The opinion of the court was delivered by: Judge Rambo
Plaintiff Dameon Daley ("Daley"), an inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"), filed this Bivens*fn1 -styled complaint against a Federal Bureau of Prisons ("BOP") official and several USP-Lewisburg officials*fn2 (collectively, "Defendants") on October 5, 2010. (Doc. 1.) Daley alleges that Defendants denied him a diet consistent with his Rastafarian religious beliefs. He also alleges that he has been forced to eat food to which he is allergic and has been forced to exist primarily on apples and bread, which has resulted in him becoming malnourished. As relief, Daley seeks compensatory and punitive damages, as well as declaratory relief.
Before the court is a motion to dismiss, or in the alternative, for summary judgment, filed on behalf of all Defendants. (Doc. 23.) For the reasons set forth below, the motion for summary judgment will be granted.
In addressing the instant motion, the court will first set forth the relevant facts and procedural history. In setting forth the relevant facts, the court will note any factual disputes between the parties by presenting both parties' contentions.*fn3
1. Facts Relating to Religious Beliefs and Practices & Food Allergies and Consumption
The BOP has guidelines which afford inmates equitable opportunities to pursue religious beliefs and practices consistent with the security and orderly running of the institution and the BOP. (Doc. 25 ¶ 18.) BOP Program Statement 5360.09, Religious Beliefs and Practices, as codified at 28 C.F.R. § 548.10-548.20, states, in pertinent part: "The Bureau provides inmates requesting a religious diet reasonable and equitable opportunity to observe their religious dietary practice within the constraints of budget limitations and the security and orderly running of the institution and [BOP] through a religious diet program." (Id.; Doc. 25 ¶ 18.)
The BOP's religious diet program, entitled the Alternative Diet Program, consists of two distinct components: (1) inmate self-selection from the main line, which includes a no-flesh option and access to the salad/hot bar, which is part of the food service program, and (2) a nationally recognized, religiously certified processed food component. (Doc. 25 ¶ 19.) As to the first component, the no-flesh option is provided at both the noon and evening meals whenever an entree containing flesh is offered. (Id. ¶ 20.) Further, vegetables and starches seasoned with flesh will have an alternate no-flesh option. (Id. ¶ 21.) As to the second component, also known as the Certified Religious Diet, the certified food component (kosher) is a nationally approved certified food menu, which is served to all inmates who are approved to participate in that diet. (Id. ¶ 22.) All certified food components are nutritionally adequate, certified by a nationally recognized Orthodox Standard, and certified kosher. (Id. ¶ 23.) Finally, other nutritionally adequate food items can be purchased from the institution's commissary that would meet an inmate's religious diet requirements. (Id. ¶ 26.)
Daley is a member of the Rastafarian faith. (Doc. 1 at 5; Doc. 25 ¶ 24.) In his complaint, Daley asserts that among his beliefs and customs is the strict abstention from foods containing animal by-products and foods prepared with, or served on, vessels and using utensils which have come into contact with pork. (Doc. 1 at 5.) He claims that the "ideal" diet for Rastafarian is the "Ital" diet. (Id.) According to Daley, the lowest acceptable standard a diet must meet in order to be certified "Ital" is: "a) It must be plant source based; b) It must be free of all forms of animal proteins and animal by-products; and [c]) It must not have been prepared with, or served on, or in utensils and vessels which have come into contact with, or used in the preparation of, pork." (Id.) He asserts that the closest equivalent to the "Ital" diet is a "Kosher vegan" diet. (Id. at 5-6.)
In a declaration filed by Daley in opposition to the instant motion, Daley provides the following additional information relating to his religious beliefs:
4. I am an Orthodox Rastafarian from the Nyahbinghi sect. I have been a Rastafarian for over 19 years. The common misconception among the unlightened regarding Rastafarians and our beliefs and practices is that our faith has no doctrine and is largely personal-individualistic. As an Orthodox Rastafarian I subscribe to the monophysite doctrine and maintain a particular diet in which I abstain from all forms of animal proteins and food prepared in vessels used to prepare pork.
