Browning v. Pszczolkowski

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JASON BROWNING,

Plaintiff,

v. Civil Action No. 1:16cv145

KAREN PSZCZOLKOWSKI, Warden;

JIM RUBENSTEIN, Commissioner;

WILLIAM YURCINA, Deputy Warden;

RYAN ADANS, Unit Manager/Director of

Classification; BRANDY MILLER, A.W.P.;

JOANIE HILL, A.W.O.; MIKE TAYLOR,

Chaplain; C.J. RIDER, Religious Services;

DALE GRIFFITH, Unit Manager; DAVE

ELLIOTT, Job Coordinator,

Defendants.

MEMORANDUM OPINION AND ORDER

I. RELEVANT FACTS AND PROCEDURAL HISTORY

On June 30, 2016, Jason Browning, the pro se Plaintiff, initiated this civil action

by filing a complaint pursuant to 42 U.S.C. § 1983. The Plaintiff is a state prisoner who

has had extensive disputes with the West Virginia Division of Corrections stemming

from his religious beliefs as an Orthodox Jew.

The Plaintiff first filed suit on February 11, 2013, in Civil Action No. 1:13-cv-23

(“Browning I”). In that complaint, the Plaintiff alleged that various state correctional

officials had violated his First Amendment right of free exercise of religion and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by: (1) denying him a

kosher diet; (2) denying his religious apparel; and (3) denying him the right to worship

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weekly or on special holidays. On March 20, 2015, the Court entered an Order which

granted in part and denied in part a Motion for Summary Judgment filed on behalf of the

individuals named as the Defendants. On February 6, 2016, after three rounds of

mediation, a Settlement and Release of All Claims Agreement (“Settlement Agreement”)

was executed by the Plaintiff and the West Virginia Division of Corrections (“WVDOC”).

This Settlement Agreement fully resolved any and all claims asserted by the Plaintiff,

and accordingly, on February 12, 2016, the Honorable John Preston Bailey, United

States District Judge, entered an order dismissing the case and retiring it from the

active docket of the Court, subject to reopening on the motion of any party, and for good

cause shown, within 90 days.

On June 30, 2016, the Plaintiff filed two separate motions in Browning I. First, he

filed a Motion to Vacate Agreement. Second, he filed a Motion for an Injunction to

enforce the Settlement Agreement. On December 14, 2016, the undersigned entered a

Report and Recommendation that recommended that the motions be denied without

prejudice. No objections were filed, and on January 17, 2017, the Court adopted the

Report and Recommendations and denied both motions without prejudice.

As previously noted, the Plaintiff’s instant complaint (“Browning II) was filed on

June 30, 2016, the same date that he filed the above noted motions in Browning I.

Although the complaint in Browning II is sparse at best, a review of the attachments

suggested that the Plaintiff again alleged various violations of his Constitutional rights

and RLUIPA. However, those claims appeared to be secondary to his main contention,

that being that the WVDOC, who was not named as a Defendant, had breached the

Settlement Agreement.

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On December 23, 2016, an Order to Answer was entered, and summonses were

issued for the Defendants. On January 25, 2017, the Defendants filed a Motion to

Dismiss with a Memorandum in Support. On January 26, 2017, a Notice of Magistrate

availability to exercise Jurisdiction (AO85) pursuant to LR PL P 28 was sent to the

Plaintiff and Kenneth Hopper, counsel for the Defendants. On February 1, 2017, a

Roseboro Notice was issued. On February 2, 2017, a Motion for referral based upon all

parties consent to exercise of jurisdiction by a Magistrate Judge was filed. On February

7, 2017, an Order of Referral was entered granting the Motion to Refer the Case to the

undersigned for all further proceedings. On February 25, 2017, the Plaintiff filed a

response to the Motion to Dismiss, and on February 21, 2017, the Defendants filed a

Reply.

On May 1, 2017, the Plaintiff filed a Motion to Amend. Although the Defendants

filed an objection, the undersigned granted the Motion to Amend on May 12, 2017. On

May 16, 2017, an Amended Order was entered. In the Amended Order, the Plaintiff was

specifically advised that he must include in his Amended Complaint all of his claims and

further advised him that the Amended Complaint would supersede his previous

complaint and would be the only complaint given review.

