Moussazadeh et al v. Texas Department of Criminal Justice et al
Filing
223
OPINION ON REMAND granting 206 MOTION to Strike 201 Response in Opposition to Motion, denying 203 MOTION to Strike 200 Response in Opposition to Motion, denying 199 MOTION for Summary Judgment, granting 198 MOTION for Summary Judgment D efendants' Motion for Summary Judgment with Brief in Support. All other pending motions, if any, are DENIED. This case is DISMISSED WITH PREJUDICE. Case terminated on September 20, 2011.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MAX MOUSSAZADEH,
Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, et al.,
Defendants.
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§
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CIVIL ACTION NO. G-07-574
OPINION ON REMAND
Although Jewish inmate Max Moussazadeh originally challenged the Texas
prison policy of not providing kosher food to Jewish inmates when he filed suit in 2005, the
central issue in this case on remand involves the application of the Texas Department of
Criminal Justice-Correctional Institutions Division’s (“TDCJ-CID”) Chaplaincy Manual Policy
Number 07.03 (rev.2) (“the Policy”), dated April 2007, and signed by Bill Pierce, Director of
Chaplaincy Operations. (Docket Entry No.198-3, pages 12-15). The policy subject at issue,
“Judaism: Reassignment Procedures to a Jewish-Designated Unit,” provides for two types of
designated Jewish units in TDCJ-CID -- an Enhanced Designated Jewish Unit and a Basic
Designated Jewish Unit.
(Id., page 12).
Jewish inmates incarcerated on the Enhanced
Designated Jewish Unit, i.e., the Stringfellow Unit, are provided kosher meals from an on-site
kosher kitchen. (Id.). Jewish inmates incarcerated on a Basic Designated Jewish Unit, such as
the Stiles Unit, may purchase kosher entrees and other kosher products through the unit
commissary. (Id., pages 12-13).
In its Opinion on Dismissal of March 26, 2009, this Court rejected Moussazadeh’s
claim that he was not receiving kosher meals on the Stringfellow Unit in violation of the
1
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and denied his motion for
summary judgment on this ground. (Docket Entry No.135). The Court found that because
Moussazadeh had been transferred off the Eastham Unit, where he had been denied a kosher diet,
and transferred to the Stringfellow Unit, where he was provided with a kosher diet, his requests
for injunctive and declaratory relief were moot. (Id.). In March 2009, this Court granted the
TDCJ-CID defendants’ motion and dismissed Moussazadeh’s complaint as moot. (Docket Entry
No.135). Moussazadeh filed an appeal from this judgment.
On January 6, 2010, TDCJ-CID confirmed that Moussazadeh had been transferred
for disciplinary reasons to the Stiles Unit on October 13, 2009.1
Moussazadeh v. Texas
Department of Criminal Justice, No.09-40400, Document 0051997970. On February 5, 2010,
the Fifth Circuit Court of Appeals remanded the case to this Court. Moussazadeh v. Texas
Department of Criminal Justice, No.09-40400 (5th Cir. 2010) (unpublished).
The action of this court upon remand of a case by the Fifth Circuit is governed by
the “mandate rule,” which is an application of the law of the case doctrine.
Litman v.
Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987); see also Vieux Carre
Property Owners, Residents and Associates, Inc. v. Brown, 948 F.2d 1436, 1443 (5th Cir. 1991).
1
Moussazadeh committed significant major disciplinary violations while incarcerated on the Stringfellow Unit,
which resulted in action by the State Classification Committee to change his custodial classification to G-5, or close
custody. (Docket Entries No.198, pages 3-4; No.198-5, pages 2-13). Because the Stringfellow Unit houses inmates
with custodial classifications of G-1 or trusty status, to G-4 or medium custody, Moussazadeh’s change in custodial
classification required the State Classification Committee to transfer him on October 13, 2009, to the Stiles Unit,
which houses G-5 inmates. (Docket Entry No.198-5, page 3). In November 2010, the Stiles Unit Classification
Committee promoted Moussazadeh to a custodial level of G-2 in accordance with the review required by the TDCJ
Classification Policy. (Docket Entry No.198-8, page 3). At that time, Moussazadeh became eligible for a transfer
back to the Stringfellow Unit to participate in the Enhanced Jewish program, which includes receiving kosher meals.
(Docket Entry No.198, page 5-6). TDCJ-CID defendants maintain, without supporting documentation, that
Moussazadeh was not transferred back to the Stringfellow Unit because he asserted that his life was in danger while
at the Stringfellow Unit and thus, a life endangerment investigation was implemented per TDCJ policy. (Docket
Entry No.221, n.3). The life endangerment claims were not substantiated. (Id.). TDCJ-CID defendants note that on
March 18, 2011, Moussazadeh was found in possession of contraband, and was again reclassified as G-5. (Id.).
2
The mandate rule requires the following of a district court, as explained by the Court of Appeals
for the Third Circuit, in pertinent part:
[O]n remand for further proceedings after decision by an appellate court,
the trial court must proceed in accordance with the mandate and the law of
the case as established on appeal. A trial court must implement both the
letter and spirit of the mandate, taking into account the appellate court’s
opinion and the circumstances it embraces. . . . The rule ensures “careful
observation of [the] allocation of authority” established by the three-tier
system of federal courts which “is necessary for a properly functioning
judiciary.”
Casey v. Planned Parenthood of Southeastern Pa., 14 F.3d 848, 857 (3d Cir. 1994) (citations
omitted).
In this case, the Fifth Circuit issued the following mandate:
The district court dismissed this case as moot. Since that time the
conditions and treatment about which this prisoner complained have
substantially changed, and these changes affect the issues before us.
Moreover, before we can address the merits of this appeal, there are
matters to be brought before the district court that must be addressed by it.
We therefore remand for additional proceedings to allow the parties and
the district court to further develop the record. . . . In any event, once the
district court has ruled, the parties should advise the clerk of this court
whether this appeal has or has not been mooted by the district court’s
actions.
(Docket Entry No.145).
