Opinion
Civil Action 19-cv-01158-RMR-STV
07-12-2024
RUSSELL M. BOLES, Plaintiff, v. COLORADO DEPARTMENT OF CORRECTIONS, CHARLENE CROCKET, CAPTAIN CYRUS CLARKSON, and RABBI YISROEL ROSSKAMM, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This matter is before the Court on Defendant Rabbi Yisroel Rosskamm's Motion for Summary Judgment [#518] and Defendants Colorado Department of Corrections, Charleen Crockett, and Captain Cyrus Clarkson's (collectively, the “CDOC Defendants”) Motion for Summary Judgment [#521] (collectively, the “Motions”). The Motions have been referred to this Court [## 519, 522]. The Court has carefully considered the Motions and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motions. For the following reasons, this Court RECOMMENDS the Motions be GRANTED.
Incorrectly spelled “Charlene Crocket” in the case caption. [#521-9 at 1, Declaration of Charleen Crockett]
The undisputed facts are drawn, where possible, from the Statement of Facts in Defendant Rosskamm's Motion for Summary Judgment [#518 at 3-5] and CDOC Defendants' Motion for Summary Judgment [#521 at 2-7]. The Court refers to the sequentially numbered facts set forth in the Statement of Facts associated with Defendant Rosskamm's Motion as “RSOF#” and those associated with CDOC Defendants' Motion as “CSOF#.” Plaintiff suggests that many of the facts are disputed [## 572-2 at 4-11; 583 at 2-9], but (as explained in detail below) Plaintiff hardly includes any specific references to evidence in the record establishing that any of the facts are actually in dispute. See Johnson v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005) (explaining the nonmovant has a responsibility to “go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to [his] case in order to survive summary judgment” (quotation omitted)). Accordingly, unless otherwise indicated, the Court accepts the Defendants' Statements of Facts as undisputed. The Court occasionally cites directly to the exhibits or other filings cited by the parties to provide additional context.
Plaintiff is a Colorado Department of Corrections (“CDOC”) inmate, currently housed at the Limon Correctional Facility (“LCF”). [##521 at 2, CSOF##1, 4; 515] The instant lawsuit arises out of the conditions of confinement during Plaintiff's incarceration by Defendant CDOC at the Sterling Correctional Facility (“SCF”), between approximately January of 2017 and September of 2023. [##116; 521 at 2, CSOF#2]
A. Kosher Diet
Plaintiff is Jewish and “avidly practice[s]” Orthodox Judaism. [#116 at 23] The CDOC provides a kosher diet for those inmates who request one and sign a religious diet participant agreement. [#521 at 4, CSOF#23 (citing #521-7, Administrative Regulation (“AR”) 1550-15)] Plaintiff has been enrolled in the kosher diet program since his term of custody began at SCF. [Id. at 5, CSOF#24] On August 7, 2017, Plaintiff began receiving a “medical diet,” which was a low sodium kosher diet. [#521-2 at 9-10 (Medical Records)]
On June 27, 2019, Plaintiff wrote a letter to Defendant Crockett-the Food Service and Laundry Program Administrator at CDOC-noting “[n]othing about the currently prescribed diet works for me” and asking her to “go ahead and cancel th[e] horrible diet.” [##521 at 5, CSOF#25; 521-8] In July of 2019, Plaintiff wrote in a grievance: “I was on a kosher diet but it was cancelled. I told the line officer and Lt. Powell I neither asked for nor do I want any special diet.” [##521 at 5, CSOF#26; 521-3 at 5] In October of 2019, Plaintiff filed a grievance stating that he did not receive kosher meals for the Jewish holiday of Sukkot. [##521 at 5, CSOF#28; 521-3 at 8)] On October 10, 2019, Defendant Crockett reinstated Plaintiff's kosher diet. [##521 at 5, CSOF#29; 521-3 at 14] Plaintiff began to receive his kosher diet in November of 2019. [#521 at 5, CSOF#30]
The CDOC trains its employees who work in the kitchens to understand kosher rules. [Id. at 6, CSOF#36] The kosher diet at CDOC is reviewed by dieticians yearly, both to ensure the diet complies with kosher rules and that it provides nutritional food to inmates. [Id. at 5, CSOF##31-32] During Plaintiff's incarceration at SCF, CDOC also contracted with Scroll K Vaad Hakashrus of Denver (“Scroll K”), a non-profit Kashrus agency, to provide advice on Jewish dietary laws. [#518 at 3, RSOF##2,4] “Pursuant to Scroll K's contract with CDOC, Scroll K will conduct inspections of Kosher food preparation areas in various [CDOC] facilities located throughout the state; consult with staff and offenders concerning Kosher diet issues and provide design and operations guidance and general advice to the [CDOC] to ensure satisfactory delivery of Kosher diets within the [CDOC].” [Id. at 4, RSOF#6 (quotation omitted)] Rabbis associated with Scroll K visit CDOC correctional facilities to monitor the kosher program, inspect the kitchens, speak with inmates regarding the kosher program, and then submit their observations and suggestions in a report to the CDOC. [Id., RSOF## 7, 8] The rabbis inform appropriate food services personnel if they observe errors in the preparation of kosher food and advise how to correct the mistake; they inspect the kosher food supplies and ensure that food that requires it is properly certified; and they confirm that utensils and kitchen accessories used to prepare kosher meals handle only kosher food. [Id., RSOF#9] Defendant Rabbi Rosskamm is an employee of Scroll K. [Id., RSOF#11] Neither Scroll K nor Rabbi Rosskamm were responsible for ordering, supplying, or preparing the kosher food served at SCF under the CDOC's contract with Scroll K. [Id. at 5, RSOF#13; #518-1 at 131:5-132:2 (Russell M. Boles Deposition)]
B. Wheelchair Accessibility
In late 2018, Plaintiff was given a temporary wheelchair to be used alongside his walker. [#521 at 3, CSOF#7] In August of 2019, Plaintiff received a permanent wheelchair. [Id., CSOF#8; #583 at 4] At the time he received his wheelchair, Plaintiff was housed in a non-accessible double occupant cell. [Id., CSOF#9; #583 at 5] In or around March of 2020, Plaintiff was moved into a single cell because of the COVID-19 pandemic, where he remained until July 2021. [#521-3, CSOF#10] In March of 2021, Plaintiff sent a kite to medical requesting he be evaluated for a wheelchair accessible cell. [Id., CSOF#11] On May 18, 2021, Plaintiff filed his first grievance requesting a wheelchair accessible cell. [Id., CSOF#13] On July 11, 2021, Plaintiff was moved to an “ADA cell” [Id., CSOF#14], which was wheelchair accessible [#521-1 at 19:1-7; #295-1 at 7]. On July 23, 2021, Plaintiff met with Dr. Jerome Long, who noted: “patient has limited mobility due to lumbar dysfunction. He needs a cell with handrails and needs a cell with a higher toilet. If the only cell that meets these qualifications is an ADA cell, then I recommend an ADA cell.” [#521 at 3-4, CSOF#15] Between July 11, 2021 and April of 2023, Plaintiff remained in a wheelchair-accessible cell despite moving to different cell houses. [##521-at 4, CSOF#17; #583 at 4 (“Plaintiff was placed in a medical (ADA) cell in July of 2021. . . . He was in a medical cell until April 27, 2023. From that point on he has not been in a wheelchair accessible cell.”)] In April of 2023, Plaintiff was moved to a non-accessible cell in restrictive housing for fifteen days after punching a guard in the stomach. [#521 at 4, CSOF#18; id. at 13, n.2] Since being released from restrictive housing, Plaintiff has been consistently housed in cells designated as either an “ADA cell” or a “medical cell.” [Id. at 4, CSOF##19-20; ##521-6 at 1 (“When Mr. Boles got to [Centennial Correctional Facility (“CCF”)], he was placed in an ADA cell.... Mr. Boles would not be removed from his ADA [cell] unless a medical professional determines that he no longer requires an ADA cell.”); 521-16 (“When Mr. Boles got to LCF, he was placed in an ADA cell, where he still resides.”)] Plaintiff asserts that the ADA cells in which he resided at CCF and LCF contained obstructions in the middle of the room making maneuvering of the wheelchair difficult. [#583 at 6] Specifically, “[o]ne of the grab bars that [is] medically required juts out into the middle of the cell at ¶ 45 [degree] angle to the adjacent wall,” requiring Plaintiff to pivot 180 degrees to get into or out of the bed. [Id.; #572 at 1]
C. The Grievance Process
The CDOC maintains a three-part administrative remedy scheme. [#521 at 6, CSOF#38]; see also CDOC Admin. Reg. No. 850-04 (“AR 850-04”) An inmate must file a Step 1 grievance no later than 30 calendar days from the date the inmate knew, or should have known, of the facts giving rise to the grievance. [#521 at 6, CSOF#40] ¶ 850-04 provides that the inmate will receive a written response to a Step 1 grievance, and if the inmate is dissatisfied with the response to their Step 1 grievance, the inmate must file a Step 2 grievance within five calendar days of receiving the written response. [Id. at 7, CSOF#41] If an inmate files a Step 2 grievance, AR 850-04 provides that the inmate will receive a written response to that grievance, and If the inmate is dissatisfied with the response to their Step 2 grievance, the inmate must file a Step 3 grievance within five calendar days of receiving the written response. [Id., CSOF#42] The Step 3 grievance is the final step in the CDOC's grievance process. [Id., CSOF#43]
The Court may take judicial notice of CDOC regulations. Allen v. Clements, 930 F.Supp.2d 1252, 1260 n.2 (D. Colo. 2013) (citing Ray v. Aztec Well Serv. Co., 748 F.2d 888, 889 (10th Cir. 1984)).
