Shabazz v. Johnson et al
Filing
69
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 7/2/15. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JUL - 2 2ot5
CLERK, U.S. DISTilfCT COU8T
RICHMOND. VA
MUWAKKIL S.B. SHABAZZ,
Plaintiff,
v.
Civil Action No. 3:12CV282
GENE M. JOHNSON, et al.,
Defendants.
MEMORANDUM OPINION
Muwakkil S.B. Shabazz, a Virginia inmate and a member of the Nation of Islam ("NOi"),
brings this 42 U.S.C. § 1983 1 action alleging that Defendants2 violated his First Amendment3
1
That statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law ....
42
u.s.c. § 1983.
2
By Memorandum Opinion and Order entered February 24, 2015, the Court dismissed all
claims except Claim One (a) and (b), and all Defendants except Wendy S. Hobbs, Regional
Administrator of the Virginia Department of Corrections ("VDOC"), V.M. Washington, former
warden at Greensville Correctional Center ("GCC"), and Ralph Abernathy, former food service
manager at the GCC. The Court ordered the remaining Defendants to file a renewed Motion for
Summary Judgment with respect to Claims One (a) and (b). The Court also dismissed Shabazz's
demands for monetary damages with respect to his RLUIP A claim. By Memorandum Opinion
and Order entered June 9, 2015, the Court dismissed Defendant Abernathy as a party to the
action because Shabazz failed to effectuate timely service on him.
3
"Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof .... " U.S. Const. amend. I.
rights and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). 4 The action
proceeds on Claims One (a) and (b) of Shabazz's Particularized Complaint. ("Complaint," ECF
No. 29.) Specifically, Shabazz asserts: 5
Claim One:
By refusing to provide Shabazz with a diet in conformity with his religious
beliefs, Defendants violated (a) the First Amendment and (b) RLUIPA.
(See Campi. 11.) Shabazz seeks declaratory, injunctive, and monetary relief. Defendants have
filed a renewed Motion for Summary Judgment. 6 Shabazz has responded. For the reasons set
forth below, the Court will GRANT Defendants' Motion for Summary Judgment.
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment must be rendered "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). The party seeking summary judgment bears the responsibility to inform the
court of the basis for the motion, and to identify the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 4 77 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and
4
Religious Land Use and Institutionalized Persons Act ("RLUIPA") of2000, 42 U.S.C.
§§ 2000cc et seq.
5
The Court corrects the capitalization and punctuation and removes emphasis from
Shabazz's submissions.
6
As explained in the Court's May 14, 2015 Memorandum Order, the Court construes the
"MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM" (ECF No. 60) as a renewed
Motion for Summary Judgment. (See ECF No. 64, at 1.)
2
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial."' Id.
(quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)).
In reviewing a summary judgment motion, the court "must draw all justifiable inferences
in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a
mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251
(citation omitted). "[T]here is a preliminary question for the judge, not whether there is literally
no evidence, but whether there is any upon which a jury could properly proceed to find a verdict
for the party ... upon whom the onus of proof is imposed." Id. (internal quotation marks
omitted) (citation omitted). Additionally, "'Rule 56 does not impose upon the district court a
duty to sift through the record in search of evidence to support a party's opposition to summary
judgment."' Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quotingSkotakv. Tenneco
Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court
need consider only the cited materials ....").
As pertinent here, in support of their Motion for Summary Judgment, Defendants rely
upon: ( 1) an affidavit of Elisabeth M. Thornton, the VDOC Operations Manager (Mem. Supp.
Mot. Summ. J. Ex. A, ECF No. 61-1 ("Thornton Aff.")); (2) Shabazz's commissary records (id.
Encl. A); (3) an affidavit of K. Whitehead, the Grievance Coordinator (Mem. Supp. Mot. Summ.
J. Ex. B, ECF No. 61-2 ("Whitehead Aff.")); (4) VDOC Operating Procedure§ 866.1 (id Encl.
A & B); and, (5) Shabazz's grievance material (id. Encl. C).
In response, Shabazz submits: (1) his own affidavit (Resp. Mot. Summ. J. Attach 1, ECF
No. 65-1 ("Shabazz Aff.")); and (2) an affidavit of Johnathan Lee X Smith, a frequent litigant in
3
the Court (id. Attach 2, ECF No. 65-2 ("Smith Aff. II")). Additionally, Shabazz swore under
penalty of perjury to the truth of his statements in his Complaint.
Moreover, in order to present a complete picture of the surrounding facts, the Court relies
on previously submitted evidence. This includes several affidavits submitted in support of
Defendants' first Motion for Summary Judgment (see Mem. Supp. First Mot. Summ. J., ECF
No.40), including: (1) an affidavit of Mark Engelke (id Attach. 3, ECF No. 40-3 ("Engelke
Aff.")); (2) the VDOC Food Service Manual (Engelke Aff. Encl. A); and, (3) a copy of the
Common Fare Agreement signed by Shabazz (Engelke Aff. Encl. C). The Court also relies on
the previously filed declaration of Shabazz (Resp. First Mot. Summ. J. Attach. 1, ECF No. 46-1
(''Shabazz Deel.")), and the affidavit of Johnathan Lee X Smith (id. Attach. 2, ECF No. 46-2
("Smith Af£")).
In light of foregoing submissions and principles, the following facts are established with
respect to the Motion for Summary Judgment.
II.
A.
SUMMARY OF PERTINENT FACTS 7
Common Fare Diet
The VDOC recognizes twenty-eight different religions. (Thornton Aff.
~
4.) Many of
these religions have dietary restrictions. (Id) Differences in opinion exist about these dietary
restrictions even within a given religion. (Id) The "restrictions include not only the types of
food (e.g. no pork products), the way meat is slaughtered (e.g. halal meat), the way food is stored
and cooked (e.g. kosher), how the cooking tools are cleaned (e.g. kosher), and how the food is
7
In his Response to the renewed Motion for Summary Judgment, Shabazz does not
dispute any of the facts pertaining to the merits of his First Amendment and RLUIP A claim.
Instead, in his "FACTS IN DISPUTE" section, he only disputes the fact that he failed to exhaust
his administrative remedies. (See Resp. Mot Summ. J. 1-2).
4
served (e.g. on trays uncontaminated by non-kosher food)." (Id.) Religious diets also may
require fasting or feasts during various holidays. (Id)
"The Common Fare diet was designed specifically to meet the dietary needs of offenders
who, for religious reasons, require a Kosher non-pork diet and whose dietary requirements
cannot be accommodated with foods provided" by the regular menu ("Master Menu"). (Engelke
Aff.
~
4.) The Common Fare diet was "designed to meet all known religious dietary
restrictions." (Thornton Aff.