On May 24, 2017, the Plaintiff filed his amended complaint. On June 13, 2017,

the Defendants filed a Motion to Dismiss and/or Motion for Summary Judgment. A

Roseboro Notice was issued on June 19, 2017. Following the grant of an extension of

time, the Plaintiff filed an “answer.” On September 5, 2017, the Defendants filed a

Reply.

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II. CONTENTIONS OF THE PARTIES

A. THE AMENDED COMPLAINT

Like his original complaint, the Plaintiff’s Amended Complaint is sparse. The

Plaintiff raises four claims:

1. The DOC and Defendants denied him the right to celebrate Passover two years

in a row after agreement that he could have time and space for all Jewish

holidays.

2. All Defendants and WVDOC are denying him a religious diet cooked separately

from mainline with all foods cooked with the same stoves, pots and utensils.

3. Despite the WVDOC and the Defendants’ agreement to allow him to take

religious correspondence courses from the Aleph Institute, they refused to allow

him access to the internet.

4. The Defendants and the WVDOC are stopping him from ordering bread and dairy

products and most of the other items they agreed to in the agreement.

5. The Defendants and the WVDOC are refusing to allow Aleph to send him grape

juice and matoza1 every Sabbath and [tefillin]2 so that he can “don tefillin” each

morning.

For relief, the Plaintiff seeks an order that: (1) the WVDOC change their policy so he can

observe his holidays like Orthodox Jews; (2) the WVDOC provide a “kosher diet,” (3) the

1 The Court is unclear what matoza is. However, it appears that the Plaintiff may be referring to

an unleavened bread that is part of Jewish cuisine and forms an integral element of the

Passover festival. Several spellings can be found, including “matzah,” “matza” and “matzo.”

2 Tefillin are two small black boxes with black straps attached to them. Jewish men are required

to place one box on their head and tie the other on their arm each weekday morning. See

http://www.jewishvirtuallibrary.org/jsource/Judaism/tefillin.html

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WVDOC allow Aleph to send matzo, grape juice and tefillin to him; (4) the WVDOC

provide a microwave to stay kosher; and (5) the WVDOC allow him to order monthly food

packages; and (6) the WVDOC allow the Plaintiff to order four bowls, two cups and a 48

oz. container for grape juice and a king size cooler to keep food.

A. DEFENDANTS’ MOTION TO DISMISS AND/OR MOTION FOR SUMMARY

JUDGMENT

In support of their alternation motions, the Defendants contend that :

1. The WVDOC has complied with the terms of the Settlement Agreement, and

therefore, the Plaintiff’s breach of contract fails as a matter of law;

2. The Eleventh Amendment precludes suit against the state and its agencies in

federal court;

3. The legal doctrine of res judicata precludes the Plaintiff’s claims against the

Defendants; and

4. The Plaintiff has failed to exhaust administrative grievances.

B. PLAINTIFF’S RESPONSE

In his response, the Plaintiff does little to rebut the Defendants’ Motion. In

particular, he fails to address the Defendants assertion that he has not exhausted his

administrative remedies. Instead, he emphasizes that he has to pay for the Passover

feast for all the inmates who sign up for that feast. He reiterates this allegation by noting

that he has to share his feast in order to have his Passover, and he is the only one who

has to pay. He also appears to allege that he never celebrates Passover in the chapel

and must always use another room. In addition, he mentions for the first time, that the

exam discussed by the Defendants was a religious course that does not require a

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proctor. Finally, he notes that he cannot get a sukkot3 or a rams horn and free grape

juice and mataz

DEFENDANT’S REPLY

The Defendants note that the Plaintiff’s response fails to address the legal

arguments contained in their Motion. More specifically, they note that the Plaintiff did not

argue against Eleventh Amendment immunity, the application of the legal doctrine of res

judicata, or his failure to exhaust administrative remedies. Moreover, they note that the

Plaintiff does not discuss his main allegations that the WVDOC and the Defendants

breached the Settlement Agreement. They then address each concern raised by the

Plaintiff and argue that none establishes a breach of the Settlement Agreement.

