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Parson v. Pierce

United States District Court, D. Delaware

February 28, 2019

ERNEST PARSON, et al., Plaintiffs,
DAVID PIERCE, et al., Defendants.

          Ernest Parson, SCI Chester, Chester, Pennsylvania; Michael Manley and David Stevenson, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiffs.

          Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants David Pierce and Christopher Senato.



         Plaintiffs Ernest Parson ("Parson"), Michael Manley ("Manley"), and David Stevenson ("Stevenson") (collectively "Plaintiffs"), former and current inmates at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"). They proceed pro se and have paid the filing fee. Stevenson moves for summary judgment (D.I. 75) as do Defendants David Pierce ("Pierce") and Christopher Senato ("Senato") (together "Defendants") (D.I. 76). The matters have been fully briefed.

         I. BACKGROUND [1]

         On September 12, 2012, Plaintiffs, who identify as Muslim, as well as other inmates, who identify as Catholic and Jewish, commenced this action alleging violations of their right to practice their respective religions. See Desmond v. Phelps, C.A. No. 12-1120-RGA (D. Del.). In light of the divergent religions of Plaintiffs in that case, and upon Defendants' motion, the claims of Parson, Manley and Stevenson were severed from C.A. No. 12-1120-RGA, and the severed matter was opened and given a new case number on April 22, 2015. (See D.I. 1). When C.A. No. 12-1120-RGA was filed, Plaintiffs were housed "in and/on Max-Death Row," at VCC and Stevenson and Manley were death sentence inmates. (D.I. 66 at 3).

         The corrected Amended Complaint (D.I. 66) contains nine counts. Two counts are brought by all three Plaintiffs, while the remaining counts are brought by then death row inmates Manley and Stevenson. Plaintiffs allege Defendants placed unnecessary burdens on the practice of their religion in violation of the First Amendment of the United States Constitution and RLUIPA.

         Counts 1 and 3 are raised by all Plaintiffs and allege: (1) denial of a Halal diet (Count 1); and (2) denial of access to disposable razors and/or allowing Plaintiffs to purchase hair removal products from the Commissary (Count 3). Counts 2, 4, 5, 6, 7, 8, and 9 are raised by Manley and Stevenson and allege: (1) prohibition of more than three books in a cell at one time (Count 2); (2) the lack of congregational worship opportunities (Count 4); (3) prohibition against possessing more than two towels, wash cloths, and bars of soap (Count 5); (4) denying nutritionally adequate diet during the holy month of Ramadan (Count 6); (5) prohibition from engaging in individual and group prayer outside the cell or in open areas (Count 7); (6) prison rules prevent the Muslim call to prayer (Count 8); and (7) the lack of Halal commissary items (Count 9). Plaintiffs seek injunctive and declaratory relief.

         Plaintiffs housing assignments have changed since the filing of the original complaint. Parson was transferred from VCC to SCI Chester in Chester, Pennsylvania.[2] (D.I. 78 at 23-24; D.I. 84). Manley has been moved from the Security Housing Unit (“SHU”) to the Victor Building which he understands is a medium/minimum building that houses medium-classified and minimum-classified inmates. (Id. at 17). Stevenson was first housed in the “old max, ” then moved to SHU, then moved to medium-high housing unit (“MHU”) and is now housed in minimum security. (D.I. 60 at 24; D.I. 78 at 4).

         Count 3 alleges that a sincerely held belief of the Islamic faith is the removal of body hair, shortening the mustache, and clipping the nails, and that the VCC has abandoned its policy of giving Muslim inmates access to disposable razors and/or allowing them to purchase hair removal products from the commissary. (D.I. 66 at 8). In their current VCC housing assignments, Manley and Stevenson are permitted razors within prison rules.[3] Prior to his transfer to the Victor Building, Manley testified that the prohibition of razors was an issue. (D.I. 60 at A-41). Manley testified that he was given cream as an alternative, but it burned his skin. (Id. at A-42). Manley testified that he suggested the option of providing inmates with bladeless battery powered trimmers. (Id. at A-43). In their current housing assignments, Manley and Stevenson cannot possess trimmers, but they are provided razors three days a week which they can use for a few hours before returning them. (D.I. 78 at SA-136). According to Stevenson, that is not done in SHU or MHU. (Id.). Stevenson testified that Magic Shave hair removal cream is sold at the commissary, but is “pretty harsh” and only formulated for the face. (Id. at SA-137-138).

         According to former warden Pierce, VCC inmates housed in SHU and MHU are prohibited from possessing razors. (D.I. 60 at A-78). The policy to prohibit razors became effective sometime in 2009-2010 after a number of incidents where inmates used razors to assault other inmates. (Id.). Following implementation of the policy there was a significant reduction in the amount of assaults with razors at VCC. (Id. at A-79). Another reason for the policy is to reduce self-harm in the facility, including harm from swallowing dangerous objects such as razors. (Id.). At the time of Pierce's affidavit, inmates housed on the compound (i.e., not maximum security housing) were permitted to have and use razors.[4] (Id.). Inmates in SHU and MHU are permitted to purchase a depilatory cream from the commissary. (Id.).

