PETERSON v. HARRY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LAWRENCE PETERSON,

Plaintiff, 24cv1591

ELECTRONICALLY FILED

v.

DR. LAUREL HARRY Secretary of the

Department of Corrections, ET AL.,

Defendants.

MEMORANDUM ORDER RE: NOVEMBER 25, 2024 REPORT

AND RECOMMENDATION (Doc. 12)

This pro se prisoner civil rights action was commenced on November 20, 2024, when

Plaintiff Lawrence Peterson (“Plaintiff”) filed a Motion for Leave to Proceed in Forma Pauperis.

(Doc. 1). The case was assigned to United States Magistrate Judge Keith A. Pesto (“Magistrate

Judge Pesto”) on November 21, 2024, for pretrial proceedings in accordance with the Magistrate

Judges Act, 28 U.S.C. § 636(b)(1), and Local Rules of Court 72.C and 72.D.

On November 25, 2024, Plaintiff’s Motion for Leave to Proceed in Forma Pauperis was

granted and Plaintiff’s Complaint was docketed by the Clerk of Court. (Doc. 4, Doc. 5).

I. RELEVANT BACKGROUND

On November 25, 2024, having reviewed Plaintiff’s Complaint, Magistrate Judge Pesto

issued a Report and Recommendation (“R&R”) in which he recommended, pursuant to 28

U.S.C. § 636(b)(1) and 28 U.S.C. § 1915(e)(2)(B): “dismissal of all damages claims and all but

one defendant (Dr. Harry, the Secretary of Corrections) without leave to amend.” (Doc. 12 at 2).

Plaintiff was informed that, in accordance with the Magistrate Judges Act, 28 U.S.C.

§§ 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, he had fourteen (14) days

to file any objections.

Plaintiff filed a motion to extend the Objection deadline, which the Court granted;

objections then were due no later than January 16, 2025. (Doc. 13, Doc. 14).

On January 14, 2025, Plaintiff timely filed his “Objections to Report &

Recommendation” (“Plaintiff’s Objections”). (Doc. 17).

On January 14, 2025, Plaintiff also filed a sworn “Declaration of Lawrence Peterson.”

(Doc. 16).

II. STANDARD OF REVIEW

The in forma pauperis statute, 28 U.S.C. § 1915, “is designed to ensure that indigent

litigants have meaningful access to the federal courts.” Douris v. Middletown Twp., 293 F.

App’x 130, 131 (3d Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).

Congress recognized, however, that a litigant whose filing fees and court costs are assumed by

the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,

malicious, or repetitive lawsuits. Neitzke, 490 U.S. at 324; Deutsch v. United States, 67 F.3d

1080, 1084 (3d Cir.1995). Accordingly, in addition to reviewing whether a plaintiff is eligible

for pauper status under 28 U.S.C. § 1915(e)(2)(A), pursuant to 28 U.S.C. § 1915(e)(2)(B), the

Court must review the plaintiff’s Complaint and determine whether it is frivolous, malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

immune from such relief.

The United States Court of Appeals for the Third Circuit has established procedures by

which Section 1915 is to operate. Deutsch, 67 F.3d at 1084. In the Third Circuit, leave to

proceed in forma pauperis is based on a showing of indigence. Id. at 1084 n. 5. In cases where

leave is granted, the Court thereafter considers the separate question whether the plaintiff’s

Complaint should be dismissed because it is frivolous or malicious, fails to state a claim upon

which relief may be granted, or seeks monetary relief from a defendant who is immune from

such relief under Section 1915(e)(2).

Additionally, pursuant to Federal Rule of Civil Procedure 72(b)(3), where, as here,

objections have been filed: “The district judge must determine de novo any part of the magistrate

judge's disposition that has been properly objected to. The district judge may accept, reject, or

modify the recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). See also Local Rule of Court

72.D.2 (providing: “A District Judge shall make a de novo determination of those portions to

which objection is made and may accept, reject or modify in whole or in part, the findings and

recommendations made by the Magistrate Judge.”).

III. DISCUSSION

A. Claims in Plaintiff’s Complaint

Plaintiff’s Complaint is brought pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and is comprised of the

following four (4) claims against the twelve (12) named Defendants, whom, as to each of the

four claims, Plaintiff is suing both in their individual and official capacities, and seeking both

injunctive relief and money damages. (Doc. 6 at 13, 18).

