United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants'
Motion for Summary Judgment, (Doc. No. 26), and on
Defendants' Motion to Strike Plaintiff's Surreply,
(Doc. No. 45).
filed pro se Complaint pursuant to 42 U.S.C. §
1983 that passed initial review on his claim that, while he
was incarcerated at the Mecklenburg County Sheriff's
Office's (“MCSO”) Jail, he was denied the
right to practice his religion in violation of the First
Amendment and Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), and he was treated
differently from inmates of other religions in violation of
the Fourteenth Amendment's Equal Protection Clause. (Doc.
Nos. 1, 7). His allegations center around the provision of a
religious diet and prayer services for his Islamic faith. The
Defendants are Mecklenburg County Sheriff Irwin
Carmichael and Mecklenburg County Central Jail
Chaplains Dennis and Maddox.
have now filed a Motion for Summary Judgment that is before
the Court for review. (Doc. No. 26). The Court issued an
Order on December 5, 2018 informing Plaintiff of the
importance of responding to the Motion and cautioned him that
failure to do so may result in dismissal. (Doc. No. 28).
Plaintiff filed a Response, (Doc. No. 38), Defendants filed a
Reply, (Doc. No. 42). Plaintiff then filed a Surreply, (Doc.
No. 44), which Defendants have moved to strike, (Doc. No.
(Doc. No. 1)
alleges that his sincerely held Muslim beliefs require him to
eat either kosher or halal meat. He requested a kosher or
halal diet that includes meat but was only offered a
vegetarian diet even though there was no legitimate
penological reason for doing so. This substantially burdened
Plaintiff's practice of his religion which he believes to
require the consumption of halal meat. The kosher diet
satisfies his religious requirements and could be modified to
accommodate his medical need for a high-protein diet. He was
told, and documents indicate, that he was denied the Kosher
diet because he is not Jewish. Providing Kosher meals to
Plaintiff could be accomplished for de minimis cost
and would not cause any administrative or security problems.
The only alternative offered to Plaintiff is a vegetarian
diet that does not satisfy his religion's requirement to
eat meat or his medical need for a high-protein diet which
would result in rapid weight loss. Plaintiff was treated
“harshly” by the chaplain who ignored and denied
his requests. (Doc. No. 1 at 7). Plaintiff appears to allege
that the unavailability of a Kosher diet caused him to go on
a hunger strike. Plaintiff alleges that documents showing the
reason for his denial - the fact that he is not Jewish - are
being altered to remove that invalid reason for his denial.
brought to the attention of “facility officials”
that a similarly situated Jewish inmate in Plaintiff's
housing unit was given the Kosher diet but the officials
callously denied and ignored Plaintiff's requests. (Doc.
No. 1 at 3-4). The requirement that inmates must profess to
follow the Jewish faith to receive Kosher meals has since
been removed from the system.
further alleges that Muslim inmates are treated differently
from members of other religious groups in that they are
provided inadequate services of an Imam. The facility
maintains a relationship with only one part-time Imam whereas
there are four or five full-time Christian chaplains. The
part-time Imam is rarely available to minister to Muslim
inmates. During Plaintiff's 30 days at the facility, he
only encountered the Imam on three occasions. The facility
allows Jumah, Friday congregational prayer service, for three
or more inmates but the unavailability of the Imam to lead
the service makes this alternative means a farce. In
Plaintiff's 31 months at the facility, an Imam led one
Jumah prayer even though the requisite number of inmates was
present on every occasion. Plaintiff appears to seek
compensatory and punitive damages and injunctive relief.
Defendants' Motion for Summary
Judgment (Doc. No. 26)
argue that Plaintiff's official capacity claims against
Dennis and Maddox should be dismissed because they are
redundant of the official capacity claims against Sheriff
Carmichael. Plaintiff failed to exhaust administrative
remedies with regards to the claims against Carmichael and
Maddox, and all claims alleging that Defendants failed to
provide an Imam to lead prayer services in the first and
second claims for relief, and the equal protection claim
alleging disparate treatment regarding prayer meetings in the
third claim. There are no allegations that Carmichael or
Maddox were personally involved in any of the constitutional
deprivations. Plaintiff's First Amendment and RLUIPA
claims fail because his rights to worship and eat religious
meals were never substantially burdened. Further, the RLUIPA
claim fails because Plaintiff has been moved from the Jail,
which renders injunctive relief moot, and monetary damages
are not available under the RLUIPA. Finally, Defendants argue
that they are entitled to qualified immunity for any claims
against them in their individual capacities because provision
of a religious meal without meat that is consistent with
Islamic beliefs and affording volunteer Imams for inmates do
not violate any clearly established right.
