Banks v. Booher

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MARVIN BANKS, .,

Plaintiffs, CIVIL ACTION NO. 1:24-cv-00474

v. (SAPORITO, J.)

BRADLEY BOOHER, .,

Defendants.

MEMORANDUM

Plaintiffs Marvin Banks, Dale Arnold, and Carl L. Varner proceed

in a fee-paid case challenging the Pennsylvania Department of

Corrections (“DOC”) policy for observance of Native American holidays.

Defendants1 move to dismiss the operative complaint (Doc. 23), and

plaintiffs request appointment of counsel (Docs. 19, 27). For the reasons

described below, the Court will grant defendants’ motion in part, permit

plaintiffs to proceed on First Amendment and Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) claims, and deny plaintiffs’

request for appointment of counsel without prejudice.

1 The Defendants are five DOC employees: Laurel R. Harry,

Reverend Ulrich Klemm, Craig Copper, Bradley Booher, and Henry

Hansard.

I. BACKGROUND

At the time of the complaint, plaintiffs were all incarcerated at SCI-

Benner Township, although Banks has since been transferred to SCI-

Fayette. The complaint alleges as follows: plaintiffs are of Native

American descent and practice Native American religious traditions.

These traditions include the observation of equinoxes and solstices,

including the Green Corn Feast, held annually in August or September.

As described in the complaint, the Green Corn Feast traditionally

involves gathering “foods like corn, beans and squash,” fishing from a

river in accordance with sacred traditions, and hunting for “buffalo, deer,

turkey, moose, etc.,” to “provide . . . a great feast” to be eaten communally.

Celebration “on the wrong day[] or in the wrong manner is to bring

misfortune to the creator and ancestors.” Plaintiffs allege that according

to their religious belief, the Green Corn Feast “must be celebrated with

communal foods[. T]hese foods include meat like buffalo, deer, [and]

moose,” as well as fish, wild rice, corn, beans, and squash. (Doc. 14,

¶¶ 13-18).

Prior to January 2023, the DOC accommodated religious inmates

by offering “Ceremonial Meals,” along with “time [and] space in which to

celebrate as a religious community.” For these meals, the DOC served a

special menu and allowed qualifying inmates to purchase from a

supplemental menu. Under this prior policy, the DOC “typically”

supplied2 buffalo, turkey, corn, beans, squash, fry bread, and fresh fruit,

among other foods, for Native American religious celebrations.

In January 2023, the DOC eliminated “Ceremonial Meals,” and

began offering “Fellowship Meals.” Although the inmates would have

“input” on the meal to be served by the prison, they would no longer be

permitted to purchase optional menu items. Faith groups would be

permitted to eat together “and afterwards engage in [30] minutes of

fellowship” if communal gatherings were permitted in the prison at that

time.

When these Fellowship Meals were offered, plaintiffs refused to

select a meal from the general menu, believing that such a choice would

“shame and disrespect their religion” because “there is no other

alternative to the Green Corn Feast.” Plaintiffs allege that Bradley

2 Plaintiffs allege that the DOC “supplied” these foods, but also that

they were “able to pay” for the foods. (Doc. 14, ¶¶ 22-23). It is unclear

whether the foods were included in the DOC’s own revised menu, or

whether they were among the supplemental items available for purchase.

Booher and Henry Hansard, the Superintendent and Chaplain at SCI-

Benner Township, refused to permit them to gather communally for 30

minutes as contemplated by the policy. Plaintiffs further allege that

unspecified defendants discriminated against them by “allow[ing] the

Jewish community to purchase Matz[o] bread for their feasts.”

Plaintiffs filed the operative complaint on May 29, 2024, asserting

First Amendment free exercise claims, Fourteenth Amendment equal

protection claims, and RLUIPA claims, against all defendants. Following

the dismissal of several claims3 at the screening stage pursuant to 28

U.S.C. § 1915A, plaintiffs now proceed on RLUIPA claims for injunctive

relief, and First and Fourteenth Amendment claims for injunctive and

monetary relief. Defendants move to dismiss the complaint under

Federal Rule of Civil Procedure 12(b)(6).

II. MOTION TO DISMISS

“Under Rule 12(b)(6), a motion to dismiss may be granted only if,

accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff, a court finds the

3 The Court dismissed all individual capacity RLUIPA claims, and

all claims for monetary damages against defendants in their official

capacities. (Doc. 17).

plaintiff’s claims lack facial plausibility.”

, 643 F.3d 77, 84 (3d Cir. 2011) (citing ,

550 U.S. 544, 555–56 (2007)). In deciding the motion, the Court may

consider the facts alleged on the face of the complaint, as well as

“documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice.”