At Count I, Plaintiff asserts a Section 1983 claim against the Defendants, alleging that his

rights pursuant to the Free Exercise of Religion Clause of the First Amendment to the United

States Constitution (“First Amendment’s Free Exercise of Religion Clause”) were violated,

causing him injuries, when the Defendants: (1) “denied plaintiff a vegetarian diet to his religious

practices that is proscribed for plaintiff and followers of this faith [Shetaut Neter] by telling him

to self-select foods he wishes to eat and not eat depriving him the right to be provided with food

sufficient to sustain him in good health that satisfies the dietary laws of his religion;” and

(2) “arbitrarily denied plaintiff a meal schedule to observe a monthly Moon Festival Ritual to the

tenets of his faith to Fast as afforded to other prisoners to enable them to observe a similar fast at

a different season.” (Id. at 34-35).

At Count II, Plaintiff asserts a Section 1983 claim against the Defendants, alleging that

his rights pursuant to the Establishment Clause of the First Amendment to the United States

Constitution (First Amendment’s Establishment Clause”) were violated, causing him injuries,

when the Defendants: “with wanton, willful and reckless acts wrongfully favored and promoted

with the improper intent and effect of encouraging a variety of other religions to flourish at the

prison by enforcing regulations that impinges on the religious rights practiced by plaintiff.” (Id.

at 35-36).

At Count III, Plaintiff asserts a claim under RLUIPA, alleging that his rights were

violated, causing him injuries, when the Defendants “lacking any rational correctional purpose

placed a substantial burden on plaintiff’s religious exercise without seeking a lesser alternative

means to be accomplished that would be less burdensome to the religious exercise” (Id. at 36).

(See also id. at 37) (asserting: “[t]he imposition by the Defendants by arbitrarily enforcing

PaDOC DC-ADM 819 regulations against plaintiff was not the least restrictive means of

furthering any governmental interest.”).

At Count IV, Plaintiff asserts a Section 1983 claim against the Defendants, alleging that

his rights pursuant to the Equal Protection Clause of the Fourteenth Amendment of the United

States Constitution (“Fourteenth Amendment’s Equal Protection Clause”) were violated, causing

him injuries, when the Defendants “deprived plaintiff reasonable food to sustain him in good

health and denying him not to be able to enjoy the full spiritual experience of twice Monthly

Ritual Moon Festival, by using PaDOC DC-ADM 819 regulations to improperly impinge on

plaintiff’s religious beliefs.” (Id. at 37).

B. Magistrate Judge Pesto’s R&R

As stated, in his R&R, Magistrate Judge Pesto recommended “dismissal of all damages

claims and all but one defendant (Dr. Harry, the Secretary of Corrections) without leave to

amend.” (Doc. 12 at 2).

The bases for this recommendation by Magistrate Judge Pesto are as follows.

First, Magistrate Judge Pesto determined, relevant to Count III of Plaintiff’s Complaint,

that Plaintiff’s claim for money damages under RLUIPA should be dismissed against all of the

Defendants because “[n]on-recipients of the [federal] funds, including individuals who are state

officials, generally cannot be subject to private liability for monetary damages.” (Id.).

Second, Magistrate Judge Pesto determined, relevant to Count I of Plaintiff’s Complaint:

“To the extent that plaintiff brings a First Amendment Free Exercise claim under Section 1983

seeking money damages against any defendant in an individual capacity, the doctrine of qualified

immunity bars any such claim.” (Id.).

In support thereof, Magistrate Judge Pesto reasoned:

Qualified immunity shields officials from liability for damages as long as their

conduct does not violate clearly established statutory or constitutional rights.

Mullenix v. Luna, 577 U.S. 7, 11 (2015) A clearly established right is one that is

sufficiently clear that every reasonable official would have understood that their

actions violate that right. Reichle v. Howards, 566 U.S. 658, 664(2012). That is,

existing precedent must have placed the statutory or constitutional question beyond

debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Peterson’s complaint

painstakingly documents that his request (actually two requests, one for a “fast

bag” twice a month at the new moon and full moon, and one for a specifically-

assembled diet) was carefully considered and rejected (the “fast bag” request was

rejected because plaintiff’s attempt to analogize his claims to Muslim or Jewish

fasting practice was unconvincing; his request for a specifically-assembled diet was

rejected because the available non-meat and kosher diet options already provided

plaintiff with the features he sought). There are no allegations that would allow an

inference that at any but the highest level of abstraction (“The First Amendment

protects free exercise of religion”) the defendants had any precedent to guide them,

much less were in violation of that precedent. If we indulge in the fiction that

defendants must read the advance sheets to determine what precedent is, they would

have read cases advising them they were not in violation of the First Amendment.