D. This Lawsuit
Plaintiff, proceeding pro se, filed the instant action on April 19, 2019. [#1] On May 29, 2020, Plaintiff filed the operative amended complaint (the “Complaint”), asserting the following claims: (1) denial of adequate food [#116 at 8-13]; (2) denial of adequate medical care [id. at 13-20]; (3) discrimination on the basis of a disability [id. at 20-22]; (4) discrimination on the basis of religion [id. at 22-25]; (5) the illegal taking of money from Plaintiff's inmate account and property from Plaintiff's cell [id. at 25-27]; and (6) “[u]ntenable “[i]nterference [w]ith [t]his [l]itigation” by restricting Plaintiff's access to the law library and legal research resources [id. at 27-28]. The Complaint originally named twenty defendants and sought injunctive relief and monetary damages. [Id. at 1, 29]
On March 19, 2021, United States District Judge William J. Martinez entered an Order adopting this Court's Recommendation that certain claims and Defendants be dismissed. [#247] Specifically, Judge Martinez dismissed all claims and Defendants except: (1) Claim Three to the extent it asserts claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) against Defendant CDOC for failing to accommodate Plaintiff's need for a wheelchair-accessible cell; (2) Claim Four to the extent it asserts a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) against Defendant CDOC and Defendant Crockett in her official capacity based upon alleged deficiencies in Plaintiff's kosher diet at SCF; (3) Claim Four to the extent it asserts a First Amendment claim against Defendants CDOC, Ms. Crockett and Rabbi Yisroel Rosskamm based upon alleged deficiencies in Plaintiff's kosher diet at SCF; and (4) Claim Four to the extent it asserts a First Amendment Claim against Defendants Crockett and Clarkson based upon the alleged denial of a kosher diet from June 2019 through December 2019, including kosher meals for Sukkot. [Id. at 4-5] After Judge Martinez issued his Order, the case was reassigned to United States District Judge Regina M. Rodriguez upon her appointment to the United States District Court for the District of Colorado. [#293]
On November 3, 2023, Defendants filed the instant Motions. [##518, 521] Plaintiff has responded [##572-2, 583] and Defendants have replied [##585, 595].
II. LEGAL STANDARD
Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). If the moving party bears the burden of proof at trial, “the moving party must establish, as a matter of law, all essential elements of the [claim or defense upon which summary judgment is sought] before the nonmoving party can be obligated to bring forward any specific facts alleged to rebut the movant's case.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). In other words, the moving party “must support its motion with credible evidence showing that, if uncontroverted, the moving party would be entitled to a directed verdict.” Rodell v. Objective Interface Sys., Inc., No. 14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing Celotex Corp., 477 U.S. at 331). “Where, as here, a defendant moves for summary judgment to test an affirmative defense, ‘[t]he defendant . . . must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.'” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011) (quoting Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997)). “Once the defendant makes this initial showing, ‘the plaintiff must then demonstrate with specificity the existence of a disputed material fact.'” Id. (quoting Hutchinson, 105 F.3d at 564). “If the plaintiff cannot meet this burden, ‘the affirmative defense bars [her] claim, and the defendant is then entitled to summary judgment as a matter of law.'” Id. (quoting Hutchinson, 105 F.3d at 564).
“[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Evidence, including testimony, offered in support of or in opposition to a motion for summary judgment must be based on more than mere speculation, conjecture, or surmise. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
Defendants seek summary judgment on all of Plaintiff's claims, arguing: (1) Plaintiff's transfer away from SCF moots his claims for equitable relief [#521 at 9-13]; (2) Plaintiff failed to exhaust his administrative remedies [id. at 13-20]; (3) Plaintiff's First Amendment claim based on whether the meals served at SCF are really kosher is a nonjusticiable issue [#518 at 17-21]; (4) Defendant Rosskamm is not subject to liability under 42 U.S.C. § 1983 (“Section 1983”) [id. at 6-21]; (5) Plaintiff has failed to put forward sufficient evidence to substantiate any of the claims against the CDOC Defendants [#521 at 20-34]; and (6) Defendants Clarkson, Crockett and Rosskamm are entitled to qualified immunity [id. at 34-37; #518 at 21-22]. The Court will address these issues in turn.
A. Mootness
The CDOC Defendants argue that Plaintiff's claims for equitable relief-namely: (1) the RLUIPA and First Amendment claims based upon alleged deficiencies in Plaintiff's kosher diet and (2) the ADA/RA claim based upon the alleged failure to accommodate Plaintiff's need for a wheelchair-accessible cell-are moot, and the Court therefore lacks jurisdiction to hear them, because Plaintiff has been transferred out of SCF and cannot demonstrate a credible threat of future injury. [#521 at 9-13] The Court disagrees.
The constitutional mootness doctrine considers whether “a definite controversy exists throughout the litigation and whether conclusive relief may still be conferred by the court despite the lapse of time and any change of circumstances that may have occurred since the commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (quoting 15 James Wm. Moore et al., Moore's Federal Practice § 101.90 (3d ed. 2010)). If a claim is moot, the court lacks subject matter jurisdiction. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). “The touchstone of the mootness inquiry is whether the controversy continues to touch the legal relations of parties having adverse legal interests in the outcome of the case, and this legal interest must be more than simply the satisfaction of a declaration that a person was wronged.” Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (quotations omitted) (finding prisoner's claims for declaratory and injunctive relief moot in light of his release from prison).
