DePaola v. Virginia Department Of Corrections et al

Filing 43

ORDER granting 30 Motion for Summary Judgment. Signed by Judge James P. Jones on 8/12/2014. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ERIC J. DePAOLA,
Plaintiff,
v.
VIRGINIA DEPARTMENT OF
CORRECTIONS, ET AL.,
Defendants.

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Case No. 7:12CV00592
OPINION AND ORDER
By: James P. Jones
United States District Judge

Eric J. DePaola, Pro Se Plaintiff; J. Michael Parsons, Assistant Attorney
General, Office of the Attorney General of Virginia, Richmond, Virginia, for
Defendants.
This is a civil action by Eric J. DePaola, an inmate at Red Onion State Prison
(“Red Onion”), proceeding pro se against the Virginia Department of Corrections
(“VDOC”) and ten VDOC employees in their individual and official capacities,1
pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
42 U.S.C. § 2000cc-1, et seq., and 42 U.S.C. § 1983. In previous rulings, the court
has granted summary judgment as to almost all of DePaola’s contentions. The
remaining claim now before me alleges that the VDOC common fare diet includes
foods that are inconsistent with DePaola’s particular religious dietary
1

The defendants are Harold Clarke, VDOC director; W. P. Rogers, an assistant
director of operations; Mark Engelke, VDOC food service director; Linda Shear, VDOC
dietician; John Garman and George Hinkle, regional directors; Tracy Ray and Randall
Mathena, Red Onion wardens; and James Wade and P. Scarberry, Red Onion food
service directors.

requirements. After review of the record, I find the defendants are entitled to
summary judgment. 2

2

The procedural history of the case is as follows. In response to the Complaint,
the defendants moved for summary judgment supported by affidavits. The court notified
DePaola that if he failed to respond with affidavits or other evidence, summary judgment
might be granted for defendants, as required under Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975). DePaola filed a response to the motion with his affidavit attached. The court
took the defendants’ motion under advisement, noting that from the parties’ submissions,
it was unclear whether DePaola had informed officials of the religious dietary restrictions
before filing this lawsuit and, if so, whether officials attempted to accommodate his
beliefs.
Defendants filed a supplement to their motion for summary judgment with
additional affidavits. Again, the court notified DePaola of the motion and he filed a
response with attached documentation. The court then found that the defendants’
evidence
did not address whether or not Nation of Islam dietary requirements are
different from other Muslim sects, whether accommodating those
requirements would be feasible and nutritionally adequate, the ultimate cost
of altering the common fare menu, or the potential cost of conforming to
dietary requirements of potentially numerous religions.
(Mem. Opinion 3, May 2, 2014, ECF No. 35.) At this point, the case was transferred to
me. I ordered the defendants “to supplement their Motion for Summary Judgment by
providing evidence in the form of affidavits and/or declarations under oath relevant to
these questions.” (Order 1-2, May 7, 2014, ECF No. 40.) I granted plaintiff 14 days in
which to file any response to the defendants’ supplement and granted the defendants 7
days to file a reply. The defendants filed a another supplement to the Motion for
Summary Judgment with additional affidavits. Although DePaola has chosen not to file
any further reply, the court has provided him with ample notice of his opportunity to do
so.
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I
DePaola alleges that he has been a practicing Muslim for over five years and
had been following the teachings of the Nation of Islam (“NOI”) for approximately
three years. At his request, based on these beliefs, Red Onion officials have served
him a common fare diet since September of 2011.
Mark Engelke, VDOC food service director, states in his affidavit that the
common fare diet is designed to meet the dietary needs of inmates who, for
religious reasons, require a Kosher, non-pork diet and whose dietary requirements
cannot be accommodated with foods provided by the VDOC’s regular menu. He
states that common fare menu has been certified by the Islamic Center of Virginia
as complying with Islamic dietary guidelines and by dieticians as meeting or
exceeding minimum daily nutritional requirements. To be approved to receive the
common fare menu instead of the regular VDOC menu, an inmate must
demonstrate and sign an agreement stating that the common fare menu meets his
religious dietary needs. DePaola signed such an agreement. 3
DePaola now asserts that common fare meals are inconsistent with his
religious dietary beliefs. He states that his NOI religious dietary requirements
differ from those of other Muslim sects and require him to eat 100% whole grain
3

The agreement states, in pertinent part: “I agree to participate in the Common

Fare program. This program provides me with an appropriate religious diet that meets or
exceeds minimum daily nutritional requirements.” (Engelke Aff. Ex. A, ECF No. 20.)
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wheat bread, not white bread, no peanut products, no cottage cheese, no grapefruit,
no white rice, and no peas.4 The common fare meals include these prohibited
items.