See e.g. Cotton v. Cate, 578 Fed. Appx. 712, 714 (9th Cir. 2014) (affirming

summary judgment as to §1983 claims by inmate Cotton seeking a kemetic diet:

“All constitutional claims brought by prisoners, except Eighth Amendment claims,

are subject to [Turner v. Safley, 482 U.S. 78 (1987)]. Under Turner, a prisoner’s

constitutional claim fails if the challenged policy or action is rationally related to a

legitimate penological interest. [482 U.S. at 78–80]. Here, Cotton concedes that the

prison officials have a legitimate penological interest in maintaining a simple food

service. Denying Cotton's request to create and serve a new meal plan is rationally

related to that interest.”) (cleaned up ). And see Small v. Wetzel, No. 3:12-CV-83-

KRG-KAP, 2014 WL 295714, at *3 (W.D. Pa. Jan. 24, 2014) (denying inmate’s

request for individual interpretation of Ramadan fasting practices: “A reasonable

belief that their actions conform to the law is all it takes for the defendants to be

protected by the defense of qualified immunity.”), aff'd, 592 Fed. Appx. 62 (3d Cir.

2014).

(Id. at 2-3).

Third, Magistrate Judge Pesto determined: “This case should go forward to service as one

for injunctive relief only, and since only one defendant capable of providing any necessary relief

is needed, against only the Secretary of Corrections, defendant Harry. All other claims and

defendants should be dismissed before service.” (Id. at 3).

Fourth, Magistrate Judge Pesto concluded: “Because in light of what plaintiff already has

pleaded amendment is futile, it is not allowed.” (Id.).

C. Plaintiff’s Objections to Magistrate Judge Pesto’s R&R, including

Plaintiff’s Sworn Declaration

In his Objections to Magistrate Judge Pesto’s R&R, Plaintiff first “objects to the

Magistrates finding that that (sic.) the RLUIPA does not imply suit for damages against state

officials, this is true but plaintiff has met the Turner prongs of Constitutional claims, Free

Exercise challenges to prison policy, Turner v. Safely, 482 U.S. 78 (1987). (See R&R pg. 2).”

(Doc. 17 at 1).

In support of this Objection, Plaintiff asserts: “Defendants (sic.) denial of plaintiff’s

request for the Kemetic Diet and Fasting rights substantially burdens the Free Exercise of his

religion because it is the only diet option that comports with his religious beliefs and practices,

and the defendants (sic.) offering of the PaDOC religious diets forces plaintiff to choose between

his nutritional needs and abandoning one of the precepts of his religion.” (Id.).

In further support of this Objection, Plaintiff also argues:

The substantial burden upon plaintiff’s exercise of his religious beliefs, and

practices and his claim based on his First Amendment violation of the Free Exercise

Rights constitute irreparable harm. The defendant has not identified a compelling

governmental interest served by their denial of the kemetic diet to plaintiff or

produced evidence to support such an interest. [N]or did defendants consider the

availability of an obvious, easy alternative that plaintiff pointed to that fully

accommodates plaintiff’s rights at de minimis cost to any valid penological interest.

(Id. at 2) (citations to cases and Complaint omitted).

Next, Plaintiff “objects to the Magistrates (sic.) findings that only one defendant is

capable (sic.) providing any necessary relief, . . . all other claims and defendants should be

dismissed before service.” (Id.).

Specifically, Plaintiff first contends: “The Magistrates (sic.) decision as to the factors for

(sic.) to dismiss all other claims and defendant should not stand, qualified immunity is not a

defense to injunctive relief.” (Id.) (citation omitted).

Plaintiff then argues how Magistrate Judge Pesto’s decision fails “under the Turner

analysis:”

Under the First prong of the Turner test, Plaintiff argues that the defendants cannot

establish the ‘adequate connection’ between its financial and administrative

burdens and in the 2023 policy in DC-ADM819 . . . .

