United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO, JR. United States Magistrate Judge.
September 8, 2014, plaintiff Cesar Barros
(“Barros”), prisoner at the State Correctional
Institute at Retreat (“SCI-Retreat”), filed this
pro se §1983 civil rights action. Barros
alleged that Defendant, John E. Wetzel, Secretary of the
Pennsylvania Department of Correction, violated his First
Amendment free exercise of religion rights by failing to
provide him with his gluten free meal as a Ramadan evening
meal and by further, not allowing him to take his gluten free
meal back to his cell to eat at the appropriate time. (Doc.
1). Barros does not specifically cite the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. §2000cc, et seq.; however, it appears
that he is alleging a violation of the statute. (Id.).
As relief, plaintiff requests declaratory and injunctive
relief. (Id. at 3).
granted plaintiff's in forma pauperis motion and
directed the United States Marshal Service to serve
plaintiff's complaint on defendant. (Doc. 8). After we
granted the defendant's motion for leave to file a motion
to dismiss nunc pro tunc, on January 22, 2015, the
defendant filed a motion to dismiss plaintiff's complaint
for failure to state a claim. (Doc. 16). On August 5, 2015,
we recommended that the motion to dismiss and the request for
a preliminary injunction be denied. (Doc. 34). The court
adopted our report and recommendation on September 29, 2015.
(Doc. 39). On March 22, 2016, the defendant filed the instant
motion for summary judgment (Doc. 53) along with a statement
of material facts (Doc. 54) and a supporting brief (Doc. 56).
The plaintiff filed an opposition brief and the defendant
filed a reply brief. (Docs. 59, 62). The plaintiff failed to
file a response to the defendant's statement of material
facts as required by LR 56.1. The plaintiff filed a motion
for expedited preliminary injunction (Doc. 48) without a
supporting brief. The defendant filed an opposition brief.
reasons set forth below, we recommend that the motion for
summary judgment (Doc. 53) be granted in part and denied in
part, and the request for preliminary injunction (Doc. 48) be
Summary Judgment Standard
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).
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 presents a sufficient disagreement to require
submission to the jury.” Anderson, 477 U.S. at
Statement of Material Facts
defendant moved for summary judgment and submitted several
documents in support of the motion. Those documents include
copies of Barros's prison grievances and several
Declarations from prison officials. In particular, the
defendant submitted a Declaration from Marcia Noles, Chief of
the Food Services Division for the Pennsylvania Department of
Corrections (“DOC'), which outlined the DOC's
efforts to feed 52, 000 inmates with a variety of special
dietary needs; a Declaration from Kathy Brittain, the Deputy
Superintendent for Centralized Services at SCI-Retreat,
regarding the procedure for inmates who participate in
Ramadan; and a memorandum from Shawn Kephart, Director,
Bureau of Treatment Services, setting forth the 2015 policy
memorandum on the observance of Ramadan, and which stated
that prison food services would not change the Ramadan
evening meals or sahur bags to accomodate inmates who have
allergies to certain foods or who receive therapeutic diets.
is a practicing Muslim, who at all times relevant was an
inmate at SCI Retreat, and was authorized to receive a
non-standard therapeutic diet labeled gluten-free. (Doc. 54,
at 1-2). Barros's 2014 request for a religious
accommodation, his subsequent grievance related thereto, and
his 2015 similar request have been denied pursuant to DOC
policy. (Doc. 54, at 2). A therapeutic diet is a diet or
dietary regimen prescribed by a physician, physician
assistant, dentist, or psychiatrist, used as a therapy for a
medical condition as part of an overall health care plan.
(Id. at 5). Usually, inmates receive their evening
meal between 4:30 p.m. and 6:30 p.m. in the dining hall.
(Id. at 8). Inmates who participate in the Ramadan
fast may receive their evening meals when the Ramadan evening
meals are served which is approximately five to ten minutes
after sundown following their evening prayers. (Id.
at 9). Inmates receiving Ramadan meals are also given a sahur
bag which they take to their cells along with their Ramadan
meals. (Id.). The Ramadan evening meal should be
eaten immediately while the sahur bag is meant to be eaten
before sunrise (approximately 5:40 a.m. to 5:55 a.m.).
(Id. at 10).
participation in the Ramadan fast requires that inmates not
eat or drink after sunrise and before sunset, and it also
requires that inmates alter their medications. (Id.
at 10-11). Those inmates who receive therapeutic diets or
medications are counseled by medical staff prior to the start
of Ramadan. (Id.). Because of the large number of
Muslim inmates who are housed at SCI-Retreat and participate
in Ramadan (approximately 120 in 2014), Brittain, further
declared that delivering meals would be operationally
burdensome and could increase staffing needs for the delivery
of meals. (Doc. 54-4, at 10). She also stated that delivering
fast meals to a small number of Jewish inmates has minimal
impact upon the efficient operations of the institution.