III. STANDARD OF REVIEW

A. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a

complaint fails to state a claim upon which relief can be granted. Dismissal under Rule

12(b)(6) is inappropriate unless it appears beyond doubt that the plaintiff cannot prove

any set of facts to support his or her allegations. Revene v. Charles County Comm’rs.,

882 F.2d 870 (4th Cir. 1989). Courts, however, are not required to accept conclusory

allegations couched as facts and nothing more when ruling on a motion to dismiss

pursuant to 12(b)(6). A complaint must include “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atlantic

3 Sukkot is a seven day holiday sometimes referred to as the Season of our Rejoicing. In honor

of the holiday’s historical significance, Jews “are commanded” to dwell in a temporary shelter

called a sukkah. The commandment to “dwell” in a sukkah can be fulfilled by simply eating all

one’s meals there. A sukkah must have at least three walls covered with a material that will not

blow away in the wind. See http://www.jewishvirtuallibrary,org.

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Corp. v. Twombly, 550 U.S. 544 (2007). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Id.

To survive a motion to dismiss a plaintiff must state a plausible claim in his

complaint that is based on cognizant legal authority and includes more than conclusory

or speculative factual allegations. “[O]nly a complaint that states a plausible claim for

relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice” because courts are not bound to accept as true a legal conclusion

couched as a factual allegation. Id.; see also Nemet Chevrolet, Ltd. v.

Comsumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). “[D]etermining whether a

complaint states a plausible claim is context-specific, requiring the reviewing court to

draw on its experience and common sense.” Id.

Whether a complaint is legally sufficient is measured by whether it meets the

standards for a pleading stated in the Federal Rules of Civil Procedure. See Fed. R.

Civ. P. 8 (providing general rules of pleading), Fed. R. Civ. P. 9 (providing rules for

pleading special matters), Fed. R. Civ. P. 10 (specifying pleading form), Fed. R. Civ. P.

11 (requiring the signing of a pleading and stating its significance), and Fed. R. Civ. P.

12(b)(6) (requiring that a complaint state a claim upon which relief can be granted). See

Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009).

Plaintiff is proceeding pro se and therefore the Court is required to liberally

construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner,

404 U.S. 519, 520-1 (1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007);

Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th

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Cir. 1978). While pro se pleadings are held to a less stringent standard than those

drafted by attorneys, Haines, 404 U.S. at 520, even under this less stringent standard, a

pro se complaint is still subject to dismissal. Id. at 520-21. The mandated liberal

construction means only that if the Court can reasonably read the pleadings to state a

valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174

F.3d 1128 (10th Cir. 1999). However, a court may not construct the plaintiff’s legal

arguments for her. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Nor should a court

“conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775

F.2d 1274 (4th Cir. 1985). Ordinarily, a court may not consider any documents that are

outside of the complaint, or not expressly incorporated therein, unless the motion is

converted into one for summary judgment. Alternative Energy, Inc. v. St. Paul Fire and

Marine Ins. Co., 267 F.3d 30 (1st Cir. 2001)(cited with approval in Witthohn v. Federal

Ins. Co., 164 Fed. Appx. 395 (4th Cir. 2006) (unpublished)). There are, however,

exceptions to the rule that a court may not consider any documents outside of the

complaint. Specifically, a court may consider official public records, “documents

incorporated into the complaint by reference, and matters of which the court may take

judicial notice,” or sources “whose accuracy cannot reasonably be questioned.” Katyle

v. Penn Nat’l Gaming, Inc., 637 F.3d 462 (4th Cir. 2011).

B. Motion for Summary Judgment

A moving party is entitled to summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying the standard for

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summary judgment, the Court must review all the evidence “in the light most favorable

to the nonmoving party.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

Court must avoid weighing the evidence or determining the truth and limit its inquiry

solely to a determination of whether genuine issues of triable fact exist. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In Celotex, the Supreme Court held that the moving party bears the initial burden

of informing the Court of the basis for the motion and of establishing the nonexistence of

genuine issues of fact. Celotex, 477 U.S. at 323. Once “the moving party has carried its

burden under Rule 56, the opponent must do more than simply show that there is some

metaphysical doubt as to material facts.” Matsushita, 475 U.S. at 586. The nonmoving

party must present specific facts showing the existence of a genuine issue for trial. Id.