[] The second Turner factor, plaintiff argues that the defendants must consider

whether there are alternative means of exercising the right that remains open to

prison inmates, the defendants prevent plaintiff from practicing his free exercise

religious beliefs in the manner required by Ma’at/Shetaut Neter, thereby violating

his beliefs.

[] The third Turner factor, plaintiff argues, also weighs in his favor because the

PADOC failed to demonstrate that the Kemetic Diet of either 80% of fresh

fruits/uncooked vegetables and 20% processed foods; or 50% of fresh

fruits/uncooked vegetables and 50% cooked foods or other rich vegetarian sources

of protein, calories and vitamins such as: soy, soy milk, tofu. and peanut butter

provide unique problems beyond normal institutional challenges. RLUIPA

‘Protects institutionalized persons who are unable to freely attend to their religious

needs and are therefore dependent on the governments (sic.) permission and

accommodations for exercise of their religion!.

[] For the fourth factor, plaintiff argues that the PADOC policy DC-ADM 819 does

not apply to his religious needs since the 819 policy provides currently for muslim,

jewish, native american, and christian inmates, But, Policy states . . . rights under

this policy as to not create rights in any person nor should it be interpreted or applied

in such a manner as to abridge the Rights of any individual. This policy should be

interpreted to have sufficient flexibility to be consistent with LAW and to permit

the accomplishment of the purpose of the policies of the Department of Corrections.

The alternative it should provide is to take all necessary steps to REVISE the status

quo of the PADOC 203 DC-ADM 819 policy by Dr. Harry as to include in the

context of the DOC’s protocols and the methods by which the DOC is

implementing it as to and by plaintiff’s religious beliefs and dietary practices in

particular. The key point here is the procedural status of the case relative to the

Magistrates (sic.) decision, based on that record the Court cannot conclude as a

matter of law that the plaintiff does not at least state a claim for relief under the

Constitutional provisions plaintiff relies on for a Free Exercise of Religious Right

has been violated.

(Id. at 2-4) (citations to cases and Plaintiff’s Complaint omitted).

Thus, Plaintiff requests in Plaintiff’s Objections, in conclusion: “that all other defendants

and all other claims be re-instated, and not Granted qualified immunity, and that pro se litigant

Mr. Peterson does at least state a claim for relief.” (Id. at 4).

As stated, along with Plaintiff’s Objections, Plaintiff also filed a sworn Declaration.

(Doc. 16). While this Declaration is not referenced in, or otherwise incorporated into, Plaintiff’s

Objections (Doc. 17), the Court has reviewed this document, including its attached exhibits, as if

it is part of Plaintiff’s Objections to Magistrate Judge Pesto’s R&R.

In his Declaration, Plaintiff asserts: “The Claims are Substantial and Warrant Closer

Consideration.” (Doc. 16 at 2).

In support thereof, Plaintiff declares in relevant part: (1) “I have signed the religious

preference form acknowledging my religion as Ma’at/Shetaut Neter @ SCI-fayette given to me

by then the FCPD Chaplain Lewis on or about January 30, 2020;” (2) “[a]s it relates to claim in

paragraph 28 of plaintiff’s §1983 civil rights complaint, Plaintiff on or about November 8, 2022

has submitted his appropriate document religious accommodation request form attachment 4-A

for a ‘Separate Group Meeting, signed by FCPD Rabbi Admon of SCI-Fayette;”1 (3) “[a]s to

claim in paragraph 2 above plaintiff was notified from Rev. Klemm of Central office, religious

services administrator, DTS, and RARC, of the ‘Approved in part’ for inmates who identify as

Shetaut Neter to communally view or listen to approved religious religious (sic.) audio-visual

resources . . . if five or more inmates participate; on or about March 25, 2023;”2 (4) “[a]s it

relates to claims in paragraph 28 page 9 of 28 of plaintiff’s §1983 civil rights complaint and

paragraph 69 page 21 of 28 of plaintiff’s §1983 civil rights complaint, Rev. Klemm has (sic.)

came to SCI-Fayette to hold an invite for a group interview as I was selected to participate on or

about April 9, 2024 @0900;”3 (5) “[a]s to claim in paragraph 4 above and in paragraph 69 page

21 of 28 of Plaintiff’s complaintiff (sic.), plaintiff has since then as a followup sent Rev. Klemm

a ltter (sic.) letter after the group meeting interview invite, and Rev. Klemm never responded;”4

1 Attached to Plaintiff’s Declaration is Plaintiff’s November 8, 2022 Religious Accommodation Request Form.

(Doc. 16 at 4).

