Opinion
2:18-CV-01160-MJH
11-16-2021
RICARDO NOBLE, Plaintiff, v. JOHN WETZEL, SECRETARY OF PA D.O.C.; ROBERT GILMORE, SCI GREENE SUPERINTENDENT; STEVE LONGSTRETH; Defendants,
RICARDO NOBLE (via U.S. First Class Mail) Scott A. Bradley, Esq. Office of the Attorney General (via ECF electronic notification)
RICARDO NOBLE
(via U.S. First Class Mail)
Scott A. Bradley, Esq.
Office of the Attorney General
(via ECF electronic notification)
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. Recommendation
This prisoner civil rights action was initiated in this court on August 31, 2018, by pro se Plaintiff Ricardo Noble, who was then incarcerated at SCI Greene, against numerous defendants and asserting numerous claims. At this juncture, the remaining Defendants are John Wetzel, Secretary of the Department of Corrections; Robert Gilmore, superintendent of SCI Greene; and Stephen Longstreth, SCI Greene Restricted Housing Unit (“RHU”) Manager. The remaining claims against these Defendants are three claims asserted pursuant to 42 U.S.C. § 1983: a conspiracy claim; an Eighth Amendment conditions of confinement claim; and a First Amendment/Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 claim. This court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. §§ 1331 and 1367.
Presently before the court is a motion for summary judgment filed by all Defendants as to all claims (ECF No. 193). For the reasons that follow, it is respectfully recommended that Defendants' motion be granted.
II. Report
A. Factual and Procedural History
The events giving rise to this civil action occurred while Plaintiff was incarcerated at SCI Greene. “Plaintiff is a sincere adherent of the Nation of Gods and Earths (‘NGE'), commonly called, ‘The 5%. [(also referred to as ‘NGE(5%)')]'” Pl.'s Br. (ECF No. 214) at 1. According to records from the Department of Corrections, Plaintiff has been confined in the RHU “roughly” from 2001 to 2013. Defs.' Concise Statement of Material Facts (“CSF”) (ECF No. 195) at ¶ 5.In March 2013, Plaintiff was removed from the RHU and housed in the general population. On August 8, 2014, “Plaintiff violently assaulted Unit Manager Michael Ivan with a ‘combination lock in a sock.' Plaintiff struck Mr. Ivan numerous times in the head and neck area, stating during the assault, ‘I'm gonna (sic) kill this mother fucker.'” Id. at ¶ 16. Plaintiff was sentenced to 450 days of disciplinary custody. Id. On October 22, 2014, it was recommended that Plaintiff be placed on the Restrictive Release List (“RRL”) due to his history of “3 assaults on staff and 2 assaults on inmates which has resulted in both the inmates and staff needing outside hospital treatment.” Id. at ¶ 18. Assaults that occurred in 2003 and 2006 “were believed to have been gang related and resulted in a separation from the institution where Plaintiff was housed.” Id. at ¶ 19. Plaintiff was placed on the RRL in 2015 due to all of these incidents. Id. at ¶ 23.
By way of background, in 1992, when Plaintiff was 16 years old, he was convicted of, inter alia, second-degree murder. He was sentenced to a mandatory term of incarceration of life without parole (“LWOP”). The incident giving rise to his conviction occurred when Plaintiff was 15 years old. FAC (ECF No. 53) at ¶ 3. In 2012, in Miller v. Alabama, 567 U.S. 460 (2012), the United States Supreme Court held that a “mandatory [sentence of] life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments.” Id. at 465 (internal quotation marks omitted). Thus, after a hearing, on January 29, 2018, Plaintiff's sentence was modified to a minimum term of forty years to a maximum term of life imprisonment, which is the term he is currently serving.
These facts are not disputed by Plaintiff unless otherwise noted. With respect to Plaintiff's being housed in the RHU, it is Plaintiff's contention that RHU is solitary confinement, and he was housed in the RHU for short durations of time in 2001, then again from 2003 to 2005, then again from 2006 to 2013. Pl.'s CSF (ECF No. 215) at ¶ 5.
According to Defendants, Plaintiff was removed from the RHU on March 20, 2013. Defs.' CSF (ECF No. 195) at ¶ 6. According to Plaintiff, he was removed from the RHU on March 19, 2013. Pl.'s CSF (ECF No. 215) at ¶ 6.