Plaintiff's Response (Doc. No. 38)
Court issued an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975),
instructing Plaintiff regarding his right to respond to
Defendant's Motion. (Doc. No. 28). Plaintiff filed a
Response arguing that are genuine disputes of material fact
for trial. He claims that he has been denied his right to
discovery and that the disputed documents are relevant to
prove Defendants' liability and Plaintiff's claim of
injury and damages. Plaintiff contends that discovery will
show that Defendants' actions substantially burdened
Plaintiff's ability to practice his religion, and will
produce probative evidence that affirmatively establishes
that Defendants put substantial pressure on Plaintiff to
modify his behavior and violate his beliefs. Defendants'
argument that any burden on Plaintiff was reasonable is an
admission and shows that a material issue exists for trial.
According to Plaintiff, Defendants concede that even if
Plaintiff's RLUIPA claims are not moot and damages are
authorized, the RLUIPA claim still fails. This concession is
an admission and shows that a material issue for trial
exists. He claims that Defendants further concede that, to
prevail on equal protection, Plaintiff has to show he was
treated differently from similarly situated persons. Their
concession is an admission and discovery would support
Plaintiff's claim. Plaintiff also claims that Defendants
concede that, if Plaintiff can demonstrate any violation of
constitutional rights, they are protected by qual immunity;
this concession is an admission and a genuine issue of fact
exists for trial. Plaintiff argues that he has shown that a
genuine issue exists for trial and that he will present
sufficient probative evidence from which a reasonable jury
could return a verdict for Plaintiff. He argues that
Defendants are not entitled to judgment as a matter of law
and asks the Court to grant his Motion to Compel and strike
Defendants' Motion for Summary Judgment, impose
sanctions, and stay further proceedings until Defendants obey
their discovery obligations.
filed a Notice of Appeal with his Response, (Doc. No. 40),
that was transmitted to the Fourth Circuit Court of Appeals,
(Doc. No. 41). The interlocutory appeal was dismissed for
lack of prosecution on April 4, 2019. See (Doc. No.
Defendants' Reply (Doc. No.
assert that Plaintiff has not complied with the
Roseboro order in that he sets forth no admissible
evidence to demonstrate that there is a genuine issue of fact
on any issue. Instead, Plaintiff argues that discovery would
lead to admissible evidence to rebut Defendants' claims.
Plaintiff refers to his Motion to Compel but he fails to
specify what documents would produce probative evidence and
Plaintiff had adequate time to complete discovery. Moreover,
Plaintiff has not filed any affidavits in support of his
request to delay summary judgment. Plaintiff's request to
create an issue of fact by claiming he is entitled to
discovery should be denied. The only substantive argument
that Plaintiff has made is with regards to the substantial
burden argument. He states that a prisoner has a right to a
diet consistent with his religious scruples. He also states
that a substantial burden under the First Amendment and
RLUIPA exists when a government put substantial pressure on
an adherent to modify his beliefs. Defendants do not dispute
this contention, however, Plaintiff does not state any facts
demonstrating that Defendants' actions caused him to
modify his beliefs. The religious meal offered to Plaintiff
was consistent with Islamic law. Defendants also provided
opportunities for Islamic inmates to worship as they wished
and Plaintiff participated in Ramadan observances. There was
no pressure placed on Plaintiff to change his religious
beliefs at the Jail.
Plaintiff's Surreply (Doc. No.
filed a Surreply to which he attached his own Affidavit. He
argues that the facts and admissible evidence show that
Plaintiff did exhaust all administrative remedies at MCSO.
The grievance policy requires the inmate to have one level of
appeal., and the initial response must be made within 72
hours. Plaintiff exhausted his administrative remedies on
July 13, 2015 at 2:26 PM, May 17, 2016 at 2:39 PM, May 19,
2016 at 9:32 AM, May 27, 2016 at 2:35 PM and on June 6, 2016
at 7:53 AM.
alleges that he has been treated differently from similarly
situated inmates and the difference is not due to a
legitimate penological interest. Defendants are personally
liable because they adopted and implemented detention
policies and practices for the purpose of discrimination
rather than for a neutral investigative or penological
objective and failed to properly supervise their
subordinates' duties, and due to adoption and
implementation of policies and practices for the purpose of
claims that Defendants concede that Plaintiff's
substantial burden argument is “substantive.”