2 Attached to Plaintiff’s Declaration is a Religious Accommodation Decision from Defendant Klemm dated

February 22, 2023. (Id. at 6).

3 Attached to Plaintiff’s Declaration is a Group Interview Invite from Defendant Admon dated March 6, 2024.

(Id. at 8).

4 Attached to Plaintiff’s Declaration is a letter written to Defendant Klemm dated April 12, 2024. (Id. at 10).

(6) “[a]s it relates to claims in paragraphs: 64-65, 71-77 pages 20 of 28 and 22 of 28, 23 of 28 of

plaintiff’s §1983 civil rights complaint, plaintiff remains on the ‘GERD DIET’ to keep from

experiencing IBS issues from foods made with Red Sauce;”5 and (7) “[a]s it relates to claims in

paragraph 50 page 15 of 28 of plaintiff’s §1983 civil rights complaint, and in paragraph 2 page 4

of 6 of plaintiff’s motion for TRO/Prelim. Injunc. plaintiff cannot store meal trays in his cell for

Fasting purposes, not any other purpose.”6 (Id. at 1-2).

D. All of Plaintiff’s Objections to Magistrate Judge Pesto’s R&R (Including as

Set Forth in Plaintiff’s Declaration) are Meritless and Thus, Overruled

After a de novo review of the pleadings, documents in the case, Magistrate Judge Pesto’s

R&R, and Plaintiff’s Objections (including as set forth in Plaintiff’s Declaration), for the

following reasons, Plaintiff’s Objections (including as set forth in Plaintiff’s Declaration) are

OVERRULED as meritless.

1. Plaintiff’s RLUIPA claim against the Defendants – Count III of

Plaintiff’s Complaint

With respect to Plaintiff’s claim against the Defendants pursuant to RLUIPA, Plaintiff’s

Objections (including as set forth in Plaintiff’s Declaration) are without merit because it is well

established that neither individual capacity nor official capacity damages claims can be brought

against state officials and state employees, such as the Defendants in this case, pursuant to

RLUIPA, and thus, are OVERRULED.7 See Sossamon v. Texas, 563 U.S. 277, 288 (2011)

5 Attached to Plaintiff’s Declaration is an Inmate Request to Staff Member Form dated August 8, 2024. (Id. at 12).

6 Attached to Plaintiff’s Declaration is an Inmate Request to Staff Member Form dated September 17, 2024. (Id.

at 14).

7 It is unclear whether Plaintiff is objecting to Magistrate Judge Pesto’s recommendation that the Court dismiss

Plaintiff’s RLUIPA claim against the Defendants to the extent Plaintiff seeks monetary damages. (See Doc. 17 at 1)

(Plaintiff stating that he “objects to the Magistrates finding that that (sic.) the RLUIPA does not imply suit for

damages against state officials, this is true but plaintiff has met the Turner prongs of Constitutional claims, Free

Exercise challenges to prison policy, Turner v. Safely, 482 U.S. 78 (1987). (See R&R pg. 2).”). Out of an

(determining RLUIPA does not “include suits for damages against a State,” i.e., official capacity

claims); Vo v. Wetzel, No. 22-1210, 2022 WL 1467978, at *2 n. 2 (3d Cir. May 10, 2022) (citing

Sharp, 669 F.3d at 153, 155) (explaining: “To the extent that Vo’s religious rights claim fell

within the purview of RLUIPA, it was properly dismissed, as RLUIPA does not permit actions

against state officials in their individual capacities, nor have the states consented to waive their

sovereign immunity with respect to RLUIPA suits for damages against State employees in their

official capacities.”); Sharp v. Johnson, 669 F.3d 144, 153 (3d Cir. 2012) (concluding “RLUIPA

does not permit such actions [against State officials in their individual capacities]”).