A claim is moot when the parties are no longer “adverse parties with sufficient
legal interests to maintain the litigation.” DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011)
(quoting Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir. 2009), quoting
United States v. Lares–Meraz, 452 F.3d 352, 354 (5th Cir. 2006) (per curiam), aff’d __U.S.__,
131 S.Ct. 1651 (2011)). “’[A] defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice. . . A case might
become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior
3
could not reasonably be expected to recur.’” Sossamon, 560 F.3d at 325 (quoting Friends of the
Earth, Inc. v. Laidlaw Environmental Services, Inc. (528 U.S. 167, 189 (2000)). Embracing the
principles of the mandate rule and taking into consideration that Moussazadeh’s transfer to the
Stiles Unit during the pendency of the appeal have made it less than clear that the challenged
conduct might reasonably be expected to recur, the Court presumes that Moussazadeh’s request
for injunctive relief, ordering defendants TDCJ-CID, Brad Livingston, and David Sweeten
(“TDCJ-CID defendants”), to provide him with a nutritionally sufficient kosher diet per
RLUIPA, presents a live case and controversy and therefore, is no longer moot. The Court
makes no other presumptions or amendments with respect to all other issues addressed in its
Opinion on Dismissal, except as noted herein.
To develop the record per the appellate court’s mandate and address the present
claim, the Court ordered the parties to conduct discovery on three specific issues and to submit
supplemental dispositive motions. (Docket Entry No.152). See U.S. v. Bell Petroleum Servs.,
Inc., 64 F.3d 202, 204 (5th Cir. 1995) (noting “[w]here further proceedings are contemplated by
an appellate opinion, the district court retains the discretion to admit additional evidence”). The
three issues designated by the Court are, as follows:
1.
Whether the failure to provide Moussazadeh with kosher meals at
the Stiles Unit poses a substantial burden on his religious practices
under Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007);
2.
Whether TDCJ’s decision not to provide kosher meals at prison
units other than the Stringfellow Unit is the least restrictive means
of furthering a compelling government interest; and,
3.
Whether Moussazadeh is entitled to a guarantee that he will
receive kosher meals for the duration of his seventy-five year
prison sentence.
4
(Docket Entry No.152). Pending are Moussazadeh’s and TDCJ-CID defendants’ supplemental
cross-motions for summary judgment (Docket Entries No.198, No.199) and their responses to
the same. (Docket Entries No.200, No.201, No.202, No.204, No.205). The Department of
Justice has also filed a Statement of Interest (Docket Entry No.211), to which TDCJ-CID
defendants have filed a Response in Opposition. (Docket Entry No.221).
For the reasons to follow, the Court REAFFIRMS its finding that Moussazadeh’s
requests for injunctive and declaratory relief are moot and AMENDS the Opinion on Dismissal
of March 26, 2009, by granting the TDCJ-CID defendant’s supplemental motion for summary
judgment and denying Moussazadeh’s supplemental motion for summary judgment.
I. EVIDENTIARY ISSUES
Both parties raise objections to the summary judgment evidence. Moussazadeh
moves to strike three documents, i.e., an errata sheet and two affidavits, which the TDCJ-CID
defendants proffered as summary judgment evidence. (Docket Entry No.203). TDCJ-CID
defendants move to strike two expert affidavits attached to Moussazadeh’s response to
defendant’s motion for summary judgment. (Docket Entry No.206).
A. Moussazadeh’s Motion to Strike
Moussazadeh indicates that he sought discovery of TDCJ-CID commissary
policies with respect to the spending limits imposed on inmates. (Docket Entry No.203, pages 12). TDCJ-CID defendants produced the latest version of the Chaplaincy Manual, which provides
that inmates may purchase kosher entrees and products through the unit commissary, and the
Commissary Manual, which sets monetary limits on an inmate’s ability to purchase most items,
including food, at the unit commissaries. (Id.). Moussazadeh asserts that according to TDCJ
policy, inmate spending limits are based upon the inmate’s security classification and neither
5
manual explicitly exempts kosher entrees or other religious dietary purchases from the spending
limits. (Id., page 2).
TDCJ-CID defendants’ designated witness, Allison Dunbar of TDCJ’s Office and
Budget, attested by deposition to questions regarding the commissary policy as found in the
November 2004 Offender Orientation Handbook. (Docket Entries No.198-50, page 24; No.2071, pages 6-7). Moussazadeh claims that Dunbar’s testimony “conclusively established that
kosher meals are not, at least under TDCJ’s current policy, exempted from commissary spending
limits.”
(Docket Entry No.203, page 3).
Moussazadeh complains that two days before
dispositive motions were due, TDCJ-CID defendants “produced an errata sheet to the Dunbar
deposition attempting to reverse all of her substantive answers on the commissary spending
limits.” (Id.). He also complains about the timeliness of the errata sheet. (Id., pages 5-7).
Federal Rule of Civil Procedure 30(e)(1) allows a deponent to make changes in
“form or substance” to the deposition. Rule 30(e) (1) states, the following in pertinent part:
On request by the deponent or a party before the deposition is completed,
the deponent must be allowed 30 days after being notified by the officer
that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing
the changes and the reasons for making them.
FED. R. CIV. P. 30(e)(1). The Fifth Circuit has not addressed the scope of permissible substantive
corrections to a deposition under Rule 30(e) and courts have taken a variety of approaches. The
traditional view is that Rule 30(e) permits a deponent to change deposition testimony by timely
corrections, even if they contradict the original answers, giving reasons. See, e.g., Eicken v.
USAA Fed. Savings Bank, 498 F.Supp.2d 954, 961-62 (S.D. Tex. 2007). Other courts apply the
analysis used in the “sham-affidavit” rule to Rule 30(e) corrections. This approach allows such
6
corrections if the deponent can provide a reason showing that the changes were not simply
“purposeful rewrites tailored to manufacture an issue of material fact.”
Hambleton Bros.
Lumber Co. v. Balkin Enterprises, 397 F.3d 1217, 1225 (9th Cir. 2005). This Court has rejected
a strict approach to changes under rule 30(e) in favor of a more flexible approach. “The Rule
allows changes in substance for legitimate reasons, such as to correct a misstatement or an honest
mistake.
The more flexible approach allows for legitimate corrective changes while
implementing adequate safeguards to prevent abuse.” See Devon Energy Corp. v. Westacott,
Civil Action No.H-09-1689, 2011 WL 1157334 at *6 (S.D. Tex. Mar. 24, 2011).
Dunlap’s errata sheet reflects a correction to her testimony regarding her
understanding of the inmate’s spending limit with respect to kosher food as stated in the
Offender Orientation Handbook, and not the Chaplaincy Manual or the Commissary Handbook.
