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Parkell v. Senato

United States District Court, D. Delaware

March 31, 2019

CHRISTOPHER SENATO, et al, Defendants.

          Beth Moskow-Schnoll, William J. Burton, BALLARD SPAHR LLP, Wilmington, DE Attorneys for Plaintiffs.

          Joseph C. Handlon, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, DE Attorneys for Defendants.


          STARK, U.S. District Judge:

         Plaintiff Donald Parkell, an inmate at the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware, filed this action in April 2014 against three of the VCC's officials: Food Services Administrator Christopher Senato, Chaplain Frank Pennell, and Inmate Grievance Coordinator Matthew Dutton. Plaintiff alleged that Senato, Pennell, and Dutton denied him equal protection of the law and violated his rights protected by the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., by failing to timely provide him with a kosher diet. Plaintiff sought an injunction to compel the Delaware Department of Correction ("DOC") to provide him a kosher diet, as well as damages against the three officials for violating his constitutional rights. Matthew Dutton has since been dismissed from the case. (D.I. 56)

         Presently before the Court are cross-motions for summary judgment filed by Plaintiff and by remaining defendants Senato and Pennell ("Defendants"). (D.I. 94, 97) For the reasons set forth below, the Court will grant in part and deny in part both of the motions.

         I. BACKGROUND[1]

         Prior to July 2012, DOC operational procedures required inmates who desired a food preference for religious reasons to contact the chaplain in writing. (D.I. 45 Ex. B at SOP A083, DOC015) In July 2012, that procedure was changed by way of DOC Policy No. 5.3, [2] which provided that an inmate seeking a religious diet must self-report a religious faith, complete and sign a Religious Diet Participation Agreement, have it signed by security staff, and submit it directly to the Food Services unit. (D.I. 45 Ex. B at Policy No. 5.3, DOC014) Once received by the Food Services unit, the inmate would be provided the appropriate meal within 24 to 48 hours. (See id.)

         When Plaintiff began his incarceration at VCC in January 2014, his intake form listed him as "Roman Catholic." (D.I. 2 Ex. 2) In February 2014, however, Plaintiff contacted the VCC chapel office seeking to change his faith records to Judaism[3] and to receive a kosher diet. (D.I. 2 Ex. 2; D.I. 45 Ex. B at DOC026) After receiving Plaintiffs request, Chaplain Pennell replied on February 20, asking Plaintiff if he was of Jewish descent or if he had contacted a rabbi to discuss the process of converting to Judaism. (Id. at DOC025) Pennell told Plaintiff that once he answered the questions, Pennell would send the Change of Faith form. (Id.) Plaintiff replied the following day, and Pennell sent Plaintiff the form on February 25, 2014. (Id. at DOC021-24) Plaintiff completed and submitted the form on February 28, 2014. Plaintiffs request to be listed as Jewish was then approved on March 3, 2014. (Id. at DOC017, 020-21)

         On February 20, 2014 - prior to completing the Change of Faith Form - Plaintiff wrote to Defendant Food Services Administrator Senato requesting a kosher diet. (D.I. 45 Ex. C at DOC009; D.I. 64-2 at 57) But on March 10, 2014 - after the Change of Faith form had been approved - Plaintiff received a memorandum from Senato advising Plaintiff that in order to receive kosher meals, Plaintiff needed a rabbi to verify that he was Orthodox Jewish. (D.L 2 Ex. 1) The following day, Plaintiff submitted a grievance to Inmate Grievance Coordinator Dutton requesting a kosher diet, but his grievance was returned unprocessed as improperly seeking a "request." (D.I. 2 Ex. 3) Dutton directed Plaintiff to write to Chaplain Pennell with the request. (Id.)

         Rather than reach out to Pennell for at least the second time, on March 28, 2014 Plaintiff submitted a Religious Diet Participation Agreement, identifying himself as "kosher practicing." (D.I. 45 Ex. C at DOC008) Plaintiff commenced this action 11 days later, on April 8, 2014. (D.I. 2) Six days after that, on April 17, 2014, DOC security staff signed his Religious Diet Participation Agreement. (See D.I. 45 Ex. C at DOC008)

         Despite having a signed Religious Diet Participation Agreement as of April 2014, DOC denied Plaintiff a kosher diet for two more years. (D.I. 53) At one point, Plaintiff sent a letter (which is undated) to Defendant Senato again requesting that he receive kosher meals, and another undated letter to Pennell discussing his difficulties trying to secure kosher meals. (D.I. 45 Ex. C at DOC007; Ex. H) It was not until April 6, 2016 ~ when, according to Senato, DOC's new policy allowed non-Jewish inmates to receive kosher meals as long as they held a sincere religious belief-that Plaintiff began receiving kosher meals. (D.I. 64-1) Plaintiff, consequently, voluntarily dismissed his request for injunctive relief. (D.I. 52, 53, 56)

         As for the remaining claims, by order entered on July 27, 2016, the Court granted in part Defendants' motion for summary judgment after concluding that Inmate Grievance Coordinator Dutton lacked sufficient personal involvement in the decision to deny Plaintiff a kosher diet and that Plaintiffs RLUIPA claim was moot because he had voluntarily dismissed his request for injunctive relief. (D.I. 55, 56) In a subsequent December 13, 2016 order, the Court granted Defendants' motion for summary judgment on the remaining equal protection and First Amendment claims, concluding that Defendants were entitled to qualified immunity. (D.I. 68) Plaintiff appealed.

         On appeal, the Third Circuit affirmed the July 2016 order, but reversed and vacated the portion of the December 2016 order affording Defendants qualified immunity on Plaintiffs First Amendment claim.[4] (D.I. 75) While this Court had reasoned that qualified immunity applied because Plaintiffs novel religious beliefs[5] would leave "reasonable officials [with] no reason to believe that their conduct was unlawful" (D.I. 68), the Third Circuit concluded that "'officials can still be on notice that their conduct violates established law even in novel factual circumstances.'" Parkell v. Senate, 704 Fed.Appx. 122, 126 (3d Cir. 2017) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

         On remand, [6] both parties again move for summary judgment on the one remaining claim; Plaintiffs First Amendment claim. Plaintiff argues that the Court has already decided that his religious beliefs are sincere and that the Defendants' actions were constitutionally "infirm." (D.I. 98) Thus, since Defendants cannot invoke qualified immunity, summary judgment should be granted in Plaintiffs favor under law-of-the-case doctrine. (Id.) In the alternative, should the Court revisit these issues, Plaintiff contends it should, again, find in his favor. (Id. at 16-18) Defendants move for summary judgment on the grounds that: (1) at least Defendant Pennell should be dismissed from the case because he did not participate in the decision to deny Plaintiff a kosher diet; (2) Plaintiff failed to exhaust his administrative remedies; and (3) notwithstanding the Third Circuit's ruling, Defendants are still protected by qualified immunity. (D.I. 95)

         Briefing on the motions was completed on My 19, 2018. (See D.I. 95, 98, 101-04) The Court heard oral argument on November 2, 2018. (D.I. 108) ("Tr.")


         Under Rule 56(a) of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus, Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 585-86 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed must be supported either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 ...

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