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Barros v. Wetzel

United States District Court, M.D. Pennsylvania

March 2, 2017

CESAR BARROS, Plaintiff,
v.
JOHN E. WETZEL, Secretary of Corrections, Defendant.

          KANE JUDGE.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge.

         On 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.[1] (Id.). As relief, plaintiff requests declaratory and injunctive relief. (Id. at 3).

         We 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. (Doc. 57).

         For the 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 denied.

         I. Summary Judgment Standard

         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 presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.

         II. Statement of Material Facts

         The 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.

         Barros 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).

         The 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. (Id.).

         Further, 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).

         In 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).

         The 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).

         Next, 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 ...


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