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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JESSE JAMES HILL, JR.,

Plaintiff,

vs. Case No. 5:03cv192/MCR/EMT

M.S. WILLIAMS,

Defendant.

______________________________________/

REPORT AND RECOMMENDATION

This case filed pursuant to 42 U.S.C. § 1983 is now before the court upon Defendant’s

special report and supporting documents (Doc. 33). The pro se Plaintiff, a state prisoner who is

proceeding in forma pauperis in this action, responded to the special report (Doc. 42). On October

4, 2004, this Court entered an order advising the parties of the importance and ramifications of Rule

56 summary judgment consideration, and informing the parties that the special report would be

construed as a motion for summary judgment as of November 15, 2004 (Doc. 43). Plaintiff filed

additional argument and Rule 56 materials on November 12, 2004 (Doc. 45). Upon review of the

submissions of the parties, it is the opinion of the undersigned that Defendant’s motion for summary

judgment should be granted in part.

I. BACKGROUND

The following facts are without substantial controversy. Plaintiff was housed in

administrative confinement at the Jackson Correctional Institution (JCI) on June 6, 2001. Defendant

Williams was employed as a security officer at JCI at that time and worked the third shift beginning

at 3:00 p.m. When Defendant served Plaintiff the dinner meal, Plaintiff observed that the entree was

pork sausage. Plaintiff informed Defendant that his Islamic faith prohibited him from eating any

of the food on the tray because it was contaminated with pork. Plaintiff requested that Defendant

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1

The parties do not dispute that at the time of the alleged constitutional violation, the DOC had policies in place

to accommodate prisoners whose religions prohibited the consumption of pork, such as the existence of the alternate

entree program to provide meal options for inmates whose religions had dietary restrictions against pork and the policy

of allowing inmates to preview the menu and choose an alternate meal.

Case No.: 5:03cv192/MCR/EMT

provide him an alternate meal.1 Defendant removed the food tray from Plaintiff’s cell and returned

shortly thereafter with a food tray. Defendant told Plaintiff it was an alternate food tray. Plaintiff

began eating the food, and approximately five minutes later experienced difficulty breathing, a

headache and a swollen tongue, his heart began pounding and he began seeing white spots. Upon

thorough inspection of his food tray, he noticed “minute” pieces of pork sausage. Plaintiff declared

a medical emergency and was taken to the medical department. Upon examination by a nurse, he

was diagnosed as experiencing hyperventilation, which subsided after thirty minutes. Plaintiff was

returned to his cell with instructions that he be permitted to eat extra sandwiches.

The parties’ versions of the facts significantly diverge as to whether Defendant gave Plaintiff

an alternate tray or simply scraped the pork sausage off the original tray and gave the same tray back

with assurances to Plaintiff that it was an alternate tray. Plaintiff states that upon his complaint to

Defendant, Defendant twice told him to take the pork off the tray and eat the remaining food (Doc.

19 at 7A). Additionally, Plaintiff states he questioned Defendant as to whether the second tray was

an alternate because it did not have an extra portion of beans, which is usually provided on alternate

trays (id. at 7A-7B). Defendant denies that he scraped the pork off the tray and gave the same tray

back to Plaintiff (Doc. 33, Ex. A, Affidavit of M.S. Williams, ¶ 4). He states he took the first tray

from Plaintiff, saw an alternate meal tray on the food cart, and gave it to Plaintiff (id., ¶ ¶ 4, 6).

Defendant states the second tray appeared to have beans on it, not any pork, but if there were tiny

pieces of pork on the alternate tray, he does not know how it got there (id., ¶ 6). 

II. PROCEDURAL HISTORY

Plaintiff filed his second amended complaint against Defendant Williams alleging violation

of his right to freely exercise his religion guaranteed by the First Amendment of the United States

Constitution; the Florida Constitution; and the Religious Freedom Restoration Act of 2000, Florida

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2

Plaintiff’s initial and first amended complaints included a claim that Defendant disregarded Plaintiff’s health

by feeding him pork when Defendant knew that Plaintiff was allergic to it, in violation of the Eighth Amendment.

However, Plaintiff abandoned his Eighth Amendment claim in his second amended complaint. Even if Plaintiff’s second

amended complaint was construed as including an Eighth Amendment claim, Plaintiff has failed to show the existence

of a genuine issue of material fact as to whether he was allergic to pork. The Pre-special Housing Health Appraisal

performed by medical staff of June 1, 2001 states lists Plaintiff’s only allergy as penicillin (see Doc. 33, Ex. I).

Furthermore, the medical examination performed after Plaintiff consumed the pork resulted in a diagnosis of

hyperventilation, not an allergic reaction (see Doc. 33, Ex. J).