Plaintiff denies the facts underlying the incident and the threat attributed to him. Pl.'s CSF (ECF No. 215) at ¶ 16.
The RRL is a list of prisoners who are restricted from being released into the general population for an indefinite period of time. Plaintiff denies the underlying facts of the assaults. Pl.'s CSF (ECF No. 215) at ¶ 18.
Plaintiff denies that these incidents were gang related. Pl.'s CSF (ECF No. 215) at ¶ 19.
Plaintiff acknowledges he was placed on the RRL, but as will be discussed infra, claims it was due to his “false [Security Threat Group (“STG”)] classification.” Pl.'s CSF (ECF No. 215) at ¶ 23.
In 2018, Plaintiff was transferred to the Erie County Jail for his Miller, supra, resentencing hearing. During preparation for that hearing, on January 25, 2018, Plaintiff received a copy of the Commonwealth's sentencing memorandum, which included an Integrated Case Summary (“ICS”). On that form, Plaintiff claims that he had been classified falsely “as a member of a Security Threat Group (‘STG') because he is NGE.” Pl.'s Br. (ECF No. 214) at 2. Plaintiff asserts that NGE is not a designated STG per the Department of Corrections, yet this classification has been used to “keep Plaintiff in solitary confinement for excessive/unreasonable amounts of time in past and present, and to confiscate/ban NGE(5%) material.” Id. at 2-3.
Intelligence Lieutenant Eric Stickles, a Department of Corrections employee at SCI Greene, submitted an affidavit regarding STGs. Stickles's duties include monitoring inmate activities and information regarding STGs. According to Stickles, “STG tracking is often used to monitor small groups with an institution, or group of institutions, who are known to cause disturbances to the daily running of an institution.” Affidavit of Eric Stickles (ECF No. 196-1) at ¶ 6. “STG tracking includes inmates who are validated as members [of an STG], suspected as members of an STG, or affiliates of a[n] STG. STGs are not limited to major gangs.” Id. at ¶ 5. “There is a difference between being a ‘suspected' member of a STG and a ‘validated' member of a STG.” Id. at ¶ 9. The Security Threat Group Management Unit (“STGMU”) is for validated members of an STG. Id. at ¶ 11. NGE “is not currently recognized as a STG.” Id. at ¶ 14. As of 2021, Plaintiff is categorized as a “suspected” member of an STG. Id. at ¶ 13.
On February 12, 2018, Plaintiff submitted a grievance to the Department of Corrections with regard to his assertion that he has been falsely classified as STG since at least 2013 because he is NGE. See Grievance (ECF No. 216-3) at 1. On March 8, 2018, Defendant Longstreth denied the grievance and provided the following.
I am in receipt of your grievance and assigned to investigate your concerns. On 1/25/2018 you received a legal packet containing an [Integrated Case Summary (“ICS”)] document from 2/26/13. You received this information as part of your juvenile lifer packet. You are concerned it referred to you as having STG status based on affiliation with the 5 percenters. It is your belief this may hurt your case as a juvenile lifer. Since the 5 percenters are not tracked as a STG you feel this was written to slander you violating DOC policy and your constitutional rights. In your relief you request this false statement against you be removed, and 2 million dollars in monetary relief.
Mr. Noble I have reviewed the 2/26/13 ICS document that you reference in your grievance. The portion of the ICS that indicates STG activity is a summary of your separations. Three institutions found basis to separate you due to your activities with the 5 percenters. It is your belief the 5 percenters are not a tracked STG in the DOC. Your actions were of a severity, in coordination with the 5 percenters that it led to a transfer. Whether a group is tracked as STG or not, if your involvement leads to a separation it will be documented.
In conclusion, your separations reference your actions in coordination with the 5 percenters that led to separations from 3 institutions. It is not against DOC policy or a violation of your rights for the DOC to document security related incidents or concerns.Id. at 2.
Plaintiff appealed the denial of his grievance, and on April 9, 2018, this grievance was upheld by Defendant Gilmore. Id. at 4. Finally, this grievance was upheld again on July 13, 2018, leading to Plaintiff's initiating this civil action.