Food Services claims it is unable to accomodate inmates with
documented allergies to certain foods or those who receive
therapeutic diets with religious diets. (Doc. 54, at 13). In
support of this assertion, the defendant relies upon DC-ADM
819, Religious Activities Procedural Manual Section 1-General
Procedures 2.d. which states as follows:
Food Services is unable to accommodate inmates with
documented allergies to certain foods or those who receive
Therapeutic Diets with special religious diet bags for holy
day observances. An inmate who is currently on a Therapeutic
Diet for medical reasons, has a food allergy or is receiving
a snack bag, and still wishes to receive a special religious
diet bag for an approved holy day observance must sign a
Release from Responsibility for Medical Treatment Form (refer
to Department policy 13.2.1, “Access to Health Care,
” Section 1) prior to being accommodated with a special
religious diet bag.
(Doc. 54-1, at 26)(emphasis in original).
support of this assertion, the defendant maintains that
requiring the DOC to provide therapeutic diets for religious
feasts, fasts, functions, and holiday meals (“double
accommodation”) will impact both the 26 DOC
institutions and the Central Office. (Doc. 54, at 14). The
defendant maintains that institutions will need an increase
in staff in order to administer proper oversight of all of
the different types of food being produced for the different
types of meals, bag-meal production, food-tray preparation,
and meal service or transport for meals fed outside of the
dining room, and to insure that the correct meal is being fed
to all inmates at the same time. (Id.). Further,
institutions will suffer greater exposure to liability if an
error is made and an inmate who needs a therapeutic diet is
served an improper meal, such a standard diet meal or a meal
using the incorrect specialized therapeutic menu.
(Id.). In addition, it is claimed that inmate
kitchen workers will have a greater opportunity with more
specialized meals being served to single-out a particular
individual's food in order to sabotage it or to pass
contraband via the meal. (Id.). Because therapeutic
diets are only prescribed as therapy for a medical condition,
any alteration to an inmate's therapeutic diet, whether
intentional or unintentional, could cause serious medical
harm, including death. Finally, the defendant maintains that
these problems raise valid health, safety, and security
concerns in addition to increasing the number of such diets
that the DOC's dietician will need to create, analyze,
and administer during the entire duration of the religious
fasts. (Id. at 15). It will also require the need
for the Central Office to increase staff to take on
additional duties that the dietician will no longer be able
to perform such as staff training, institutional audits and
involvement, and testing. (Id. at 15).
defendant maintains that the DOC's 26 institutions lack
the manpower (both in food services and security) as well as
the physical plant facilities, to accommodate every inmate
who wants a specialized therapeutic and religious diet
specifically for religious fasts, functions, and holidays.
(Id. at 16). The DOC's Registered Dietician has
identified two situations in which the DOC would find it
exceedingly difficult and be unable to accommodate an inmate
with a diet menu meeting both therapeutic and religious diet
needs and, at the same time, providing that inmate with the
Recommended Dietary Allowances under the Food and Nutrition
Board of the National Academy of Sciences. First, the DOC is
unable to accomodate a request from an inmate to receive a
non-standard therapeutic diet because of allergies to soy and
legumes and a religious accommodation to receive a no-animal
product diet because there are no other readily available
good protein sources on which to base a nutritionally
adequate diet menu. Second, the DOC is unable to meet the
request of an inmate who receives a non-standard therapeutic
gluten free diet and a religious accommodation to receive a
Kosher diet because the number of food items that contain
gluten and appropriate substitutes, which are both gluten
free and certified Kosher are not available at the DOC
institutions. (Id. at 16-17).
the defendant raises food safety concerns regarding holding
meals to eat after sundown and providing gluten free Ramadan
bag meals. First, regarding holding meals to eat after
sundown, DOC policy requires the establishment of standards
and procedures for the preparation and service of all food
items to ensure compliance in maintaining the highest
professional standards of security, sanitation, physical
hygiene, and safety. (Id. at 18). DOC policy
requires that hot food be held at 140"F or above and
cold food be held and served at 40°F or below to prevent
foodborne illness. (Id.). Over the last three years,
the Ramadan evening meal for those participating inmates was
served shortly after sundown, i.e. at 8:00 p.m. or later.
(Id.). If inmates pick up evening meals between 4:00
p.m. and 6:30 p.m. and hold the meal to eat at 8:00 p.m. or
later, serious food safety concerns are presented by holding