~
6.) All foods purchased and used for the Common Fare diet, save
fruits and vegetables, are consistent with certified "kosher" standards. (Id) The storage,
preparation, and serving of food, and the cleaning of the kitchen and trays complies with all halal
and kosher requirements. (Id) "Appropriate procedures are in place to ensure that food service
workers . . . receive appropriate training and supervision in the proper handling of Common
Fare food." (Engelke Aff.
~
4.) "The Common Fare menu has been analyzed and certified as
meeting or exceeding minimum daily nutritional requirements." (Id
~
5.) The Islamic leader of
the Islamic Center for Virginia has affirmed that the Common Fare diet meets Islamic guidelines.
(Id.) Those offenders on the Common Fare diet who sign up as Islamic offenders are also
allowed to participate in religious observances such as Ramadan and NOI Month of Fasting.
(Id)
Currently 3,000 offenders participate in the Common Fare diet. (Id.
~
~
7; Thornton Aff.
10.) "All offenders approved for the Common Fare diet are required to sign a Common Fare
Agreement." (Engelke Aff.
~
7.) Shabazz signed his agreement on August 6, 2012. (Id) "By
signing this agreement, Shabazz acknowledged that the Common Fare provides him with an
5
appropriate religious diet that meets or exceeds daily nutritional requirements." (Id. 17; id. Encl.
VDOC food service provides inmates who eat from the regular serving line with a meat
alternative at each meal. (Id 18.) Offenders who do not eat meat may select the alternative at
each meal. (Id.) Beans are offered for lunch and dinner meals. (Id) When the breakfast meal
contains meat, cheese or peanut butter is offered as an alternative. (Id) "Because the regular
menu includes legumes, dairy products and eggs, inmates who choose not to eat meat
nevertheless receive adequate nutrients necessary to a healthy diet." (Id.)
The Common Fare diet is not served cafeteria-style like the regular meal. (Id 19.) "The
Common Fare trays must be pre-made, covered and maintained at a specific temperature." (Id)
For this reason, offenders who participate in the Common Fare diet are unable to select
alternative menu items from the Common Fare menu. (Id) Offenders may purchase approved
food items such as peanut butter from the commissary. (Id) The "planned Common Fare menu
may not be changed at the facility level, except where seasonal availability of produce items
warrant substitutions be made." (Id Encl. A, ''Food Service Manual," at V.C.)
B.
Shabazz's Dietary Demands
Shabazz is a member of the NOL (Shabazz Deel. 13.) He currently participates in the
Common Fare diet. (Compl., 18.) Shabazz's religious tenets require him to consume a
vegetarian diet. (Id.) Shabazz claims he is a "strict vegetarian for religious and health reasons. I
eat no meat or marine life. For religious reasons, I desire an annual diet free of all meat, all
marine life, and all dairy products." (Shabazz Deel. 113.) Shabazz met with Defendant
Abernathy to explain that the Common Fare diet "does not accommodate his Religious Dietary
8
On the signed form, Shabazz wrote: "I am signing this under duress, that I will be
removed off the diet if I don't!" (Engelke Aff. Encl. C (capitalization corrected).)
6
Tenets that [are] outlined in How to Eat to Live, by the Most Honorable Elijah Muhammad,
Volumes I and II." (Compl.
~
18.) Shabazz filed an informal complaint, regular grievance, and
two appeals regarding his desire to have a diet in accord with How to Eat to Live, and
Defendants Abernathy, Washington, and Hobbs informed him that the Common Fare diet met
his religious dietary needs. (See id.
~,
19-23 (citing Ex. A, at 1-7).) Shabazz states that "his
dietary tenets, require him to train himself to eat only one (1) meal every twenty-four hours, with
no in between snacks." (Id., 18.) According to Shabazz, he "has lost about 20 lbs. of his bodily
weight" from prison officials' refusal to provide him with an NOi diet. (Id.
~
30.) Shabazz
states that both the Master Menu and the Common Fare diet "violate[ ] my religious dietary
requirements," so he "opted for the Common Fare because it is the lesser of two evils."
(Shabazz Deel., 7.)
According to Johnathan Lee X Smith, How to Eat to Live requires NOi believers to
"'eventually wean"' themselves off meat and marine life. (Smith Aff.
~
14.) Smith explains that
in 1998, the Honorable Louis Farrakan ordered all NOi members to stop eating meat and all
marine life. (Id. , 15.) Smith explains that:
18. How to Eat to Live expressly says that the annual diet of members of
the Nation of Islam is to consist[] of fresh, cooked spinach, cauliflower, rhubarb,
eggplant, red cabbage, broccoli, white cabbage, okra, carrot, navy (pea) beans,
asparagus, brussel sprout[s], turnip root, browned rice, white com in its milk
stage, and whole wheat bread that has been slowly baked twice and then allowed
to set for 2-3 days before eaten. It requires us to eat fresh fruit and to drink
bottled fruit juices. It says that our food must be prepared and cooked in the
manner prescribed by God through the most Honorable Elijah Muhammad in
How to Eat to Live. Our drinking water must be boiled and strained with cheese
before we drink it.
19. How to Eat to Live expressly forbids members of the Nation of Islam
to use ... utensils that have been used to prepare, cook, bake, or eat pork, it's by
products, and other religiously unacceptable food.
20. How to Eat to Live expressly forbids members of the Nation of Islam
pork and its by products, canned food, white flour, white bread, freshly baked
bread, freshly baked pastry, white potatoes, sweet potatoes, pancakes, french
7
toast, syrup, margarine, macaroni, spaghetti, kidney beans, pinto beans, blackeyed peas, fried food, white rice, processed food[s], com bread, peanut butter,
scrambled eggs, dry cereal, wet cereal, stir fried vegetables, collard greens, kale
salad, soy bean[s], jelly, baked beans, artificial food.
21. How to Eat to Live expressly forbids members of the Nation of Islam
to eat food that has been prepared and cooked by disbelievers or unbelievers in
our Islamic faith.
22. . .. [T]he food[s] served from the Master Menu are expressly
forbidden to us by How to Eat to Live. . . . The current Master Menu contains
these and additional foods, such as crab meat, oysters. In addition, this food is
prepared, cooked, baked, and eaten in the precise manner condemned by How to
Eat to Live.
24. The annual Common Fare menu consists of fresh fruit, dry cereals,
white bread, margarine, coffee, milk, jelly, peanut butter, hard boiled egg
mayonnaise, cottage cheese, canned vegetarian beans, beverage[s], pickle radish,
tuna fish, beet particles, white rice, chicken particles, raw bell peppers, lettuce,
cucumber, cauliflower, spinach, celery sticks, carrot sticks, onion, white cabbage,
zucchini, tomato[], and broccoli ....