Accordingly, Magistrate Judge Pesto correctly concluded in his R&R, with respect to

Plaintiff’s RLUIPA claim in Count III of Plaintiff’s Complaint against the Defendants, that

Plaintiff’s claims for monetary damages under RLUIPA must be dismissed with prejudice as to

all of the Defendants prior to service of Plaintiff’s Complaint.

Moreover, Magistrate Judge Pesto’s R&R also correctly concluded, with respect to

Plaintiff’s RLUIPA claim against the Defendants, that to the extent Plaintiff’s RLUIPA claim

seeks injunctive relief, because the injunctive relief sought can (and arguably would have to) be

implemented by Defendant Dr. Laurel Harry (“Secretary Harry”) in her official capacity as the

Secretary of the Pennsylvania Department of Corrections,8 Plaintiff’s RLUIPA injunctive relief

claim should be dismissed with prejudice against all of the Defendants, other than Secretary

Harry, prior to service of Plaintiff’s Complaint. Cf. Crews v. Wetzel, Civ. No. 18-25J, 2018 WL

abundance of caution, the Court is presuming Plaintiff is objecting to Magistrate Judge Pesto’s recommendation that

the Court dismiss Plaintiff’s RLUIPA claim against the Defendants to the extent Plaintiff seeks monetary damages.

8 In his Complaint, Plaintiff alleges that Secretary Harry “has overall responsibilities for the policies, procedures,

operation and supervision of the PaDOC, its employees, agents, assigns and Correctional Facilities, including the

SCI-FYT,” “is the final policymaker and decision maker for the PaDOC,” “is ultimately responsible for establishing

PaDOC DC-ADM 819 Religious Activities Manual,” and is “a member of the Religious Accommodations Review

Committee (‘RARC’).” (Doc. 6, at ¶ 3).

6249926, at *1 (W.D. Pa. Oct. 12, 2018), report and recommendation adopted, 2018 WL

6299958 (W.D. Pa. Nov. 29, 2018) (J. Gibson) (concluding with respect to prisoner plaintiff’s

Section 1983 Fourteenth Amendment due process claim against fifteen (15) defendants for

money damages and injunctive relief, including then Pennsylvania Secretary of Corrections

Wetzel: “The other defendants should be dismissed. They are not needed for injunctive relief and

there are no viable claims for compensatory damages alleged against them.”) (emphasis added).

Thus, to be clear, Plaintiff’s RLUIPA claim shall be dismissed with prejudice prior to

service of Plaintiff’s Complaint as to: (1) all of the Defendants to the extent that Plaintiff seeks

monetary damages; and (2) all of the Defendants, but Secretary Harry, to the extent that Plaintiff

seeks injunctive relief.

2. Plaintiff’s Section 1983 monetary damages claims against the

Defendants in their official capacities – Counts I, II, and IV of

Plaintiff’s Complaint

With respect to Plaintiff’s Section 1983 monetary damages claims against the Defendants

in their official capacities, based on the Defendants’ alleged violations of Plaintiff’s rights under

the First Amendment’s Free Exercise of Religion and Establishment Clauses and the Fourteenth

Amendment’s Equal Protection Clause, for the following reason, Plaintiff’s Objections

(including as set forth in Plaintiff’s Declaration) are meritless, and thus, are OVERRULED.

Simply stated, Plaintiff may not sue any of the Defendants in their official capacities9

under Section 1983 for monetary damages for violation of his Constitutional rights because

Section 1983 authorizes suits only against any “person” who deprives an individual of his

Constitutional rights and it is well established that neither a State nor its officials or employees

acting in their official capacities are “persons” under Section 1983. See Will v. Michigan Dep't

9 In his Complaint, Plaintiff alleges that each of the Defendant either are officials with, or employees of, the

Commonwealth of Pennsylvania. (See Doc. 6 at 13-17).

of State Police, 491 U.S. 58, 71 (1989) (concluding: “neither a State nor its officials acting in

their official capacities are ‘persons’ under § 1983”); Fullman v. City of Philadelphia,

No. 23-2030, 2024 WL 937060, at *2 (3d Cir. Mar. 5, 2024) (citing Will, 491 U.S. at 71)

(holding: “[T]o the extent that [the plaintiff] sought to sue Bonner [an agent with the Gun

Violence Task Force for the Pennsylvania Office of Attorney General] in her official capacity as

an employee of the Commonwealth of Pennsylvania, state employees in their official capacities

are not “persons” who can be sued for damages under § 1983.”); Downey v. Pennsylvania Dept.

of Corrections, 968 F.3d 299, 310 (3d Cir. 2020) (citing 71 Pa. Stat. and Cons. Stat. Ann. § 61)

(explaining: “The Pennsylvania Department of Corrections is undoubtedly a state instrumentality

and its officials are state agents.”).