, 551 U.S. 308, 322 (2007). Although the Court must accept

the fact allegations in the complaint as true, it is not compelled to accept

“unsupported conclusions and unwarranted inferences, or a legal

conclusion couched as a factual allegation.” , 719 F.3d

160, 165 (3d Cir. 2013) (quoting , 481 F.3d 187, 195

(3d Cir. 2007)). The Court also disregards allegations made only in a prior

complaint, , 778 F. Appx 173, 175 n.3 (3d Cir.

2019), and any new factual allegations made in the brief opposing the

motion to dismiss, , 639 F. App’x

99, 104 (3d Cir. 2016) (citation omitted).

Defendants offer four arguments for dismissal under Rule 12(b)(6).

A. Personal Involvement

First, defendants seek dismissal of all claims against Craig Copper,

Bradley Booher, and Henry Hansard, for lack of personal involvement in

the alleged violations. To avoid dismissal for failure to state a claim, a

civil rights complaint must state the conduct, time, place, and persons

responsible for the alleged violations. , 423 F.3d 347,

353 (3d Cir. 2005). Further, “[c]ivil rights claims cannot be premised on a

theory of . Rather, each named defendant must be

shown . . . to have been personally involved in the events or occurrences

which underlie a claim.” , 8 F. Supp. 3d 601,

613 (M.D. Pa. 2014) (citation omitted). As explained by the Third Circuit

Court of Appeals:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs . . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made

with appropriate particularity.

, 845 F.2d 1195, 1207 (3d Cir. 1988).

Defendants seek dismissal of the claims against Copper because

plaintiffs only allege that he offered “collaborative assistance” in

implementing the religious meals policy. Defendants ignore the exhibit

cited for that allegation, an email chain from February 24-25, 2022, in

which Copper states that he is “[l]ooking forward to working through” the

new policy, and defendant Klemm thanks Copper for his “assistance” in

implementing the policy. (Doc. 14-1 at 12). To the extent plaintiffs’

allegation of “collaborative assistance” was unclear, the e-mail chain

sufficiently supports an inference of Copper’s personal involvement.

Defendants seek dismissal of Booher and Hansard, the SCI-Benner

Township officials, arguing that the claims against them are based on

their supervisory roles and/or their involvement in responding to post hoc

grievances. However, plaintiffs plainly allege that Booher and Hansard

denied them the opportunity to gather communally during the Green

Corn Feast, which they allege is essential to their religion. (Doc. 14, ¶¶

15, 32). These allegations support an inference of personal involvement

as to plaintiffs’ RLUIPA and First Amendment claims, so dismissal is not

appropriate on this ground.4

B. First Amendment/RLUIPA

Next, defendants seek dismissal of the First Amendment and

4 None of plaintiffs’ allegations suggest Booher’s or Hansard’s

involvement in permitting Jewish inmates to have Matzo bread, which is

the basis of plaintiffs’ Fourteenth Amendment claims. However, those

claims will be dismissed in their entirety, Section II.C, .

RLUIPA claims on the ground that plaintiffs have not plausibly alleged

a substantial burden on their religious practice.

“Inmates clearly retain protections afforded by the First

Amendment . . . including its directive that no law shall prohibit the free

exercise of religion.” , 482 U.S. 342, 348 (1987).

However, a regulation limiting prisoners’ religious exercise is

constitutional if the record shows that it is “reasonably related to

legitimate penological interests.” , 482 U.S. 78, 89 (1987).

RLUIPA offers broader protection than the First Amendment.

, 574 U.S. 352, 361 (2015). The statute forbids the

government from imposing “a substantial burden” on a prisoner’s

religious exercise unless the government “demonstrates that imposition

of the burden on that person (1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). A

substantial burden under RLUIPA exists where: (1) a follower is forced

to choose between following the precepts of his religion and forfeiting

benefits otherwise generally available to other inmates versus

abandoning one of the precepts of his religion to receive a benefit; or (2)

the government puts substantial pressure on an adherent to

substantially modify his behavior to violate his beliefs.

, 497 F.3d 272, 280 (3d Cir. 2007). Both the First Amendment and

RLUIPA require that the beliefs in question are “sincerely held” and

religious in nature. , 574 U.S. at 360-61.

Defendants assert that “the elimination of optional menu items

does not amount to a substantial burden placed on plaintiffs’ religious

beliefs.” But while defendants present this statement as settled law, their

own supporting authorities show that it is a fact-dependent inquiry. In

, the Third

Circuit held that a Muslim inmate could sustain an issue of material fact

as to whether a “feast meal” was essential to his religious practice. 601

F. App’x 101, 105-06 (3d Cir. 2015). In , the Sixth Circuit

affirmed a finding that a vegan meal did not substantially burden a

Muslim inmate’s religion, noting that the plaintiff did not contest that

the vegan meal satisfied the requirements of halal. No. 17-1268, 2017 WL

8231366, at *2-3 (6th Cir. Oct. 16, 2017). Both conclusions rested on the

factual question of whether the meals burdened the inmates’ religious

practice as reflected in the records of those cases.