It appears there was a delay in considering this grievance, but it was determined that the delay was unintentional. See Grievance (ECF No. 216-4) at 1.
On August 31, 2018, Plaintiff filed a motion for leave to proceed in forma pauperis to institute the instant action. (ECF No. 1). That motion was granted, and the Complaint was filed on October 4, 2018. (ECF Nos. 10, 12). Plaintiff's Complaint set forth numerous claims against numerous defendants, including three additional prison counselors and the Program Review Committee. Complaint (ECF No. 12).
On February 1, 2019, all Defendants filed a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6). (ECF No. 29). On August 1, 2019, the undersigned filed a Report and Recommendation, which was adopted by the Honorable Marilyn J. Horan on September 10, 2019. (ECF Nos. 45, 51). Specifically, Plaintiff was granted leave to amend his Eighth Amendment conditions of confinement claim, his Equal Protection claim, his First Amendment/RLUIPA claim, and his conspiracy claim. Plaintiff's claims pursuant to the Fourteenth Amendment related to conditions of confinement, the Fifth Amendment related to procedural due process, and the Sixth Amendment were dismissed with prejudice. In addition, the Program Review Committee was dismissed as a defendant with prejudice, all claims brought against individual defendants in their official capacities were dismissed with prejudice, and claims against Gilmore and Wetzel in their supervisory capacities were dismissed with prejudice. In addition, the Court dismissed with prejudice “those claims which as alleged are barred by the statute of limitations.” Order (ECF No. 51) at 3.
On September 24, 2019, Plaintiff filed the First Amended Complaint (“FAC”). FAC (ECF No. 53). The FAC was largely the same as the Complaint and attempted to resurrect the claims that this Court had already dismissed with prejudice. On December 6, 2019, Defendants filed a motion to dismiss the FAC. On May 11, 2020, the undersigned filed a Report and Recommendation (ECF No. 88), which was adopted by the Honorable Marilyn J. Horan on June 15, 2020. (ECF No. 95). Specifically, the Court granted Defendants' motion to dismiss the Equal Protection Claim with prejudice and denied Defendants' motion in all other respects. Defendants filed an answer on July 27, 2020. (ECF No. 102).
Because the FAC was largely the same as the Complaint and attempted to resurrect numerous claims and Defendants that had already been dismissed with prejudice, Defendants' motion to dismiss focused only on those remaining claims, as all other claims were no longer part of this case.
Discovery commenced and was completed, and on June 17, 2021, Defendants filed a motion for summary judgment, brief in support thereof, a concise statement of material facts, and an appendix. (ECF Nos. 193-196). On August 30, 2021, Plaintiff filed responses and an appendix. (ECF Nos. 214-216). On September 2, 2021, Defendants filed a reply brief. (ECF No. 217). This matter is now ripe for disposition.
During discovery, Plaintiff was still confused as to which claims and which Defendants remained in this case. By order dated February 23, 2021, in response to Defendants' motion to strike and Plaintiff's response thereto, this Court clarified for Plaintiff that claims and Defendants barred by the statute of limitations were no longer part of this case. Specifically, all claims against three of the prison counselors, Defendants Balestrieri, Erikson, and Stella, were dismissed from this case with prejudice. (ECF No. 159).
C. Standard of Review
Summary judgment is appropriate when the moving party establishes “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. Pro. 56(a). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here 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.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine, triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the nonmoving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
Furthermore, “on a motion for summary judgment, a pro se plaintiff is not relieved of his obligation under Rule 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (internal quotation marks omitted). “[M]erely because a non-moving party is proceeding pro se does not relieve him of the obligation under Rule 56(e) to produce evidence that raises a genuine issue of material fact.” Id.
D. Discussion
Defendants have moved for summary judgment with respect to the three remaining claims, and this Court will address each in turn.
i. Eighth Amendment Conditions of Confinement Claim
Defendants contend they are entitled to summary judgment with respect to Plaintiff's Eighth Amendment conditions of confinement claim because “Plaintiff has failed to introduce any evidence as to any extreme deprivation for constitutional purposes or that he was otherwise denied any basic necessities of human existence.” Defs.' Br. (ECF No. 194). It is Plaintiff's position that he has suffered negative mental and physical effects. He attributes these to “[D]efendants using the knowingly false STG classification of Plaintiff because he is NGE(5%) to heighten Plaintiff's security risk status/restrictions.” Pl.'s Br. (ECF No. 214) at 6. Plaintiff contends the amount of time he has been in the RHU and his placement on the RRL violate the Eighth Amendment. Id.