Her corrected testimony affirmatively states that an inmate may purchase a kosher meal any day
and that the purchase of both kosher Passover and kosher non-Passover meals do not apply
towards the offender’s commissary spending limit. (Docket Entry No.203-1, page 37). Dunbar
indicates that the corrections were necessary due to her misunderstanding of the kosher, nonPassover meals counting towards the offender’s commissary spending limit. (Id.).
Contrary to Moussazadeh’s claim, the record does not show that Dunbar
conclusively or unambiguously confirmed the policy of counting kosher purchases toward the
inmate’s commissary spending limit in her original deposition testimony. (Docket Entry No.203,
page 2). Instead, her original deposition testimony reflects that she stipulated to her uncertainty
about the offender’s commissary spending limits with respect to kosher, non-Passover meals.2
2
The transcript of Dunlap’s original deposition testimony regarding spending limits is, as follows, in pertinent part:
7
Q. Okay. So if an offender has a $25 limit for every two weeks, like a G5 offender, and
spent $4.50 on a meal, and it is not Passover, then he could afford roughly five-and-a
half-meals over that two-week period. Is that correct?
A. Yes, unless I misunderstood but –
Q. $4.50 goes into 25 roughly five-and-a half times or three times?
A. Uh-huh.
Q. And once he purchased that, let’s say the fifth meal or sixth meal or wherever we are,
he would not be allowed to purchase any further meals until that two-week period is up.
Is that correct?
*
*
*
*
*
Q. Sure. This is a two-week limit. Right?
A. Yes.
Q. So once the offender has used up that $25 limit for the two weeks, he has to stop
spending at the commissary, and he can’t start-up again until the next two-week period
begins. Is that correct?
A. For non Passover –
Q. Yes.
A. --kosher meals?
Q. Yes, ma’am.
A. I believe that is correct.
Q. Okay. Has TDCJ ever considered making an exception for the purchase of meals,
basically say that the purchase of any meals, not just on Passover but any kosher meal
will not count against the spend period balance?
A. Not that I’m aware of, no sir.
Q. So TDCJ has never considered extending that Passover exception that we were
talking about to include all kosher meal purchases at the commissaries. Is that right?
A.
Correct.
Q.
Okay.
A.
I would like to stipulate I may be mistaken on that.
Q.
Okay.
A.
That may be for kosher and Passover meals.
Q.
Okay.
8
(Docket Entry No.207-1, pages 6-7). Although Dunlap’s correction to her deposition is a change
in substance, it does not squarely contradict her previous answers.
Dunlap’s change is
permissible because she has stated a reason and given supporting details. Dunlap’s original
deposition testimony, however, will remain as part of the record.
Moussazadeh also complains of two affidavits submitted by Suzanne Vaughn, the
Program Supervisor for the Commissary and Trust Fund Department. (Docket Entry No.203,
page 1). TDCJ-CID defendants contend that Vaughn was not disclosed as a Rule 30(b)(6)
witness and her affidavits directly contradict Dunlap’s sworn testimony and TDCJ’s official
documents and therefore, are sham affidavits. (Id., page 1).
A party may not create a genuine issue of material fact with an affidavit that
contradicts prior deposition testimony. Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136-37
n. 23 (5th Cir. 1992).
When an affidavit is impeached by prior sworn testimony without
sufficient explanation, the court must view that affidavit with profound skepticism. See Herrera
v. CTS Corp., 183 F.Supp.2d 921, 928 (S.D.Tex. 2002) (citation omitted). Indeed, it is within
the court’s discretion to disregard an affidavit altogether should the court determine that it is
dealing with a “sham affidavit.” See Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 386 (5th Cir.
2000) (noting that the utility of summary judgment would be greatly diminished were courts
unable to screen out “sham issues of fact”). Nevertheless, when an affidavit merely supplements
or clarifies rather than contradicts prior sworn testimony, a court may consider that affidavit
A.
The exemption of going towards that limit.
Q.
Okay. But to the best of your knowledge –
A.
To the best of my knowledge, it is only Passover.
(Docket Entry No.207-1, pages 6-7).
9
when evaluating genuine issues in a motion for summary judgment. S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996).
In an affidavit dated November 8, 2010, Vaughn testified “that kosher entrees are
coded as to not affect an offenders spend period balance.” (Docket Entry No.203-1, page 39). In
an affidavit dated November 24, 2010, Vaughn certified that “kosher food items are sold at all
TDCJ commissaries, and such items are available year round to the offender population at all
units”; she further attested that “[p]urchase of the Kosher entrees listed in the price list, under the
header of Kosher Items, . . . and Passover Kosher pre-packaged meals and food items are not
counted against the offender’s commissary spending limit.” (Id., page 41). Vaughn’s affidavits
do not contradict the Chaplaincy or Commissary Manuals.
The affidavits also appear to
substantiate Dunlap’s errata sheet and therefore, are not subject to being stricken as sham
affidavits. (Docket Entry No.203-1, pages 39, 41).
Moussazadeh further complains that Dunlap’s errata sheet should be stricken as
untimely filed because TDCJ-CID defendants failed to submit any errata to the court reporter
within the time agreed to by the parties. (Docket Entry No.203, page 6). The record reflects that
Dunbar was deposed on September 29, 2010. (Docket Entry No.203-1, pages 26, 30). The
parties agreed at that time that she had 45 days “per agreement of counsel after being notified by
the officer that the transcript is available for review by the witness and if there are any changes in
the form or substance to be made, then the witness shall sign a statement reciting such changes
and the reasons given by the witness for making them.” (Id., page 33). On October 13, 2010,
the parties were notified that Dunlap’s deposition testimony was ready for review. (Docket
Entry No.203-1, page 45). On November 19, 2010, Dunlap’s errata sheet was signed and
notarized. (Docket Entry No.203-1, page 36). On November 30, 2010, defendants mailed the
10
original errata sheet to the court reporter, confirming the documents they sent to the reporter on
November 29, 2010, via email. (Id., page 35). Defendants argue that their failure to mail the
errata sheet to insure its arrival on time, rather than three days late, is excusable neglect because
the deadline to review the deposition expired on Saturday, November 27, 2010, during the
Thanksgiving holiday weekend.
(Docket Entry No.207, page 3).