(Doc. No. 44 at 9). He further argues that Defendants'
failure to properly discharge their duties put substantial
pressure on Plaintiff to violate his religious beliefs. By
repeatedly trying to frustrate the discovery rules, they
tacitly admit that further probative evidence exists that
substantiates Plaintiff's claims. Plaintiff seeks costs
and expenses, asks the Court to accept his designated facts,
prohibit Defendants from supporting their defense or opposing
Plaintiff's facts, striking Defendants' Motion for
Summary Judgment in whole or in part, stay these proceedings
until the Motion to Compel is obeyed, render default judgment
for Plaintiff, and enter a contempt order against Defendants.
Plaintiff reserves the right to full disclosure of the
requested discovery prior to summary judgment.
Affidavit attached to the Surreply, (Doc. No. 44 at 12),
Plaintiff discusses the Motion to Compel and largely
reiterates the arguments presented in his Surreply.
Defendants' Motion to Strike Surreply
(Doc. No. 45)
argue that the Surreply should be stricken because Plaintiff
filed it without leave of court and it does not comply with
Local Rule 7.1(e). Defendants go on to argue that summary
judgment should be granted even if the Surreply is not
stricken. Although Plaintiff claims that his right to
exercise was substantially burdened, he does not contradict
any of the sworn testimony in Defendants' Motion for
Summary Judgment that the meals offered were consistent with
Islamic law, that Defendants provided opportunities for
Islamic inmates to worship as they wished, and that Plaintiff
participated in Ramadan observances. There is no evidence of
any pressure for Plaintiff to change his religious beliefs at
Plaintiff's Response to Defendants' Motion to
Strike (Doc. No. 46)
argues that he has complied with the Court's Local Rules
because his filing is a Reply rather than a Surreply and he
is permitted to respond to Plaintiff's Motion for Summary
Judgment. He further states that all of his evidence is
admissible. He states that his Notice of Appeal, (Doc. No.
40), was intended to be held in abeyance until the Court
denied Plaintiff's relief on Motion to Compel. He
reserves the right to appeal if the court denies the Motion
to Compel and requests a copy of his Complaint and the
imposition of sanctions against Defendants.
Declaration of Tom Barei (Doc. No. 26-2)
Services Manager for Aramark Food Services, Tom Baraei,
states that Aramark provides meals to inmates at the Jail.
Baraei manages the food service delivered to inmates at the
provides approximately 11 different diets to inmates at the
Jail including regular diets, medical diets, and religious
diets. Diets are color-coded. For instance, the turquoise
diet is a medical high-protein diet. The Jail's religious
diet is plant-based and contains no animal products. It was
designed specifically to meet the dietary needs of offenders
who, for religious reasons, require a non-pork diet and whose
dietary requirements cannot be accommodated with food in the
regular menu. It consists of rice, beans, fruit and
vegetables, with no meat, dairy or poultry. The proteins are
beans and peanut butter. The meal is 3, 000 calories per day.
This diet “complies with all the rules of dietary needs
for all religious beliefs, except for prisoners who require
kosher diets.” (Doc. No. 26-2 at 3).
religious meal has been certified as “meeting or
exceeding minimum daily nutritional requirements.”
(Id.). The meal does not contain halal meat. In
order for meat to be halal, separate storage facilities,
cooking areas, and utensils would have to be provided. The
cost of purchasing halal meat on the open market is
“prohibitively expensive.” (Id.). There
would also be increased costs associated with providing
separate storage facilities, cooking areas, ovens, and
cooking utensils for halal meats.
provides kosher meals for Jewish inmates. The kosher meals
are prepared separately. For kosher meals, you cannot prepare
meat and dairy at the same time so kosher meals are specially
ordered. The kosher meals cost approximately $5.25 per meal
and the other meals are approximately $.95 per meal. There is
little space in the kitchen to prepare kosher meals. There is
one microwave and meals cannot be mixed. It also takes about
six minutes for a meal to cook.
Declaration of Frank Tallerico (Doc. No.