5. As an Orthodox Rastafarian I observe the rituals and dietary laws practiced by the Nyahbinghi. Although the Rastafarian faith has three separate and distinct houses; the Nyahbinghi; the Twelves Tribes, and the Bob-Ashanti, there is only one recognized Rastafarian diet. The Ital diet is defined as a "natural, organically grown, plant source-based, low sodium, animal protein/animal by-products free foods, which is prepared in such a manner that it never comes into contact with any form of animal protein or vessels used to prepare and serve pork and its by-products. In non-Rastafarian terms the Ital diet would be defined as a "natural, organic, low sodium Kosher vegan diet." (Doc. 38 ¶¶ 4, 5.)
In his exhibits submitted in support of his brief in opposition to the instant motion, Daley submits an entry on "Ital" from Wikipedia which includes, inter alia, the following statements about Rastafarianism and the "Ital" diet:
. . . there is no single dogma of Rastafarian belief. Due to this emphasis on individual personal meditation in Rastafari, the expression of Ital eating varies widely from Rasta to Rasta, and there are few universal "rules" of Ital living. . . . Many adherents to Ital diets are strict vegans, as they do not consider dairy to be natural for human consumption either. However, consumption of fish, particularly those less than 12 inches in length, is often practiced within Rasta Ital diets. . . . [M]ost Rastas avoid the eating of pork.
Few adherents of ital follow the strictest interpretation; some Rastas do not adhere to them at all. (Doc. 40 at 55-56.) He also submits the BOP's current and former certified religious menus, both which contain vegan and vegetarian menu items. (Id. at 61-70.)
Daley also attaches a number of documents relating to his food allergies. Two responses from the Food Services Administrator and K. Rear, dated August 5, 2010 and August 26, 2010, respectively, informing Daley that there is nothing in his medical history that indicates he has any allergies to foods. (Id. at 20, 21.) There is also an inmate request to staff form filed by Daley on March 9, 2011, in which he acknowledges that test results indicate he is not allergic to any foods, including eggs or dairy. (Id. at 75.) In response to his question as to the accuracy of the test, USP-Lewisburg's medical department suggested that Daley perform the "elimination test," which involves trying various foods in order to eliminate them as an allergy. (Id. at 76.) Indeed, Defendants have submitted the results of Daley's allergy tests performed on September 21, 2010, which indicate no allergies. (Doc. 24-1 at 12-17, Attach. C.) However, a Special Diet Order from the Federal Transfer Center in Oklahoma City, Oklahoma, dated November 14, 2009, indicates that Daley is allergic to "dairy, eggs, milk." (Doc. 40 at 46.)
Finally, Daley attaches the declaration of inmate Ricky Jerome Smith in which Smith asserts that he has witnessed BOP staff at USP-Lewisburg provide two other Rastafarians with vegan diets. (Id. at 78.) Attached to that declaration is a memorandum from USP-Lewisburg's Clinical Director to the Food Services Administrator that directs him to provide inmate Smith with "raw vegetables, raw fruit, whole grain cereal, salad mix, peanut butter, wheat bread, and any other all natural, non-animal derived products that may be available. A balanced mix of the above items should be given for each meal to meet his dietary needs." (Id. at 80.) Inmate Smith states that he is of the NuWabian faith. (Id. at 78.)
2. Facts Relating to Exhaustion of Administrative Remedies
As set forth above, in his complaint Daley alleges that Defendants denied him a diet consistent with his Rastafarian religious beliefs. He also alleges that he has been forced to eat food to which he is allergic and has been forced to exist primarily on apples and bread, which has resulted in his becoming malnourished. As of the date Defendants filed a complete record of Daley's requests for administrative remedies, or June 29, 2011, Daley had filed 152 requests.*fn4 (See Doc. 48.) The following requests for administrative remedy relate to the claims set forth in his complaint.