25. How to Eat to Live forbids members of the Nation oflslam, including
Plaintiff, Shabazz, to eat a diet that consists primarily of uncooked vegetables,
such as the Common Fare Menu, because of the many poisonous chemicals
sprayed on the vegetables . . . and because the human digestive tract was not
designed by its Creator to digest raw vegetables.
(Id.
ifil 18-22, 24-25.)
According to Smith, the Master Menu and Common Fare diet are
unacceptable to members of the NOi under How to Eat to Live. (Id.
ifil 22-23.)
In Smith's most
recent affidavit, in a somewhat contrary stance, he swears that he "did not mean to suggest that I
believe the prison officials have a legal obligation to accommodate our dietary needs to the full
extent mandated by our dietary tenets." 9 (Smith Aff. II if 3.)
9
Smith avers:
When I explained the dietary tenets of the Nation of Islam in my previous
Affidavit or Declaration, I did not mean to suggest that I believe that the prison
officials have a legal obligation to accommodate our dietary needs to the full
extent mandated by our dietary tenets. The explanation that I gave was designed
and intended to help this Court understand our dietary requirements because they
did not appear in Shabazz's Complaint.
We would not expect the prison officials to serve us fresh, cooked
vegetables instead of canned vegetables if the officials were ordered by this Court
8
C.
Feasibility of Shabazz's Dietary Demands
The Master Menu and Common Fare menu range from 2700 to over 3000 calories per
day over the course of three meals. (Thorton Aff.
ir 8.)
It is not feasible to offer Shabazz one
meal per day. (Id.) Based on Shabazz's stated food restrictions, his diet would be comprised of
mostly vegetables and to reach the average daily caloric value of 2700 to 3000 calories, the
portion size for one meal would be very large. (Id.) Inmates are provided approximately twenty
minutes to consume meals, and it would be difficult for a meal of this volume to be consumed
during the allotted time. (Id.) Inmates are not permitted to carry food from the dining hall to
their cells. (Jd.)JO Moreover, the food restrictions outlined by Mr. Smith "are cost prohibitive
and extremely difficult to institute in a prison setting." (Id
ir 9.)
Items such as peanut butter,
beans, eggs, and cereals are served as part of the Common Fare diet and are valuable sources of
to reasonably accommodate our dietary needs .... We would be willing to accept
cooked, canned vegetables so long as they are acceptable by our dietary tenets.
(Smith Aff. II~~ 3-4.) From Smith's submissions in this case, it is apparent to the Court that
Smith is the primary driving force in this litigation. In his affidavits filed in response to
Defendants' two summary judgment motions, Smith consistently expands Shabazz's arguments
and provides his own testimony to make up for shortfalls in Shabazz's testimony, despite
Shabazz's insistence that he too requires a NOi diet. The Court fails to discern why, as an
adherent to NOi principles, Shabazz failed to plead the specifics of his dietary tenets in his own
affidavits. Moreover, as later discussed, the evidence demonstrates that Shabazz himself fails to
eat a diet that comports with NOi restrictions in his personal food choices. (See infra Part II.D.)
10
Ms. Thornton also avers that she spoke to a dietician who explained that "[a]ttempting
to absorb total daily calories, vitamins and minerals in one meal would place an individual at risk
for digestive issues, high blood pressure and high blood glucose levels. Consuming a high
volume of food at one meal without snacks disturbs the body's normal absorption function" and
"Shabazz would not be able to get all of the necessary nutrients." (Thornton Aff. ~ 8.) Shabazz
"objects" to this portion of Ms. Thornton's testimony claiming "that she is speculating, offering
inadmissible hearsay testimony, and offering nutritional and medical testimony for which she has
no had no formal training ...." (Shabazz Aff. ~ 5.)
9
necessary nutrients. (Id.) "Additional special preparation and handling of food and beverage
would also require more staffing, equipment and storage." (Id.)
Attempts to accommodate each variant of religious diets would present significant
operational issues and "would be absolutely cost and labor prohibitive." (Id.
iJ 5; see id. iJ 7.)
For example,
It would require extensive administrative costs to track which offender was to
receive a particular diet at which time. It would require new physical plant
construction to have sufficient food storage and preparation areas to keep separate
the food and utensils. It would require additional cooking equipment for each
religious preference. Additionally, the costs of purchasing the food for each of
the religious variants would substantially increase since the foods could not be
ordered in bulk.
(Id.
iJ 5.)
Provision of individualized religious diets would also result in ''longer dining hall
times for offenders, longer work hours for staff and inmate workers, the need to hire more staff,
more offender movement within the institution for meals," and, an increase in inmate kitchen
workers and in offender movement for meals would necessitate an "increase in security staff to
ensure security in the kitchen work areas and to monitor offenders in the dining hall and
throughout the institution during movement." (Id.
iJ 7.)
Additionally, "[i]ncreases in inmate
movement always increases security concerns even with more staffing." (Id.)
Because 3000 offenders participate in the Common Fare diet, food is purchased and
cooked in volume. (Id.
iJ 10.)
Many fruits and vegetables served in the institutions are
purchased based on seasonal availability. (/d.) Shabazz's request for a vegetarian diet is easily
accommodated by personal choices from the Common Fare tray by not eating the fish, and he
10
can choose from the meal options available to him to eat once daily. (Id.; id.~ 13.) 11 The
Common Fare diet is a cold meal.
(Id.~
11.) According to Smith, How to Eat to Live requires
specific vegetables such as spinach, cauliflower, rhubarb, red cabbage, brussel sprouts to be fresh
and served cooked. (Id.) "Many of these vegetables are not readily available to the institution
year round and if they were purchased in bulk much would be wasted because many offenders
would not eat them." (Id.) The VDOC attempts to provide fresh fruits and vegetables, however,
fresh produce has a limited shelf life. (Jd.) 12
D.
Institutional Records Documenting Shabazz's Food Consumption
Although Shabazz insists that he desires to eat a diet consistent with his religious tenets
as outlined in How to Eat to Live, institutional records demonstrate that Shabazz fails to follow
these dietary restrictions. According, to Smith, How to Eat to Live forbids followers to eat
processed or artificial foods, pork, or pork by-products. Shabazz's commissary purchases from
October 2014 through January 2015, demonstrate that he purchased processed and artificial
foods including '~alapeno cheese spread, flour tortillas, potato chips, sour cream and onion
potato chips, ... tortilla chips, Texas beef ramen soup, chili ramen soup and iced oatmeal
11
Shabazz seemingly agrees, and states:
The prison officials have no control over whether I consume one, two, or
three meals daily. They can compose for me a Nation of Islam diet consisting of
three nutritionally balanced meals daily and make them available for me. But
whether I eat one, two, or three meals daily is really none of their business. If I
do not eat all three meals, I would not be in violation of any prison rule.
(Shabazz Aff.
~
12.)
