The opinion of the court was delivered by: Judge Rambo
Plaintiff Kareem Hassan Milhouse ("Milhouse"), an inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USPLewisburg"), filed this Bivens*fn1 -styled complaint against several Federal Bureau of Prisons ("BOP") and USP-Lewisburg officials*fn2 (collectively, "Defendants") on October 9, 2009, (Doc. 1), as amended April 20, 2011,*fn3 (Doc. 96). Milhouse asserts that he has been denied access to the courts on three occasions and denied the practice of religious freedom.
Before the court is a motion to dismiss and for summary judgment filed on behalf of Defendants. (Doc. 99.) For the reasons set forth below, Defendants' motion for summary judgment will be granted.
Set forth below are the allegations and facts relating to Milhouse's access to the courts claims and freedom of religion claims. The court notes that three months after Defendants filed their second motion for summary judgment, Milhouse filed a motion for discovery, seeking prison policies on the handling of legal mail and the practice of religion, and any related administrative remedy requests filed by him.*fn4 (Doc. 121.) This motion for discovery is untimely, as it was filed well after two motions for summary judgment had been filed and after any period of discovery had already elapsed.
A. Facts - Access to the Courts Claims
In his amended complaint, Milhouse provides the following background with respect to his access to the courts claims. The court notes that for purposes of disposition of the instant motion to dismiss as to these claims, the factual allegations asserted in the amended complaint will be accepted as true and viewed in a light most favorable to Milhouse.
Milhouse asserts that "on approximately June 14, 2009, while assigned to cell 109 Z-block, Plaintiff gave [Officer] Scott D. Blue outgoing legal mail" addressed to the Third Circuit Court of Appeals. (Doc. 96 at 4.) He claims that this mail never reached its intended destination. (Id.) He was not aware of this fact until he received a notice informing him that he had missed a deadline for filing a brief in another case, and "as a direct result" of missing that deadline, his "request for rehearing en banc was denied and he couldn't file a writ of cert to the United States Supreme Court." (Id. at 4-5.) Attached as an exhibit to Defendants' motion is the docket sheet for the case to which Milhouse is referring. (Doc. 101 ¶ 1.)
In a separate incident on August 24, 2009, Milhouse "gave [Officer] Manning outgoing legal mail" containing an administrative remedy appeal and addressed to the National Remedy Coordinator, but the "envelope was returned open and the stamps were defaced along with most of the contents missing." (Id.) He further asserts that he "showed" this legal mail to Defendants Bledsoe, Miorana, Rear, and to a Captain P. Bludworth. (Id.) He claims he filed an administrative remedy request on this issue, which was denied. (Id.)
Thereafter, Milhouse asserts that he re-mailed his administrative remedy appeal on September 3, 2009, along with more appeals, to the Northeast Regional Director. (Id. at 5.) These appeals were denied as untimely on September 28, 2009. (Id. at 6.) He does not name any USP-Lewisburg official as receiving this mail for forwarding to the Northeast Regional Director. (Id.)
In his amended complaint, Milhouse also sets forth facts relating to further incidents involving legal mail on May 4 and 5, 2010, December 28, 2010, and January 31, 2011. (See id. at 6-7.) He does not name any of the named Defendants in these incidents. (See id.) In its January 31, 2011 memorandum and order addressing Defendants' first motion for summary judgment, the court permitted Milhouse to file an amended complaint as to the incidents of June 14, 2009, August 24, 2009, and September 3, 2009. (See Doc. 85 at 31.) ("the court will deny Defendants' motion here and allow Milhouse to reassert the claims of denial of access to the courts as to the three instances specified in his brief in opposition (see Doc. 41 at 6) in an amended complaint"). The court also cautioned Milhouse that he "should file separate actions as to any Defendants and claims that do not share common legal and factual questions and that do not arise out of the same transactions or occurrences." (Doc. 85 at 36.) Turning to the amended complaint, these later incidents, beginning allegedly in May 2010 and raised here for the first time, occurred at the very least eight months after the 2009 incidents, and none of them relate to the previous incidents or involve any of the named Defendants. Given the court's limitations as to issues raised in the amended complaint, as well as its warning not to raise issues that do not arise out of the same transactions or occurrences, both set forth plainly in January 31, 2011 memorandum and order, the court will dismiss any claims as to the incidents of May 4 and 5, 2010, December 28, 2010, and January 31, 2011, without prejudice to Milhouse filing a separate action raising these claims.