This means that the party opposing a properly supported motion for summary judgment

may not rest upon mere allegations or denials of [the] pleading, but ... must set forth

specific facts showing that there is a genuine issue for trial.' Anderson, 477 U.S. at 256.

The “mere existence of a scintilla of evidence” favoring the nonmoving party will not

prevent the entry of summary judgment. Id. at 248. Summary judgment is proper only

“[w]here the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party.” Matsushita, 475 U.S. at 587.

IV. ANALYSIS

Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action with

respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, must first

exhaust all available administrative remedies. 42 U.S.C. § 1997(e)(a). Exhaustion as

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provided in § 1997(e)(a) is mandatory and “applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes,”4 and is required

even when the relief sought is not available. Booth v. Churner, 532 U.S. 731, 741

(2001). Because exhaustion is a prerequisite to suit, all available administrative

remedies must be exhausted prior to filing a complaint in federal court. See Porter v.

Nussle, 534 U.S. 516, 524 (2002) (citing Booth at 741) (emphasis added).

Moreover, in Woodford v. Ngo, 126 S.Ct. 2378, 2382 (2006), the United States

Supreme Court found that the PLRA’s exhaustion requirement serves three main

purposes: (1) to “eliminate unwarranted federal court interference with the

administration of prisons”; (2) to “afford corrections officials time and opportunity to

address complaints internally before allowing the initiation of a federal case”; and (3) to

“reduce the quantity and improve the quality of prisoner suits.” Therefore, “the PLRA

exhaustion requirement requires full and proper exhaustion.” Woodford, 126 S.Ct. at

2387 (emphasis added). Full and proper exhaustion includes meeting all the time and

procedural requirements of the prison grievance system. Id. at 2393.

In Jones v. Bock, 549 U.S. 199 (2007), the United States Supreme Court ruled,

among other things, that an inmate’s failure to exhaust under the PLRA is an affirmative

defense, and an inmate is not required to specifically plead or demonstrate exhaustion

in his complaint. Here, the Defendants have raised the affirmative defense and argued

that dismissal for failure to exhaust is warranted.

The WVDOC has established a three level grievance process for prisoners to

grieve their complaints in an attempt to resolve the prisoners’ issues. The first level

4 Porter v. Nussle, 534 U.S. 516, 524 (2002).

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involves filing a G-1 Grievance Form with the Unit Supervisor. If the inmate receives no

response or is unsatisfied with the response received at Level One, the inmate may

proceed to Level Two by filing a G-2 Grievance Form with the warden/administrator.

Finally, the inmate may appeal the Level 2 decision to the Commissioner of the Division

of Corrections.

In his amended complaint, with respect to grievances, the Plaintiff indicated that

a grievance procedure is available at the Northern Correctional Facility, where he was

incarcerated when he filed this action, and where he remains incarcerated. In addition,

he indicated that he filed a grievance concerning the facts related to this complaint. He

then noted: “the Plaintiff did file grievances which led to a settlement agreement which

led Plaintiff to file a new civil suit for breach of contact.” ECF No. 38 at 5-6. Therefore, it

appears that the Plaintiff believes that he need not exhaust administrative grievances

with respect to any alleged breach of the Settlement Agreement. However, he is

incorrect in this regard.