12
Shabazz also objects generally to Ms. Thornton's testimony about the costs and
administrative burdens associated with the provision of individualized religious diets. As
Operations Manager for the VDOC, Ms. Thornton is competent to testify to these matters.
11
cookies." (Id.
~
12; see id. Encl. A, at 1-3.) Additionally, "[m]any of these items contain dairy
and pork derivatives." (Id. ~ 12.) 13
Shabazz's institutional grievances also demonstrate consumption of a diet inconsistent
with his claimed religious tenets that prohibit him from eating fish, dairy, or uncooked
vegetables. For example, Shabazz complained that he failed to receive a large enough portion of
mackerel (Whitehead Aff. Encl. C, at 34, ECF No. 61-2),1 4 and failed to receive a large enough
portion of unbreaded fish (id. at 38). Shabazz also complained about the quantity of milk he
received and that he desired "to receive what the Common Fare menu states" (id at 42;
Whitehead Aff. Encl. C, at 3, ECF No. 61-3), and that he was "denied a Savior's Meal, which
included fish, fried rice ... toasted bread, salad and dressing, bean pie ... (id at 7, ECF No. 613). On another day, in contrast to his above complaints, Shabazz complained about receiving
fish and stated: "I am a Vegetarian. I do not eat any flesh, including fish." (Id. at 31.)
III.
A.
RLUIPA AND FREE EXERCISE CLAIMS
RLUIPA
RL UIP A provides, in pertinent part, that:
No government shall impose a substantial burden on the religious exercise of
a person residing in or confined to an institution . . . unless the government
demonstrates that imposition of the burden on that person(1) is in furtherance of a compelling governmental interest; and
13
Shabazz first claims that Thornton's assertion that these foods contain pork is "an
outright lie," but then states, "[i]f any of these food[s] do[] contain pork derivatives, I am
definitely unaware of it." (Shabazz Aff. ~ 8.) He also claims that he "eat[s] these food[s]
because I am forced to supplement the inadequate Common Fare diet that I am compelled to
accept or eat from the regular prison menu." (Id.) Shabazz offers no evidence that the
commissary only offers foods that are processed, artificial, or contain pork derivatives.
14
The Court employs the pagination assigned by the CM/ECF docketing system for the
citations to Enclosure C. Defendants docketed Enclosure C in two parts: ECF Nos. 61-2 and
61-3.
12
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-l(a). Thus, to begin, Shabazz must demonstrate that Defendants' policies
impose a "substantial burden" on his religious exercise. In determining if Shabazz has met this
standard, the Court must answer two questions: "( 1) Is the burdened activity 'religious exercise,'
and if so (2) is the burden 'substantial'?" Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004);
see Couch v. Jabe, 679 F.3d 197, 200-01 (4th Cir. 2012) (employing similar two-part inquiry).
B.
The Burdened Activity Is a Religious Exercise
"RLUIPA defines the term 'religious exercise' broadly to include 'any exercise of
religion, whether or not compelled by, or central to, a system of religious belief."' Couch, 679
F.3d at 200 (quoting 42 U.S.C. § 2000cc-5(7)(A)). Shabazz's claim implicates one activity:
eating a diet consistent with the book How to Eat to Live by Elijah Muhammad (Claim One (b)).
Shabazz swears that his faith motivates him to eat a diet consistent with How to Eat to Live.
(Compl.
~
C.
18.)
Shabazz Fails to Demonstrate a Substantial Burden on His Religious
Exercise
1.
Applicable Law
RLUIPA fails to define the term substantial burden. See Couch, 679 F.3d at 200. The
United States Court of Appeals for the Fourth Circuit determined that the Supreme Court's
jurisprudence interpreting the Free Exercise Clause provides guidance on the issue. See
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006). Thus, the Fourth Circuit has explained that a
substantial burden
is one that put[s] substantial pressure on an adherent to modify his behavior and to
violate his beliefs, or one that forces a person to choose between following the
precepts of h[is] religion and forfeiting [governmental] benefits, on the one hand,
and abandoning one of the precepts of h[is] religion ... on the other hand.
13
Couch, 679 F.3d at 200 (alterations and omission in original) (quoting Lovelace, 472 F.3d
at 187). In conducting the substantial burden inquiry, the plaintiff "is not required ... to prove
that the exercise at issue is required by or essential to his [or her] religion." Krieger v. Brown,
496 F. App'x 322, 325 (4th Cir. 2012) (citing Cutter v. Wilkinson, 544 U.S. 709, 725 n.13
(2005)). Nevertheless, "at a minimum the substantial burden test requires that a RLUIPA
plaintiff demonstrate that the government's denial of a particular religious ... observance was
more than an inconvenience to one's religious practice." Smith v. Allen, 502 F.3d 1255, 1278
(11th Cir. 2007) (citing Midrash Sephardi, Inc. v. Town ofSurfside, 366 F.3d 1214, 1227 (11th
Cir. 2004)); 15 see Krieger, 496 F. App'x at 326 (affirming grant of summary judgment where
inmate failed to "show that the deprivation of an outdoor worship circle and the requested sacred
items modified his behavior and violated his religious beliefs" (citing Lovelace, 472 F.3d at
187)). Thus, no substantial burden occurs if the government action merely makes the "religious
exercise more expensive or difficult," but fails to pressure the adherent to violate his or her
religious beliefs or abandon one of the precepts of his religion. Living Water Church of God v.
Charter Twp. ofMeridian, 258 F. App'x 729, 739 (6th Cir. 2007).
Two recent cases from the Fourth Circuit illustrate a plaintiffs responsibility with respect
to demonstrating a substantial burden. In Couch, the plaintiff "testified that the primary religious
texts of Islam command that he grow a beard and that the refusal to maintain a beard is a sin
comparable in severity to eating pork." Couch, 679 F.3d at 200. The VDOC's grooming policy
prohibited inmates from growing beards and enforced this rule by placing a noncompliant inmate
in a program that restricted or limited the inmate's "access to personal property, movement
15
In Sossamon v. Texas, 131 S. Ct. 1651, 1663 (2011), the Supreme Court abrogated
Smith's ultimate holding that RLUIPA allows for monetary damages against state officials acting
in their official capacity.
14
rights, the right to eat and associate with others, recreation time, and visitation time." Id. at 199.
The Fourth Circuit concluded that VDOC's grooming policy and enforcement mechanism, "fit
squarely within the accepted definition of 'substantial burden"' because it placed substantial
pressure on the plaintiff to modify his behavior and violate his beliefs. Id. at 200-0 I (citing
Warsoldier v. Woodford, 418 F.3d 989, 995-96 (9th Cir. 2005)).