Program Specialist in the Inmate Programs Department of MCSO,
Frank Tallerico, worked with the Jail's Chaplain Unit
from August 22, 2012 through January 2, 2018. He is familiar
with the programs offered in the Chaplain Unit.
2016, the Jail had three full-time Associate Chaplains and
one part-time Chaplain. Defendant Dennis was the Senior
Chaplain until he retired on July 1, 2018, and Defendant
Maddox was an Associate Chaplain. The job of a chaplain is to
ensure that inmates have the opportunity to address the
issues they face on a spiritual level that may have
contributed to their criminal behavior and subsequent
incarceration through spiritual maintenance, pastoral care,
and various religious studies.
Senior Chaplain, Defendant Dennis was primarily responsible
for supervising and overseeing the other chaplains. Defendant
Maddox was primarily assigned to carry out chaplain duties at
Jail North. All chaplain staff are nonsectarian and are
responsible for helping inmates of all faiths connect with
their local faith community.
addition to salaried chaplain staff, the Jail uses volunteer
Chaplain Aides and volunteer religious study instructors.
Chaplain Aides are volunteers who assist chaplain staff with
providing spiritual talks to inmates, conducting religious
studies, and providing religious literature to inmates.
Religious study instructors come into the Jail on
predetermined days and times to provide religious instruction
to inmates who voluntarily request to be part of a religious
Chaplain's Unit provides opportunities for all inmates,
including Islamic inmates, to study with representatives from
their respective faith traditions. The Chaplain's Unit
welcomes Imams to meet with inmates who desire a visit. Imams
come on a voluntary basis. There is an application process
including a background check and training process called
Fundamentals of Working in a Jail which is one time per
month. The Chaplain's Unit solicits assistance from Imams
from local mosques.
Chaplain Aide volunteer goes through the application process
and completes training, they are given a green identification
card which allows them to conduct a face-to-face visit with
anyone requesting a visit from their religious group.
Chaplain Aides are allowed to visit an inmate who requests a
visit for prayer request or spiritual counseling during
normal business hours.
who have been issued MCSO credentials are allowed to come to
the Jail during normal business hours, but generally come to
the Jail when their schedule permits. Imams are allowed to
visit inmates requesting a visit for Muslim services, such as
Jumu'ah Prayer, Tallem or educational study, or spiritual
Plaintiff's time at the Jail, Imam assistants from the
local Masjid, including Jibril Muhaymin, Lawrence Muhammed,
and Hakeem Fateen, volunteered at the Jail. The
Chaplain's Unit had asked Mr. Muhaymin to find additional
Imam or Imam assistants to come to the Jail. Inmates are also
encouraged to reach out for approved volunteers.
are allowed to participate in Jumu'ah prayer which is on
Friday afternoons. If an Imam is not available, a POD officer
may authorize a group of inmates to conduct their own
Jumu'ah prayer if safety and security permit. Inmates are
also allowed to engage in daily prayer in their rooms. During
Ramadan, inmates can sign up to participate in Ramadan.
Chaplain's Unit solicits donations of Korans and other
Islamic literature from local mosques. Inmates can request a
Koran from the Chaplain's Unit. If an inmate requests a
Koran from the Chaplain's Unit, one is provided free to
them. If a Koran is not available at the Chaplain's Unit,
inmates may check a Koran out from the Jail Library.
addition to having the Koran, the Jail library has five
Hadiths, a collection of traditions containing sayings of the
Prophet Muhammad. There are also seven children Islamic books
and an Islamic study book at the library.
may request religious meals from the Chaplain's office
and religious meals are provided to inmates who request it.
However, if an inmate is on a special medical diet, the
inmate is not given the religious meal unless jail medical
staff certifies that the religious meal will not affect the
to Tallerico's understanding of Islamic law, which is
based on conversations with Islamic religious authorities, it
is forbidden for Muslims to eat ham, pork, or animal blood.
According to the food provider, the religious meal served at
the jail does not contain ham, pork, or pork byproducts.
