Opinion
C/A No.: 1:18-1321-MGL-SVH
06-28-2019
Dean A. Holcomb, #369696, Plaintiff, v. Bryan Styrling, Commissioner of the South Carolina Dept. of Corrections, Defendant.
REPORT AND RECOMMENDATION
Dean A. Holcomb ("Plaintiff") is an inmate incarcerated in the custody of the South Carolina Department of Corrections ("SCDC"). He filed this action in the Court of Common Pleas, Richland County, South Carolina, on April 3, 2018, against SCDC director Bryan Styrling ("Defendant"). [ECF No. 1-1]. On May 14, 2018, Defendant removed the case to this court. [ECF No. 1]. This matter is before the court on Defendant's motion for summary judgment. [ECF No. 22]. Having been fully briefed [ECF Nos. 28, 32, 44, 54], the motion is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motion is dispositive, this report and recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. I. Factual and Procedural Background
In his complaint, Plaintiff alleged he is a Jewish inmate and SCDC denied his request for kosher meals, instead placing him on a vegetarian diet. [ECF No. 1 at 4-5]. Plaintiff asserted SCDC's vegetarian menu imposed a substantial burden on his religious exercise. Id. On October 4, 2018, Defendant moved for summary judgment. [ECF No. 22]. In response to Defendant's motion, Plaintiff alleged for the first time he is diabetic, SCDC's diabetic diet is not kosher, and the diet SCDC provided does not meet his medical or religious needs. [ECF No. 28 at 1]. On January 3, 2019, the undersigned recommended the district judge grant Defendant's motion for summary judgment. [ECF No. 35]. Plaintiff objected, again asserting SCDC's meals did not meet his medical needs as a diabetic. [ECF No. 38 at 2-3]. In an abundance of caution, the district judge construed Plaintiff's new claim as an attempt to amend his complaint, granted Plaintiff leave to amend, vacated the report and recommendation, and remanded the case to the undersigned. [ECF No. 40].
On February 15, 2019, Plaintiff filed an amended complaint. [ECF No. 44]. Plaintiff's amended complaint alleges SCDC's kosher-compliant diet, the alternate entry diet, is not prepared under kosher standards and does not meet his needs as a diabetic. Id. at 1. In addition, he asserts the supplemental snack he receives as a diabetic contains non-kosher items and items the American Diabetes Association ("ADA") recommends diabetics avoid. Id. at 3. Plaintiff alleges the failure to provide a kosher-diabetic diet substantially burdens his religious exercise and is not the least-restrictive means of furthering any compelling government interest. Id. at 2. He seeks "declaratory judgment relief and injunctive relief from the refusal of SCDC to make their menus for Diabetic Inmates who have religious needs, to meet kosher standards." Id. at 1-2.
On April 5, 2019, Defendant filed a supplement to its motion for summary judgment addressing the additional issue of whether SCDC provides a diet that meets both kosher and diabetic requirements. [ECF No. 54]. II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
Plaintiff asserts a claim pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). [ECF No. 44 at 1]. RLUIPA provides as follows:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—42 U.S.C. § 2000cc-1(a).
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Defendant argues Plaintiff cannot show his religious exercise is substantially burdened because he is provided a diabetic-friendly, kosher-compliant diet. [ECF No. 22-1 at 3-4; ECF No. 54 at 3-4]. Defendant submits affidavits from SCDC Chief of Pastoral Services J. Michael Brown and SCDC Food Services Administrator Willie F. Smith. [ECF Nos. 22-2; 22-3]. Brown attests SCDC's alternate entree diet, which is based on a vegan diet, provides Jewish inmates with fully nutritious meals that satisfy kosher dietary requirements. [ECF No. 22-2 at 2]. Smith attests SCDC's alternate entree diet is kosher-compliant and is prepared and served separately from the items on the main menu. [ECF No. 22-3 at 2].
In response, Plaintiff alleges the alternate entree diet is (a) not compliant with his medical needs as a diabetic and (b) not prepared separately from other foods in the main kitchen area due to neglect and misuse of Tyger River Correctional Institution's ("TRCI") "diet line preparation area." [ECF No. 44 at 1]. In support of his contentions, Plaintiff offers his own affidavit. [ECF No. 28-1].
In response to Plaintiff's amended complaint, Defendant provides literature from the ADA stating "[a] vegetarian diet is a healthy option, even if you have diabetes" and "[r]esearch supports that following this type of diet can help prevent or manage diabetes." [ECF No. 54-2 at 1]. Specifically, Defendant provides a statement from the ADA regarding a vegan diet:
People with diabetes can choose to follow this type of vegetarian diet too. The vegan diet includes a variety of plant-based foods. Eating soy products and a mix of vegetables, fruits, beans, and whole grains provides plenty of protein and other important nutrients.Id. The alternate entree diet consists of vegetables, fruits, beans, and grains. [ECF No. 23-3 at 5-10 (containing six examples of alternate entree diet menus)].
Defendant has offered affidavits from SCDC's religious and food service personnel who aver that the alternate entree diet is kosher-compliant and literature from the ADA stating a vegan diet, like the alternate entree diet, is a healthy option for diabetics. [ECF Nos. 22-2; 22-3, 54-2]. Plaintiff's own affidavit is insufficient to create a genuine dispute of material fact to survive summary judgment.
Although Plaintiff purports to describe how the alternate entree diet is prepared, his affidavit does not establish personal knowledge or provide any other evidentiary foundation to support his claims. Because Plaintiff's affidavit contains conclusory allegations without specific supporting facts, see ECF No. 28-1, he fails to show Defendant imposed a substantial burden on the exercise of his religion. See Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); Larkin v. Perkins, 22 F. App'x 114, 115 (4th Cir. 2001) (noting the district court properly found a party's "own, self-serving affidavit containing conclusory assertions and unsubstantiated speculation" insufficient to stave off summary judgment); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995) ("Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.").
To the extent Plaintiff objects to the contents of the supplementary snacks, he offers only conclusory allegations and does not identify the snacks SCDC offered. [ECF No. 44 at 3]. In addition, Plaintiff has canteen privileges and may use those privileges to purchase kosher-compliant snacks to help maintain his blood sugar between meals. See Hoye v. Clarke, C/A No. 7:14-124, 2015 WL 3407609, at *5 (W.D. Va. May 27, 2015) ("The fact [Plaintiff] has to practice self-avoidance at meals while on the Common Fare Diet and pay for snacks to keep in his cell does not amount to a substantial burden on his right to practice his religion."). Thus, Plaintiff fails to show he does not have kosher food available to him that also satisfies his needs as a diabetic and that Defendant has substantially burdened the exercise of his religion. III. Conclusion and Recommendation
Defendant provides an account of Plaintiff's canteen purchases showing he regularly, voluntarily purchases items that are neither kosher nor recommended for diabetics. [ECF No. 54-1 (showing purchases of snack cakes, donuts, barbeque pork sandwiches, candy, sodas, shrimp, oysters, pepperoni pizza, cheddar and bacon potato skins, and pork and beans)].
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment [ECF No. 22].
IT IS SO RECOMMENDED. June 28, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).