United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Magistrate Judge.
This is a prisoner civil rights action. In his complaint, pro se plaintiff Scott Njos, an inmate at United States Penitentiary Lewisburg in Union County, Pennsylvania, has asserted a Bivens  claim against three chaplains at the prison, defendants Carney, Onuh, and Davis. In particular, Njos claims that the chaplains have placed a substantial burden on the exercise of his religious beliefs by denying him access to kosher meals and by providing him with inadequate amounts of Sabbath juice and matzo, in violation of the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1. The Defendants have filed a motion to dismiss and for summary judgment pursuant to Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure. (Doc. 21). For the reasons stated herein, it is recommended that the motion be denied.
The material facts of this case are largely, but not entirely, undisputed.
Scott Njos is a federal inmate incarcerated at USP Lewisburg. He arrived there from another federal correctional facility on October 18, 2010. At the time of his arrival at USP Lewisburg, Njos's religious preference had been designated as Jewish. Njos subsequently changed his religious designation on multiple occasions while at USP Lewisburg, from Jewish to Pagan, then back to Jewish, then to Muslim, and then back to Jewish. Njos claims that he did so to gain access to the religious literature of other religions and in an attempt to circumvent restrictions that excluded him from participating in the certified religious diet program, but that he remained a sincere adherent to the Jewish religion throughout.
Shortly after his arrival at USP Lewisburg, Njos requested and was placed on the "certified religious diet program, " also known as "common fare." By way of background,
The BOP [has] developed a cost-effective plan designed to accommodate all of the estimated thirty-one religious groups represented in the prison system. The BOP offers two meal plans, the "main line" and the "Common Fare." The main line contains a hot bar. Participants in the main line plan may choose a no-flesh/vegetarian option, where inmates self-select vegetarian items from the hot bar. The Common Fare meals are kosher meals. Common Fare participants may not select items from the hot bar, but they may supplement their diets by selecting items from the salad bar or by purchasing items from the commissary.
The BOP decided to serve kosher meals in the Common Fare plan after reviewing the dietary requirements of various religious faiths. It concluded that a kosher meal was the strictest diet and subsumed all other religious dietary needs. Local prisons may not make changes to the Common Fare plan; such changes must occur pursuant to the BOP's direction, not at individual prisons.
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 810 (8th Cir. 2008) (footnote omitted).
Under the BOP's religious diet program, "[i]nmates participating in the [Common Fare'] Component are not authorized to consume mainline or hot bar food items; however, they may consume items from a salad bar (where salad bars are part of the Food Service program), knowing that salad bar items may not meet their religious dietary needs." Fed. Bureau of Prisons, Program Statement P4700.06, Food Service Manual 23-24 (Sept. 13, 2011), available at http://www.bop.gov/policy/progstat/4700_006.pdf. If an inmate on the common fare plan violates the dietary restrictions of that program, he may be removed from the plan and temporarily disqualified from participating in it for up to thirty days, or for up to one year if the inmate has repeatedly withdrawn or been removed from the plan. See 28 C.F.R. § 548.20(b); Fed. Bureau of Prisons, Program Statement P5360.09, Religious Beliefs and Practices 19 (Dec. 31, 2004) (hereinafter, "BOP Program Statement P5360.09"), available at http://www.bop.gov/policy/progstat/5360_009.pdf.
Prior to his arrival at USP Lewisburg, Njos had been removed from the common fare plan on three occasions. On November 24, 2010, Njos purchased a non-kosher beef summer sausage from the commissary. On December 2, 2010, after learning of that purchase, Njos was removed from the common fare plan by Chaplain Caudle pursuant to 28 C.F.R. § 548.20(b), based on Njos's purchase of non-kosher food. Because this was his fourth such removal, Njos was temporarily disqualified from participation in the certified religious diet program for a period of one year, after which he could reapply for admission into the program.
In March 2011, Njos requested reinstatement to the common fare plan, which was denied by Chaplain Carney based on Njos's one-year suspension from the program. Three months later, Njos again requested reinstatement to the common fare plan. In July 2011, Njos was interviewed for participation in the religious diet program, and he was denied the common fare diet but approved by Chaplains Jones and Caudle to participate in the mainline religious diet program. On the mainline religious diet plan, Njos was required to provide for his religious dietary needs by self-selection from the ordinary mainline food service, which included vegetarian options, but not kosher food.
Njos was re-interviewed in January 2012, January 2013, and July 2013 by Chaplains Onuh, Carney, and Davis, respectively. Each time, Njos requested reinstatement to the common fare plan, and each time he was denied the common fare diet but approved to participate in the mainline religious diet program.
With respect to juice and matzo, on March 14, 2012, Njos wrote to Chaplain Carney to request matzo and kosher grape juice for use in his Sabbath evening religious service. On March 16, 2012, Chaplain Carney responded in writing, requesting that Njos explain the significance of his request for matzo and juice. On March 20, 2012, Njos wrote to Carney to explain that consumption of the juice and matzo were required in connection with a "Kiddush" prayer to be recited before Friday evening, Saturday morning and Saturday evening meals. On March 22, 2012, Carney responded "[r]equest denied, " having determined that the reasons offered by Njos were not consistent with the Jewish faith. Nevertheless, Njos began receiving one 6.75-ounce container of kosher grape juice and two pieces of matzo for his Friday evening Kiddush prayer. On April 30, 2012, Njos wrote to Chaplain Davis to request additional juice and matzo for use on Saturday morning and Saturday evening, noting that Jewish law requires a minimum of three ounces of kosher wine or grape juice and two pieces of matzo be consumed with each recitation of Kiddush. Later that same day, Chaplain Carney responded in writing: "This is not consistent w/ Sabbath practice."
Njos filed the complaint in this action on July 17, 2012. (Doc. 1). On November 8, 2012, several claims and defendants were dismissed pursuant to 28 U.S.C. § 1915(e)(2), but the case was permitted to proceed with respect to Njos's First Amendment and RFRA claims against the three chaplains. On March 19, 2013, the Defendants filed a motion to dismiss or for summary judgment. (Doc. 21). On April 1, 2013, the Defendants filed a brief, a statement of material facts, and various exhibits in support of the motion. (Doc. 22; Doc. 23; Doc. 22-1). On June 17, 2013, Njos filed his response in opposition to the motion. (Doc. 31). The motion is now ripe for decision on the papers. Fed.R.Civ.P. 78(b); L.R. 7.9.
II. SUMMARY JUDGMENT STANDARD
The Defendants move both to dismiss pursuant to Rule 12(b)(6) and for summary judgment pursuant to Rule 56. This Court has previously passed on the sufficiency of the complaint under Rule 12(b)(6) with respect to these three defendants. See Njos v. Carney, No. 3:12-CV-1375, 2012 WL 5463097 (M.D. Pa. Sept. 12, 2012) (Doc. 8), adopted by 2012 WL 5463202 (M.D. Pa. Nov. 8, 2012) (Doc. 11). Moreover, the Defendants have presented and liberally relied upon factual materials outside the complaint. (Doc. 22-1; Doc. 23). Therefore, the instant motion will be treated as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "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.P. 56(a). A fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, " and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that "the evidence ...