“To determine whether prison officials have violated the Eighth Amendment, we apply a two-prong test: (1) the deprivation must be objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities; and (2) the prison official must have been deliberate[ly] indifferen[t] to inmate health or safety.” Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal citations and quotation marks omitted)). “An official is deliberately indifferent if he ‘knows of and disregards an excessive risk to inmate health or safety.'” Id. “Whether conditions constitute cruel and unusual punishment is measured against the evolving standards of decency that mark the progress of a maturing society.” Id. (internal citations and quotation marks omitted).
To satisfy the objective prong, “an inmate need not provide evidence of actual injury. We have specifically held that the inmate need only offer evidence that there was a ‘substantial risk of serious harm.'” Id. “It is well established in both case law and scientific and medical research that prolonged solitary confinement ... poses a substantial risk of serious psychological and physical harm.” Id. In Porter, the Third Circuit held that the consensus of medical evidence regarding prolonged solitary confinement “makes plain that a reasonable jury could conclude that thirty-three years in solitary confinement posted a substantial risk of harm to Porter.” Id. at 443; see also Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (acknowledging “the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by longterm isolation in solitary confinement”). Similarly, in the instant matter, there is no question that Plaintiff has been held in solitary confinement for long and even indefinite periods of time. As Defendants point out, Plaintiff was in the RHU for a substantial time between 2001 and 2013, and then again from 2014 to the present. Accordingly, it is respectfully recommended that a jury could conclude that Plaintiff's nearly 20 years of solitary confinement has satisfied the objective Eighth Amendment standard with respect to “the denial of the minimal civilized measure of life's necessities.” Porter, 974 F.3d at 441.
Turning now to the subjective prong of the test, “an inmate must show that the prison official knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Porter, 974 F.3d at 446 (internal citations and quotation marks omitted). In addition, the Court “may also consider whether officials had a legitimate penological purpose behind their conduct. The Eighth Amendment prohibits punishments without penological justification.” Id. (internal citations and quotation marks omitted).
Instantly, Plaintiff has not alleged or put forward any evidence that prison officials were aware of particular risks to Plaintiff and then disregarded those risks. Instead, it is Plaintiff's position that he has been confined to the RHU as a retaliatory measure for his adherence to NGE(5%). However, Plaintiff has not supported that bald allegation with any evidence. To the contrary, Defendants have come forward with ample to evidence to demonstrate that Plaintiff has assaulted both inmates and staff, and it is those instances that have led to Plaintiff's confinement in the RHU and placement on the RRL.
Plaintiff focuses much of his argument on another inmate in his cell block - Russell Shoatz. Pl.'s Br. (ECF No. 214) at 11. In Shoatz v. Wetzel, 2016 WL 595334 (W.D. Pa. 2016), this Court denied summary judgment on Shoatz's Eighth Amendment conditions of confinement claim holding that Shoatz presented adequate evidence from which a jury could conclude Shoatz's 22 consecutive years of solitary confinement was in violation of the Eighth Amendment. Importantly, this Court relied upon the fact that “Defendant Wetzel was contacted repeatedly by family members of Shoatz and other advocates who informed Defendant Wetzel that Shoatz was suffering severe psychological anguish and his physical health had worsened by the stress of prolonged isolation.” Id. at 9.
