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Gjevukaj v. Lowe

April 26, 2010

FUAT GJEVUKAJ, PLAINTIFF
v.
CRAIG A. LOWE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff Fuat Gjevukaj ("plaintiff"), a former inmate incarcerated at the Pike County Correctional Facility ("PCCF"), commenced this civil rights action on May 27, 2009, alleging that during the period of March 10, 2009, to May 25, 2009, he was repeatedly denied religiously compatible Halal meals which prevented him from adhering to his Islamic religious beliefs. (Doc. 1.) Presently before the court is a motion for summary judgment pursuant to Federal Rules of Civil Procedure 56, filed on behalf of all defendants. (Doc. 21.) For the reasons set forth below, the motion will be deemed unopposed and granted.

I. Procedural Background

On August 5, 2009, defendants filed an answer to plaintiff's complaint. (Doc. 11.) Thereafter, on January 13, 2010, a motion for summary judgment (Doc. 18) and all supporting documentation (Docs. 19, 20) were filed on behalf of all defendants. That same day, defendants amended their motion for summary judgment. (Doc. 21). Plaintiff failed to file a brief in response to the motion. See L.R. 7.6 ("Any party opposing any motion shall file a brief in opposition . . . [or] shall be deemed not to oppose such motion.") He was directed to file a brief in accordance with L.R. 7.6, on or before February 26, 2010, and was cautioned that his failure to comply with the order may result in the granting of the motion or dismissal of this case for failure to prosecute. (Doc. 22 citing FED. R. CIV. P. 41(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (interpreting Federal Rule of Civil Procedure 41(b) as permitting sua sponte dismissals by the court); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)). Plaintiff failed to oppose the motion. Consequently, the motion is deemed unopposed.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "'The non-moving party may not simply sit back and rest on the allegations in the complaint; instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, and designate specific facts showing that there is a genuine issue for trial.' Celotex [ ], 477 U.S. [ ] 324 [ ] (1986) (internal quotations omitted)." Schiazza v. Zoning Hearing Bd., Fairview Twp., York County, Pa, 168 F. Supp. 2d 361, 365 (M.D. Pa. 2001). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Statement of Material Facts*fn1

On December 17, 2008, while an inmate at PCCF, plaintiff requested to be placed on a diet which was compliant with Muslim religious restrictions. He was placed on the "Common Fare" diet, which is a modified diet that complies with the restriction of all major religions. (Doc. 20-2, Affidavit of Robert E. McLaughlin ("McLaughlin Affidavit"), at 1-2, ¶¶ 2-4.) PCCF has a policy under which the inmates who are on this diet, are required to comply with the restrictions of the diet in their purchase of Commissary items. (Doc. 23, Affidavit of Warden, Craig A. Lowe ("Lowe Affidavit"), at 2, ¶ 3.) Specifically, according to PCCF Standing Operation Procedures, "[the common fare diet consists of food items which have been deemed acceptable by all religions.. Inmates on the common fare diet roster cannot eat 'regular food' what so ever. Additionally, inmates on the common fare diet must not consume 'regular commissary', but may consume commissary items identified as 'Universal' on the commissary menu (the Universal items are compatible with religions requiring a diet accommodation.) [There are fifty-four items on the Commissary Menu which are religiously compliant. (McLaughin Affidavit at 3, ¶ 10.)] Inmates found to be in violation of this protocol, will be removed from the roster for ten (10) days for the first offense. If this protocol is violated again by the same inmate they will be removed from the common fare roster for ninety (90) days." (Doc. 24-2, at 2, ¶ 5.)

On December 29, 2008*fn2 , plaintiff was removed from the "Common Fare" diet "when it was discovered that he had been purchasing and consuming regular Commissary Items which do not comply with Muslim religious dietary restrictions." (McLaughlin Affidavit, at 2, ¶ 5.) He was placed back on the diet on January 7, 2009. (Id. at ¶ 6.)

In accordance with the policy, plaintiff was again suspended from the Common Fare diet on March 10, 2009. (Id. at 2, ¶ 7.) He was informed that he would be reinstated after ninety days if he refrained from purchasing and/or consuming regular Commissary items during that time period. (Id. at ¶ 8.) On May 1, 2009, plaintiff inquired as to when he would be eligible for the Common Fare diet. (Id. at 2, ¶ 9.) He was informed that he would not be place back on the diet because he was still ordering and consuming regular Commissary items. (Id. at 3, ¶ 10.)

IV. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d ...


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