“An inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief related to conditions of confinement.” Mitchell v. Estrada, 225 Fed.Appx. 737, 741 (10th Cir. 2007) (citing Green, 108 F.3d at 1299-1300 (holding that release from prison moots claims for declaratory and injunctive relief), Love v. Summit County, 776 F.2d 908, 910 n.4, 912 (10th Cir. 1985) (indicating that the general rule applies to a transfer between prisons). This is because “a prisoner's transfer or release signal[s] the end of the alleged deprivation of his constitutional rights.” Jordan, 654 F.3d at 1027 (quotation omitted). However, where the prisoner “brings a lawsuit challenging policies that apply in a generally uniform fashion throughout a prison system” courts are less inclined to conclude that the prisoner's injunctive claims are moot. Id. at 1028. In that instance, courts focus on whether the inmate has sued defendants “who [are] actually situated to effectuate any prospective relief that the courts might see fit to grant”-i.e., the director of the prison system or the prison system itself. Id. But where a plaintiff has sued only prison officials at the transferor facility, the plaintiff's claims for injunctive relief are moot even if they seek to challenge system-wide prison policies. Id. at 1028-29.
1. Religious Discrimination Claims
Plaintiff claims he is required by Jewish law to eat kosher food, and he argues the CDOC kosher diet is deficient as to substantially burden his religious exercise in violation of the RLUIPA and the First Amendment. [See #572-2 at 3 (“[T]he kosher diet he is served is currently 90% highly processed food-like substances and such food cannot be considered kosher. As a result, Plaintiff contends that he transgresses against Hashem (God) every time he eats.”)] The CDOC Defendants argue that this claim is moot, as the allegations are tied exclusively to SCF. [#521 at 12] The Court disagrees.
Plaintiff was transferred from SCF to CCF in September 2023 [#495] and then moved again from CCF to LCF in October of 2023 [#515]. Despite being transferred to different facilities, Plaintiff's contention that his kosher diet is inadequate remains ongoing. [See #572-2 at 8 (“Plaintiff has been moved from prison to prison to prison where he has been subjected to fraudulent kosher meals.”)] Moreover, Plaintiff has sued the prison system itself-a defendant situated to effectuate prospective relief-rather than suing exclusively prison officials at the transferor facility. The kosher diet also involves a system-wide CDOC policy. [#521-7 at 1, AR 1550-15 (“It is the policy of the [CDOC] . . . to have available special diets for offenders whose religious beliefs require the adherence to religious dietary laws.”)]. And Plaintiff remains incarcerated in CDOC's custody. [##521 at 2, CSOF#1] Thus, relief remains available, and the RLUIPA and First Amendment claims, regarding the alleged deficiencies in Plaintiff's kosher diet, are not moot. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010) (finding RLUIPA claim not moot where Plaintiff's request for halal food was denied at several correctional facilities and Plaintiff sued the director of the Oklahoma Department of Corrections); Jordan, 654 F.3d at 1028 (noting when a prisoner's request for relief implicates systemwide interests, a prisoner's transfer does not moot the claim); Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (concluding that a transferred prisoner's claims were not moot where he “assert[ed] claims directly against the Missouri Department of Corrections[] . . . which controls both prisons and the funding necessary to provide the” relief that the plaintiff requested).
2. ADA/RA Claim
Plaintiff brings an ADA/RA claim against Defendant CDOC for failing to accommodate Plaintiff's need for a wheelchair-accessible cell. [#116 at 22 (“CDOC at SCF does not provide adequate quantity or quality of handicap designated cells.”)] The CDOC Defendants argue this claim is moot, as the allegations are tied exclusively to SCF, and Plaintiff has been in a wheelchair accessible cell since July of 2021. [#521 at 12-13] Once again, the Court disagrees.
The Court finds the evidence submitted creates a genuine dispute as to whether Plaintiff has been in an accessible cell since July of 2021. In support of the contention that Plaintiff has been consistently housed in a wheelchair accessible cell, the CDOC Defendants cite Plaintiff's deposition testimony, which states that Plaintiff was housed in a “medical cell” in cell houses 4 and 7 at SCF. [#521 at 4, CSOF#19; id. at 13 (citing #521-1 at 19:1-21:21)] The CDOC Defendants also cite to the Declarations of Miranda Archuleta, a case manager at CCF, and John Cihacek, a case manager at LCF, which state that Plaintiff was placed in an “ADA cell” when he arrived at the facility. [Id. at 4, CSOF#20 (citing ## 521-6; 521-16)] Plaintiff argues that while these cells carry the designation of “medical cell” or “ADA cell,” they are nonetheless not wheelchair accessible. [#583 at 6 (“The cell Plaintiff is currently assigned is ‘not' wheelchair accessible. An obstruction in the middle of the room makes maneuvering a wheelchair impossible without painfully aggravating difficulty.... The cell at CCF also had an obstruction in the middle of the room.”); id. at 13-14 (“The problem Plaintiff has now is that although he is in a so called ‘medical cell' or ‘ADA cell' by designation, it is not suitable for a person in a wheelchair....The obstruction so dominates the cell as to be an outright hazard.”); see also #572 at 1 (“Now at [LCF] Plaintiff is in a ‘medical cell,' but it is not wheelchair accessible.”)] These are facts to which Plaintiff can testify. And Defendants have not offered any evidence to refute Plaintiff's contention that he is housed in a cell that fails to adhere to accessibility standards for purposes of a disability discrimination claim under the ADA, despite being designated as an “ADA cell” or a “medical cell.” For example, CDOC Defendants do not provide the Court with a definition or description of an “ADA cell” or a “medical cell.”
Here, relief remains available for substantially the same reasons discussed above: Plaintiff's allegations implicate system-wide interests, as he challenges the purported accessibility of CDOC-designated “ADA” or “medical” cells across various CDOC facilities; Plaintiff has sued the prison system itself; and Plaintiff remains incarcerated in CDOC's custody. Accordingly, the Court finds the ADA/RA claim, based upon the alleged failure to accommodate Plaintiff's need for a wheelchair-accessible cell, is not moot. See Abdulhaseeb, 600 F.3d at 1312; Jordan, 654 F.3d at 1028; Randolph, 170 F.3d at 857.
B. Administrative Exhaustion
The CDOC Defendants argue that Plaintiff has failed to exhaust his administrative remedies with regard to the ADA/RA claim and the First Amendment claim regarding the cancellation of Plaintiff's kosher diet between June and December 2019. [#521 at 13-20] The Court will address each claim in turn.
Pursuant to the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has made clear that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). “[T]he PLRA's text suggests no limits on an inmate's obligation to exhaust,” except that “the remedies must indeed be ‘available' to the prisoner.” Id. As a result, “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Id.
Thus, “[a]ny prisoner who seeks to bring a claim involving general circumstances or particular episodes of prison life must first exhaust the administrative remedies available to him in prison.” May v. Segovia, 929 F.3d 1223, 1226-27 (10th Cir. 2019) (citations and quotation omitted). The PLRA's exhaustion requirement “seeks to affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Woodford, 548 U.S. at 93. “The prison grievance system will not have such an opportunity unless the grievant complies with the system's critical procedural rules.” Id. at 95. The PLRA thus requires “proper exhaustion” of the prison's grievance process-i.e., “compliance with [the prison's] deadlines and other critical procedural rules.” Id. at 90. Those rules are “defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007). Moreover, “[e]ven where the ‘available' remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (citing Booth v. Turner, 532 U.S. 731, 740 (2001)).
The PLRA exhaustion requirement, however, “is an affirmative defense, not a pleading requirement.” May, 929 F.3d at 1229. Defendant thus “bears the burden of ‘proving that [Plaintiff] did not [exhaust his] administrative remedies.'” Id. at 1234 (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)).