DePaola claims that cottage cheese contains Polysorbate 80, which is

allegedly comprised of acids and alcohols that Muslims are forbidden to eat. He
also offers evidence that a beef-flavored rice and vegetable entrée often included in
his common fare meals lists peas as an ingredient.
Engelke states that the VDOC houses inmates of various Muslim sects,
including NOI, Sunni Muslims, Shiite Muslims, the World Community of Islam,
and Moorish Science Temple. He agrees that within the NOI community, inmates
espouse differing dietary beliefs. For example, he states that some NOI inmates
eat fish, while others do not, and some NOI inmates claim that their beliefs require
them to eat only one meal per day, while others eat three meals per day. Engelke
explains that the centralized common fare program does not allow officials at each
VDOC facility to make changes to the master menu or to provide substitutions for

4

In October 2011, DePaola filed a grievance complaining that the common fair
meals at Red Onion included white bread, peanut butter, cottage cheese, grapefruit, and
white rice — food items he claimed were inconsistent with Muslim teachings. Officials
ruled his grievance unfounded, because the meals followed the VDOC common fare
master menu, and this finding was upheld on appeal. The defendants do not argue that
DePaola failed to exhaust his administrative remedies with regard to any of his
complaints about the diet. See 42 U.S.C. § 1997e(a).
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food items on the menu in order to meet such individualized NOI dietary
practices.5
In fact, the VDOC Food Service manual expressly states that “[t]he planned
Common Fare menu may not be changed at the facility level, except where
seasonal availability of produce items warrants that substitutions be made.”
(Engelke Aff. Ex. B, at 2, ECF No. 20.) The common fare program requires meal
trays to be pre-made to meet nutritional and religious requirements.

The

defendants insist that Red Onion prepares common fare meals using only food
items authorized by the common fare menu. In keeping with the policy, Red
Onion officials state that they cannot provide food alternatives to satisfy DePaola’s
food preferences.
Defendant Scarberry explains in her submssion how DePaola’s disputed
food items are served under the master common fare rules. Kosher white bread,
peanut butter, and grapefruit may be served at any time, except during the NOI
Month of Fasting, when these items are not included on the menu. “[P]eas and
dried beans, with the exception of navy beans, [are] an unacceptable food
substitute during the [NOI] Month of Fasting. The . . . entrée [which DePaola
identified as containing peas] is not serve during the NOI fasting period.”
5

In contrast to common fare practices, the regular VDOC menu is generally
served cafeteria-style. Inmates may select a meat alternative at each meal, opting instead
for nonpork or vegetarian items, such as beans, dairy products, and eggs.
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(Scarberry Aff. ¶ 7, ECF No. 31.) Scarberry states that brown rice, not white rice,
is served in common fare meals, although the rice may appear white in color. She
also provides evidence that Polysorbate 80 does not contain alcohol and states that,
to the best of her knowledge, the cottage cheese in Red Onion common fare meals
does not contain alcohol.
Engelke states that providing substitutes for various items authorized on the
common fare menu to cater to the differing dietary beliefs of NOI offenders would
require the VDOC to bear significant additional costs. He states that fluctuating
requests for customized common fare meals would be unmanageable and require
hiring additional food service staff. Engelke asserts that identifying the precise
cost increase for such individualized NOI meals is not feasible, but would be
expected to impose a significant burden on Virginia taxpayers. VDOC officials
also fear that permitting NOI inmates to have meals tailored for individual
religious differences within that belief set would open the door to requests from
other religious subgroups for their own special adjustments to the common fare
menu. Engelke predicts that allowing any group or groups to request a customized
version of the common fare menu would throw “the VDOC back into the same
overly burdensome predicament [it] faced before” offering the common fare diet.
(Engelke Aff. ¶10, ECF No. 41.) Presently, approximately 3,000 Virginia inmates
participate in the common fare meal program.
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According to DePaola, because he has not eaten the items he claims are
prohibited by his beliefs, he has suffered physically from hunger pangs, has had
difficulty sustaining his weight, and has suffered in his spiritual practice from not
having a proper religious diet. He seeks declaratory, injunctive, and monetary
relief. 6
II.
DePaola claims that the defendants have violated his rights under the First
Amendment and RLUIPA to be free from a substantial burden on his religious
exercise by failing to provide common fare meals consistent with his personal NOI
dietary beliefs.

I find that DePaola, who has the burden of proof, has not

established any genuine dispute as to any material fact and that the defendants are
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a).