The Court agrees.
Moussazadeh’s Opposed Motion to Strike (Docket Entry No.203) is DENIED.
B. TDCJ-CID Defendants’ Motion to Strike
TDCJ-CID defendants move to strike Moussazadeh’s Exhibits 35 and 36, i.e., the
affidavit testimony of experts Rabbi Moshe Heinemann and George Sullivan, attached to
Moussazadeh’s Response to TDCJ-CID defendants’ supplemental Motion for Summary
Judgment.
(Docket Entry No.206, pages 1-2).
TDCJ-CID defendants contend that both
witnesses clearly identified themselves as testifying experts and offered their opinions in their
respective declarations but Moussazadeh failed to identify either affiant as an expert in its
Disclosures to TDCJ-CID defendants as required by Rule 26(a)(2)(A) of the Federal Rules of
Civil Procedure.
Moussazadeh argues that Rule 26(a)(2)(A) does not require the parties to disclose
expert witnesses before the start of summary judgment briefing. (Docket Entry No.208, page 3).
Rule 26 of the Federal Rules of Civil Procedure mandates that a party “disclose to the other
parties the identity of any witness it may use at trial to present” expert testimony. FED. R. CIV. P.
26(a)(2)(A). Rule 26(a)(2)(C) provides that the deadline to disclose expert testimony, absent a
stipulation or court order, is “at least 90 days before the date set for trial.” In this case, the Court
did not stipulate or order when the parties were to disclose the identity or testimony of expert
11
witnesses. (Docket Entry No.185). The Court did not set a trial date because the Fifth Circuit
did not vacate the judgment of this Court but remanded the case for further findings.
This Court, however, upon a joint motion by the parties, ordered that “[d]iscovery
shall be completed by October 15, 2010.” (Docket Entry No.185). On November 8, 2010, the
Court granted another Joint Motion to Extend Dispositive Motions Deadlines. (Docket Entry
No.194). In such Order, the Court emphatically noted that “[t]he case is now more than five
years old; discovery has ceased. Therefore, the deadlines sought and entered are firm.” (Id.).
The parties each filed a motion for summary judgment on December 10, 2010. (Docket Entries
No.199, No.200).
Notwithstanding the firm deadline and the cessation of discovery, Moussazadeh
indicates that he sought out the declarations from these two experts because the TDCJ-CID
defendants allegedly raised “a slew of new arguments and factual assertions” in its Second
Motion for Summary Judgment.
(Docket Entry No.208, pages 1-2) (emphasis added).
Moussazadeh did not file a motion to reopen discovery but engaged in discovery in violation of
the Court’s unambiguous order.3
“Control of discovery is committed to the sound discretion of the trial court and
its discovery rulings will be reversed only where they are arbitrary or clearly unreasonable.”
Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). “Generally, a ruling that
denies a party an adequate opportunity to discover facts to oppose a motion for summary
judgment is unreasonable if summary judgment is subsequently entered against that party.”
Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 382 (5th Cir. 1987). However, Rule
3
Defendants filed their motion for summary judgment on December 10, 2010. (Docket Entry No.198). Rabbi
Moshe Heinemann executed his affidavit on January 7, 2011. (Docket Entry No.201-2, page 19). George Sullivan
executed his affidavit on January 17, 2011. (Id., page 32).
12
37(b)(2) of the Federal Rules of Civil Procedure grants the district court discretion to exclude
evidence due to a party’s noncompliance with a discovery order.
See Barrett v. Atlantic
Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996). The Fifth Circuit has enunciated a four-part test
for the consideration of exclusion of evidence pursuant to Rule 37(b)(2): “(1) the explanation, if
any, for the party’s failure to comply with the discovery order; (2) the prejudice to the opposing
party of allowing the [evidence]; (3) the possibility of curing such prejudice by granting a
continuance; and (4) the importance of [the evidence].” See id.
Moussazadeh proffers no explanation for his failure to move to reopen discovery.
TDCJ-CID defendants most certainly are prejudiced by the evidence proffered by the experts.
Moussazadeh acknowledges that it attached such expert opinion affidavit testimony to rebut
TDCJ-CID defendants’ contention that costs and security were compelling government interests
under RLUIPA for denying Moussazadeh a kosher meal.4 (Docket Entry No.201, pages 23-25,
27). This case has been pending for more than five years and a continuance at this stage of
proceedings would only result in additional delay and unnecessary expense.
Accordingly, TDCJ-CID defendants’ Motion to Strike (Docket Entry No.206) is
GRANTED.
The Court ORDERS that Moussazadeh’s Exhibits 35 and 36 attached to
Moussazadeh’s Opposition to TDCJ-CID defendants’ Second Motion for Summary Judgment
(Docket Entry No.201-2, pages 12-32) be STRICKEN from the record.
II. SUMMARY JUDGMENT
4
Moussazadeh offers the affidavit testimony of Rabbi Heinemann to rebut defendants’ challenge to the sincerity of
Moussazadeh’s belief, including Moussazadeh’s purchase of non-kosher commissary items during his incarceration
on the Stiles Unit, and defendants’ contention regarding the use of a microwave oven to heat kosher meals. (Docket
Entries No.201, pages 23-25, 40-41, 48-49; No.201-2, pages 12-19). Moussazadeh proffers the affidavit testimony
of George Sullivan, an expert in the management and operations of correctional facilities, to rebut defendants’
“original claim of a compelling security interest in denying a kosher diet.” (Docket Entries No.201, page 27;
No.201-2, pages 21-32).
13
The parties have filed cross-motions for summary judgment, responses to
summary judgment motions, and replies in support of summary judgment motions. (Docket
Entries No.198, No.199, No.200, No.201, No.204, No.205). In addition, the United States
Department of Justice has submitted a Statement of Interest of the United States (Docket Entry
No.211), to which TDCJ-CID defendants have filed a Response in Opposition. (Docket Entry
No.221).
A party moving for summary judgment must inform the court of the basis for the
motion and identify those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The substantive law governing
the suit identifies the essential elements of the claims at issue and therefore indicates which facts
are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden falls
on the movant to identify areas essential to the nonmovant’s claim in which there is an “absence
of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.
