants.
See id.

After the disposition of the motion to dismiss, the remaining defendants are all employed or
affiliated with SCI-Fayette: Brian D. Coleman, Superintendent; Debra A. Hawkinberry, SCI
Fayette Facility CCPM; Frank Lewis, SCI-Fayette “facility reverend;” and Efrain Reisner, SCIFayette “facility Rabbi.”
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3

Accordingly, for all these reasons, summary judgment is granted to Defendants on
Plaintiff’s RLUIPA claim.

Conclusion
For the above reasons, the Motion for Summary Judgment filed by Plaintiff, Muwsa
Green, will be denied, and the Motion for Summary Judgment filed by Defendants will be
granted. An appropriate order follows.

ORDER OF COURT
AND NOW, this 14th day of March, 2016, for the foregoing reasons, the Motion for
Summary Judgment filed by Plaintiff, Muwsa Green, is DENIED and the Motion for Summary
Judgment filed by Defendants is GRANTED.
The Clerk of Court shall docket this case closed.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

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cc:

MUWSA GREEN
HV-5362
SCI Somerset
1600 Walters Mill Road
Somerset, PA 15510
(via U.S. First Class Mail)
Sandra A. Kozlowski
Pennsylvania Office of Attorney General
(via CM/ECF electronic notification)

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