Opinion
C. A. 4:21-0670-TMC-TER
12-06-2022
DEMETRIUS ALEXANDER BROWN, PLAINTIFF, v. MAJ. CHANAE LUMPKIN, CAPT. BLANDING, STAFF SGT. RICHARDSON, AND MISS. WHITE Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed pro se by Demetrius Alexander Brown (“Plaintiff”/ “Brown”) on March 8, 2021. Plaintiff filed an amended complaint on April 5, 2021. This matter is currently before the court on the motion for summary judgment filed by Defendant White. (ECF No.113).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
Summary judgment was granted for Defendants Lumpkin, Blanding, and Richardson and they were dismissed as parties to this case on August 10, 2022. (ECF No. 118).
As the Plaintiff is proceeding pro se, the court issued an order on or about July 12, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response in opposition on July 29, 2022. (ECF No. 117).
INTRODUCTION
Plaintiff was a pre-trial detainee at the SLDC. He alleges that Defendant White (White), food manager for Trinity Food Services which provides food services to SLDC, violated his right to freedom of religion under the First Amendment and rights under the Fourteenth Amendment by denying him holiday meals for his religious feast days and denying him his ten-day fast for Hajj as required by his Islamic faith.
The Court previously dismissed Plaintiff's RLUIPA claim against White.
White asserts that Plaintiff's claims fail because he fails to show she acted with “conscious and intentional interference” with his free exercise rights, that there is no respondeat superior liability under §1983, and Plaintiff fails to show the acts of which he complains are attributable to White.
FACTS
Plaintiff was at all pertinent times a pre-trial detainee at SLDC. Plaintiff is an adherent to the Islamic faith. According to Plaintiff, in accordance with his Islamic faith, because he was unable to complete the Hajj pilgrimage, the Quran states that he should perform a ten-day period of fasting. Also, he asserts that his religion requires obligatory feast day meals for EID ADHA and EID FITR. Plaintiff asserts that he informed a Lt. Shirah of these requests and that the requests were relayed to White, the food services supervisor. He further asserts that Lt. Shirah informed him of White's responses which were that she would not grant his request for a ten-day fasting and would allow an extra piece of chicken for EID FITR and an extra dinner tray for EID-AHDA.
Defendant does not challenge whether or not fasting for Hajj invokes a substantial burden on Plaintiff's religion.
In his Amended Complaint, Plaintiff declares that the requests were made to Lt. Shirah who relayed the information to White (ECF No. 10 at 15-16 of 25). In response to interrogatories, Plaintiff responded that he spoke to Lt, Shirah and Lt. Sweat who said they relayed his requests for holiday meals to “food service per chain of command policy.” (ECF No. 113-2 at 5 of 5, Interrogatory 13). In response to White's motion for summary judgment, Plaintiff indicates his communications were with Lt. Shirah who informed Plaintiff that White was notified of his requests. (ECF No. 117 at 4).
Plaintiff avers that special meals are provided in the facility for Christian holidays of Christmas and Easter, as well as for Thanksgiving and New Years holidays. Specifically, he asserts that turkey is served on Thanksgiving and roast beef is served on Christmas and New Years.
Although he did not communicate what particular foods he should have been served on the two feast days, he asserts White could have contacted numerous other facilities in South Carolina or googled an inquiry to determine what special food should be served to Plaintiff on the two feast holidays.
Defendant presents Plaintiff's responses to interrogatories (ECF No. 113-2) and White's declaration (ECF No. 113-3). In her declaration, White declares that she is employed by Trinity Food Services as the food service manager at SLDC. (Id.). She has no recollection of any conversation with Plaintiff about his religious beliefs and fasting or what type of food he should consume on any feast holidays. (Id.). She does recall communicating with prison staff members about these issues. (Id.). She continues to be unaware of what, if any, food items Plaintiff's faith requires for feast holidays and it was her understanding that Plaintiff needed extra food on the feast days but no specific food items for fasting. (Id.). She declares for fasting holidays for all prisoners, the prison kitchen would provide trays to guards who would then deliver the meals. (Id.). For Plaintiff, they would have a breakfast tray delivered to the guards for heating and delivery before sunrise and a lunch and a dinner tray delivered after sundown. (Id.).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party 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). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
DISCUSSION
Plaintiff argues that his rights under the Free Exercise Clause of the First Amendment were violated by White by denying his request for fasting and for feast meals for EID ADHA and EID FITR. Further, he argues that his Equal Protection rights were violated when White refused to provide him special meals on the two feast days like similarly situated inmates who received special meals on Thanksgiving, Christmas, New Years, and Easter.