6

DePaola also apparently seeks to enforce decades-old court orders from cases
filed in 1981 and 1986, directing various VDOC facilities to provide the prisoner
plaintiffs with a diet consistent with their NOI religious practices. See, e.g., Brown v.
Sielaff, No. 81-0853-R (E.D. Va.); Lee X v. Murray, No. 6:86CV00082 (W.D. Va.).
These cases predate the federal courts’ electronic filing system and the paper case files
have long since been archived. DePaola submits a photocopy of an order purportedly
issued in the Brown case, which expressly states that it applies only to “prisoners
presently confined at the Mecklenburg Correctional Center and to all of the named
plaintiffs.” (MSJ Resp. Ex. D ¶19, ECF No. 23.) DePaola offers no indication that he is
a member of this group. Moreover, these court cases arose under far different
circumstances — before the VDOC’s establishment of the common fare program as a
centralized means of accommodating VDOC inmates’ religious dietary rights. For these
reasons, these cases do not provide any legal or factual basis upon which DePaola is
entitled to a customized religious diet and thus have no bearing on DePaola’s present
claims under the Constitution and RLUIPA.
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RLUIPA provides 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 the imposition of the burden on that
person is . . . (1) in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). The plaintiff bears the initial burden of showing a
substantial burden on his religious exercise. § 2000cc-2(b); Lovelace v. Lee, 472
F.3d 174, 185-87 (4th Cir. 2006). “[A] substantial burden on religious exercise
occurs when a state or local government . . . ‘put [s] substantial pressure on the
adherent to modify his religious behavior and significantly violate his beliefs.’” Id.
at 187. A burden that is merely an “inconvenience on religious exercise” is not
“substantial.”7 Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1323 (11th Cir.
2005). RLUIPA also does not reach negligent violations of inmates’ religious
practices. Lovelace, 472 F.3d. at 194.

7

RLUIPA “incorporates” the free exercise clause of the First Amendment, and
DePaola’s burden to state a claim under the First Amendment is very similar to his
burden under RLUIPA. Lovelace, 472 F.3d at 198-99, n. 8; Hernandez v. Comm’r, 490
U.S. 680, 699 (1989). Contrary to the level of scrutiny under RLUIPA, for First
Amendment purposes, a prisoner’s free-exercise rights may be restricted to the extent that
prison policy is “reasonably adapted to achieving a legitimate penological objective.”
Lovelace, 472 F.3d at 200. Thus, the First Amendment, which adopts a less stringent
standard of review, affords less protection to an inmate’s free-exercise rights than does
RLUIPA: reasonableness instead of strict scrutiny. Id. I will afford DePaola the benefit
of RLUIPA’s more rigorous scrutiny and to the extent DePaola’s claims fail under
RLUIPA, they also fail under the First Amendment.
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Once a prisoner establishes a substantial burden on his religious exercise, the
defendants must show that the policy is the least restrictive means of furthering a
compelling governmental interest. Id. at 189. The court will “not read RLUIPA to
elevate accommodation of religious observances over an institution’s need to
maintain order and safety” and will instead apply RLUIPA “in an appropriately
balanced way.” Cutter v. Wilkinson, 544 U.S. 709, 711, 722 (2005). The court
must give due deference to officials’ sworn affidavits explaining why a policy is
the least restrictive means to further compelling interests such as “good order,
security and discipline, consistent with consideration of costs and limited
resources.” Id. at 723.
Taking the evidence in the light most favorable to DePaola, I find that he has
marshaled 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. It is undisputed
that the manner in which Red Onion serves these foods on the common fare menu
has been approved by the Islamic leader of the Islamic Center of Virginia as
complying with Islamic dietary guidelines. NOI is a sect of Islam, and DePaola
himself requested and then agreed to follow the common fare diet as consistent
with his NOI beliefs. Thus, the record reflects that the VDOC common fare menu
substantially accommodates his religious dietary needs. DePaola offers no NOI
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religious text or teaching on which he grounds his later stated preference to avoid
the specified foods at all times. His personal food preferences, not grounded in
sincere religious convictions, are not a religious exercise protected under RLUIPA.
DePaola also fails to show that the food items he does not want to eat
comprise a substantial portion of the nutrients and calories in the common fare
meals he receives.8 For example, the weekly common fare menu for April 2013
through March 2014 lists peanut butter for three meals, cottage cheese for three
meals, and the beef-flavored entrée that includes peas for two meals. This menu
lists fruit for every meal, but does not list grapefruit for any meal. DePaola also
does not contest the defendants’ evidence that no white rice is served on the
common fare menu or that no peas are served on the menu, other than those
contained in the occasionally served, beef-flavored, entrée. While DePaola asserts
that he feels hungry and sometimes loses weight eating only the portions of the
common fare menu that meet his stated preferences, he does not allege any
resulting medical concerns that have caused him to seek treatment. Without proof