The Settlement Agreement, dated February 12, 2016, specifically addresses the

need to file grievances in order to enforce the agreement:

a. The WVDOC shall comply with this Agreement and shall inform the

appropriate personnel of the Agreement so they may assist Jason Browning

in providing the relief as required by this Agreement.

b. In the event the conditions and terms as contained in this Agreement are not

met by WVDOC at any time, Jason Browning and WVDOC shall adhere to

the following procedure: 1) Jason Browning shall first comply with any order

and/or directive provided by an employee of the WVDOC even if said order is

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in contravention of this Agreement; 2) Jason Browning will then inform the

employee and the unit manager of this Agreement; 3) Jason Browning will

then show the employee and the unit manager his Agreement and the

provision he believes is being violated. WVDOC shall initially provide Jason

Browning with six (6) copies of this Agreement; prison officials at each

WVDOC facility in which Jason Browning is confined shall have on file a copy

of this Agreement. After consulting with the necessary supervisors including

the chaplain, WVDOC will immediately provide Jason Browning with the

requested relief consistent with this Agreement.

i. Jason Browning shall utilize the grievance procedure in order

to obtain relief desired. Usage of said process will ensure

documentation of events and will assist in assessing the

same.

ECF No. 1-7 at 10 (emphasis added).

Despite the fact that the Supreme Court has stated that it “will not read futility or

other exceptions into statutory exhaustion requirements . . . ,” see Booth v. Churner,

532 U.S. at 741, n. 6, several courts have found that the mandatory exhaustion

requirement may be excused in certain limited circumstances. See Mitchell v. Horn,

318 F.3d 523, 529 (3d Cir. 2003) (summary dismissal for failure to exhaust not

appropriate where prisoner was denied forms necessary to complete administrative

exhaustion); Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2004) (defendant may be

estopped from asserting exhaustion as a defense, where the defendant’s actions render

the grievance procedure unavailable); Aceves v. Swanson, 75 Fed.Appx. 295, 296 (5th

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Cir. 2003) (remedies are effectively unavailable where prison officials refuse to give

inmate grievance forms upon request); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)

(a remedy is not available within the meaning of § 1997e(a) when prison officials

prevent a prisoner from utilizing such remedy); Dotson v. Allen, 2006 WL 2945967

(S.D.Ga. Oct. 13, 2006) (dismissal for failure to exhaust not appropriate where Plaintiff

argues that failure to exhaust was direct result of prison official’s failure to provide him

with the necessary appeal forms). Here, the Plaintiff has failed to set forth any

acceptable reason to excuse his failure to exhaust. Accordingly, this complaint, as it

relates to the Plaintiff’s allegations regarding (1) denial of his right to celebrate

Passover; (2) denial of his right to take correspondence courses; (3) denial of his right

to order bread and dairy products; and (4) refusal to allow the Aleph Institute to send in

grape juice, matza, and tiffilin is subject to dismissal for failure to exhaust administrative

grievances.

There is one issue raised in the complaint, which was not addressed in the

Settlement Agreement; Plaintiff’s allegation that he is being denied a religious (kosher)

diet. The Defendants have not addressed this issue in depth, and in particular, have not

addressed the issue as it specifically relates to the Northern Correctional Facility.

However, in Browning I, this issue was addressed in detail in the Report and

Recommendation dated February 12, 2015, and the Court finds it appropriate to recite

that discussion herein.

On May 1, 2014, Policy Number 511.00 was issued by the WVDOC. The subject

of the Policy is “Religious Special Diet.” Pursuant to this Policy, only one religious

special diet will be created or served, and meat is never an item in the religious special

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diet. Moreover, the policy acknowledges that the religious special diet is not intended to

provide everything an inmate of any faith can eat. However, it is intended to provide a

nutritionally adequate meal that meets dietary restrictions imposed by various beliefs. Of

significance to Plaintiff, the Policy defines koshered as follows: “to make proper or

ritually pure. In order to prepare meals, and any counter or surface the food comes in

contact with must be koshered or the food will be rendered (TREIF) or no longer kosher.

In order to render kitchen utensils and/or cooking surfaces koshered, the item used

must be submerged completely in a vessel that contains boiling water.” ECF No. 1-2 at

8-12. The Policy further provides that:

FOOD ITEMS

1. The entree for the Religious Special Diet may be purchased from a recognized vendor

with appropriate Kosher and/or Halal5 certifications. The Food Service Vendor will

maintain current certifications. The product label for the entree shall display the

appropriate certification symbol(s). Copies of all current certifications shall be

maintained in the Food Service Area and in Administration offices.

