United States District Court, D. Delaware
DONALD D. PARKELL, Plaintiff,
CHRISTOPHER SENATO, et al, Defendants.
Moskow-Schnoll, William J. Burton, BALLARD SPAHR LLP,
Wilmington, DE Attorneys for Plaintiffs.
C. Handlon, STATE OF DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, DE Attorneys for Defendants.
U.S. District Judge:
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)
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.
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,  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
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 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)
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.)
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)
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)
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.
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. (D.I. 75) While this Court had reasoned
that qualified immunity applied because Plaintiffs novel
religious beliefs 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)).
remand,  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.
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.")
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 ...