In Krieger, the Fourth Circuit declined to find an inmate had demonstrated a substantial
burden where prison officials denied "his requests for an 'outdoor worship circle' and certain
'sacred items' related to his religious practice of Asatru." Krieger, 496 F. App'x at 322. The
plaintiff "asserted that deprivation of the outdoor worship circle would require him to pray
indoors, and that the 'Blot' ceremony is 'best performed outdoors."' Id. at 325 (emphasis
added). The Fourth Circuit concluded that the mere denial of the optimal manner for performing
the "Blot" ceremony could not demonstrate a substantial burden where the plaintiff "failed to
offer any explanation regarding the reason why indoor worship would compromise his religious
beliefs." Id Similarly, the inmate failed to demonstrate a substantial burden with respect to the
denial of additional sacred items simply by the ''blanket assertion" that "the sacred items were
'necessary' to perform 'well-established rituals.'" Id. at 326. The Fourth Circuit noted that
plaintiff "did not identify those rituals, or explain why the absence of the sacred items had an
impact on the rituals and violated his beliefs." Id.
Krieger illuminates another consideration in conducting the substantial burden inquiry.
The availability to an inmate, in the most general sense, of other means to practice his or her
faith is not relevant to the RLUIPA substantial burden inquiry. Al-Amin v. Shear, 325 F. App'x
190, 193 (4th Cir. 2009). "Nevertheless, courts properly consider whether the inmate retains
other means for engaging in the particular religious activity, such as the "Blot" ceremony, in
15
assessing whether a denial of the inmate's preferred method for engaging that religious exercise
imposes a substantial burden." Shabazz v. Va. Dep't Corr., 3:10CV638, 2013 WL 1098102, at
*7 (E.D. Va. Mar. 15, 2013) (citing Krieger, 496 F. App'x at 326; Coleman v. Governor of
Mich., 413 F. App'x 866, 875-76 (6th Cir. 2011)). Thus, an inmate failed to demonstrate the
denial of additional group study time imposed a substantial burden upon his religious exercise
where prison officials already provided three hours of group study and worship time and allowed
inmate to study in his cell. See Van Wyhe v. Reisch, 581 F.3d 639, 656-57 (8th Cir. 2009).
Similarly, the United States Court of Appeals for the Sixth Circuit concluded that prison policies
which limited the inmates' access to religious radio and television broadcasts failed to
substantially burden the inmates' religious exercise because the inmates "may receive religious
literature via the mail and may receive visitors at the prison to discuss their religious beliefs."
Coleman, 413 F. App'x at 876.
2.
No Substantial Burden
Shabazz avers that "the Common Fare diet 'does not' accommodate his religious dietary
tenets" as explained in ''How to Eat to Live by the Most Honorable Elijah Muhammad .... "
(Compl.
~
18.) Shabazz alleges in his Complaint that the Common Fare diet is inadequate for
two reasons: (1) because his "dietary tenets, require[] him to train himself to eat only one (1)
meal every twenty-four hours, with no in between snacks" (id.); and (2) and his religion requires
him to be a vegetarian. (Id.) In Johnathan Lee X Smith's affidavit, Smith expands upon
Shabazz's claim as alleged in the Complaint and avers that dozens of menu items included in the
Common Fare diet are forbidden by the religious dictates in How to Eat to Live. (See Smith Aff.
if~
18-25.)
16
Shabazz fails to demonstrate a substantial burden on his religious exercise. Shabazz fails
to demonstrate that the VDOC's provision of the Common Fare diet places pressure on him to
violate his religious beliefs or abandon one of the precepts of his religion. Living Water Church
of God, 258 F. App'x at 739. First, the evidence reveals inconsistency in the composition of the
diet that Shabazz desires and claims is religiously mandated. Thus, it is difficult to ascertain
whether the Common Fare diet, as provided, frustrates Shabazz's ability to eat in accordance
with his alleged religious requirements. Nevertheless, the evidence establishes that, Shabazz,
through his own voluntary food selection, fails to make much effort to follow the religious diet.
At most, the evidence demonstrates that the VDOC's provision of the Common Fare diet, and
not an individualized NOi diet, merely makes Shabazz's "religious exercise more ... difficult."
Id.
a.
Eating Once A Day
Shabazz's sworn statements about his desired religious diet are inconsistent. In his
Complaint, Shabazz claims that he desires to eat one meal a day. (Compl. 118.) In his affidavit,
Shabazz claims that, to accommodate his desired religious diet, prison officials could "compose
for me a Nation of Islam diet consisting of three nutritionally balanced meals daily and make
them available for me." (Shabazz Aff. 112 (emphasis added).) Thus, from Shabazz's own
submissions it is unclear whether Shabazz swears his religion requires him to eat once a day or
more than once a day. Moreover, these inconsistencies cast doubt on the religious import of
eating only once a day.
Defendants put forth uncontroverted evidence that Shabazz may choose from the meal
options available to him to eat once a day. (Thornton Aff. ~ 13.) Shabazz admits that he could
eat once a day under the present system because "prison officials have no control over whether I
17
consume one, two, or three meals daily." (Shabazz Aff.
~
12.) Because Shabazz swears
Defendants do not prevent him from eating only once a day if he so chooses, and Shabazz' s
submissions fail to definitively establish his desire to eat once a day, on the present record,
Shabazz fails to demonstrate that Defendants' current provision of the Common Fare diet three
times a day substantially burdens his religious exercise. See Alba v. Merrill Lynch & Co., 198 F.
App'x. 288, 300 (4th Cir. 2006) (explaining that '"[a] genuine issue of material fact is not
created where the only issue of fact is to determine which of the two conflicting versions of the
plaintiffs testimony is correct."' (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.
1984))).
b.
Vegetarian Diet
Shabazz also swears that his religion requires him to eat a vegetarian diet. Defendants
provide inmates desiring a religious diet with the Common Fare diet. The Common Fare diet
contains fish; however, inmates desiring a vegetarian diet, such as Shabazz, need not eat the fish
portion. (Thornton Aff. ~ 10.) Because the evidence establishes that Shabazz may eat the items
that comply with his vegetarian diet, he fails to demonstrate that the provision of the Common
Fare diet substantially burdens his religious desire for a vegetarian diet. See Muhammad v.
Mathena, No. 7:14-cv-00134, 2015 WL 300363, at *3 (W.D. Va. Jan. 22, 2015) (explaining no
substantial burden exists when inmate can discard food "at odds with" his religious diet (citing
Frazier v. Ferguson, No. 04-5140, 2006 WL 2052421, at *4 (W.D. Ark. June 28, 2006))).
