March v. Townsend et al

Filing 13

MEMORANDUM AND ORDER, Plaintiff's application to proceed in forma pauperis 1 is GRANTED, and he is ASSESSED the civil filing fee of three hundred and fifty dollars ($350). The Clerk is DIRECTED to mail a copy of this o rder to the custodian of inmate trust accounts at plaintiff's place of confinement and to Derrick Schofield, Commissioner of the Tennessee Department of Correction. The Defendant Todd Wiggins is DISMISSED for plaintiff's failure to state a claim against him. The Clerk is DIRECTED to issue a summons for defendant Townsend and forward process to the United States Marshal's office for service. Defendant SHALL answer or otherwise respond to the complaint within twenty (20) days from t he date of service. Defendant is ORDERED to respond to the Motion for a temporary restraining order 3 , within ten (10) days of service. Signed by District Judge Harry S Mattice, Jr on 2/8/13. (copies mailed per instructions)( c/m to plaintiff)(KDO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE

PERRY AVRAM MARCH#405328,
Plaintiff,
v.
BENNIE TOW NSEND and
TODD W IGGINS,
Defendants.

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NO. 2:12cv-266
Mattice/Lee

MEMORANDUM & ORDER

Seeking damages and injunctive relief, Perry Avram March, an inmate
in Northeast Correctional Complex [NECX] in Mountain City, Tennessee, brings this
pro se civil rights action, under 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, charging that he has
been denied a special religious diet. The defendants are Bennie Townsend, NECX’s
Food Services Manager, and Todd W iggins, NECX’s Deputy W arden who
supervises food services. Defendant Townsend is sued both in his individual and
official capacities, whereas defendant W iggins is named only in his official capacity.
I. The Filing Fee
Plaintiff’s application to proceed in forma pauperis is GRANTED [Doc.
1], and he is ASSESSED the civil filing fee of three hundred and fifty dollars ($350).
The custodian of plaintiff’s inmate trust account at the institution where he now

resides is DIRECTED to submit to the Clerk of Court, as an initial partial payment,
twenty percent (20%) of the greater of either the average monthly deposits to his
inmate trust account or the average monthly balance in the account, for the six (6)
months immediately preceding the filing of the complaint. 28 U.S.C.§ 1915(b)(1).
After full payment of the initial partial filing fee, the custodian shall
submit twenty percent (20%) of plaintiff’s preceding monthly income credited to the
account, but only when the amount in the account exceeds ten dollars ($10), until
the full $350 fee has been paid to the Clerk of Court. 28 U.S.C. § 1915(b)(2).
The Clerk is DIRECTED to mail a copy of this Order to the custodian of
inmate trust accounts at plaintiff’s place of confinement and to Derrick Schofield,
Commissioner of the Tennessee Department of Correction, to ensure compliance
with the assessment procedures outlined herein. All payments should be sent to the
Clerk’s Office, USDC; 220 W . Depot Street, Suite 200; Greeneville, TN 37743.
II. Screening the Complaint
The Court must now review the complaint to determine whether it states
a claim entitling plaintiff to relief or is frivolous or malicious or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2) and §
1915A; McGore v. W rigglesworth, 114 F.3d 601, 607 (6th Cir. 1997).

If the

complaint does not state a claim or is frivolous, malicious, or seeks damages from
an immune defendant, this suit must be dismissed. In performing this task, the Court
realizes that the pleadings of pro se litigants must be liberally construed and "held

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to less stringent standards than formal pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Still, though plaintiff need not provide detailed factual allegations in his complaint,
he must supply concrete grounds showing his entitlement to relief—a burden which
is not satisfied by mere labels, conclusions, or a “formulaic recitation of the elements
of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Plaintiff’s Allegations
Plaintiff maintains that he is an Orthodox Jew (to his knowledge, the
only one at the prison) who decided to return to an observant Kosher diet, as
dictated by his Orthodox Jewish faith, approximately seven months ago.

The

W arden and the Chaplain approved plaintiff for enrollment in the special religious
diet, but defendant Bennie Townsend told plaintiff that no Kosher breakfast would
be served to him and that he could request a non-pork tray at the serving window.
Also defendant Townsend informed him that he would have to eat off non-kosher
trays and use non-kosher utensils.
Plaintiff complains that this practice nullifies the entire kosher status of
food served on those trays and touched by those utensils. In what plaintiff charges
was “obvious retaliation,” defendant Townsend also said that the kosher menu would
comprise four strictly vegetarian dishes, with no meat, chicken or other products.
The Christian population is served more than thirty different lunch and dinner entrees
per month, which includes meat, fowl, fish and many other items. Plaintiff has