On February 9, 2010, while he was incarcerated at the Federal Correctional Complex in Oakdale, Louisiana ("FCC-Oakdale), Daley filed grievance number 576252-F1, alleging that the common fare menu violates his religious dietary laws. (Doc. 48-1 at 9; Doc. 1-2 at 12.) In the grievance, Daley requested additional Kosher vegan substitutes be added to the menu or, in the alternative, that he be permitted to purchase certain food items from the commissary. (Doc. 1-2 at 12.) FCC-Oakdale's warden denied Daley's request on February 19, 2010, recounting the two components of the BOP's Alternative Diet Program, and informing Daley that an alternative vegan substitute does not fall within either of the two components. (Doc. 48-1 at 9; Doc. 1-2 at 11.) On March 1, 2010, Daley appealed the decision to the Regional Director with grievance number 576252-R1. (Doc. 48-1 at 13; Doc. 1-2 at 8.) The Regional Director denied Daley's request on March 24, 2010. (Doc. 48-1 at 12; Doc. 1-2 at 8.) On April 14, 2010, Daley appealed that decision to the BOP's Central Office, which denied the appeal on September 8, 2010. (Doc. 48-1 at 19.)
On April 21, 2010, Daley filed grievance number 586603-F1, alleging that he had been sent twenty-one (21) consecutive meals containing non-kosher food and food to which he is allergic from March 29, 2010 to April 4, 2010. (Id. at 20; Doc. 40 at 11.) The request was denied on May 10, 2010. (Doc. 48-1 at 20; Doc. 40 at 12.) In that denial, FCC-Oakdale's warden informed Daley that his medical file reveals no documented food allergies. (Doc. 40 at 12.) On May 14, 2010, Daley appealed the decision to the Regional Director with grievance number 586603-R1, who denied it on September 17, 2010. (Doc. 48-1 at 23; Doc. 40 at 30.) In that denial, the Regional Director noted that the meals provided to Daley contained Kosher and non-Kosher alternative components. (Doc. 40 at 30.) On October 12, 2010, Daley appealed that decision to the BOP's Central Office, which denied the appeal on October 29, 2010, stating that Daley's appeal was illegible. (Id. at 27.) Daley resubmitted his appeal on November 22, 2010, and it was denied on December 14, 2010. (Id. at 28.)
In his exhibits submitted in support of his brief in opposition to the instant motion, Daley attaches inmate request to staff forms addressed to K. Rear and an associate warden and dated September 16 and 17, 2010, respectively, in which he complains, inter alia, that he has been forced to eat primarily bread, fruit, and peanut butter because he cannot eat the common fare diet, and that he has food allergies. (Doc. 40 at 24-25, 27-29.) A response from USP-Lewisburg's warden dated September 28, 2010, informs Daley that laboratory studies to test for items that he claims to be allergic were collected on September 21, 2010, and that once the results are received, if necessary, a diet would be tailored to meet Daley's medical needs.*fn5 (Id. at 31.) There is also a response from K. Rear dated September 28, 2010, which reminds Daley that he has chosen the Certified Religious Diet and that commissary items for sale are chosen by the warden and designated staff and are meant to complement, not supplement, the diets provided to inmates. (Id. at 31.) There is no record of Daley appealing these responses.
On December 10, 2010, while incarcerated at USP-Lewisburg, Daley filed grievance number 618264-F1, requesting food to which he is not allergic, or a vegan or alternative diet. (Id. at 30.) The request was rejected for not attempting informal resolution prior to filing his grievance. (Id.) On December 28, 2010, Daley appealed the decision to the Northeast Regional Director with grievance number 618264-R1. (Id. at 31.) The Northeast Regional Director rejected the appeal, instructing Daley to follow the instructions given at the institutional level. (Id.) There is no record of Daley appealing that decision.
On January 11, 2011, Daley filed grievance number 622023-F1, requesting a special diet. (Id. at 32.) The request was denied on January 21, 2011. (Id.) On February 7, 2011, Daley appealed the decision to the Northeast Regional Director with grievance number 622023-R1. (Id. at 33.) The Northeast Regional Director denied the appeal on February 11, 2011. (Id.) On April 4, 2011, Daley appealed that decision to the BOP's Central Office, which denied the appeal on April 7, 2011. (Id. at 35.)
Daley filed his complaint on October 5, 2010. (Doc. 1.) On January 28, 2010, Defendants filed their motion to dismiss and for summary judgment. (Doc. 23.) Daley filed his brief in opposition to the motion on May 9, 2011. (Doc. 39.) After Defendants filed their reply on May 17, 2011, (Doc. 44), the court directed Defendants to file a complete record of Daley's requests for administrative remedies, (Doc. ...