1. ADA/RA Claim
The CDOC Defendants argue Plaintiff failed to adhere to the PLRA requirements as he did not exhaust his administrative remedies, with regard to his ADA/RA claim, until August of 2021, more than one year after the operative complaint was filed. [#521 at 1617; #521-3 at 3] Once a defendant “makes a facial showing of failure to exhaust, the burden shifts to the inmate to come forward with some evidence to show that he did indeed exhaust the grievance procedure.” Muniz v. Kaspar, No. 07-cv-01914-MSK-MJW, 2008 WL 3539270, at *2 (D. Colo. Aug. 12, 2008). Here, in support of exhaustion, Plaintiff cites a number of additional grievances that he filed at SCF, requesting varying accommodations. [##583 at 25-27; 595-1] But none of the grievances cited mention a wheelchair accessible cell. As a result, Plaintiff has failed to satisfy his burden of demonstrating that he exhausted the grievance procedures. See Barnes v. Allred, 482 Fed.Appx. 308, 311 (10th Cir. 2012) (to satisfy the PLRA's exhaustion requirement, an inmate must “provide[ ] prison officials with enough information to investigate and address the inmate's complaint internally” (quotation omitted))
Plaintiff also appears to argue that there is a “caveat to exhaustion” when there is no apparent remedy. [#583 at 15 (“with more prisoners in wheelchairs than there were ADA cells, there was no apparent remedy”)] But, the Tenth Circuit has determined that “[e]ven where the ‘available' remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” Jernigan, 304 F.3d at 1032. And the cases cited by Plaintiff predate the Supreme Court's explicit holding in 2016 that “a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross, 578 U.S. at 639.
Finally, Plaintiff writes that “[i]t is disputable . . . that the state remedy as alleged by the defendants is . . . available.” [#583 at 15] “Remedies are unavailable if prison officials are ‘unable or consistently unwilling to provide any relief,' if ‘no ordinary prisoner can make sense of what [the grievance process] demands' or if ‘administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Campbell v. Jones, 684 Fed.Appx. 750, 753 (10th Cir. 2017) (quoting Ross, 578 U.S. at 643-44). Here, Plaintiff cites no evidence that “no ordinary prisoner can make sense of what [the grievance process] demands” or that “administrators thwart inmates from taking advantage of a grievance process.” To the contrary, Plaintiff was able to “file[] hundreds of grievances between January 2017 and now.” [#583 at 5] Finally, any argument that “prison officials are unable or consistently unwilling to provide any relief” is unpersuasive where it is undisputed that by the time Plaintiff had exhausted his administrative remedies, he had been given a wheelchair accessible cell. [#521-1 at 19:1-7; #295-1 at 7]
Accordingly, the Court finds Plaintiff has not carried his burden of showing that a genuine factual dispute exists as to whether he exhausted his administrative remedies, with respect to the ADA/RA claim, prior to initiating suit. The Court is aware that dismissing an exhausted claim without prejudice may be an inefficient outcome. However, the Tenth Circuit has recognized, “[s]ince the PLRA makes exhaustion a precondition to filing a suit, an action brought before administrative remedies are exhausted must be dismissed without regard to concern for judicial efficiency.” Ruppert v. Aragon, 448 Fed.Appx. 862, 863 (10th Cir. 2012) (emphasis omitted) (holding that dismissal without prejudice was appropriate, because, although “the administrative review process had been completed by the time the case was ripe for decision, . . . the process was incomplete when [the plaintiff] filed suit”). Accordingly, this Court RECOMMENDS that the CDOC Defendants' Motion for Summary Judgment be GRANTED to the extent it seeks summary judgment on Plaintiff's ADA/RA claim against Defendant CDOC and Plaintiff's ADA/RA claim be DISMISSED WITHOUT PREJUDICE. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (“[o]rdinarily, a dismissal based on a failure to exhaust administrative remedies should be without prejudice”).
2. First Amendment Claim: Denial of Kosher Diet between June and December 2019
The CDOC Defendants argue that Plaintiff did not exhaust his grievances regarding the cancellation of Plaintiff's kosher diet between June and December 2019. [#521 at 18-20] In support, Defendants submitted the declaration of Step 3 Grievance Officer Tony DeCesaro. [#521-15] Mr. DeCesaro testified that all grievances submitted by inmates are logged into the CDOC's electronic grievance database and assigned a tracking number for reference. [Id. at ¶¶ 11-12] Mr. DeCesaro reviewed the CDOC's records of grievances filed by Plaintiff and found that while Plaintiff did file three full sets of grievances regarding his kosher diet between July and December 2019, none were deemed exhausted because Plaintiff did not follow the proper procedures and none of the Step 1, 2, or 3 grievances filed during that time requested his kosher diet be reinstated. [Id. at ¶ 20]
Here, in support of exhaustion, Plaintiff cites a number of grievances that he filed at SCF. [#583 at 25-27] Of the sixteen grievances Plaintiff cited for this proposition, only one is relevant. [#595-2 at 14-17] There, the Grievance Officer concluded that Plaintiff had not exhausted his administrative remedies “based upon [his] failure to satisfactorily request allowable relief, and failure to follow grievance procedure in this matter.” [Id. at 17] Accordingly, the Court finds Plaintiff has not carried his burden of showing that a genuine factual dispute exists as to whether he exhausted his administrative remedies, with respect to the First Amendment Claim against Defendants Crockett and Clarkson based upon the alleged denial of a kosher diet from June 2019 through December 2019, including kosher meals for Sukkot. Garcia v. Wright, 11-cv-02722-RM-KLM, 2013 WL 3381269, at *3 (D. Colo. July 8, 2013) (“The Supreme Court and the Tenth Circuit have clearly articulated that compliance with administrative grievance procedures must be exact and complete”) (citing Jernigan, 304 F.3d at 1032).
There is one other full set of Step 1, 2 and 3 grievances in the relevant time period, but they address a separate issue entirely. [#595-2 at 18-21 (explaining Plaintiff did not have a service for Yom Kippur, and requesting compensation)]
Thus, the Court RECOMMENDS that the CDOC Defendants' Motion for Summary Judgment be GRANTED to the extent it seeks summary judgment on Plaintiff's First Amendment Claim against Defendants Crockett and Clarkson based upon the alleged denial of a kosher diet from June 2019 through December 2019 and that Plaintiff's First Amendment claim be DISMISSED WITHOUT PREJUDICE. See Gallagher, 587 F.3d at 1068.
C. RLUIPA and First Amendment Claims for Deficiencies in Kosher Diet
Plaintiff alleges that, based upon the alleged deficiencies in Plaintiff's kosher diet at SCF, Defendants CDOC and Crockett have infringed Plaintiff's rights under the RLUIPA [#243 at 57], and Defendants CDOC, Crockett and Rosskamm have infringed Plaintiff's rights under the First Amendment [Id. at 60]. Defendant Rosskamm asserts that he is entitled to summary judgment because: (1) the merits of Plaintiff's claim are not justiciable and (2) he is not a “state actor” subject to liability under Section 1983. [See generally #518] The CDOC Defendants separately assert they are entitled to summary judgment because Plaintiff cannot establish that they violated Plaintiff's right to the free exercise of his religion under the First Amendment or placed a substantial burden on his exercise of religion as prohibited by the RLUIPA. [#521 at 26-33] The court addresses Defendant Roskamm's arguments first and then turns to those asserted by the CDOC Defendants.
1. Justiciability
Defendant Roskamm's Motion draws on a line of Supreme Court cases holding that the First Amendment precludes judicial review of proceedings that turn on issues of church administration or religious doctrine. [#518 at 17-21] The Supreme Court in Watson v. Jones articulated as a matter of federal common law the principle, “founded in a broad and sound view of the relations of church and state under our system of laws,” that civil courts are to defer to religious authorities on “questions of [church] discipline, or of faith, or ecclesiastical rule, custom, or law.” 80 U.S. 679, 727 (1871). In Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, the Supreme Court, applying the principles in Watson, held unconstitutional a New York law that recognized the Russian Orthodox Church in the United States as the true owner of church property instead of the Russian Orthodox Church in Russia. 344 U.S. 94, 115-21 (1952). Building on Kedroff, the Court announced in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, that the “[First] Amendment . . . commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine.” 393 U.S. 440, 449 (1969). And in Serbian E. Orthodox Diocese for the United States of America & Canada v. Milivojevich, the Court again announced the general principle that “religious controversies are not the proper subject of civil court inquiry.” 426 U.S. 696, 713 (1976). The application of this ecclesiastical abstention doctrine is fact-specific, and civil courts may adjudicate secular issues that arise in the context of church disputes “when inquiry into religious law and polity is not required.” Kavanagh v. Zwilling, 997 F.Supp.2d 241,249-50 (S.D.N.Y.2014) (quotation omitted).
