United States District Court, E.D. Pennsylvania
BRIAN C. OLIVER
GD CORRECTIONAL FOOD SERVICE, LLC. and JAMES C. KOSTURA
se Plaintiff Brian C. Oliver, a pretrial detainee
confined at the Northampton County Prison
(“NCP”), has filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983. He has also filed a Motion
to Proceed In Forma Pauperis. Named as Defendants
are GD Correctional Food Service, LLC (“GDC”) and
James C. Kostura, Director of NCP.
it appears that Oliver is unable to afford to pay the filing
fee, we shall grant him leave to proceed in forma
pauperis. Pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii), the Complaint will be dismissed without
prejudice as to defendant Kostura.
Complaint, Oliver's asserts that his First Amendment free
exercise rights have been violated by GDC, the food service
provider at NCP, because he has been receiving meat products
on his food trays. Oliver asserts he is a member of the
Rastafarian religion and a religiously compelled
vegetarian. He asserts that although he has made
GDC's staff and Kostura aware of his religious diet, they
have not corrected his problem. He received meat in his meals
“several times” between August 2019 and October
21, 2019. He seeks $50, 000 in money damages for the
emotional pain this has caused.
to 28 U.S.C. § 1915(e)(2)(B)(ii), we must dismiss the
Complaint if it fails to state a claim. Whether a complaint
fails to state a claim under § 1915(e)(2)(B)(ii) is
governed by the same standard applicable to motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999), which means the complaint must contain
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). “[M]ere conclusory statements do
not suffice.” Id. Because Davis is proceeding
pro se, we construe his allegations liberally.
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.
1983 of Title 42 of the United States Code provides in part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983.
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“A defendant in a civil rights action must have
personal involvement in the alleged wrongs.” See
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Furthermore, “[b]ecause vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
First Amendment to the Constitution of the United States,
made applicable to the States by the Fourteenth Amendment,
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940),
provides, inter alia, that “Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. . . .” U.S.
Const, amend. I. Free exercise rights are lessened, but not
extinguished in the prison context, where legitimate
penological interests must be considered in assessing the
constitutionality of official conduct. See Turner v.
Safley, 482 U.S. 78, 89 (1987). Although prisoners must
be afforded “reasonable opportunities” to
exercise their religious freedom guaranteed by the First
Amendment, Cruz v. Beto, 405 U.S. 319, 322 n. 2
(1972), imprisonment necessarily results in restrictions on
some constitutional rights, including the First
Amendment's right to the free exercise of religion.
O'Lone v. Shabazz, 482 U.S. 342, 348-49 (1987).
It is well-established that only those beliefs which are (1)
sincerely held, and (2) religious in nature are entitled to
constitutional protection. Wisconsin v. Yoder, 406
U.S. 205, 215-19 (1972); DeHart v. Horn, 227 F.3d
47, 51 (3d Cir. 2000); see also, Africa v.
Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981)
(describing three indicia of religion: (1) an attempt to
address “fundamental and ultimate questions”
involving “deep and imponderable matters”; (2) a
comprehensive belief system; and (3) the presence of formal
and external signs like clergy and observance of holidays).
contends that his First Amendment rights were violated when
Defendant GDC included meat in his diet, thus failing to
accommodate his special religious dietary needs. Liberally
construing Oliver's claim, we assume that his
vegetarianism is a sincerely held belief and religious in
nature. We will also presume that GDC is a “state
actor” for purposes of § 1983 liability. See
McCullum v. City of Philadelphia, Civ. A. No. 98-5858,
1999 WL 493696, at *2-3 (E.D. Pa. July 13, 1999) (holding
that contracted corporate food service provider was a state
actor for purposes of § 1983 liability). Accordingly,
his claim against GDC will be permitted to proceed.
makes no factual assertions regarding Director Kostura other
than his claim that Kostura was made aware that GDC was
including meat in his meals. To the extent that Oliver has
named Kostura as a defendant based upon his position at NCP,
there are “two general ways in which a
supervisor-defendant may be liable for unconstitutional acts
undertaken by subordinates.” Barkes v. First Corr.
Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014),
reversed on other grounds by Taylor v. Barkes, 135
S.Ct. 2042 (2015). First, a supervisor may be liable if he or
she “‘with deliberate indifference to the
consequences, established and maintained a policy, practice
or custom which directly caused [the] constitutional
harm.” Id. (quoting A.M. ex rel. J.M.K. v.
Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d
Cir. 2004) (alteration in original)). “Second, a
supervisor may be personally liable under § 1983 if he
or she participated in violating the plaintiff's rights,
directed others to violate them, or, as the person in charge,
had knowledge of and acquiesced in the subordinate's
unconstitutional conduct.” Id. Oliver makes no
allegations showing neither a policy nor ...