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Muslim v. Carmichael

United States District Court, W.D. North Carolina, Charlotte Division

April 23, 2019

SHAHID HASSAN MUSLIM, Plaintiff,
v.
ERWIN CARMICHAEL, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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).

         I. BACKGROUND

         Plaintiff 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[1] and Mecklenburg County Central Jail Chaplains Dennis and Maddox.

         Defendants 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. 45). (1)

         Complaint (Doc. No. 1)

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         (2) Defendants' Motion for Summary Judgment (Doc. No. 26)

         Defendants 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.

         (3) Plaintiff's Response (Doc. No. 38)

         The 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.[2] 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.

         Plaintiff 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. 48).

         (4) Defendants' Reply (Doc. No. 42)

         Defendants 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.

         (5) Plaintiff's Surreply (Doc. No. 44)

         Plaintiff 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.

         Plaintiff 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 discrimination.

         Plaintiff 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.

         In the 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.

         (6) Defendants' Motion to Strike Surreply (Doc. No. 45)

         Defendants 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 the Jail.

         (7) Plaintiff's Response to Defendants' Motion to Strike (Doc. No. 46)

         Plaintiff 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.

         (8) Evidence [3]

         (A) Declaration of Tom Barei (Doc. No. 26-2)

         Food 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 Jail.

         Aramark 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).

         The 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.

         Aramark 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.

         (B) Declaration of Frank Tallerico (Doc. No. 26-3)

         Inmate 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.

         In 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.

         As 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.

         In 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 study.

         The 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.

         If a 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.

         Imams 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 counseling.

         During 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.

         Inmates 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.

         The 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.

         In 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.

         Inmates 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 inmate's health.

         According 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.

         (C) Declaration of Sheila Burns (Doc. No. 26-4)

         Sheila 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.

         Burns 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.

         (D) Declaration of Carolyn Ashe (Doc. No. 26-7)

         MCSO 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 the response.

         Inmates 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).

         According 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 inmates.

         (E) Inmate Summary (Doc. No. 26-6)

         Plaintiff 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).

         (F) 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)
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 ...

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