Defendant has not cited any caselaw applying the ecclesiastical abstention doctrine to a factually analogous case, nor does this Court find any. To the contrary, courts regularly adjudicate such matters. See, e.g., Boles v. Dansdill, 361 Fed.Appx. 15, 17 (10th Cir. 2010) (affirming district court decision to grant the defendants' motion for summary judgment regarding Plaintiff's First Amendment Claim, which alleged in part that the food preparation area in the kitchen was not properly koshered); Hunnicutt v. Peters, No. CV 20-206 MV/CG, 2022 WL 457879, at *8 (D.N.M. Feb. 15, 2022) (considering summary judgment motions regarding Plaintiff's First Amendment and RLUIPA claims alleging deficiencies in a prison's kosher meals, including failure to provide a separate kosher food preparation space and inadequately trained cooks), report and recommendation adopted, No. CV 20-206 MV/CG, 2022 WL 1078216 (D.N.M. Apr. 11, 2022). Moreover, the Court does not need to determine what Jewish dietary law requires, as Plaintiff has failed to submit any admissible evidence to create a genuine issue of material fact that Defendants violated Plaintiff's rights under the First Amendment or the RLUIPA. See infra Sections III(C)(3)-(4).
2. Whether Defendant Rosskamm is a State Actor Under Section 1983
“To state a claim under [Section 1983], a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Private actors are excluded from Section 1983 liability, no matter how discriminatory or wrongful their conduct. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Here, the undisputed evidence shows that Defendant Rosskamm is employed by Scroll K, a private organization. [#518 at 3, RSOF## 4, 11] The question is whether Defendant Rosskamm should nonetheless be considered a state actor.
The Supreme Court has outlined the following four tests to determine whether a private actor should be treated as a state actor for the purposes of Section 1983 liability: “(1) the public function test, (2) the nexus test, (3) the symbiotic relationship test and (4) the joint action test.” Anderson v. Suiters, 499 F.3d 1228, 1233 (10th Cir. 2007). Defendant Rosskamm argues that he is entitled to summary judgment because he is not a “state actor” under any of the four tests. [#518 at 8-17] The Court agrees.
a. Public Function
The public function test consists of determining whether the state has delegated to a private party “a function traditionally exclusively reserved to the States.” Johnson v. Rodrigues, 293 F.3d 1196, 1203 (10th Cir. 2002) (quotation omitted). This is an arduous standard to satisfy because, “[w]hile many functions have been traditionally performed by governments, very few have been exclusively reserved to the State.” Id. (quotation omitted) (noting that the public function test typically implicates private parties who hold elections, perform necessary municipal functions, or run a nursing facility). In West, for example, the Supreme Court held that a private physician employed by the state on a contract basis to provide medical services to state prison inmates acted under color of law when treating the inmates. 487 U.S. at 56-58. The West Court reasoned that because the State had the constitutional obligation to provide inmates with medical care, and the inmates had no alternative but to rely on prison authorities for the treatment of medical needs, the State's delegation of its constitutional obligation to the private doctor “clothed [the doctor] with the authority of state law” in treating inmate patients. Id. at 5455 (quotation omitted). This line of reasoning may apply to religious exercise claims. Kahn v. Barela, No. 15-CV-1151 MV/SMV, 2020 WL 5977930, at *8 (D.N.M. Oct. 8, 2020) (“Just as the state may choose to delegate its constitutional duty to provide medical care, it may also choose to delegate its duties regarding religious exercise.”). But see Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997) (“[A] prison chaplain, even if a full-time state employee, is not a state actor when he engages in inherently ecclesiastical functions (that is, when he performs spiritual duties as a leader in his church)).
Defendant Rosskamm argues he is not a state actor because no state duties were ever delegated to Scroll K and Rabbi Rosskamm and, regardless, the act of determining whether certain food is kosher is an “inherently ecclesiastical function” and not a function “traditionally exclusively reserved to the State.” [#518 at 10-14] The Court agrees. In Florer v. Congregation Pidyon Shevuyim, N.A., a state prison inmate sued private entities operating as contract prison chaplains, complaining that the chaplains denied the inmate's requests for a Torah, a Jewish calendar and a rabbi visit because the chaplains did not consider the inmate to be Jewish. 639 F.3d 916, 919 (9th Cir. 2011). The Florer Court ruled that the plaintiff had failed to show that the defendants were state actors under the public function test. Id. at 924-26. The Florer Court distinguished West, reasoning that the plaintiff had not shown that the state department of corrections had delegated to the defendants its obligation to provide reasonable opportunities to exercise religious freedom. Id. at 925. The Florer Court also indicated that the state did not dictate the defendants' “professional standards” concerning identification of inmates as Jewish. Id. at 925-26 (“To the extent that Defendants refused to provide religious materials or services to Florer and refused to recognize him as Jewish, such determinations were ecclesiastical, not public, functions.”).
Here, the undisputed evidence establishes that the CDOC contracted with Scroll K to provide advice on Jewish dietary laws. [#518 at 3, RSOF#2] “Pursuant to Scroll K's contract with CDOC, Scroll K will conduct inspections of Kosher food preparation areas in various [CDOC] facilities located throughout the state; consult with staff and offenders concerning Kosher diet issues and provide design and operations guidance and general advice to the [CDOC] to ensure satisfactory delivery of Kosher diets within the [CDOC].” [Id. at 4, RSOF#6 (quotation omitted)] Rabbis associated with Scroll K visit CDOC correctional facilities to monitor the kosher program, inspect the kitchens, speak with inmates regarding the kosher program, and then submit their observations and suggestions in a report to the CDOC. [Id., RSOF ## 7, 8] The rabbis inform appropriate food services personnel if they observe errors in the preparation of kosher food and advise how to correct the mistake; they inspect the kosher food supplies and ensure that food that requires it is properly certified; and they confirm that utensils and kitchen accessories used to prepare kosher meals handle only kosher food. [Id., RSOF#9] Neither Scroll K nor Rabbi Rosskamm were responsible for ordering, supplying, or preparing the kosher food served at SCF under the CDOC's contract with Scroll K. [Id. at 5, RSOF#13; #518-1 at 131:5-132:2 (Russell M. Boles Deposition)] Defendant Rosskamm testified that “[i]t is the sole responsibility of CDOC and its staff to implement any recommendations that they deem fit to implement.” [#518-2 at ¶ 9] Defendant Rosskamm also testified that Scroll K has no authority to execute the recommendations offered in the rabbis' reports. [Id. at ¶ 12 (“As a consultant to CDOC, Scroll K, and its employees, has absolutely no supervisory or managerial authority over CDOC employees and inmates. Scroll K, and its employees, do not have any control over any of the operations of CDOC's kosher diet program, whether directly or indirectly. Instead, Scroll K and its employees only provide advice to CDOC regarding the implementation of the kosher diet program. Moreover, Scroll K and any of its employees do not implement in any way the kosher diet program or implement any changes or modifications that Scroll K may recommend.”)