Accordingly, Magistrate Judge Pesto correctly concluded in his R&R that all of

Plaintiff’s Section 1983 monetary damages claims against the Defendants in their official

capacities are properly dismissed with prejudice prior to service of Plaintiff’s Complaint.

3. Plaintiff’s Section 1983 monetary damages claims against the

Defendants in their individual capacities based on their alleged

violations of Plaintiff’s rights under the First Amendment’s Free

Exercise of Religion and Establishment Clauses and the

Fourteenth Amendment’s Equal Protection Clause - Count I, II,

and IV of Plaintiff’s Complaint

With respect to Plaintiff’s Section 1983 monetary damages claims against the Defendants

in their individual capacities based on the Defendants’ alleged violations of Plaintiff’s rights

under the First Amendment’s Free Exercise of Religion and Establishment Clauses and the

Fourteenth Amendment’s Equal Protection Clause, for the following reasons, the Court finds that

Plaintiff’s Objections (including as set forth in Plaintiff’s Declaration) are meritless, and thus,

are OVERRULED.

a. Plaintiff’s Section 1983 monetary damages claim against the

Defendants in their individual capacities based on their alleged

violation of Plaintiff’s rights under the First Amendment’s Free

Exercise of Religion Clause

First, for the following reason, the Court agrees with Magistrate Judge Pesto’s conclusion

in his R&R that the Defendants are entitled to qualified immunity as to Plaintiff’s Section 1983

monetary damages claim against the Defendants in their individual capacities to the extent that

said claim is premised on the Defendants allegedly violating Plaintiff’s rights under the First

Amendment’s Free Exercise of Religion Clause, and thus, said claims should be dismissed with

prejudice as to all of the Defendants prior to service of Plaintiff’s Complaint.

As explained by the United States Supreme Court in Rivas-Villegas v. Cortesluna, 595

U.S. 1, 5–6 (2021):

“Qualified immunity attaches when an official's conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” White v. Pauly, 580 U. S. ––––, ––––, 137 S.Ct. 548, 551, 196

L.Ed.2d 463 (2017) (per curiam) (internal quotation marks omitted). A right is

clearly established when it is “sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.” Mullenix v. Luna, 577

U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation

marks omitted). Although “this Court's case law does not require a case directly on

point for a right to be clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” White, 580 U. S., at ––––, 137

S.Ct., at 551 (alterations and internal quotation marks omitted). This inquiry “must

be undertaken in light of the specific context of the case, not as a broad general

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d

583 (2004) (per curiam) (internal quotation marks omitted).

Rivas-Villegas, 595 U.S. at 5-6.

Applying this law to the factual allegations contained in Plaintiff’s Complaint, Magistrate

Judge Pesto correctly determined that even presuming Plaintiff has alleged in his Complaint facts

that sufficiently support, as to each Defendant, that his or her denial of Plaintiff’s request for a

Kemetic diet and twice-monthly fasting privileges violated Plaintiff’s rights under the First

Amendment’s Free Exercise of Religion Clause, a reasonable officer would not have understood

that he or she was violating a clearly-established right under the First Amendment’s Free

Exercise of Religion Clause in denying Plaintiff’s requests for a Kemetic diet and twice-monthly

fasting privileges.

b. Plaintiff’s Section 1983 monetary damages claims against the

Defendants in their individual capacities based on their alleged

violation of Plaintiff’s rights under the First Amendment’s

Establishment Clause and the Fourteenth Amendment’s Equal

Protection Clause

Second, for the following reason, the Court agrees with Magistrate Judge Pesto’s

conclusion in his R&R that Plaintiff’s Section 1983 monetary damages claims against the

Defendants in their individual capacities based on their alleged violations of Plaintiff’s rights

under the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal

Protection Clause should be dismissed with prejudice prior to service of Plaintiff’s Complaint

because all of the Defendants are entitled to qualified immunity as to these claims.