Here, plaintiffs allege that the Green Corn Feast must be

celebrated with certain foods because of their belief that improper

observance feast brings misfortune to the creator or one’s ancestors.

Defendants do not appear to contest the sincerity or the religious nature

of that belief. Rather, their argument seems to assume that because

certain foods were denied to other religious inmates in other cases,

plaintiffs have no plausible claim to religious foods of their own. But

dietary restrictions can be a sincerely held religious belief protected by

RLUIPA and the First Amendment. , , , 601 F. App’x at 605;

, 227 F.3d 47, 49-51 (3d Cir. 2000) (provision of soy milk

to Buddhist inmate observing vegetarian diet). Whether such protection

attaches in a particular case is a factual question, and accordingly,

several courts have permitted claims challenging the Fellowship Meals

policy to proceed past the pleading stage.5

5 , , , No. 1:24-CV-00336 (M.D. Pa., filed

Dec. 27, 2024) (Muslim inmate alleging entitlement to pork);

, No. 1:23-CV-00037, 2023 WL 4144567, at *3, 14-16 (W.D. Pa. June

23, 2023) (Muslim inmate alleging entitlement to halal meat and various

celebratory food items); , No. 2:22-CV-01682 (W.D. Pa.,

filed Nov. 28, 2022) (Hebrew Israelite inmate alleging entitlement to

lamb, herbs, unleavened bread, and grape juice).

Next, defendants request dismissal because in November 2023, the

DOC further revised its policy to permit inmates to purchase “one shelf-

stable food item.” Even if the Court were to take judicial notice of the

updated policy6, that would not show that the policy was followed in

plaintiffs’ case, or that the shelf-stable item alleviates any substantial

burden to their religious practice. Moreover, plaintiffs also allege that

they were substantially burdened by their inability to celebrate the

Green Corn Feast communally, so the claims would proceed against

Booher and Hansard regardless of the food dispute. While a developed

factual record may ultimately show that the claims lack merit, there is

no basis for dismissal at the pleading stage.

C. Fourteenth Amendment

Third, defendants seek dismissal of plaintiffs’ Fourteenth

Amendment equal protection claims. Plaintiffs must allege that they

were intentionally treated differently from similarly situated persons

6 The Court acknowledged the updated policy in a prior order, but

only to make the point that any future motion for preliminary injunctive

relief should address the policy in force at the time of the motion.

(Doc. 17 at 4 n.5) (citing , No. 1:23-CV-01005 (Doc. 36-

10) (M.D. Pa. Feb. 27, 2024)).

because of membership in a particular protected class, such as a religious

group. , 299 F.3d 197, 206 (3d Cir. 2002).

Persons are similarly situated “when they are alike in all relevant

aspects.” , 533 F.3d 183, 203 (3d Cir. 2008)

(citation omitted).

Plaintiffs’ claim is premised on their allegation that defendants

“allowed the Jewish community to purchase Matz[o] bread for their

feasts.” However, the complaint does not support an inference that the

Jewish inmates7 are or were similarly situated to plaintiffs. The Jewish

inmates were allegedly accommodated with a single, apparently shelf-

stable item ( Doc. 14-1 at 17); plaintiffs’ religion allegedly requires a

“feast” of communal foods for which “there is no other alternative,”

including “meat like buffalo, deer, moose,” as well as fish, wild rice, corn,

beans, and/or squash. Based on these allegations, the groups are not

“alike in all relevant aspects.”8 , 295 F. App’x 479, 484

7 Although not explicitly stated, the Court infers that plaintiffs

believe the similarly situated inmates are Jewish inmates at SCI-Benner

Township who were permitted to purchase Matzo bread despite the

Fellowship Meals policy.

8 The complaint does not indicate that plaintiffs requested, or would

(continued on next page)

(3d Cir. 2008) (an equal protection claim based on religion requires

“similarly situated faiths”); , No. CIV.A. 13-

6975 WJM, 2013 WL 6199202, at *4 (D.N.J. Nov. 27, 2013) (without

allegations of similar dietary needs, complaint did not support an

inference that Jewish and Muslim inmates were similarly situated).

Moreover, nothing in the complaint suggests plaintiffs were treated

differently because of their religion itself, as opposed to the demands that

their requests would apparently place on the prison. , ,

, No. CA 08-160, 2011 WL 3290217, at *10 (W.D. Pa. June

17, 2011) (“The mere fact that a deliberate choice was made by

Defendants to deny certain Halal meat . . . while special Kosher foods

were provided to Jewish inmates at Passover, does not in itself mean that

the choice was made with discriminatory intent.”), report and

recommendation adopted, 2011 WL 3298508 (W.D. Pa. Aug. 1, 2011).

have accepted, a shelf-stable item comparable to what the Jewish

inmates allegedly received. To the contrary, plaintiffs attach a partial list

of proposed shelf-stable offerings produced in , No. 1:23-

CV-00037 (Doc. 99-61) (W. D. Pa., Feb. 1, 2024), which they explicitly

reject as unacceptable because they are “not [plaintiffs’] religious way.”