The Court finds that, like in Florer, the record contains no evidence indicating that the CDOC delegated its constitutional duty regarding religious exercise to Rabbi Rosskamm or Scroll K, where it is undisputed that neither Scroll K nor Rabbi Rosskamm were responsible for ordering, supplying, or preparing the kosher food served at SCF and where they also lack the authority to implement their suggestions and recommendations regarding the kosher diet program. In Plaintiff's response, Plaintiff states that the CDOC has somehow exercised “coercive power” over Defendant Rosskam [#572-2 at 16-17], but Plaintiff fails to cite any record evidence or otherwise demonstrate personal knowledge of these suspicions. See Frontrange Solutions USA, Inc. v. Newroad Software, Inc., 505 F.Supp.2d 821, 829-30 (D. Colo. 2007) (finding the plaintiff could not rely on affidavits that are “replete with factually unsupported conclusions, hearsay, statements indicating no personal knowledge at all, and self-serving assertions not corroborated by reference to any record evidence” for purposes of determining genuine questions of material fact precluding summary judgment) (citing Salguero v. City of Clovis, 366 F.3d 1168, 1177 n.4 (10th Cir. 2004)).
Moreover, Plaintiff has not provided any case law or evidence that would suggest that Defendant Rosskamm's responsibilities (i.e., to provide advice on issues relating to Jewish dietary laws) has traditionally been the “exclusive” prerogative of the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (“[T]he relevant question is not simply whether a private group is serving a ‘public function' . . . [but] whether the function performed has been traditionally the exclusive prerogative of the State.” (quotation omitted) (emphasis in original)); see also Florer, 639 F.3d at 927 (“[c]haplains and religious leaders do not automatically become state actors when they provide opinions on matters of dogma in response to inquiries from prison officials”). And courts faced with similar scenarios have concluded that the private actor was not performing a public function. Aragon v. Erlanger, No. 13-cv-01726-RBJ-NYW, 2015 WL 4484383, *7 (D. Colo. 2015), recommendation adopted in part, rejected in part on other grounds, 2015 WL 5731891 (D. Colo. 2015) (finding a rabbi that provided advice to the CDOC on issues relating to Jewish dietary laws was not a state actor under the public function test where “[t]he record contains no evidence indicating that the service provided by Rabbi Erlanger, through his employer Scroll K, was historically a function of the state”); Combs v. Washington State, No. C12-5280 RBL, 2014 WL 4293960, at *13 (W.D. Wash. Aug. 29, 2014) (dismissing civil rights claims against volunteer prison chaplain whose “only involvement was providing ecclesiastical advice about Jewish-related matters, including kosher dietary standards,” and was therefore not a “state actor”), aff'd, 660 Fed.Appx. 515 (9th Cir. 2016); cf. Shilling v. Crawford, No. 2:05 0889 PMP GWF, 2006 WL 1663827, at *1, 5 (D. Nev. June 12, 2006) (contractor for the Washington Department of Corrections for services on essential Jewish practices who provided advice on whether the plaintiff should be considered Jewish was performing ecclesiastical services and was not a state actor). For these reasons, the Court finds that Defendant Rosskamm is not a state actor under the public function test.
b. Nexus
Pursuant to the nexus test, Plaintiff must demonstrate that “there is a sufficiently close nexus between the government and the challenged conduct such that the conduct may be fairly treated as that of the State itself.” Johnson, 293 F.3d at 1203 (quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1448 (10th Cir. 1995)) (internal quotation marks omitted). Under this approach, “a state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Id.
Plaintiff alleges that the CDOC has exercised coercive power over Defendant Rosskamm [#572-2 at 17], but there is no evidence in the record demonstrating that the CDOC contributed in any way to Defendant Rosskamm's reports, incentivized him, exercised coercive power over Defendant Rosskamm or encouraged him to take specific action. Plaintiff's allegations of coercion are merely conclusory and made without personal knowledge, and are therefore insufficient to show a genuine issue of fact. [#572-2 at 17 (“Enforcing AR 1550-15 puts Defendant Rosskamm in the position of having to approve all of CDOC's bulk foods as though they were kosher.... Defendant Rosskamm's involvement with State CDOC is a nexus to the challenged conduct that makes him a state actor.”); See Frontrange Solutions, 505 F.Supp.2d at 830-31. For these reasons, the Court finds that Defendant Rosskamm is not a state actor under the nexus test. Aragon, 2015 WL 4484383, at *7 (D. Colo. 2015) (finding a rabbi that provided advice to the CDOC on issues relating to Jewish dietary laws was not a state actor under the nexus test).
c. Symbiotic Relationship
Under the “symbiotic relationship test,” the state must have “so far insinuated itself into a position of interdependence with a private party that it must be recognized as a joint participant in the challenged activity.” Johnson, 293 F.3d at 1204 (quoting Gallagher, 49 F.3d at 1451) (internal quotation marks omitted). “As noted above, CDOC and Scroll K are involved in a standard contractual relationship that extends no further than consultation services and surprise inspections of the kosher kitchen at [SCF].” Aragon, 2015 WL 4484383, at *8 (finding a rabbi that provided advice to the CDOC on issues relating to Jewish dietary laws was not a state actor under the symbiotic relationship test); see also Gallagher, 49 F.3d at 1453 (“Payments under government contracts and the receipt of government grants and tax benefits are insufficient to establish a symbiotic relationship between the government and a private entity.”). There is no evidentiary support indicating that the CDOC has “insinuated itself into a position of long-term interdependence” with either Rabbi Rosskamm or Scroll K. Johnson, 293 F.3d at 120405 (defining “symbiosis” as “the living together in more or less intimate association or even close union of two dissimilar organisms” or “the intimate living together of two dissimilar organisms in any of various mutually beneficial relationships; mutual cooperation between persons and groups in a society especially when ecological interdependence is involved”). For this reason, the Court finds that Defendant Rosskamm is not a state actor under the symbiotic relationship test.
d. Joint Action
The “joint action” test asks whether the state and the private party have “acted in concert in effecting a particular deprivation of constitutional rights,” and whether the private party was “a willful participant in joint action with the State or its agents.” Gallagher, 49 F.3d at 1453 (quotation omitted). Concerted action may be found where “there is a substantial degree of cooperative action between state and private officials” or if there is “overt and significant state participation” in the deprivation of a plaintiff's constitutional rights. Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1157 (10th Cir. 2016) (quotation omitted). And “[u]nder this approach, state and private entities must share a specific goal to violate the plaintiff's constitutional rights by engaging in a particular course of action.” Gallagher, 49 F.3d at 1455. Private action taken “with the mere approval or acquiescence of the State is not state action.” Wittner v. Banner Health, 720 F.3d 770, 777 (10th Cir. 2013) (quotation omitted).
Here, there is no evidence of joint action to violate Plaintiff's constitutional rights. Defendant Rosskamm provided inspections of the facility and consultation services related to Jewish dietary law. Nothing in the record suggests that CDOC employees participated in those inspections or helped prepare Rabbi Rosskamm's reports submitted to the CDOC. Moreover, Defendant Rosskamm testified that Scroll K has no authority to execute the recommendations offered in the rabbis' reports. [Id. at ¶ 12] And, as set forth in detail below, Plaintiff has failed to submit evidence that the state officials violated (or conspired or intended to violate) Plaintiff's constitutional rights with respect to his kosher diet. See supra Sections III(C)(3)-(4). Thus, for these reasons, the Court finds that Defendant Rosskamm is not a state actor under the joint action test.
Indeed, for the reasons outlined in Sections III(C)(3)-(4), the Court believes that Plaintiff has failed to present evidence of a constitutional violation. Had Defendant Rosskamm argued that point, the Court could have avoided the much more nuanced question of whether or not Defendant Rosskamm was a state actor. But, because he did not, the Court has engaged in the state actor analysis set forth herein.
e. Conclusion
For the reasons outlined above, the Court concludes that Plaintiff has failed to create a genuine issue of material fact with respect to Defendant Rosskamm's status as a state actor. Accordingly, the Court respectfully RECOMMENDS that Defendant Rosskamm's Motion for Summary Judgment be GRANTED.