2005). If the moving party fails to meet its initial burden, the motion must be denied, regardless
of the adequacy of any response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc). Moreover, if the party moving for summary judgment bears the burden of proof on an
issue, either as a plaintiff or as a defendant asserting an affirmative defense, then that party must
establish that no dispute of material fact exists regarding all of the essential elements of the claim
or defense to warrant judgment in his favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir.
1986) (the movant with the burden of proof “must establish beyond peradventure all of the
14
essential elements of the claim or defense to warrant judgment in his favor”) (emphasis in
original).
Once the movant meets its burden, the nonmovant must direct the court’s
attention to evidence in the record sufficient to establish that there is a genuine issue of material
fact for trial. Celotex, 477 U.S. at 323-24. The nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Indust.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party must
produce evidence upon which a jury could reasonably base a verdict in its favor. Anderson, 477
U.S. at 248. To do so, the nonmovant must “go beyond the pleadings and by [its] own affidavits
or by depositions, answers to interrogatories and admissions on file, designate specific facts that
show there is a genuine issue for trial.” Webb v. Cardiothoracic Surgery Assoc. of North Texas,
P.A., 139 F.3d 532, 536 (5th Cir. 1998). Unsubstantiated and subjective beliefs and conclusory
allegations and opinions of fact are not competent summary judgment evidence. Morris v.
Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). Nor are pleadings summary
judgment evidence. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1046 (5th Cir. 1996). The
nonmovant cannot discharge his burden by offering vague allegations and legal conclusions.
Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). Nor is the court required by Rule 56 to
sift through the record in search of evidence to support a party’s opposition to summary
judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Nevertheless, all reasonable inferences must be drawn in favor of the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.
2003). Furthermore, the party opposing a motion for summary judgment does not need to
present additional evidence, but may identify genuine issues of fact existing in the summary
15
judgment evidence produced by the moving party. Isquith v. Middle South Utilities, Inc., 847
F.2d 186, 198-200 (5th Cir. 1988).
The nonmoving party may also identify evidentiary
documents already in the record that establish specific facts showing the existence of a genuine
issue. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990).
A. Procedural Objections
1. Failure to File Amended Complaint
TDCJ-CID defendants move for summary judgment because Moussazadeh has
not filed an amended complaint asserting claims that reflect his present circumstances, which
differ greatly from the circumstances to which he was subjected when he filed his original
complaint in 2005. (Docket Entry No.198, pages 16-17). Moussazadeh contends he is not
required to file an amended complaint because the issue raised in his original complaint, i.e., the
denial of kosher food, has not changed. (Docket Entry No.201, pages 55-56).
The record shows that after the case was transferred to this Court, Moussazadeh
moved to amend his pleading with a claim that TDCJ had refused to guarantee that he would
receive kosher meals if he was transferred off the Stringfellow Unit. (Docket Entry No.117).
The Court found that Moussazadeh’s request for a permanent injunction in his original
complaint, requiring TDCJ-CID defendants to provide him with a nutritionally sufficient kosher
diet, sufficiently incorporated this claim and denied Moussazadeh’s Opposed Motion for Leave
to File an Amended and Supplemental Complaint. (Docket Entry No.135, page 11). With that in
mind, the Court framed the issues on remand and allowed discovery on the same. (Docket Entry
No.152). Although his present circumstances differ greatly from those in 2005, the procedural
posture of this case does not require that Moussazadeh amend his complaint.
16
2. Exhaustion of Administrative Remedies
TDCJ-CID defendants also move for summary judgment because Moussazadeh
has failed to exhaust his administrative remedies regarding kosher meals. (Docket Entry No.198,
pages 13-15). The uncontroverted record shows that Moussazadeh has not filed any grievances
while at the Stiles Unit complaining that the Stiles Unit kitchen has not served him with kosher
food, that the menu options of regular, pork-free, or meat-free meals do not meet his religious
practices, or that the kosher items for purchase through the unit commissary are inadequate or
prevent him from practicing his religious beliefs. (Docket Entries No.198-11; No.198-12). In
fact, Moussazadeh has not submitted any grievances regarding religious services or kosher meals
while incarcerated at the Stiles Unit. (Docket Entry No.198-14).
Moussazadeh contends that he is not required to file additional grievances with
respect to the denial of kosher food because he exhausted his administrative remedies in July
2005, while on the Eastham Unit, when his grievances regarding kosher meals were denied.
(Docket Entry No.201, pages 52-53).
In his original complaint of October 12, 2005,
Moussazadeh stated that he complained of the denial of kosher meals in his Step 1 Grievance, as
follows:
I am a jewish inmate. My beliefs state that I must eat kosher foods. I am
born and raised jewish and both of my parents are jewish. Since I have
been in the prison system, I have been forced to eat non kosher foods. All
of my life my family has kept a kosher house hold. I feel that I am going
against my beliefs and that I will be punished by God for not practicing
my religion correctly. * * * In my requests I asked that I be allowed to
receive kosher meals because it is part of my religious duty. * * * I am
asking that you please grant me access to kosher meals in the prison
dining hall.
(Docket Entry No.1, page 5).
17
TDCJ-CID defendants claim that Moussazadeh’s 2005 grievance regarding the
lack of kosher food at the Eastham Unit does not exhaust his administrative remedies as to any
complaint he has regarding the Stiles Unit and does not address an on-going violation because
Moussazadeh was receiving a kosher diet supplied by a kosher kitchen on the Stringfellow Unit
from May 27, 2007, to October 13, 2009. (Docket Entry No.198, page 14).
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison
Litigation Reform Act of 1995, provides that “[n]o action shall be brought with respect to prison
conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Section 1997(e) does not say how
specific a prisoner’s grievances must be, but that as a general rule, courts typically use a standard
according to which a grievance must give prison officials “fair notice” of the problem that will
form the basis of the prisoner’s suit. Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004). In
determining how much detail is required, a court must interpret the exhaustion requirement in
light of its purposes, including the goal of giving officials time and opportunity to address
complaints internally. Id. at 516 (citing Porter v. Nussle, 534 U.S. 516, 525 (2002)).
An inmate who is subjected to repeated or continued abuse need not continue to
file grievances about the same issue. Id. at 521 (citing Aiello v. Litscher, 104 F.Supp.2d 1068,
1074 (W.D. Wis. June 7, 2000) (holding that when inmates have filed a grievance regarding a
prison policy, they need not file grievances regarding subsequent incidents in which the policy is
applied)). Moreover, TDCJ policies direct prisoners not to file repetitive grievances about the
same issue and threaten sanctions for excessive use of the grievance process. (Id.).