First Amendment
Under the First Amendment, inmates clearly retain the right to free exercise of religion in prison. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). The Free Exercise Clause of the First Amendment prohibits the adoption of laws designed to suppress religious beliefs or practices. See Morrison v. Garraghty, 239 F.3d 648, 656 (4th Cir.2001). To state an actionable violation under the Free Exercise Clause, a plaintiff must show both that he has a sincerely held religious belief and that the defendant's actions substantially burdened his religious freedom or expression. See Wilcox v. Brown, 877 F.3d 161, 168 (4th Cir. 2017); Lovelace v. Lee, 472 F.3d 174, 185 (4th Cir. 2006). “... [A] ‘substantial burden' is one that ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,' ... or one that forces a person to ‘choose between following the precepts of [his] religion and forfeiting [governmental] benefits, on the one hand, and abandoning one of the precepts of [his] religion ... on the other hand.' ” Lovelace, 472 F.3d at 187 (internal citations omitted).
The Defendant does not dispute that Plaintiff has a sincerely held religious belief in Islam.
The United States Supreme Court has held that prisoners retain their First Amendment rights, including the right to free exercise of religion. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). This includes the “right to a diet consistent with [the inmate's] ... religious scruples.” Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). A prison official violates this right if he intentionally, and without adequate justification, denies an inmate a diet that is religiously mandated. Lovelace v. Lee, 472 F.3d 124, 199 (4th Cir. 2006). “[Restrictions that are reasonably related to the achievement of a legitimate penological objective are permissible even if the policy substantially burdens a prisoner's religious practice.” Gardner v. Janson, No. 5:19-cv-2616-CMC, 2021 WL 4472800, at *7 (D.S.C. Sept. 30, 2021).
Regarding extra food not adhering to his religious requirement for feast days, Plaintiff fails to show she knew this did not satisfy his religious requirements. Thus, Plaintiff fails to show any intentional action on Defendant White's part and at most has shown or alleged negligence. See Jenkins v. Food Serv. Adm'r, No. CV 1:21-557-HMH-SVH, 2021 WL 3859949, at *8 (D.S.C. Aug. 27, 2021), report and recommendation adopted, No. CV12100557HMHSVH, 2021 WL 4306241 (D.S.C. Sept. 22, 2021)(At most, Plaintiff's claims constitute a claim of negligence which is not actionable under the First Amendment or the RFRA). See, e.g., Lovelace, 472 F.3d at 194, 201 (finding that “negligence ... does not suffice to meet the fault requirement under section 3 of RLUIPA” and “negligent acts by officials causing unintended denials of religious rights do not violate the Free Exercise Clause”); see also, e.g., Damon v. United States C/A No. 1:15-02216 2016 WL 11268516 at *1 n.3 (S.D.W. Va. May 11, 2016) (“Negligent acts by prison officials causing an unintended denial of religious rights does not violate the Free Exercise Clause or Religious Freedom Restoration Act”), report and recommendation adopted, C/A No. 1:15-02216, 2017 WL 912113 (S.D. W.Va. Mar. 7, 2017); see also Jamison v. Bamberg, 2012 WL 7656426 at *6 (D.S.C. 2012) (“Even if the [food service] defendants initially erred...by providing him with ‘bacon grits' and an incorrect type of bread, such error at most constitutes negligence, which does not give rise to the level of a constitutional claim”).