         Count 6 alleges that Plaintiffs were denied the basic necessities of a nutritionally adequate diet during the holy month of Ramadan from 2011 through 2015.[5] (D.I. 66 at 11). Stevenson did not provide any specific testimony regarding the alleged lack of a nutritionally adequate diet during Ramadan, although he testified that he wanted Senato to “approve and set up a Halal program for the Muslims.” (D.I. 60 at A-13). Manley testified that the “one” deficiency in the food is that “there's no Halal diet.” (Id. at A-33). Manley also, however, testified that “the amount of food served is also a problem” and “the quality of the food served is a problem.” (Id. at A-38).

         Senato is VCC's food service director and during the relevant time-frame oversaw the VCC's food service operation. (Id. at A-83). He did not draft the religious diet policy or provide input into the policy and lacks authority to change the religious diet policy at VCC. (Id.). According to Senato, the DOC offers meal accommodations to Muslim inmates during Ramadan. (Id. at A-84). “The Ramadan diet is not a different diet per se, but a bagged breakfast meal and the regular dinner meal with additional vegetables added as a supplement.” (Id.). Ramadan meals are served before sunrise and after sunset because observant Muslims fast during the day and during the regular prison lunch and dinner hours. (Id.). The prison administrator and staff must serve Ramadan meals after sundown and those meals are prepared and placed in insulated clamshell trays until they are served. (Id.). According to Senato, approximately 430 inmates observe Ramadan, and the monthly observance of Ramadan results in nearly 13, 000 meals that are served outside of the normal routine of prison food service. (Id.).

         Through the years Manley and Stevenson have written letters, made complaints, and submitted grievances raising religious issues. Stevenson wrote to VCC Chaplain Frank Pennell (“Pennell”) on February 13, 2011 and requested a volunteer Imam be allowed to provide Stevenson religious counseling.[6] (D.I. 46 at 18). The request was denied. (Id. at 23). Manley and Stevenson also submitted a petition for an Islamic Imam. (Id. at 19). Stevenson submitted a grievance on February 20, 2011, No. 220992, making the request for the volunteer Imam, it was rejected, Stevenson appealed, and the matter was resolved. (D.I. 46-1 at 1-3; D.I. 60 at A-86-93). Manley submitted two grievances, No. 236832 and No. 225819, and asked for the use of electronic hair clippers to shave his body since razors were unavailable to him. (Id. at A-94-96). Grievance No. 236832, submitted December 18, 2011, was deemed non-grievable as a duplicate and noted that the issued had been addressed and ruled on by the Bureau Chief. (Id. at A-95). Grievance No. 225819 is not contained in the record.

         On January 3, 2012, Stevenson wrote to VCC Security Housing Unit (“SHU”) counselor and made a request to serve Muslim inmates Halal meals and add Halal items to the Commissary. (D.I. 46 at 24). Pennell responded to the request on January 10, 2012 and advised Stevenson of the current diet provided for Muslim inmates and that Halal items were currently not available in the Commissary. (Id. at 25). The same day Stevenson wrote to then VCC warden Perry Phelps (“Phelps”) and made the same request. (Id. at 26). Stevenson received a response on June 6, 2012. (Id. at 27).

         On July 20, 2012, inmate Idris Young submitted a group grievance, No. 249492, that include Manley and Stevenson, complaining that inadequate food portions were being served during Ramadan. (D.I. 46-1 at 4). The outcome of that grievance is unknown.

         On July 22, 2012, Manley submitted a group grievance, No. 249493, that included Stevenson, complaining that breakfast had arrived late every day during Ramadan. (D.I. 60 at A-97-109). The matter was resolved. On July 26, 2012, Stevenson submitted a grievance, No. 249870, requesting a time certain for the morning Ramadan meal to be served. (Id. at A-110-115). The grievance was returned as non-grievable and as a duplicate noting that Stevenson was included in grievance No. 249493. (Id. at A-115). On July 29, 2012, Manley submitted another group grievance, No. 249953, complaining about the lateness of breakfast during Ramadan. (Id. at A-116-128). The grievance was resolved.

         On “January 10, 2013” [sic], Coupe advised Stevenson that his office had received his January 1, 2014 correspondence requesting additional hours to view religious materials via the institutions' broadcasting network and advised Stevenson to direct his concerns at the institutional level. (D.I. 46 at 33).

         In August of 2013, Stevenson submitted a grievance, No. 272140, noting that razors are banned for inmates housed in SHU and Death Row and seeking a way to remove body hair, either by razor or depilatories. (Id. at 28-29). The grievance was returned, noting that the grievance exceeded the seven-day period from the date of occurrence, the request was not processed through the grievance procedure (i.e., non-grievable), and per the Housing Rules inmates “are to tend to their own spiritual needs” “Chaplain staff is available for assistance.” (Id. at 30). On January 13, 2014, Stevenson was advised by then Delaware ...

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