8

See, e.g., Couch v. Jabe, 479 F. Supp. 2d 569, 589 (W.D. Va. 2006) (denying
motion to dismiss because “a reasonable jury could find that inmates participating in the
[Ramadan] fast in 2004, receiving only 1000 daily calories, were substantially pressured
to break the fast in violation of Islamic tenets, in order to satisfy their physical hunger”).
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that the common fare menu substantially burdens his religious practice, DePaola’s
RLUIPA claim fails.9
I also conclude that the defendants’ evidence supports a finding that the
common fare program as currently operated furthers compelling state interests by
the least restrictive means and thus defeats the second element of DePaola’s
RLUIPA challenge regarding his religious diet. The defendants’ affidavits reflect
that VDOC administrators have undertaken substantial effort to design and
implement a single, centralized common fare program that is certified by experts in
religion and dieticians to accommodate Muslim inmates’ dietary beliefs and
nutritional needs.

I find it self-evident that this centralized 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.
To accommodate NOI inmates’ differing dietary beliefs, the VDOC would
either have to design multiple common fare master menus or allow food service
personnel at the institutional level to determine substitutions of common fare’s
authorized food items for items consistent with NOI inmates’ individual religious

9

See, e.g., Frazier v. Ferguson, No. 04-5140, 2006 WL 2052421, at *4 (W.D.
Ark. July 21, 2006) (finding, under RLUIPA, no substantial burden on Seventh-day
Adventist inmate who had to discard some items from proffered vegetarian diet that were
at odds with his religious vegan diet).
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dietary beliefs. The defendants state that these options would be both unworkable
and prohibitively expensive. They predict from past experience, before
implementation of the common fare program, that allowing ad hoc adjustments to
the master menu at each institution would create a potential for inconsistent
interpretations and accommodations of inmates’ religious dietary needs, as well as
uncertainty that each inmate’s personalized version of the diet provided necessary
nutrients and calories. While multiple master menus would offer consistency, the
defendants predict that formulating an alternate menu for one set of NOI dietary
beliefs would lead to requests for similar exceptions for inmates of other NOI and
Muslim sects and lead to exponential increases in cost and operational
complications. DePaola has not offered any less burdensome alternative to the
single, centralized common fare program that would accomplish the legitimate
goal of uniform accommodation of inmates’ religious and nutritional needs. As I
have written before, “[t]he administrative decision to standardize accommodation
of inmates’ religious dietary needs throughout the VDOC . . . is just the kind of
prison policy-making determination to which courts must defer.” Lovelace v.
Bassett, No. 7:07CV00506, 2009 WL 3157367, at *8 (W.D .Va. Sept. 29, 2009).
III.
For the stated reasons, I conclude that DePaola has failed to submit evidence
that the VDOC’s current accommodation of inmates’ NOI beliefs through the
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common fare program substantially burdens his sincere religious beliefs, while the
defendants’ evidence supports a finding that the current system furthers compelling
state interests by the least restrictive means. 10 Accordingly, it is ORDERED that
the defendants’ Supplemental Motion for Summary Judgment (ECF No. 30) is
GRANTED.

10

The defendants also assert that DePaola’s claims for monetary damages under
§ 1983 are barred by qualified immunity, and I agree.
Qualified immunity protects defendants performing discretionary functions from
liability for civil damages so long as their conduct does not violate a clearly established
constitutional or statutory right of which a reasonable person would have known. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right. . . . [I]n the light of preexisting law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).
Based on the Islamic Center’s certification that the common fare menu
accommodates Muslim dietary beliefs and a dirth of legal precedent requiring prison
officials to meet every inmate’s every personal religious dietary preference, a reasonable
VDOC official would have believed that the diet provided to DePaola did not
substantially burden his NOI dietary beliefs. Therefore, they enjoy qualified immunity.
Moreover, DePaola does not state facts on which a reasonable factfinder could
conclude that defendants Clarke, Garman, Hinkle, Ray, Mathena, Wade, or Scarberry had
any personal involvement in setting the common fare master menu or would be involved
in determining whether that master menu should be altered to improve its accommodation
of inmates’ religious beliefs. Accordingly, he has failed to state actionable § 1983 claims
against these individuals. I also note that DePaola has stated no facts to support any
actionable claim for monetary damages under RLUIPA. See Sossamon v. Texas, 131 S.
Ct. 1651, 1660 (2011); Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009).

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A separate Judgment in favor of the defendants will be entered forthwith,
ending this case.
ENTER: August 12, 2014
/s/ James P. Jones
United States District Judge

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