Declaration of Sheila Burns (Doc. No. 26-4)
Burns is employed by Correct Care Solutions, which provides
inmate medical care at the Jail, as Head Nurse. For health
reasons, some inmates are placed on medical diets of which
there are several types. When an inmate who is on a medical
diet requests a religious diet, Jail medical staff determines
whether the religious diet will adversely affect the
inmate's health. Requirements for specific medically
prescribed diet will override an inmate's preference for
a religious diet. If the Jail medical staff determines that
the religious diet will not adversely affect the inmate's
health, the inmate is given the religious diet.
reviewed Plaintiff's medical records, which are kept in
the ordinary course of business at the Jail. Plaintiff was
placed on a high-protein medical diet on January 17, 2014. On
May 12, 2016, the high-protein medical diet was discontinued
and Plaintiff “was allowed to have a regular house diet
or religious diet.” (Doc. No. 26-4 at 3). On May 12,
2016, an evening snack bag and one serving of peanut butter
was added to Plaintiff's diet.
Declaration of Carolyn Ashe (Doc. No. 26-7)
Inmate Grievance Coordinator Carolyn Ashe maintains inmate
grievance forms as part of her job duties. Pursuant to the
Jail's written policy, (Doc. Nos. 26-8, 26-9), if an
inmate has a grievance, he or she may voice an informal
grievance to the POD supervisor. The POD supervisor
determines the nature of the complaint and attempts to
resolve the problem. If the POD supervisor cannot resolve the
problem, the inmate will be instructed to make a formal
complaint using the kiosk. After the inmate has completed
their grievance, the inmate is responsible for checking the
system for a response within seven days. Any emergency
grievance will be verbally reported to the sergeant on duty.
As each grievance is answered, the inmate will have access to
his or her response, and the responses to grievances are
tracked. All grievances are answered within seven days,
excluding weekends and holidays. If an inmate is dissatisfied
with the response, they may appeal within seventy hours of
are informed of the Jail's grievance policy via the kiosk
when they arrive at the Jail. Each inmate receives an inmate
handbook via the kiosk which details the policies and
procedure applicable to inmates at the Jail. Included in this
handbook is a section entitled “Requests and/or
Grievance Forms” which summarizes the grievance process
at the Jail. (Doc. No. 26-7 at 3).
to the Jail's grievance files, Plaintiff filed 23
grievances and requests from 2013 to 2016. He did not file
any grievances against Defendants Carmichael or Maddox. The
only grievances he filed as a result of wanting a kosher diet
were on January 27, 2015, May 17, 2016, May 18, 2016 and May
23, 2016. Plaintiff never filed grievances concerning the
failure of the Sheriff's Office to provide an Imam to
lead prayer services or complaints about equal protection
violations based on disparate treatment with Christian
Inmate Summary (Doc. No. 26-6)
was released from the Jail on July 27, 2016 and is now in the
custody of the Federal Bureau of Prisons where he is serving
a life sentence. See (Doc. Nos. 26-6, 26-11).
Medical Records (Doc. No. 26-5)
1/17/14 Physician's Order: high protein diet
(Doc. No. 26-5 at 2)
5/12/16 Physician's Order: “d/c current
diet order. May have regular house diet or religious diet as
indicated.” (Doc. No. 26-5 at 3)
Physician's Order: “add to prior diet
order evening snack bag plus one serving of peanut butter
nightly.” (Doc. No. 26-5 at 4)
Medical Diet Order: “Snack bag plus one
service of peanut butter nightly.” (Doc. No. 26-5 at 6)
Infirmary Progress Note 2:06 PM by D Biondi:
“Patient is in infirmary for hunger strike. Continue to
consume only water, gatoraide, and boost. Reports no
symptoms. Tells me the reason for this action is inability to
get a Kosher diet to comply with his Muslim faith. He states
he was placed on a high protein diet for weight loss upon
incarceration but it was never changed back to a regular diet
and the medical order is preventing him from obtaining a
religious diet compliant with his faith. He has stable weight
and only minimal weight loss during this hunger
strike.” (Doc. No. 26-5 at 7)
Infirmary Progress Note 8:19 PM by A McVay:
“I/M continues with Hunger Strike day 13. I/M stated he
will start eating once his kosher diet is reinstated. I/M
continues to be monitored. I/M has peanut butter in top
drawer of med car. I/M was offered a Boost but denied. I/M
continues to deny all meals. I/M did have water and Gatorade
today several cups. No. s/s of discomfort noted…. No.
medical concerns were voiced today.” (Doc. No. 26-5 at
5/13/16 Infirmary Progress Note 11:43 AM by D
Popichak: “Patient is on meal monitor. Pt is taking
oral nutrition supplements and GatorAid. A regular diet tray
has been ordered and is being offered to the ...