2. Cereal used in the religious special diet program may be purchased in bulk. The

packaging shall display the appropriate certification symbol(s).

3. The breads used in the religious special diets and used at each meal shall display the

appropriate certification symbol(s). The required number of slices (portion) is to be

taken from the original packaging and placed on the appropriately colored tray during

serving as needed.

5 “In Arabic, the word halal means permitted or lawful. Halal foods are foods that are allowed

under Islamic dietary guidelines.” http://www.mideastfood.about.com.

.

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4. Fresh whole fruit and vegetables are to be broken when necessary to accomplish the

proper serving size. Knives are not used in order to avoid treif contamination or

violation of proper kosher food preparation.

5. Peanut butter, cream cheese, jelly, juice and other items used daily shall display the

appropriate certification symbol(s). It is recommended, where economically feasible, to

purchase products individually packaged which display the appropriate certification

symbol(s).

6. The serving trays, bowls, eating utensils, etc., are to be color coded for the Religious

Special Diet. A sufficient quantity of paper/Styrofoam products and individually wrapped

spoons and forks should be maintained on hand for use during a lockdown, natural

disaster, or other planned or unplanned event.

7. Specific handling requirement shall be addressed by the Food Service Vendor. The

Food Service Vendor will train appropriate staff and inmate food service workers in

proper Kosher Food Handling procedures. Current signed training forms on the handling

requirements will be maintained on site by the vendor with a copy of the signed form

going to the Warden/Administrator/Designee.

8. The food handling instructions for the religious special diet will be prominently displayed

in the religious special diet preparation area(s).

9. Food stuffs and preparation and serving a utensils/equipment shall be appropriately

stored in specifically designated areas.

EQUIPMENT

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1. The purpose of providing and using separate cooking, serving, and eating utensils is to

avoid cross contamination of foods. These items are to be used only for the religious

special diet without exception.

2. Each item is to be distinctively and permanently marked for use with the religious

special diet only.

3. Equipment for the religious special diet is to be stored separately in the respective

locker box, secure cabinet, or other specifically designated secure location. Food

Service Staff and/or Correctional Staff are the only ones authorized to retrieve from or

place items in these secure areas.

4. The Food Service Contractor shall provide a required equipment list needed to prepare

and serve the Religious Special Diet.

5. When necessary, the WVDOC will request the services of a Rabbi to perform the ritual

cleansing/sanctifying ceremony (Kashering ceremony) for the designated utensils.

6. Replacement utensils and items improperly used will be ritually cleansed sanctified as

well.

It would appear that this Policy Directive, if followed, insures that food prepared

in the kitchens at WVDOC facilities is prepared according to kosher standards. During

the pendency of Browning I, the Plaintiff was transferred to Huttonsville Correctional

Center, which is wholly operated by the WVDOC. However, the terms of the Settlement

Agreement provides that the WVDOC shall incarcerate the Plaintiff at either the

Northern Correctional Center (“NCC”) in Moundsville, West Virginia or Stevens (Welsh)

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Correctional Center in Welch, West Virginia so as to allow him to follow his religious

beliefs and to promote adherence to the Agreement. ECF No. 1-2 at 26.6

The Plaintiff is currently housed at the NCC, which is unique in that it is housed

within the Northern Regional Jail (“NRJ”). The NRJ is a component of the West Virginia

Regional Jail and Correctional Facility Authority (“WVRJA) , while the NCC is a

component of the WVDOC. 1:13cv23, ECF No. 104-1, p.2. The kitchen at this “joint”

facility was operated through a contract between the WVRJA and Trinity Services

Group. Prior to March 31, 2014, the contract was between the WVRJA and Aramark.

Consequently, unless circumstances have changed since Browning I, the WVDOC is

not part of the food service contract which dictates the food provision and preparation at

the NCC. Moreover, unless circumstances have changed since Browning I, because the

NCF is housed at the NRJ, the policies and procedures of the WVRJA govern the

operation of the kitchen and the means and methods by which food is prepared for

inmates of the WVDOC. 1:13cv23, ECF No. 104-1, pp. 2-3.