A grievance filed in response to one particular incident does not automatically
exhaust claims that arise from future incidents of the same general type. Id. at 521, n.13. To
18
exhaust administrative remedies, an inmate must file additional grievances for future incidents
that reflect a different problem. Id.
At the time Moussazadeh filed his original complaint, TDCJ provided Jewish
inmates a choice between pork-fee, meat-free, and regular diet trays. (Docket Entry No.1, page
4). In April 2007, TDCJ-CID’s policy changed. Chaplaincy Manual Policy Number 07.03,
established the Jewish Designated Units, which provide inmates with an opportunity to receive
kosher meals.
(Docket Entry No.198-3, pages 12-15).
In May 2007, Moussazadeh was
transferred to the Stringfellow Unit, where he was provided with kosher meals from an on-site
kosher kitchen. (Docket Entry No.75). Thereafter, he was transferred for disciplinary reasons to
the Stiles Unit, where prepackaged kosher food is available for purchase.
After Moussazadeh was transferred off the Eastham Unit, he was subjected to a
different dietary policy and to circumstances that differed greatly from the policy and
circumstances, to which he was subjected on the Eastham Unit. While the core issue with
respect to his request for a permanent injunction remains, the circumstances that he has faced on
the Stringfellow and the Stiles Units give rise to a different set of problems than those he faced
on the Eastham Unit. Without filing a grievance complaining about the availability of kosher
food on the Stiles Unit, Moussazadeh did not give TDCJ officials fair notice and the opportunity
to address his complaint about this particular accommodation. See Cutter v. Wilkinson, 544 U.S.
709, 723 n. 12 (2005) (citing 42 U.S.C. § 1997e(a) and 42 U.S.C. § 2000cc-2(e) and noting that
“[s]tate prison officials make the first judgment about whether to provide a particular
accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available
administrative remedies”).
19
Because the uncontroverted record reflects that Moussazadeh has not exhausted
his administrative remedies regarding the revised Chaplaincy Policy and the circumstances with
respect to the availability of kosher food on the Stiles Unit, Moussazadeh’s claims regarding the
same are subject to dismissal pursuant to 42 U.S.C. § 1997(e).
B. Application of RLUIPA
Alternatively, Moussazadeh’s request for injunctive relief is subject to dismissal
because Moussazadeh has not meet his burden to show that TDCJ’s policy with respect to kosher
meals at the Stiles Unit poses a substantial burden on his religious practices under Baranowski v.
Hart, 486 F.3d 112 (5th Cir. 2007).5
RLUIPA “protects institutionalized persons who are unable freely to attend to
their religious needs and are therefore dependent on the government’s permission and
accommodation for exercise of their religion.” Cutter, 544 U.S. at 721. RLUIPA does not
elevate accommodation of religious observances over an institution’s need to maintain order and
safety; nor does it override other significant interests. Id. “Should inmate requests for religious
accommodations become excessive, impose unjustified burdens on other institutionalized
persons, or jeopardize the effective functioning of an institution, the facility [is] free to resist
imposition.” Id. at 726.
RLUIPA provides, the following, in pertinent part:
No 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 applicability, unless the government
demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
5
The Court’s first designated issue and the threshold issue in this case is “[w]hether the failure to provide
Moussazadeh with kosher meals at the Stiles Unit poses a substantial burden on his religious practices.” (Docket
Entry No.152).
20
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc–1(a).
Under RLUIPA, Moussazadeh bears the initial burden of proving that “the
challenged government action ‘substantially burdens’ the plaintiff’s ‘religious exercise.’”
Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599, 613 (5th Cir. 2008). The RLUIPA
framework requires that a court ask two initial questions: (1) is the burdened activity religious
exercise; and (2) is that burden substantial. Id. at 613.
“Religious exercise” is defined broadly as: “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).
Under the RLUIPA, a plaintiff must show that the practices the plaintiff requests permission to
engage in are religious exercise, i.e, whether “the religious practice [s] at issue [are] important to
the free exercise of his religion.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (stating
that RLUIPA complainant bears burden of proving religious practice is important to free exercise
of his religion). This determination requires consideration of the importance of the practice to
the plaintiff himself. See Cutter, 544 U.S. at 725, n. 13 (stating that “RLUIPA bars inquiry into
whether a particular belief or practice is ‘central’ to a prisoner’s religion [but] does not preclude
inquiry into the sincerity of a prisoner’s professed religiosity”); Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 332 (5th Cir. 2009) (stating “[t]he practice burdened need not be central to
the adherent’s belief system, but the adherent must have an honest belief that the practice is
important to his free exercise of religion”), aff’d __U.S.__, 131 S.Ct. 1651 (2011); McAlister v.
Livingston, 348 Fed. Appx. 923, 935 (5th Cir. 2009) (noting that in this first inquiry, the Court
considers the importance of the practice to McAlister himself).
21
Without question, keeping kosher qualifies as a “religious exercise” for the
practice of Judaism under RLUIPA’s definition. Baranowski, 486 F.3d at 124. Defendants note,
without contravention, that only about fifteen percent of Jews in America keep kosher, and that
the pork-free and meat-free trays offered in each TDCJ-CID Unit would meet most Jewish
offenders’ religious dietary needs. (Docket Entry No.198, page 5 n.8). They concede that such
trays would not meet the needs of a strict Orthodox Jewish observant. (Id.).
Moussazadeh claims to be Jewish by birth, heritage, and belief. (Docket Entry
No.199, page 15).
In his Declaration attached to his supplemental motion for summary
judgment, Moussazadeh declares his sincerity with respect to maintaining a kosher practice as
follows, in pertinent part:
4.
I was born and raised in the Jewish faith and remain a sincere
adherent of that faith. Both of my parents are devout practitioners of
Judaism. To exercise my faith, I believe that the Jewish laws of kashruth
require me to consume an exclusively kosher diet.
5.
I will be the first to admit that I am not perfect. I do not always
obey all of the commands of my faith as perfectly as I would like, but I
sincerely try to consume an exclusively kosher diet whenever possible.