Additionally, despite Shabazz's sworn statements that his religion requires him to
consume a vegetarian diet, the evidence demonstrates that Shabazz, on his own initiative, ate fish
and pork derivatives. Indeed, Shabazz filed grievances complaining that the portion of fish he
received was too small. Shabazz himself chose to consume these prohibited items although
18
Defendants provided him with the ability to eat a vegetarian diet. Thus, the unrefuted evidence
establishes that Shabazz fails to comply with all of the dietary practices which he claims are
dictated by his faith. Cf McKennie v. Texas Dep 't of Crim Justice, No. A-08-CV-906-LY,
2012 WL 443948, at *11 (W.D. Tex. Feb. 10, 2012) (explaining that inmate "can hardly
complain" that Defendant's failure to provide him with desired vegan diet "substantially burdens
his religion when he supplements his diet with nonvegan food items" from the commissary);
Fordv. Fed Bureau of Prisons, No. 09-cv-00882-LTB-BNB, 2011WL2415790, at *9-10 (D.
Colo. May 24, 2011) (concluding that plaintiff failed to "establish a prima facie case regarding
whether he has sincere religious beliefs based on the How to Eat to Live books" when unrefuted
evidence demonstrated personal practices that vary from its tenets). Again, Shabazz fails to
demonstrate that Defendants' provision of the Common Fare diet substantially burdens his
religious exercise because Shabazz may choose a vegetarian diet.
c.
Food Items Forbidden by How to Eat to Live
Shabazz also claims that he desires a diet consistent with the book How to Eat to Live.
Johnathan Lee X Smith, not Shabazz, provides the specific teachings in the book and identifies
items that Elijah Muhammad instructs followers of NOi to avoid. To the extent that eating a diet
consistent with How to Eat to Live is a requirement of Shabazz' s religion, 16 Shabazz fails to
16
Shabazz claims that he "desires" to eat one meal a day and eat no meat, dairy or
seafood. (Shabazz Deel. if 13.) Defendants assert that this language fails to cite a religious
compulsion for such restrictions. Moreover, courts have found that How to Eat to Live and the
writings of Elijah Muhammad provide guidance to Nation of Islam adherents on healthy eating,
and are not the issuance of a religious mandate to eat in accordance with the book. See
Farrakhan v. Johnson, No. 1:08cv438 (TSE/JFA), 2009 WL 1360864, at *7 (E.D. Va. May 13,
2009) (categorizing inmate's complaints about "offensive" foods based on writings by Elijah
Muhammad as secular); Jones v. Shabazz, No. H-06-1119, 2007 WL 2873042, at *13 (S.D. Tex.
Sept. 28, 2007) (explaining that "[t]hese exhibits do not show Muhammad is issuing a religious
mandate that not eating potatoes, beans, or bread is a matter of religious doctrine, but rather, they
tend to show discourses by Muhammad about healthy eating habits"), ajf'd 352 F. App'x 910,
19
demonstrate that the provision of the Common Fare diet has placed substantial pressure on him
to modify his behavior or beliefs. Living Water Church of God, 258 F. App'x at 739.
First, Smith provides a long list of food items he claims that How to Eat to Live forbids;
some of these items are served as part of the Common Fare diet. Shabazz, however, fails to
provide the religious significance of avoiding these foods. For example, Smith states that How
to Eat to Live requires Shabazz to avoid foods like dry cereal, peanut butter, white bread,
"freshly baked bread," and certain vegetables and beans, but allows him to eat "whole wheat
bread that has been slowly baked twice and then allowed to set for 2-3 days," "navy (pea)
beans," "browned rice" and certain "fresh, cooked" vegetables. (Smith Aff. ,, 18, 20, 25.)
Smith states that NOi adherents should not eat raw vegetables or canned vegetables or stir-fried
vegetables, but must eat "fresh, cooked" vegetables. (Id. ,, 18, 20.) While Smith states that
How to Eat to Live advises that raw vegetables should be avoided because they hard to digest
and may contain pesticides (id. , 25), Shabazz fails to demonstrate the religious significance of
avoiding consuming raw, canned, or stir-fried vegetables. Smith also states that "[o]ur drinking
water must be boiled and strained with cheese before we drink it," but wholly fails to explain
how this is possible or why it is religiously mandated. (Id.
if 18.)
Smith's affidavits and Shabazz's various submissions are also inherently contradictory in
their description of the foods that their religion requires them to avoid. As just discussed, Smith
916 (5th Cir. 2009) (affirming district court and explaining that inmate's "personal[] belie[f] that
he may not eat those foods" failed to demonstrate that those foods are prohibited by his NOi
faith); Muhammad v. Warithu-Deen Umar, 98 F. Supp. 2d 337, 345 n.3 (W.D.N.Y. 2000)
(explaining that in '"How to Eat to Live,' Elijah Muhammad sets forth both general and specific
dietary guidelines for 'good health and prolongation of life'"); cf DePaola v. Va. Dep't of Corr.,
No. 7:12CV00592, 2014 WL 3956108, at *3-4 (W.D. Va. Aug. 12, 2014) (finding NOI inmate
offered "nothing to support his claim that his desire to avoid eating white bread, peanut products,
grapefruit, cottage cheese, and peas is based on a sincerely held religious belief rather than a
merely secular, personal preference" and thus, the Common Fare diet "substantially
accommodates his religious dietary needs").
20
states that How to Eat to Live expressly prohibits eating "canned food," but Smith later admits
that canned vegetables would be acceptable for a NOI adherent. (Smith Aff.
II~
4.) Shabazz
avers that he desires to eat a diet free of dairy products (Shabazz Deel.~ 13), however, in his
lengthy list of prohibitions, Smith fails to mention dairy as a prohibited food. Smith also claims
that he is forbidden from eating food "that has been prepared and cooked by disbelievers or
unbelievers in our Islamic faith." (Smith Aff. ~ 21.) Not only does Shabazz fail to explain the
religious significance of requiring only believers to prepare his food, he also readily admits that
he purchases and consumes pre-packaged food from the commissary and fails to square his
consumption of this food with Smith's statement about the prohibition of processed foods.
Simply put, "' [a] genuine issue of fact is not created where the only issue of fact is to determine
which of the two conflicting versions of a party's [evidence] is correct.'" Erwin v. United States,
591 F.3d 313, 325 n.7 (4th Cir. 2010) (alterations in original) (quoting Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 198 (4th Cir. 1997)).
Second, Shabazz fails to demonstrate that Defendants forced him to eat the foods he
claims are offensive. As previously discussed, Shabazz may simply discard the foods provided
in the Common Fare diet that he believes are inconsistent with How to Eat to Live, eat the foods
that he believes comply with these teachings, and supplement his diet with foods from the
commissary. See Muhammad, 2015 WL 300363, at *3 (citing Frazier, 2006 WL 2052421, at
*4).