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repeatedly informed defendant Townsend and others that his meals are not kosher
and not in strict compliance with Jewish dietary laws, to no avail.
Plaintiff filed approximately eight Emergency Grievances, but defendant
W iggins notified plaintiff that all grievances had been consolidated into one nonEmergency Grievance and had been officially denied, concluding that plaintiff was
indeed receiving Kosher meals in accordance with prison policy. Plaintiff asserts
that he has not been served a kosher menu since his request, that his body and
spirit have been polluted by eating non-kosher food, and that, each time he is not
served kosher food, the First Amendment is violated and he suffers irreparable injury
IV. Discussion
1. Supervisory Liability
Plaintiff maintains that, in his executive capacity, defendant Deputy
W arden W iggins is the prison official responsible for supervising the kosher meal
program and for claims of civil rights violations. A supervisor can incur liability under
§ 1983 where a plaintiff shows "that the supervisor encouraged the specific incident
of misconduct or in some other way directly participated in it." Taylor v. Michigan
Dept. of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (quoting Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984)). Here, there has been no showing that this defendant
committed any actual acts, encouraged the denial of kosher meal service to plaintiff,
or directly participated in the alleged retaliation. Likewise, there is no constituional
right not to have a prison grievance rejected. Alder v. Correctional Medical Services,

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73 Fed.Appx. 839, *841, 2003 W L 22025373, *2 (6th Cir. Aug. 27, 2003) (“The mere
denial of a prisoner’s grievance states no claim of constitutional dimension.”). This
holds true if the person who rebuffs an inmate’s grievance is a supervisor. “The
‘denial of administrative grievances or the failure to act’ by prison officials does not
subject supervisors to liability under § 1983.” Grinter v. Knight, 532 F.3d 567, 576
(6th Cir. 2008) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Thus,
Plaintiff has failed to state a viable claim against Defendant Todd W iggins Inman
based on either on supervisory liability or for denying or failing to act on plaintiff’s
grievances. Therefore, this defendant is DISMISSED for plaintiff’s failure to state a
claim against him.
2. Official Capacity Claims
Plaintiff has sued the remaining defendant in his individual capacity but
also in his official capacity as an employee of the Tennessee Department of
Correction. Plaintiff has no claim for damages against defendant Townsend in his
official capacity because the doctrine of sovereign immunity applies. The Eleventh
Amendment to the U.S. Constitution bars claims for damages against a state, its
agencies, such as the Tennessee Department of Correction, and its employees in
their official capacities, unless a state has waived its immunity. Quern v. Jordan,
440 U.S. 332 (1979). Tennessee has not done so. See Gross v. University of
Tennessee, 620 F.2d 109, 110 (6th Cir. 1980); see also Tenn. Code Ann. §
20-13-102(a). Therefore, this defendant is immune from any claim for damages in

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his official capacity and all such claims are DISMISSED. This leaves outstanding
plaintiff’s claims for injunctive relief and damages against defendant Townsend.
3. RLUIPA Claims
Plaintiff asserts that terminating breakfast from his kosher diet, that
furnishing him four strictly vegetarian dishes, with no meat, chicken or other
products, and that providing non-kosher trays and utensils as part of kosher meal
service violates RUILPA. The RLUIPA statute provides, in pertinent part, that
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even if
the burden results from a rule of general applicablility, 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).
Plaintiff has stated arguable claims under the RULIPA and they will be
allowed to proceed in this suit.
4. § 1983 Claims
To state a claim under 42 U.S.C. § 1983, plaintiff must show: (1) that
he was deprived of a right, privilege, or immunity secured by the Constitution or laws
of the United States of America and (2) that the deprivation was caused by a person

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acting under the color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978).
The First Amendment provides: "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof."

W hile

incarcerated, prisoners retain certain constitutional rights, including the right to
exercise their religious beliefs, Cruz v. Beto, 405 U.S. 319 (1972); Thompson v.
Kentucky, 712 F.2d 1078, 1080 (6th Cir. 1983), subject to reasonable restrictions
and limitations by prison officials. See O'Lone v. Estate of Shabazz, 482 U.S. 342,
350-53 (1987); Turner v. Safley, 482 U.S. 78, 88-93 (1987). Moreover, an inmate
has a First Amendment right to file grievances against prison officials, so long as the
grievance is not frivolous. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
Prison officials who retaliate against a prisoner for engaging in protected conduct
violate the Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en
banc).
The Court does not find plaintiff’s allegations against defendant
Townsend regarding kosher meals and purported acts of retaliation against plaintiff
for filing grievances to be frivolous or malicious and cannot say they do not state a
claim which would entitle him to relief under § 1983.

These colorable First

Amendment free-exercise and retaliation claims against defendant Townsend may
advance to service.
Accordingly, the Clerk is DIRECTED to issue a summons for this
defendant and to forward process to the United States Marshal’s office for service.

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Defendant SHALL answer or otherwise respond to the complaint within twenty (20)
days from the date of service.
5. Motion for a Temporary Restraining Order and Preliminary Injunction
Plaintiff has moved for a temporary restraining order and preliminary
injunction requiring defendant to furnish him kosher meals and to comply with Jewish
dietary laws.

Because of the nature of plaintiff’s allegations, in addition to

responding to the complaint within twenty (20) days of service,

defendant is

ORDERED to respond to this motion, [Doc. 3], within ten (10) days of service.

ENTER:

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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