3. First Amendment Claim
Plaintiff alleges that, based upon alleged deficiencies in Plaintiff's kosher diet at SCF, Defendants CDOC and Crockett have infringed Plaintiff's rights under the First Amendment. [#243 at 60] The CDOC Defendants assert they are entitled to summary judgment because Plaintiff cannot establish that they violated Plaintiff's right to the free exercise of his religion under the First Amendment's Free Exercise Clause. [#521 at 2932] The Court agrees.
“Inmates clearly retain protections afforded by the First Amendment, . . . including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). The Tenth Circuit has recognized “that prisoners have a constitutional right to a diet conforming to their religious beliefs.” Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (discussing kosher diet under the First Amendment); see also Abdulhaseeb, 600 F.3d at 1312-13 (discussing halal diet under the RLUIPA). The burden is on Plaintiff to prove that the Defendants' conduct was unconstitutional. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
In order to allege a constitutional violation based on the Free Exercise Clause, a prisoner must allege that a prison regulation substantially burdened his sincerely-held religious beliefs. Williams v. Wilkinson, 645 Fed.Appx. 692, 704 (10th Cir. 2016) (citing Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)). Here, the CDOC Defendants do not challenge the sufficiency of Plaintiff's allegations with regard to his sincerely-held belief to maintain a kosher diet; rather the CDOC Defendants argue that Plaintiff has failed to identify a prison regulation which substantially burdens his religious exercise. [#521 at 31] The Tenth Circuit has defined “substantial burden,” for purposes of both the RLUIPA and the Free Exercise Clause, as:
when (at the very least) the government (1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief, (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or (3) places considerable pressure on the plaintiff to
violate a sincerely held religious belief-for example, by presenting an illusory or Hobson's choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise.Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014); see also Blair v. Raemisch, 804 Fed.Appx. 909, 918 (10th Cir. 2020) (applying the Yellowbear substantial burden test to a First Amendment claim). With regard to the third category, the Tenth Circuit explained that “a burden can be ‘substantial' even if it does not compel or order the claimant to betray a sincerely held religious belief” but instead “[i]t is enough that the claimant is presented with a choice in which he faces considerable pressure to abandon the religious exercise at issue.” Yellowbear, 741 F.3d at 55. Plaintiff argues Defendants substantially burdened his sincerely-held religious beliefs by serving him a kosher diet that is not: (1) nutritionally adequate or (2) actually kosher. [#243 at 55-56] The Court addresses these allegations in turn.
a. Nutritional Adequacy
Plaintiff provides the following allegations in support of the contention that the kosher diet he receives is nutritionally inadequate: the food served is “currently 90% highly processed ‘food-like substances'” [##116 at 10; 572-2 at 2]; “[m]odern science advocates for nutrient dense foods (emphasis on root vegetable and greens) and light on carbohydrates[, but] [t]he CDOC provides ‘only' carbohydrate dense and nutrient depleted foods” [#572-2 at 9]; “[w]hile CDOC diets may contain many essential nutrients, most cannot be assimilated in the human body from the kinds and combinations of food being served” [#583 at 7]; “[t]here are no edible hot foods in the fake kosher diet” [id.]; “there is no variety in the fake kosher diet” [id.]; “[m]uch of the time, the fake kosher diet does not even meet CDOC guidelines or Colorado food health and safety laws” [id.]; and at one time “central purchasing [supplied] only rotten produce” [id. at 21]. As the Court understands it, Plaintiff is arguing that the Kosher diet provided by Defendants requires him to choose between practicing his religion and eating a healthy diet. [#572-2 at 9 (“[Plaintiff] transgresses against Hashem (God) every time he eats, resulting in significant damage to his soul, as well as his physical health.... Jewish standards and modern nutritional standards is mandated as established law in this circuit.”)]
Although “every single presentation of a meal an inmate considers impermissible” does not impose a substantial burden, “as the frequency of presenting unacceptable foods increases, at some point the situation would rise to the level of a substantial burden.” Abdulhaseeb, 600 F.3d at 1321. At one end of the spectrum, the Tenth Circuit has noted that “the option to eat only bread presents as much of a Hobson's choice as the option not to eat at all.” Khan v. Barela, 808 Fed.Appx. 602, 615 n.13 (10th Cir. 2020). On the other hand, “non-preferred or occasionally unsatisfactory items in a meal” that do not “completely den[y] an edible meal to the prisoner” do not create a substantial burden. Strope v. Cummings, 381 Fed.Appx. 878, 882 (10th Cir. 2010). Allegations that only challenge “the variety, quality, and rotation of meals” do not support a claim of a substantial burden. Blair v. Raemisch, 804 Fed.Appx. 909, 918, n.12 (10th Cir. 2020)
To the extent that Plaintiff argues that being served, on occasion, rotten produce, and/or being served a monotonous diet constitutes a substantial burden on his ability to practice his religion, Plaintiff's argument is unpersuasive. The Tenth Circuit has found in a similar case that, where “kosher meals were less varied than the regular meals, had [less] seasonal fruits and vegetables, included . . . even rotten items on occasion, and entirely lacked certain items found on the regular menu[,]” the prisoner's First Amendment rights to exercise his religion were not substantially burdened. Strope, 381 Fed.Appx. at 880-82 (internal quotations omitted).
In response to Plaintiff's allegations regarding the nutrient density and quality of the kosher diet more broadly, Defendants have submitted the declaration of CDOC clinical dietician, Karen Perkins. [#521 at 28 (citing #521-10)] Ms. Perkins' responsibilities include “analyzing the master menu, recipes and specialized menus for compliance with nutritional standards.” [#521-10 at ¶ 3] Ms. Perkins testified that CDOC Dieticians use a computer program called “ESHA” which tracks the nutritional values of all the food CDOC serves, and if a diet is within 66% of the recommended value, it is considered nutritionally adequate. [Id. at ¶¶ 8-9] Ms. Perkins testified that the ESHA analysis performed on the kosher diet CDOC serves confirms that the diet is nutritionally adequate. [Id. at ¶ 9] The kosher menu is also reviewed annually by dieticians, and it “offers a variety of foods, including fruit juice, fresh or canned fruits, grits, potatoes, eggs, poultry, cheese, fish, beef, peanut butter, beans, a variety of vegetables, margarine, oil, and vinegar, milk, etc.” [Id. at ¶¶ 6-7]
Plaintiff has not offered any direct evidence that the kosher food is nutritionally inadequate. [See generally ##572-2; 583] Instead Plaintiff relies on conclusory assertions. [See, e.g., #572-2 at 2 (stating, without citing the record, “90 percent of the food in the meals [Plaintiff] receives is highly processed that are not actually kosher”)] Plaintiff does not cite any legal authority to support a finding that a diet containing more carbohydrates than recommended and/or containing a high percentage of processed foods is constitutionally defective, and the Court is not aware of any. Plaintiff also does not adequately allege any specific dates or instances to support these allegations. While Plaintiff does cite several grievances, these grievances allege the same conclusory allegations without specific supporting facts. [See, e.g., 521-3 at 6, Offender Grievance (“it is illegal to force me to eat food that is not only not safe to eat due to bad handling but also does not meet religious requirements”] And while the Court must view the evidence and draw all inferences in the light most favorable to the party opposing summary judgment, general averments do not necessarily contain the specific facts needed to sustain a claim. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990) (“In ruling upon a Rule 56 motion, a District Court must resolve any factual issues of controversy in favor of the non-moving party, only in the sense that, where the facts specifically averred by [the non-moving party] contradict facts specifically averred by the movant,” must the motion be denied. (quotation omitted)); Boles v. Dansdill, No. 05-cv-01661-LTB-CBS, 2009 WL 137171, at *7 (D. Colo. Jan. 21, 2009) (“Mr. Boles' grievances present only conclusory allegations without specific supporting facts and are not sufficient to create a genuine issue of material fact.”), report and recommendation adopted, 2009 WL 799415 (D. Colo. Mar. 23, 2009), aff'd, 361 Fed.Appx. 15 (10th Cir. 2010). Plaintiff's allegations of nutritionally inadequate food are merely general averments stating conclusory allegations that are insufficient to withstand Defendants' motion for summary judgment. Abdulhaseeb, 600 F.3d at 1321 (“The purpose of a summary judgment motion . . . is to determine whether there is evidence to support a party's factual claims” and “[u]nsupported conclusory allegations . . . do not create a genuine issue of fact.”).