For example, while housed at the Stringfellow Unit, I consumed the
kosher meals offered there, even though they frequently consisted of
highly distasteful tofu and other items that were far less appealing than the
regular diet. I ate the far less appealing kosher food because that is what
my religious beliefs required. In the past, when I have occasionally
slipped up and failed to keep kosher, I have always tried to reform my
ways and to continue keeping kosher.
6.
Although my attendance has not been perfect, I have also sincerely
tried to attend Jewish religious services at Eastham, Stringfellow, and
Stiles when possible.
(Docket Entry No.199-2, page 155) (emphasis in original).
TDCJ-CID defendants do not question that Moussazadeh is Jewish according to
Jewish law or that he is a sinner. (Docket Entry No.205, page 6). Defendants, however,
22
question the importance of maintaining a kosher practice to Moussazadeh and whether he is an
observant Orthodox practitioner (versus a Reform or Conservative practitioner) because “[s]ince
his 2005 statement in his grievance regarding his professed belief, Moussazadeh’s actions do not
show that he sincerely holds that same belief currently.” (Docket Entries No. 198, page 24;
No.205, page 6).
Moussazadeh complains that TDCJ-CID defendants have not questioned his
sincerity in over five years of litigation and notes that TDCJ Director of Chaplaincy Operations
Billy D. Pierce attested in his deposition that he never questioned whether Moussazadeh was
Jewish.6 (Docket Entry No.201, page 21). No ruling regarding the sincerity of Moussazadeh’s
religious beliefs has been made in this case, most likely because the sincerity of Moussazadeh’s
belief in keeping kosher was not challenged during his incarceration at the Eastham Unit and
Stringfellow Unit. The presumption, if any, that his belief was sincere during his incarceration
on the Eastham or Stringfellow Unit, however, does not extend indefinitely into the future to
vaccinate Moussazadeh from a challenge to his present belief.
“[P]rison officials may
appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested
accommodation, is authentic.” Cutter, 544 U.S. at 725 n.13.
Sincerity of religious belief is not often challenged; therefore, the Fifth Circuit has
had little opportunity to address the issue. McAlister, 348 Fed. Appx. at 935 (unpublished per
curiam). However, in a non-RLUIPA case where the plaintiff bore the burden of proving the
sincerity of belief, the Fifth Circuit considered the plaintiff’s verbal expression of his belief and
his conduct as an outward expression of belief in determining that his belief was sincere. See
6
Pierce actually testified that he did not question or look at the sincerity of the inmate professing a religious belief.
(Docket Entry No.201-2, page 10). He attested, “If an offender says that they are Jewish and in Max Moussazadeh’s
case, I’ve never questioned whether he was Jewish or not.” (Id.).
23
A.A. ex rel Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) (noting that
district court found that Native American had shown that he held deeply religious belief in
wearing visibly long hair because he had not cut his hair in ten to eleven years, professed to
others why he held such belief, and sought an exemption from school regulation that required
him to hide or cut his hair). The Seventh Circuit Court of Appeals also considered several
factors in determining the sincerity of the inmate’s belief in its analysis of a RLUIPA claim such
as whether the inmate regularly asserted the accommodation based on his religious beliefs and
practices and the duration of time over which he sought the accommodation for religious
reasons. See Koger v. Bryan, 523 F.3d 789, 797-98 (7th Cir. 2008).
Moussazadeh was housed on the Stringfellow Unit from April 27, 2007, to
October 13, 2009. His uncontroverted commissary records from September 22, 2008, through
September 3, 2009, show that he regularly visited the Stringfellow Unit commissary where he
purchased non-kosher food items for consumption even though he was provided with kosher
food on the Unit.7 (Docket Entry No.198-20, pages 4-13). The uncontroverted commissary
records also show that from November 5, 2009, to May 27, 2010, while Moussazadeh was
classified as a G-5 inmate on the Stiles Unit,8 he made commissary purchases twice in November
2009, once in January and February 2010, four times in March 2010, twice in April, 2010, and
three times in May 2010. He purchased around $24.00 of goods from the commissary on each
7
The record shows that Moussazadeh visited the Stringfellow Commissary one to four times a month and regularly
purchased twenty-four soft drinks, ten packages of noodles, two packages of coffee, cookies, flour tortillas, and
chips, four packages of tuna, and breakfast foods, and candy. Occasionally, he purchased refried beans, barbeque
sauce, ketchup, jalapenos, squeeze cheese, nuts, pastries, beef tips, and peanut butter. (Docket Entry No.198-20,
pages 4-13). The only designated kosher items he regularly purchased were dill pickles. (Id.). Over this period,
Moussazadeh spent from $8.00 to $105.00 on food and a few personal items per trip. (Id.).
8
On September 22, 2009, plaintiff’s classification was downgraded to G-5 and on October 13, 2009, he was
transferred to the Stiles Unit. (Docket Entry No.198-8, page 3). Moussazadeh remained at a G-5 custody level until
November 2, 2010, when he was reclassified at G-4. On November 16, 2010, Moussazadeh was upgraded to G-2
custody. (Id.). On March 18, 2011, he was reclassified as G-5, after he received another major disciplinary case.
(Docket Entry No.221, n.3).
24
occasion, except on November 12, 2009, when he purchased $42.85 of goods, and on March 30,
2010, when he purchased a Passover Meal for $85.00. With the exception of a few personal
items, he continued to purchase soft drinks and noodles, a few packages of coffee, cookies,
chips, candy, and so forth. (Docket Entry No.198-20, pages 14-17). Except for the Passover
Meal and occasional kosher dill pickles, none of the items purchased were denoted as kosher.
(Id.).
Moussazadeh indicates in his Declaration that TDCJ regulations prohibited him
from spending more than $25.00 every two weeks at the Stiles Commissary because he was
classified as G-5 (Docket Entry No.199-2), although he does not dispute the aforementioned
record. He claims that this amount includes his personal items; consequently, it was impossible
for him to keep kosher by purchasing kosher meals at the commissary. (Id.). Moussazadeh does
not claim, and the aforementioned records do not show, that he purchased any kosher meal or
item from the Stiles Unit commissary, except for the yearly Passover Meal. (Docket Entry
No.198, page 22). He does not indicate that he attempted to purchase kosher food and was
denied the same by the alleged spending limitation pursuant to TDCJ-CID policy.
TDCJ-CID defendants also note that Moussazadeh did not request a transfer back
to the Stringfellow Unit for religious reasons when he became eligible for such transfer and that
he filed no grievances complaining that he was denied kosher meals or any religious practice on
the Stiles Unit.