(Doc. 14-1 at 15-16); (Doc. 25-3) (Plaintiffs’ brief arguing that the

Green Corn Feast “requires fresh organic traditional food. This

requirement cannot be met by any shelf-stable item.”)

Accordingly, plaintiffs’ Fourteenth Amendment claims will be dismissed.

D. Qualified Immunity

Finally, defendants seek dismissal based on qualified immunity.

The doctrine of qualified immunity protects government officials “from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.” , 555 U.S. 223, 231 (2009)

(citation omitted). However, the Third Circuit has cautioned courts that

it is “generally unwise to venture into a qualified immunity analysis at

the pleading stage as it is necessary to develop the factual record in the

vast majority of cases.” , 328 F. App’x 788, 791 n.3

(3d Cir. 2009) (unpublished).

Defendants do not explain their argument for qualified immunity,

beyond asserting that plaintiffs’ claims do not violate a “clearly

established right of Native American/Indigenous inmates to have

particular food items for the Green Corn Feast.” (Doc. 24 at 11-12).9

9 To the extent defendants maintain there is no clearly established

right because the beliefs of “Native American/Indigenous” inmates (or the

Green Corn Feast specifically) are insufficiently religious in nature, the

argument is totally undeveloped and will not be addressed. See Burns v.

(continued on next page)

Several courts have concluded that inmates have no clearly established

right to demand specific food items, such as halal meat.10 However, the

Third Circuit, and district courts within the circuit, have recognized a

clearly established First Amendment right to “religiously acceptable

meals,” which cannot be infringed “without sufficient justification”

pursuant to , 482 U.S. 78 (1987). , 617

F. App’x 148, 152 (3d Cir. 2015) (unpublished).11

Collectively, these authorities suggest a question of fact as to

whether qualified immunity applies here. Presuming no clearly

established right to a “feast” of the exact foods that plaintiffs demand,

Pa. Dep’t of Corr., 642 F.3d 163, 176 (3d Cir. 2011) (“The burden of

establishing qualified immunity falls to the official claiming it as a

defense.”).

10 , , , No. 1:23-CV-00257, 2024 WL 3548453,

at *4 (W.D. Pa. July 26, 2024); , No. CA 08-149,

2011 WL 3290208, at *5 (W.D. Pa. June 17, 2011) (listing cases), report

and recommendation adopted, 2011 WL 3298422 (W.D. Pa. July 29, 2011).

11 , , , No. 1:21-CV-655, 2024 WL 3597047, at

*5 (M.D. Pa. July 30, 2024) (acknowledging clearly established “right to

religious meals”); , No. 3:10-CV-01968, 2011 WL

4527803, at *15 (M.D. Pa. Apr. 26, 2011) (finding clearly established

“right of a prisoner to a diet consistent with his religious beliefs”), report

and recommendation adopted, 2011 WL 4527791 (M.D. Pa. Sept. 28,

2011).

the complaint plausibly states a claim that defendants violated plaintiffs’

clearly established right to a “religiously acceptable meal” in some form,

subject to any justification for this policy that emerges from a developed

factual record. Accordingly, the remaining claims12 will not be dismissed

on this ground.

III. APPOINTMENT OF COUNSEL

Plaintiffs request that the Court appoint them counsel. Unlike in a

criminal case, a prisoner has no constitutional or statutory right to

appointed counsel in a civil case. , 126 F.3d 454, 456-

57 (3d Cir. 1997). Under the statute, however, a federal

court may request that an attorney represent an indigent person on a pro

bono basis. 28 U.S.C. § 1915(e)(1); ,

294 F.3d 492, 499 (3d Cir. 2002); , 6 F.3d 147, 153 (3d Cir.

1993).

In this case, although plaintiffs allege that they are “unable to

afford counsel,” they have paid the full filing and administrative fees to

commence this action and have not been granted leave to proceed

12 This reasoning applies equally to plaintiffs’ RLUIPA claims,

because RLUIPA offers “greater protection” than the First Amendment.

, 574 U.S. at 360-61.

. Accordingly, the request will be denied without

prejudice. , 255 Fed. App’x 684, 686 (3d Cir. 2007)

(declining to appoint counsel in fee-paid appeal).

IV. CONCLUSION

For the reasons described above, the case will proceed on plaintiffs’

RLUIPA claims for injunctive relief, and First Amendment claims for

injunctive and monetary relief, against all defendants. An appropriate

order follows.

Dated: March 5, 2025

JOSEPH F. SAPORITO, JR.

United States District Judge