As with Plaintiff’s Section 1983 monetary damages claim against the Defendants in their

individual capacities based on their alleged violation of Plaintiff’s rights under the First

Amendment’s Free Exercise of Religion Clause, even presuming Plaintiff has alleged facts in his

Complaint that sufficiently support, as to each Defendant, that his or her denial of Plaintiff’s

request for a Kemetic diet and twice-monthly fasting privileges violated Plaintiff’s rights under

the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection

Clause, a reasonable officer would not have understood that he or she was violating a

clearly-established right under either the First Amendment’s Establishment Clause or the

Fourteenth Amendment’s Equal Protection Clause in denying Plaintiff his requested Kemetic

diet and fasting privileges.

4. Plaintiff’s Section 1983 injunctive relief claims against the

Defendants based on their alleged violations of Plaintiff’s rights

under the First Amendment’s Free Exercise of Religion and

Establishment Clauses and the Fourteenth Amendment’s Equal

Protection Clause – Counts I, II, and IV of Plaintiff’s Complaint

With respect to Plaintiff’s Section 1983 injunctive relief claims against the Defendants

based on their alleged violations of Plaintiff’s Rights Under the First Amendment’s Free

Exercise of Religion and Establishment Clauses and the Fourteenth Amendment’s Equal

Protection Clause, for the following reason, the Court finds Plaintiff’s Objections (including as

set forth in Plaintiff’s Declaration) to be meritless and thus, OVERRULED.

While Plaintiff correctly notes that qualified immunity is not a defense to injunctive

relief,10 Magistrate Judge Pesto did not determine that qualified immunity was a defense

available to the Defendants as to Plaintiff’s Section 1983 injunctive relief claims.

Rather, Magistrate Judge Pesto determined, correctly, that: (1) Plaintiff’s Section 1983

claims for injunctive relief against the Defendants based on their alleged violations of Plaintiff’s

rights under the First Amendment’s Free Exercise of Religion and Establishment Clauses and the

Fourteenth Amendment’s Equal Protection Clause, only need “one defendant capable of

providing any necessary relief;” and (2) therefore, Plaintiff’s Section 1983 injunctive relief

claims can be dismissed with prejudice as to all of the Defendants, except for Secretary Harry,

prior to service of Plaintiff’s Complaint. See Crews, 2018 WL 6249926, at *1 (concluding with

respect to prisoner plaintiff’s Section 1983 Fourteenth Amendment due process claim against

fifteen (15) defendants for money damages and injunctive relief, including then Pennsylvania

Secretary of Corrections Wetzel: “The other defendants should be dismissed. They are not

10 See Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006) (stating: “[T]he defense of qualified immunity

is available only for damages claims – not for claims requesting prospective injunctive relief.”).

needed for injunctive relief and there are no viable claims for compensatory damages alleged

against them.”) (emphasis added).

IV. CONCLUSION

Accordingly, the following Order is entered this 10th day of June, 2025:

IT IS HEREBY ORDERED that:

1. all of Plaintiff’s Objections to Magistrate Judge Pesto’s November 25, 2024 Report

and Recommendation (Doc. 12) (including as set forth in Plaintiff’s Declaration) are

meritless and OVERRULED;

2. Magistrate Judge Pesto’s November 25, 2024 Report and Recommendation

(Doc. 12), as supplemented by this Memorandum Order, is ADOPTED as the

Opinion of the Court; and

3. Except for the claims for injunctive relief set forth in Counts I, II, III, and IV of

Plaintiff’s Complaint against Defendant Dr. Laurel Harry, the Pennsylvania Secretary

of Corrections, all of the claims set forth in Plaintiff’s Complaint against Secretary

Harry and the other eleven Defendants are dismissed with prejudice prior to service

of Plaintiff’s Complaint, i.e., this case shall go forward to service as one for

injunctive relief only, and with only one defendant, Secretary Harry.

IT IS FURTHER HEREBY ORDERED that this civil matter remains with Magistrate

Judge Pesto for further proceedings.

SO ORDERED.

s/Arthur J. Schwab

Arthur J. Schwab

United States District Judge

cc: All Registered ECF Counsel

LAWRENCE PETERSON

EK-2899

SCI FAYETTE

50 Overlook Drive

LaBelle, PA 15450