(Docket Entry No.198, page 24).
They further note that Moussazadeh
voluntarily committed major disciplinary violations that resulted in a change of his custodial
classification, thereby, depriving him of the opportunity to transfer back to the Stringfellow Unit,
where he could freely obtain kosher food. (Id.).
25
In his response to TDCJ-CID defendants’ summary judgment motion,
Moussazadeh downplays the record of his commissary purchases as “a sample” and contends
that TDCJ-CID defendants ignore undisputed evidence that keeping kosher is deeply rooted in
his heritage, i.e., he was born and raised Jewish by Jewish parents, who kept a kosher household.
(Docket Entry No.201, page 21). Moussazadeh maintains that there is no evidence that he
falsely declared a belief in Judaism to gain some special benefit, such as fresh produce and meat
products, but that he requested a kosher diet long before TDCJ-CID offered any kosher option.
(Id., page 22). Moussazadeh cites as evidence of his sincerity in maintaining a kosher practice
his declaration that he suffered hardship for his belief at the Stringfellow Unit, i.e., he ate “less
appealing kosher food.” (Id.). Moussazadeh does not, however, refute that he did not maintain
an exclusively kosher diet while on the Stringfellow and Stiles Units or that he purchased nonkosher food items for his personal consumption from the unit commissaries. (Id.).
Moussazadeh also claims that he suffered retaliation for his religious beliefs at the
hands of prison officials on the Stringfellow Unit, which included anti-Semitic comments, cell
searches, and unfounded disciplinary actions. (Id.). In support of this contention, Moussazadeh
cites to a letter written by his attorney to the attorney for TDCJ-CID defendants, complaining of
the same. (Id.) (citing to Docket Entry No.109, page 1). The Court notes that Moussazadeh does
not allege, and the record does not show, that he grieved these matters to prison officials.
In short, Moussazadeh’s evidence of his sincerity in consuming “an exclusively
kosher diet” for religious reasons is that he is Jewish by birth, he was raised in a kosher
household, he did not falsely profess his belief in Judaism to gain a benefit, he endured hardship
by eating distasteful kosher food on the Stringfellow Unit, he suffered retaliation at the hands of
Stringfellow prison officials for his beliefs and for filing suit, and he is a sincere sinner. (Docket
26
Entries No.199, pages 23-24; No.201, pages 21-23; No.204, page 12). While he professes a
sincerity of belief, he proffers no evidence to support his declaration or to show that he
maintained an exclusively kosher diet when one was provided.
Moreover, he proffers no evidence to contravene TDCJ-CID’s defendants’
summary judgment evidence, which shows that while on the Stiles Unit, he has not purchased a
kosher meal except for the yearly Passover Meal or complained by grievance that kosher meals
were not offered by the Stiles Unit kitchen. Nor has he indicated, by an affirmative expression
or by his conduct, a desire to return to the Stringfellow Unit where kosher meals are provided.
Compare Horacek v. Burnett, Civil Action No.07-11885, 2008 WL 4427825 at *8 (E.D. Mich.
Aug. 19, 2008) (evidence showed plaintiff passed eligibility test and had chaplain’s
recommendation for placement in kosher meal program and that plaintiff submitted affidavits,
his own and other Jewish inmates, attesting to the sincerity of his religious beliefs and his active
participation in Jewish services, study groups and other religious activities); Terrell v.
Montalbano, Civil Action No.7:07-cv-00518, 2008 WL 4679540 at*6 (W.D. Va. Oct. 21, 2008)
(inmate offered explanation why he ate non-kosher food and showed that he sought alternative
food such as the no-meat diet before resuming kosher practice).
Moussazadeh’s conclusory declaration does not demonstrate that his professed
religious need for a kosher diet motivates his actions or that he has attempted to reform his ways
and return to keeping kosher during his two-year incarceration on the Stiles Unit. Rather, his
personal desire to harass defendants with an unnecessary lawsuit took precedence, and he was
willing to sacrifice his religious dietary beliefs in favor of this secular pursuit. Indeed, he would
be without any access to kosher food to this day had defendants not attempted to accommodate
his dietary beliefs.
27
Accordingly, the Court finds that the TDCJ-CID defendants have shown that
Moussazadeh has failed to satisfy the threshold issue in his case and have established
Moussazadeh’s lack of sincerity regarding a kosher practice as a matter of law. As Moussazadeh
fails to offer competent evidence on which he could prove that his religious dietary beliefs were
sincere following his transfer to the Stiles Unit, the Court finds that the TDCJ-CID defendants
are entitled to summary judgment as to all of Moussazadeh’s claims in this lawsuit. Absent
proof of sincerity, he has no right to accommodation of his religious dietary beliefs under the
RLUIPA or injunctive or declaratory relief.
III. CONCLUSION
Based on the foregoing, the Court REAFFIRMS its holding that Moussazadeh’s
requests for injunctive and declaratory relief from the denial of a kosher diet on the Eastham Unit
are moot, for the reasons stated therein. (Docket Entry No.135).
The Court AMENDS its Opinion on Dismissal of March 26, 2009, (Docket Entry
No.135) with the following ORDERS:
1.
Moussazadeh’s Opposed Motion to Strike (Docket Entry No.203)
is DENIED.
2.
TDCJ-CID defendants’ Motion to Strike (Docket Entry No.206) is
GRANTED. Moussazadeh’s Exhibits 35 and 36 attached to
Moussazadeh’s Opposition to TDCJ-CID defendants’ Second
Motion for Summary Judgment (Docket Entry No.201-2, pages 1232) shall be STRICKEN from the record.
3.
The supplemental summary judgment motion filed by TDCJ-CID
defendants, i.e., the Texas Department of Criminal Justice, Brad
Livingston, and David Sweeten, is GRANTED. (Docket Entry
No.198). All claims against defendants are DENIED.
4.
The supplemental summary judgment motion filed by plaintiff
Max Moussazadeh (Docket Entry No.199) is DENIED.
28
5.
All other pending motions, if any, are DENIED.
6.
This case is DISMISSED WITH PREJUDICE.
The Clerk shall provide a copy of this Opinion on Remand to the parties.
SIGNED at Houston, Texas, this 20th day of September, 2011.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
29
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