b. Kosher
Plaintiff provides the following allegations in support of the contention that the Kosher diet he receives is not adequately Kosher: “[t]here is no Jewish person present with inmates that pre[pare] . . . [the] kosher meals, though required by Jewish law” [##116 at 10-11; 572-2 at 3]; “[t]he designated room (alleged Kosher room) in CDOC kitchens . . . all are owned, controlled and operated (including equipment) by exclusively Gentiles which makes all of it no different than any other part of those kitchens” [#572-2 at 7]; “[n]o one knows how to clean to kosher standards” [##116 at 10; 572-2 at 3]; the milk used in the kosher diet is not actually kosher [##116 at 10; 572-2 at 2]; and “all of the food is tainted by a preparation process that violates Plaintiff's religious beliefs” [#572-2 at 2].
In support of the contention that SCF provided an appropriate kosher program, the CDOC Defendants argue they “have spent significant resources trying to accommodate Jewish inmates by creating policies, training employees, and contracting with experts to ensure kosher diets are available to those who request them.” [#521 at 32; see id. at 28] And the undisputed facts support this argument. The CDOC provides a kosher diet for its Jewish inmates. [## 521-7, AR 1550-15; #521-9 at ¶ 5, Declaration of Charleen Crockett] Plaintiff is enrolled in the CDOC kosher diet. [#521 at 5, CSOF#24] The CDOC educates its staff on the importance of maintaining kosher rules. [#521-13, CDOC Kosher Meal Program Guidelines] The CDOC trains its employees who work in the kitchens to understand kosher rules. [#521 at 6, CSOF#36] The CDOC contracts with Scroll K to ensure that the food it serves receives proper kosher vetting. [#521-9 at ¶ 6; #521-12, Personal Service Agreement for Scroll K] And pursuant to Scroll K's contract with the CDOC, Scroll K will “conduct inspections of Kosher food preparation areas in various [CDOC] facilities located throughout the state [and] consult with staff and offenders concerning Kosher diet issues and provide design and operations guidance and general advice to the [CDOC] to ensure satisfactory delivery of Kosher diets within the [CDOC].” [#521-12 at 16]
Defendants have also submitted the declaration of CDOC Food Service and Laundry Program Administrator, Defendant Crockett. [#521-9] In that role, Defendant Crockett supervises inmates in the kitchen at various correctional facilities to maintain food safety, cleanliness, and budget management. [#521-9 at ¶ 2] Defendant Crockett also established policies and procedures regarding food service, managed the food service budget, communicated and trained food service staff at various facilities, and ensured that food service programs are running smoothly throughout the state. [#521-9 at ¶ 3] Defendant Crockett worked with Defendant Rabbi Rosskamm to put together training materials for CDOC facilities handling kosher food. [#521-9 at ¶¶ 8-9] Defendant Crockett testified that “each facility's kitchen has a designated area where only kosher food may be prepared. In those areas, we have set up cameras so Rabbi Rosskamm can view and ensure that kosher food is being prepared properly and correct any errors if they occur.” [#521-9 at ¶ 11] Defendant Crockett also testified that “[her] department annually reviews the kosher diet (and all other CDOC diets) to ensure that the diets meet our standards and to try to increase the variety of the diets.” [#521-9 at ¶ 13]
Here, similarly, while Plaintiff generally complains that his food was not properly prepared to meet kosher standards, he does not adequately allege specific dates or instances. [See, e.g., #583 at 8 (“Workers who prepare kosher (fake) meals have to wing it with a little learning by osmosis because they do not receive any training from CDOC personnel - who themselves are not trained in how to prepare kosher food or kosher meals - or Rabbis either.”)] In the response to the Motion, Plaintiff cites several grievances, but these grievances allege the same conclusory allegations without specific supporting facts. [See, e.g., #595-2 at 10 (“What ever problem they have with kosher meals is their problem not mine. If they make it my problem they are not doing their jobs. Any time my meal is not ready, complete, and correct when I get there, it is the same as refusing to feed me.”); id. at 12 (“The whole of kitchen employees are incompetent. Reason is no food service training. Seems reasonable that they should if food service is going to be part of their jobs, but they don't. As a result I frequently do not get food correctly. It has been a problem the whole time I have been here.”)] Plaintiff's unsupported allegations regarding improper food preparation are merely general averments stating conclusory allegations that are insufficient to withstand Defendants' motion for summary judgment. See Lujan, 497 U.S. at 888.
Accordingly, the Court respectfully RECOMMENDS that the CDOC Defendants' Motion for Summary Judgment be GRANTED to the extent that it seeks summary judgment on Plaintiff's First Amendment claim.
4. RLUIPA
The RLUIPA prohibits the government from “impos[ing] 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 in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). To state a claim under the RLUIPA, a plaintiff must allege that he or she “wishes to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise (3) is subject to a substantial burden imposed by the government.” Abdulhaseeb, 600 F.3d at 1312. The CDOC Defendants challenge only the third element-whether Plaintiff has alleged that his religious exercise has been substantially burdened by the government. [#521 at 2728]
As set forth above, the government substantially burdens an individual's religious exercise if it requires a plaintiff to participate in an activity prohibited by a sincere religious belief, prevents the plaintiff from participating in an activity motivated by a sincere religious belief, or places considerable pressure on the plaintiff to violate a sincere religious belief. Yellowbear, 741 F.3d at 55. “To determine whether plaintiff has made an initial showing of a substantial burden on religious exercise, courts use the same test under the First Amendment as is used under RLUIPA.” Orwig v. Williams, No. 16-CV-00781-PAB-SKC, 2019 WL 4751775, at *8 (D. Colo. Sept. 30, 2019); see also Strope, 381 Fed.Appx. at 881 (“While the analysis under [the First Amendment and RLUIPA] differs in some respects, the principle dispositive here is the same: [the plaintiff] must show that defendants' conduct imposed a substantial burden on his religious practice.” (emphasis omitted)); Gonzalez v. Joey, No. CV 12-834 RB/GBW, 2016 WL 10587952, at *8 (D.N.M. Mar. 2, 2016) (“The required preliminary showing under RLUIPA is identical to that of the free exercise clause: that the restriction substantially burdened Plaintiff's sincerely held religious beliefs”), report and recommendation adopted, No. CV 12-834 RB/GBW, 2016 WL 10587953 (D.N.M. Mar. 25, 2016).
The Court finds, for the same reasons discussed above, that Plaintiff's general averments regarding the CDOC kosher diet do not create a genuine issue of material fact that the CDOC Defendants substantially burdened Plaintiff's sincerely held religious beliefs. See supra section nI(C)(3). Accordingly, this Court RECOMMENDS that the CDOC Defendants' Motion for Summary Judgment be GRANTED to the extent that it seeks summary judgment on Plaintiff's RLUIPA claim.
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Motions for Summary Judgment [## 518; 521] be GRANTED.
Within twenty-eight days after service of a copy of this Recommendation [#616], any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).