B. Facts - Freedom of Religion Claim
In his amended complaint, Milhouse states the following with respect to his freedom of religion claim: (1) there is no Islamic chaplain for Muslim inmates nor services for Special Management Unit inmates to attend physically nor provided through the radio as other institutional programs, and (2) there is no Islamic celebration after the Ramadan fast, nor special meal as it is for other faiths, nor an Islamic chaplain to discuss the articles of faith. (Doc. 96 at 8.)
Further, as both parties have filed statements of facts, the following facts are undisputed unless where noted. Milhouse has been designated to USPLewisburg's Special Management Unit ("SMU"). (Doc. 101 ¶ 6.) Defendants assert that he has chosen not to progress through the SMU program, and therefore remains in Phase One of the four-phase program. (Id. ¶ 7.) Milhouse counters that he successfully progressed through several phases in 2010 and 2011, though he does not state how many. (Doc. 128 ¶ 7.) Nevertheless, Defendants further assert that Phase One of the SMU program is primarily a lock-down phase, and thus Milhouse cannot participate in group services. (Doc. 101 ¶ 8.) Milhouse adds that Phases Three and Four are also lock-down phases. (Doc. 128 ¶ 8.)
Milhouse, a Muslim, is allowed to state his religious preference and to make changes of his choosing. (Doc. 101 ¶ 14.) In his locked-down cell, Milhouse can perform the five daily required prayers for Muslims. (Id. ¶ 4.) He also has access to a sink which provides for his ritual washing prior to prayer. (Id. ¶ 5.) Defendants also assert that Milhouse has access to religious personal property, which can include a prayer rug, Dhikr beads (plastic), a religious medallion and chain (no gold), prayer oil, Kufi, and a copy of the Holy Quran and the Hadith. (Id. ¶ 11.) Milhouse states that he does not have access to these items, however, because as an indigent prisoner, they are not available. (Doc. 128 ¶ 11.) Milhouse also has access to a lending library of religious materials and has borrowed items from the chapel library. (Doc. 101 ¶ 12.) Milhouse agrees with this statement, but adds that he can only receive these materials by submitting request slips, which take several months to process. (Doc. 128 ¶ 12.) Further, USP-Lewisburg's chaplaincy staff make weekly rounds to the housing units and are available to speak with an inmate upon request. (Doc. 101 ¶ 13.) Milhouse counters that his cell block does not contain a sign-in book. (Doc. 128 ¶ 13.)
The last day of Ramadan in 2010 was September 9. (Doc. 101 ¶ 3.) In the SMU, Milhouse is able to participate in the fasting during the month of Ramadan. (Id. ¶ 9.) Defendants assert that USP-Lewisburg provides a special meal the day after the end of Ramadan for Muslim inmates, and Milhouse can participate in this meal. (Id. ¶¶ 2, 10.) Milhouse counters, however, that USP-Lewisburg "detract[ed]" from the ceremonial meal by issuing the meal not only to Ramadan participants, but also to non-Muslim, non-Ramadan participants. (Doc. 128 ¶ 2.) He further asserts that there has not been a ceremonial meal for Ramadan participants at USP-Lewisburg since 2009. (Id. ¶ 10.)
Milhouse filed his original complaint on October 9, 2009. (Doc. 1.) However, prior to service of the original complaint, Milhouse filed an amended complaint on November 2, 2009. (Doc. 6.) By order dated December 2, 2009, the court directed service of the amended complaint on the Defendants named therein. (Doc. 10.) Defendants filed a motion to dismiss and for summary judgment on April 6, 2010. (Doc. 32.) Supporting and responsive briefs were also filed. (See Docs. 38, 41, 56, 59.)
On January 31, 2011, the court issued a memorandum and order granting Defendants' motion for summary judgment on all the claims raised in the amended complaint with the exception of Milhouse's allegations relating to an access to the courts claim and a freedom of religion claim. (Doc. 85.) The order directed Milhouse to file an amended complaint as to those remaining issues. (Id.)
On April 20, 2011, Milhouse filed an amended complaint. (Doc. 96.) Thereafter, Defendants filed the instant motion to dismiss and for summary judgment. (Doc. 99.) Milhouse has filed a brief in opposition to this ...