With regard to denying his request for the ten-day fast, Plaintiff presents his own statements of what Lt. Shirah said White said. Defendant asserts that Plaintiff has failed to forecast admissible evidence. The undersigned agrees that Plaintiff has failed to forecast competent evidence to create a genuine issue of material fact. Only statements supported by citation to competent testimony need be considered by the court in deciding summary judgment. See Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *4 (D.S.C. Jan. 7, 2021) (finding “self-serving hearsay claim” did not create material question of fact sufficient to survive summary judgment; citing Farrar & Farrar Farms v. Miller-St. Nazianz, Inc., 477 Fed.Appx. 981, 986 (4th Cir. 2012)); Md. Highways Contractors Ass'n v. State of Md., 933 F.2d 1246, 1251 (4th Cir. 1991) (“[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment.”); Hubbard v. Stirling, No. 819CV01314SALJDA, 2020 WL 6276535, at *7 (D.S.C. Mar. 16, 2020), report and recommendation adopted, No. 8:19-CV-01314-SAL, 2020 WL 5249231 (D.S.C. Sept. 3, 2020) (Nonetheless, the Court notes that Plaintiff's response largely consists of factual assertions that are unsupported by any citation to any forecasted admissible evidence and thus are of no help to Plaintiff in avoiding summary judgment); Greensboro Profl Fire Fighters Ass'n v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.1995) (“[E]vidence [that] consists of inadmissible hearsay ... is neither admissible at trial nor supportive of an opposition to a motion for summary judgment.”). Therefore, it is recommended that summary judgment be granted with respect to this claim.
Equal Protection
An equal protection claim arises when, without adequate justification, similarly-situated persons are treated differently by a governmental entity. U.S. Const. amend XIV. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause thus directs that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1982). To establish an equal protection violation, a plaintiff “must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination”; once this showing is made, “the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Veney v. Wyche, 293 F.3d 726, 730-31 (4th Cir. 2002) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). To succeed on an equal protection claim, a plaintiff must set forth “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003). Individuals are similarly situated for Equal Protection purposes if they are “in all relevant respects alike.” Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)). For a plaintiff to demonstrate that she is “similarly situated,” her evidence “must show an extremely high degree of similarity between [herself] and the persons to whom [she] compare[s]” herself. Willis v. Town of Marshall, N. Carolina, 275 Fed.Appx. 227, 233 (4th Cir. 2008) citing Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006).
In its order of March 2, 2022, the District Judge denied Defendant's motion to dismiss Plaintiff's equal protection claim. In its motion for summary judgment, Defendant argues that Plaintiff fails to show White intentionally and consciously violated his equal protection rights because she had no direct communications with Plaintiff and she was never informed that providing “extra” food did not satisfy his religious requirements. In his response to White's motion, Plaintiff argues that others similarly situated were provided special meals on holidays and she could have contacted other facilities in South Carolina about what they were providing on Islamic feast days.
Again, Plaintiff fails to forecast admissible evidence that White was informed of any particular request. He submits his statements of what Lt. Shirah said. Further he fails to show that White did not know that providing extra food for his feast days did not adhere to his request. Additionally, it is Plaintiff's burden to show he was treated differently from others similarly situated. Two of the four holidays he presents for comparative purposes are not based on religion. Additionally, he fails to show that the two religious holidays- Christmas and Easter-have a religious mandate for particular food. Therefore, Plaintiff has not shown conscious and intentional discrimination or that he was treated differently from others similarly situated, and it is recommended that summary judgment be granted with respect to the equal protection claim.
Plaintiff appears to present comparators who were served food facility-wide on certain holidays where he is requesting food on certain holidays not served facility-wide on those days. This does not present similarly situated comparators.
CONCLUSION
Based on the above reasoning, it is recommended that Defendant's motion for summary judgment (ECF No.113) be granted. Further, based on the above reasoning, it is recommended that Plaintiff's motion for summary judgment (ECF No. 84) be denied.
The parties' attention is directed to the important notice on the next page.