While Shabazz vaguely suggests that he has lost weight, he puts forth no evidence that he
has suffered any adverse medical concerns from the provision of the Common Fare diet. See
DePao/a, 2014 WL 3956108, at *4 (concluding that assertions that inmate "feels hungry and
sometimes loses weight eating only the portions of the common menu that meet his stated
21
preferences, he does not allege any resulting medical concerns that have caused him to seek
treatment," and fails to prove the "common fare menu substantially burdens his religious
practice"). At most, Shabazz states: "[T]he prison officials have refused, and continue to refuse,
to provide Plaintiff a year-round N.0.1. diet. 2) Plaintiff has lost about 20 lbs. of his bodily
weight and has suffered emotional distress and mental anguish as a direct and proximate result
thereof." (Compl.
~
30.) Shabazz provides no context for this claimed weight loss. For
example, he fails to provide his starting weight or the percentage of weight that he lost and over
what time period, and if this weight loss truly posed adverse health effects. 17 Conclusory
assertions of this ilk, without any factual support showing that he suffered harm, fail to
demonstrate that the lack of a diet that complies with How to Eat to Live imposed a substantial
burden on Shabazz's religious exercise. Krieger, 496 F. App'x at 326; United States v. Roane,
378 F.3d 382, 400-01 (4th Cir. 2004) (citation omitted) (concluding that "[a]iry generalities
[and] conclusory assertions ... [do] not suffice to stave off summary judgment ....").
Third, despite swearing that his religion requires him to eat in accordance with How to
Eat to Live, in his personal food consumption, Shabazz feels free to ignore the dictates of How to
Eat to Live. The record establishes that Shabazz himself fails to follow the dietary tenets that he
claims are essential to his faith as described in How to Eat to Live, as he eats fish, dairy, pork
derivatives, processed foods, and artificial ingredients. See Ford, 2011 WL 2415790, at *9-10.
Thus, Shabazz fails to demonstrate that Defendants' provision of the Common Fare diet and the
presence of prohibited foods on that diet pressures him to violate his religious beliefs or abandon
17
The Court notes that Shabazz filed abundant grievances and never mentioned weight
loss, hunger, or any other need for medical attention. Moreover, at the time of Shabazz's initial
filing of the instant action, Shabazz maintained an average monthly balance of $166.32 in his
inmate account. (ECF No. 4, at 1.) Thus, Shabazz had sufficient funds to purchase foods to
supplement his caloric intake if the Common Fare diet failed to provide adequate nutrition that
aligned with his religious tenets on any given day.
22
one of the precepts of his religion. Cf Jones, 2007 WL 2873042, at *13 (finding food items
identified in How to Eat to Live as foods to avoid, "are not [foods] prohibited by NOi
principles," and thus, "fails to raise a material fact issue" that provision of such foods
"constitutes a substantial burden on the exercise of his religious beliefs in violation of
RLUIPA"). Shabazz's lack of effort to comply with the tenets of his religious diet through his
own food choices, supports the proposition that Defendants' actions are not a substantial burden
to his religious practice. Cf McKennie, 2012 WL 443948, at *11. On the present record, no
reasonable juror would conclude that Defendants' substantially burdened Shabazz's religious
exercise by providing him with the Common Fare diet. For this reason alone, Claim One (b) will
be DISMISSED.
D.
Common Fare Diet Furthers Compelling State Interests by the Least
Restrictive Means
Even if Shabazz had demonstrated that Defendants' provision of the Common Fare diet
somehow substantially burdened his religious exercise, as discussed below, Defendants have
established that the Common Fare diet furthers compelling state interests of uniformity, costefficiency, and maintaining inmate health, by the least restrictive means.
If an inmate establishes a substantial burden on his religious exercise, the defendants
must show that the policy is the least restrictive means of furthering a compelling government
interest. Lovelace, 472 F.3d at 189. Courts must give "due deference to the experience and
expertise of prison and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs and limited
resources." Cutter v. Wilkinson, 544 U.S. 709, 723 (2005) (citations omitted) (internal quotation
marks omitted). "RLUIPA ... is not meant to elevate accommodation of religious observances
23
over the institutional need to maintain, good order, security, and discipline or to control costs."
Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir. 2007) (citation omitted).
This case epitomizes the difficulty for prison officials to hit a moving target with respect
to accommodating individual inmate's religious needs. In the present action, Shabazz makes it
difficult for Defendants or the Court to assess whether the Common Fare diet is the least
restrictive means to address Shabazz's desired religious diet because he fails to explain with any
consistency exactly what diet he desires. Nevertheless, on the current record, the Court
concludes that the Common Fare diet is the least restrictive means to provide for the religious
needs of inmates.
The evidence establishes that the VDOC undertook substantial effort to design and
implement a single, centralized food program that has been certified by both nutritionists and
religious experts as accommodating all recognized religions. (Thornton Aff. ~ 6; Engelke Aff.
~if
4-5.) The uncontroverted evidence demonstrates that the centralized Common Fare menu and
procedures further compelling state interests of uniformity and cost-efficiency. See Muhammad,
2015 WL 300363, at *3 n.4 (finding Common Fare diet furthers compelling interests of cost
efficiency and uniformity); DePaola, 2014 WL 3956108, at *4 (finding "self-evident" that
Common Fare menu "furthers legitimate and neutral VDOC interests in cost-efficient, uniform
procedures by which to accommodate inmates' religious dietary beliefs properly at numerous
facilities in the VDOC system"); cf Baranowski, 486 F.3d at 125 (citation omitted) (finding
policy refusing to provide inmate with individualized diet "is related to maintaining good order
and controlling costs and, as such, involves compelling governmental interests"); Wortham v.
Lantz, No. 3:10-cv-1127 (DJS), 2014 WL 4073201, at* 4 (D. Conn. Aug. 13, 2014) (citation
omitted) (internal quotation marks omitted) (explaining that Connecticut's requirement "for
24
inmates to utilize the Common Fare menu and not providing them with halal meat did not violate
... RLUIP A, since that requirement was in furtherance of compelling governmental interests
including prison security, controlling costs and maintaining workable administrative
procedures").
Providing different menu items to different religions and serving inmates meals at
varying times would be cost and labor-prohibitive. {Thornton Aff.
~
5); cf Heard v. Caruso,
No. 2:05-cv-231, 2012 WL 951698, at *3-5 (W.D. Mich. Mar. 20, 2012) ("given the length of
the prohibited list of foods" in How to Eat to Live, "significant additional food costs would be
attendant to attempt to provide nutritious food consistent with the NOi diet and also provide for
the dietary needs of all other prisoners in the system"). Providing an individualized system
would impose extensive administrative and food costs, would require the purchase of new
kitchen equipment, would require new construction to accommodate food storage and
preparation, would require more staff, and would require longer dining hall times and longer
work hours for kitchen staff including inmate workers. (Thornton Aff.