Instantly, Defendants have set forth ample evidence regarding the rationale for Plaintiff's continued confinement in the RHU, specifically his assaults on inmates and staff that have resulted in their receiving medical treatment. See Grievance (ECF No. 216-3) at 1. On the other hand, Plaintiff merely continues to allege that his confinement in the RHU and placement on the RRL are in retaliation for his adherence to NGE(5%). “[A] nonmoving party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations contained in its pleadings.” Williams, 891 F.2d at 460 (3d Cir. 1989). Thus, there are no genuine issues of material fact with regard to the subjective prong of the Eighth Amendment conditions of confinement claim. Accordingly, it is respectfully recommended that Defendants' motion for summary judgment be granted and Plaintiff's Eighth Amendment claim be dismissed with prejudice.
iii. Free Exercise of Religion/RLUIPA
Defendants next argue that Plaintiff's claims set forth pursuant to the Free Exercise clause of the First Amendment and RLUIPA should be dismissed with prejudice. Defs.' Br. (ECF No. 194) at 10-12. Defendants first argue that Plaintiff's claims related to the confiscation of books and other NGE-related material are time-barred. Id. at 11. Defendants also assert that Plaintiff has failed to adduce evidence that he is unable to practice NGE due to his confinement in the RHU or placement on the RRL. Id. at 11-12.
a. First Amendment Claim
It is well settled that “[i]nmates clearly retain protections afforded by the First Amendment, ... including its directive that no law shall prohibit the free exercise of religion.” DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000). “Nevertheless, the fact of incarceration and the valid penological objectives of deterrence of crime, rehabilitation of prisoners, and institutional security justify limitations on the exercise of constitutional rights by inmates.” Id. at 50-51. “Thus, a prison inmate retains [only] those rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Id. at 51 (internal quotation marks omitted).
To determine whether a regulation infringing upon constitutional rights is reasonable, courts apply the four factors set forth in Turner v. Safley, 482 U.S. 78 (1987). Under Turner, the court weighs the following factors in assessing the overall reasonableness of a prison regulation: “whether the regulation has a ‘valid, rational connection' to a legitimate government interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmate and prison resources; and whether there are any ‘ready alternatives' to the regulation.” Overton v. Bazzetta, 539 U.S.126, 132
(2003) (quoting Turner, 482 U.S. at 89-91); see also Fraise v. Terhune, 283 F.3d 506, 513-14 (3d Cir. 2002). “‘[T]he burden is not on the state to prove the validity of the challenged prison regulation but instead is on the inmate to disprove it.” Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003).Abdul-Aziz v. Lanigan, 2020 WL 3287229, at *7 (D.N.J. June 18, 2020).
Instantly, Plaintiff does not assert that there are any prison regulations that prevent him from practicing his religion; rather, he contends that prison officials use the retaliatory false STG classification they have placed on him to prevent him from practicing his religion. Pl.'s Br. (ECF No. 214) at 14-15. According to Plaintiff, “[w]henever [D]efendants want to confiscate something (books, etc.) that's NGE(5%) from Plaintiff[, ] Defendants give Plaintiff and NGE(5%) the false and retaliatory STG classification.” Id. at 15. Due to this, Plaintiff claims he has “stopped trying to order/receive books, lessons, etc. of NGE(5%).” Id. According to Plaintiff, “it would be absurd and futile for Plaintiff to continue to attempt to order or receive NGE(5%) material or other practices of NGE(5%) tenants (sic) until and unless SCI Greene staff clearly remove the false STG classification.” Id. at 16. In addition, Plaintiff points out that he is not able to participate in “group viewing of audio/visual resources” related to NGE(5%) due to his being in the RHU. Id. at 17.
First, Defendants have come forward with evidence that NGE is not currently classified as an STG. See Affidavit of Eric Stickles (ECF No. 196-1) at ¶ 14 (stating that NGE “is not currently recognized as a STG”). Moreover, as discussed supra, Plaintiff was not classified as a member of an STG due to his adherence to NGE(5%), but he was classified as such because his repeated assaultive behavior towards inmates and staff. In fact, Plaintiff has produced no evidence regarding any policy that he or other inmates who are adherents to NGE(5%) are classified as members of STGs rendering them unable to exercise their religious rights. Moreover, the Department of Corrections has approved numerous requests for adherents of NGE, including communal viewing or listening to “approved audio visual resources, ” being able to secure a Religious Advisor, practice the faith “in the privacy of his cell or dormitory quarters, ” and obtaining NGE books. Response to Plaintiff's Third Request for Admissions (ECF No. 216-13) at ¶ 2.