When Browning I was pending, the kitchen at the NRJ prepared food for

approximately 1000 inmates three times a day. 1:13cv23, ECF. No. 104-1, p. 2. Clearly,

the preparation of an individual kosher meal and utilization of different cooking utensils

would have interfered with the batch processing of these 3000 daily meals. Moreover, if

Plaintiff were provided a kosher diet, the NRJ kitchen would have to prepare religious

specific meals for every different religion to avoid any perceived favoritism. Again, such

action would have interfered with the batch processing of the 3000 daily meals.

6 The Agreement also provides that the designation to these two institutions is subject to

exceptions which need not be detailed for purposes of this opinion.

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Moreover, there would have been added expense to provide the appropriate storage of

the food and utensils needed to prepare kosher meals.

From November 19, 2008, to March 21, 2011, Plaintiff received a “no pork” diet.

1:13cv23, ECF. No. 104-1, p.4. On March 21, 2011, Plaintiff switched to a “no flesh”

diet. (Id.). The “no pork” diet was the same diet received by Jewish and Muslim inmates

who requested the same. (Id.). The “no flesh” diet was the same diet received by

Jewish, Hare Krishna, Buddhist, Hindu, and Seventh-Day Adventist inmates who

requested said diet.(Id.). Accordingly, the meal Plaintiff received was neutral in religious

requirements.

When Browning I was decided, the Court accepted that the Plaintiff’s inability to

receive a kosher meal from the kitchen at the NRJ/NCC placed a substantial burden on

the exercise of his religion. However, the difficulties that would have ensued in providing

a kosher meal to at most two inmates7, including additional costs, interference with

preparation of batch meals and creation of perceived favoritism between religious

groups, are legitimate compelling interests that override the burden placed on Plaintiff’s

ability to receive an institutionally prepared kosher meal. Accordingly, the Court found

that the Plaintiff failed to establish a RLUIPA violation with respect to kosher meals at

the NCC. Assuming circumstances remain the same at the NCC, the Court would

continue this opinion. To the extent that the WVDOC now controls food preparation at

the NCC, or the WVRJA has adopted a similar policy for religious meals, the Plaintiff’s

current allegations regarding lack of kosher meal preparation may state a claim under

7 At the time Browning I was pending, there was only one other Jewish inmate at the NCC.

1:13cv23, ECF No. 104-1 at 7.

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RLUIPA. However, because the Plaintiff has not exhausted his administrative remedies

regarding this allegation, the Court will not address this claim further.

In summary, the Court notes that there is a Settlement Agreement in place which

addresses all but one of the allegations raised by the Plaintiff. The terms of that

Settlement Agreement specifically require the Plaintiff to utilize the grievance

procedures to obtain relief in the event that the conditions and terms of the Agreement

are not met. The Plaintiff has not utilized the grievance procedure with respect to his

allegations in the amended complaint. Therefore, he is precluded from pursuing his

complaint alleging a breach of contract. In addition, to the extent that the Plaintiff is

raising a claim under RLUIPA with respect to the preparation of kosher meals at the

NCC, he likewise has failed to exhaust his administrative grievances as required by the

PLRA. Because the Court finds that this matter is precluded by the Plaintiff’s failure to

exhaust grievances, the Court declines to address the Defendants’ alternative theories

of res judicata and Eleventh Amendment immunity.

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V. CONCLUSION

For the reasons stated herein, it is hereby ORDERED that the Defendants;

Motion to Dismiss and/or Motion for Summary Judgment [ECF No. 39] be

GRANTED, and the Plaintiff’s Amended Complaint [ECF No. 38] be DISMISSED

WITHOUT PREJUDICE for failure to exhaust administrative grievances.

IT IS SO ORDERED.

The Clerk of nCourt is DIRECTED to provide a copy of this Memorandum

Opinion and Order to the Plaintiff by certified mail, return receipt requested, to his

last known address as reflected on the docket sheet and to all counsel of record via

electronic means.

ENTER: March 26, 2018

Bá ]tÅxá XA fx|uxÜà

JAMES E. SEIBERT

UNITED STATES MAGISTRATE JUDGE

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