~,
5, 7); cf Cutter, 544
U.S. at 726 ("Should inmate requests for religious accommodations become excessive, impose
unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of
tan institution, the facility would be free to resist the imposition.") Accommodating individual
religious diets would also increase security concerns by requiring greater offender movement
within the institution for meals. (Thornton Aff. , 7.)
In addition, the VDOC has a compelling interest in uniformity in the manner it treats
religious groups, and must avoid providing individualized diets for each religion or religious
sect. The impact of special individualized treatment for certain religions "could result in the
perception that certain inmates are favored over others, which would have an adverse impact on
25
prison morale." Baranowski, 486 F.3d at 122 (citation omitted). Such individualized treatment
would spawn "increased demand by other religious groups for similar diets." Id. at 125.
The VDOC purchases and cooks food for the Common Fare diet in bulk and the fruits
and vegetables served are based on seasonal availability. (Thornton Aff. ~ 10.) Fresh produce
has a limited shelf life. (Id.) Many of the fresh vegetables Shabazz claims he may eat, such as
cooked spinach, cauliflower, rhubarb, eggplant, red cabbage, brussel sprouts, and turnip root "are
not readily available year round and if they were purchased in bulk much would be wasted
because many offenders would not eat them." (Id.
~
11.)
Moreover, provision of the Common Fare diet furthers the compelling state interest of
maintaining inmate health. VDOC nutritionists developed the Common Fare diet to provide
inmates who require certain religious diets with adequate and balanced nutrition. (Engelke Aff.
~~
4-5.) The diet outlined in How to Eat to Live would be comprised predominantly vegetables
in large quantities and the diet lacks valuable sources of nutrients that are provided in the
Common Fare diet. (Thornton Aff.
~~
8-9.) Eating the 2700 to 3000 calories a day required to
sustain inmate health in a diet comprised mostly of a large quantity of vegetables and served as
one meal a day would place inmates at risk for health problems. Cf Heard, 2012 WL 951698, at
*3-5 (finding "consumption of 2900 calories at one meal was violative of nutritional norms and
therefore in violation of [institution's] policy to provide adequate sustenance for prisoners" and
potentially in violation of the Eighth Amendment). 18
18
Smith, not Shabazz, counters that "I have sustained myself eating only one meal every
twenty-four (24) hours consisting of food approved by How to Eat to Live. I did not incur any
health problems ... my physicians used to tell me that I was more healthy than people who eat
three (3) meals daily and eat all day long between those meals." (Smith Aff. II~ 8.) Smith's
opinion about the healthiness of the diet Shabazz seeks, based on Smith's dietary habits and
health at some point in the unidentified past, fails to create a genuine dispute of material fact. Cf
Hogge v. Stephens, No. 3:09CV582, 2011 WL 2161100, at *6 (E.D. Va. June 1, 2011)
26
In sum, requiring the VDOC to specially accommodate "NOi adherents and every one of
the other ... religious sects in the [VDOC] would create undue burdens on the prison
administration" and the Common Fare diet "represents the least restrictive means available for
handling religious dietary issues." Jones, 352 F. App'x at 916 (finding policy that offered
standardized pork alternatives to all inmates requiring religious diet, including NOi adherents,
furthered compelling state interests by the least restrictive means (citing Baranowski, 486 F.3d at
122)); see Muhammad, 2015 WL 300363, at *3 n.4 (holding Common Fare diet is the least
restrictive means for provision of religious diets to inmates); DePaola, 2014 WL 3 956108, at *4
(same); Wortham, 2014 WL 4073201, at *4 (granting summary judgment for defendants' on
RLUIP A challenge, in light of evidence "that an attempt to accommodate the plaintiffs dietary
requests would involve significant costs and present serious security and administrative
problems").
Shabazz counters that "forcing him to accept the Common Fare diet instead of providing
him an annual diet that is reasonably consistent with How to Eat to Live is not the least
restrictive means of achieving a compelling government interest." (Resp. Mot. Summ. J.
~
4.)
Shabazz claims that "when the Nation of Islam observes its annual Ramadan, the VDOC
provides each member with two (2) hot meals and one (1) meal for 30 days." (Id.) Shabazz
claims that the Ramadan diet "could be made available to Plaintiff 365 days a year without
violating any of Defendants' compelling government interest." (Id.) Shabazz states that despite
being served three meals during Ramadan, "most of us eat only one meal every 24 hours- with
nothing in between." (Shabazz Aff.
~
10.) Shabazz concludes: "Our Ramadan menu is most
akin to the dietary tenets contained in How to Eat to Live .... " (Id.) The Court fails to discern,
(observing that "a prisoner 'wholly lacking in medical knowledge' may not give expert medical
testimony" (quoting Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001))).
27
and Shabazz fails to demonstrate, how receiving the Ramadan diet year round would
accommodate Shabazz's religious desire to eat only once daily any more than the Common Fare
diet, as Shabazz claims that the Ramadan diet, like the Common Fare diet, is served in three
meals a day. Shabazz also fails to offer any evidence to support his conclusory assertion that the
Ramadan meal, served three times a day, more closely comports with the diet set forth in How to
Eat to Live. See Roane, 378 F.3d at 400-01 (citation omitted). 19 Accordingly, Shabazz fails to
"offer [ ] any less burdensome alternative to a single, centralized common fare program that
would accomplish the legitimate goal of uniform accommodation of inmates' religious dietary
needs." DePaola, 2014 WL 3956108, *4.
The uncontroverted evidence demonstrates that Defendants' provision of the Common
Fare diet to Shabazz furthers compelling government interests by the least restrictive means.
Accordingly, Claim One (b) will be DISMISSED.
E.
Free Exercise
Similar to RLUIPA, in order for Shabazz to survive summary judgment for his First
Amendment claim, Shabazz must demonstrate Defendants' conduct substantially burdens his
religious exercise. Whitehouse v. Johnson, No. l:lOcvl 175 (CMH/JFA), 2011WL5843622, at
*5 (E.D. Va. Nov. 18, 2011). "RLUIPA provides considerably more protection for an inmate's
religious exercise than does the Free Exercise Clause of the Constitution of the United States."
Id. at *5 (citing Lovelace, 472 F.3d at 186). Thus, "[w]here an inmate has not put forth sufficient
evidence under RLUIPA to demonstrate a substantial burden on his religious exercise, his claim
fails under the Free Exercise Clause of the First Amendment as well." Van Wyhe, 581 F.3d at
657-58 (citing Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)). As
19
Shabazz fails to identify the food items served in the Ramadan diet.
28
explained above, Shabazz has failed to demonstrate a substantial burden on his religious
exercise. Accordingly, Claim One (a) will be DISMISSED.
V. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment (ECF No. 60)
will be GRANTED.
An appropriate Order shall accompany this Memorandum Opinion.
/sf
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29
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