Based on the foregoing, Plaintiff has failed to demonstrate that the Department of Corrections has any policy or regulation that infringes on his constitutional right to freely practice his relation. Accordingly, it is respectfully recommended that Plaintiff's First Amendment claim be dismissed with prejudice.
b. RLUIPA Claim
Similarly, “[i]ncarcerated persons enjoy a statutory right to follow the religious teachings and practices of their choice.” Williams v. Bitner, 359 F.Supp.2d 370, 375 (M.D. Pa. 2005), aff'd in part, remanded in part, 455 F.3d 186 (3d Cir. 2006).
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). “A burden is ‘substantial' when it ‘influences the adherent to act in a way that violates his [sincerely held] religious beliefs.'” Williams, 359 F.Supp.2d at 375.
In support of his contention that he is being denied the ability to practice his religion, Plaintiff points to a grievance he filed in 2015. Therein, he requested a number of accommodations, including the ability “to receive and possess [NGE] books.” Grievance (ECF No. 216-25) at 3. However, that request was granted; thus, it does not support a contention that Plaintiff is being denied his ability to practice his religion. Id.
Plaintiff also points to the Department of Corrections denying Plaintiff a book he ordered in 2009. See Grievance (ECF No. 216-28). The Department of Corrections determined the book contained “[r]acially inflammatory material or material that could cause a threat to inmate, staff or facility security.” Id. at 4. Defendants argue that Plaintiff's claim with regard to this book is time barred. Defs.' Br. (ECF No. 194) at 6. It is Plaintiff's contention that this is evidence of an ongoing violation, and therefore the statute of limitations does not apply. In either event, as discussed infra, Plaintiff is not entitled to relief on his First Amendment/RLUIPA claim that his ability to practice his religion is being unconstitutionally restrained. This 2015 grievance also contains a dispute about a drawing Plaintiff provided to the library. Grievance (ECF No. 216-25) at 5-14. Plaintiff claims it was confiscated, while Defendants claim that they tried to return it to Plaintiff, and he refused to accept it. In the end, Plaintiff acknowledges that it was indeed returned to him. In either event, this fact does not support Plaintiff's contention that he is being denied the ability to practice his religion or that members of NGE(5%) are automatically considered members of an STG.
Finally, Plaintiff appears to be asserting that his inability to participate in NGE-group related activities due to his being housed in the RHU presents a substantial burden to his ability to practice NGE. However, Plaintiff has presented no evidence in support of this claim, namely, the record does not indicate what, if any, accommodations were requested by Plaintiff, and whether those accommodations were denied. See 42 U.S.C. § 1977e (providing that inmates must exhaust administrative remedies prior to filing a lawsuit in federal court); Payne v. Kabilko, 2018 WL 2771583, (M.D. Pa. Apr. 17, 2018).
Based on the foregoing, Plaintiff has not identified any Department of Corrections regulation or policy that restricts the ability of an adherent to NGE(5%) to practice the religion. Nor has Plaintiff come forward with adequate evidence supporting his claims that he is being unconstitutionally prevented from practicing NGE(5%). Accordingly, this Court recommends that Defendants' motion for summary judgment with respect to his RLUIPA claim be granted.
iv. Conspiracy
Finally, Defendants move for summary judgment with respect to Plaintiff's conspiracy claim. Defs.' Br. (ECF No. 193) at 12-14. “In order to prevail on a conspiracy claim under § 1983, [a plaintiff] must prove that persons acting under color of state law conspired to deprive [him or her] of a federally protected right.” Martin v. Unknown U.S. Marshals, 965 F.Supp.2d 502, 547 (D.N.J. 2013), aff'd sub nom., 649 Fed.Appx. 239 (3d Cir. 2016). “The grant of summary judgment is proper on such a claim where a plaintiff cannot establish an underlying violation of any constitutional rights.” Id.
Here, this Court has recommended that summary judgment should be granted with respect to Plaintiff's Eighth Amendment and First Amendment/RUILPA claims. Accordingly, this Court also respectfully recommends that summary judgment should be granted as to conspiracy because Plaintiff has failed to establish an underlying constitutional violation. See id.
III. Conclusion
For all the foregoing reasons, it is respectfully recommended that Defendants' motion for summary judgment be granted and that this case be dismissed with prejudice.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by December 3, 2021, and Defendants are allowed until November 30, 2021, to file objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their objections and any response to the initial objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.