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Statutes section 761.01 et seq. (Doc. 19 at 8).2 As relief, Plaintiff seeks compensatory and punitive

damages for the constitutional violation (id.). Plaintiff also included a general prayer for relief,

which he later clarified as including a claim for nominal damages (id. at 8A; Doc. 42 at 5).

Defendant, in his motion for summary judgment, argues that he is entitled to summary

judgment because Plaintiff’s amended complaint fails to establish a constitutional violation.

Specifically, Defendant argues, “. . . a single instance of being fed pork is not a violation of a

Muslim inmate’s First Amendment right to freedom of religious expression.” (Doc. 33 at 11-12).

Additionally, Defendant contends he is entitled to qualified immunity, arguing that Plaintiff cannot

meet the burden of demonstrating that Defendant knew there was pork in the food Plaintiff

consumed, and there is no clearly established law requiring Defendant to ensure Muslim inmates

do not accidentally ingest pork (Doc. 33 at 7). Additionally, Defendant contends Plaintiff’s claims

for compensatory and punitive damages are subject to dismissal pursuant to 42 U.S.C. § 1997e(e)

because Plaintiff failed to allege or show more than de minimis physical injury (id. at 8). 

III. DISCUSSION

A. Summary Judgment Standard

To prevail on his motion for summary judgment, Defendant must show that Plaintiff has no

evidence to support his case or present affirmative evidence that Plaintiff will be unable to prove his

case at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed.

2d 265 (1986). If Defendant successfully negates an essential element of Plaintiff’s case, the burden

shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact

for trial. Id. The “mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct.

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2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under

the governing [substantive] law.” Id. Accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998

(11th Cir. 1992). Further, Plaintiff must show more than the existence of a “metaphysical doubt”

regarding the material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation,

475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a “scintilla” of evidence or

conclusory allegations is insufficient. Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

Plaintiff must either point to evidence in the record or present additional evidence sufficient to

withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Celotex, 477

U.S. at 324; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997) (“Rule 56(e) . . . requires the

nonmoving party to go beyond the pleading and by h[is] own affidavits, or by the ‘depositions,

answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is

a genuine issue for trial.’”), cert. denied, 522 U.S. 1126 (1998) (quoting Celotex, 477 U.S. at 324

(quoting Fed.R.Civ.P. 56(c), (e))); Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994).

Evidence presented by Plaintiff in opposition to the motion for summary judgment, and all

reasonable factual inferences arising from it, must be viewed in the light most favorable to Plaintiff.

Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970);

Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999). A motion for summary judgment should be

granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; Celotex, 477 U.S. at 322.

B. Eleventh Amendment Immunity

Defendant claims he is entitled to Eleventh Amendment immunity insofar as he is sued in

his official capacity. A suit against a state employee in his or her official capacity is deemed to be

a suit against the state for Eleventh Amendment purposes. Will v. Michigan Dept. of State Police,

491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45, 58 (1989). Generally, absent waiver or express

congressional abrogation, the Eleventh Amendment prohibits a suit against a state in federal court.

Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Gamble v.

Florida Department of Heath and Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir. 1986).

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Thus, Defendant is entitled to Eleventh Amendment immunity to the extent Plaintiff sues him in his

official capacity.

C. Qualified Immunity

Defendant claims he is entitled to qualified immunity from suit in his individual capacity.

The doctrine of qualified immunity is a guarantee of fair warning. McElligott v. Foley, 182 F.3d

1248, 1260 (11th Cir. 1999). It shields government officials from individual capacity suits against

them for acts that do not violate a clearly established statutory or constitutional right of which a

reasonable person would have known given the circumstances and information possessed by the

official at the time of the conduct. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666

(2002); Conn v. Gabbert, 526 U.S. 286, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Powell v. Ga. Dep’t

of Human Res., 114 F.3d 1074 (11th Cir. 1998). Qualified immunity seeks to ensure that individuals

can reasonably anticipate when their conduct may give rise to liability, and hence, liability only

attaches if the contours of the right allegedly violated are sufficiently clear that a reasonable person

would understand that what he is doing violates that right. McElligott, 182 F.3d at 1260 (citing

United States v. Lanier, 520 U.S. 259, 270, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). 

In order to receive qualified immunity, the public official “must first prove that he was acting

within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee v.

Ferraro, 284 F.3d at 1194 (internal quotation marks omitted). “Once the defendant establishes that

he was acting within his discretionary authority, the burden shifts to the plaintiff to show that

qualified immunity is not appropriate.” Id., at 1194. The Supreme Court has established a two-part

test for evaluating a claim of qualified immunity. First, the trial court must determine whether a

constitutional right has been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 121 S.Ct.

2151, 2156, 150 L.Ed.2d 272 (2001). The court must assess the facts in a light most favorable to

the party asserting the injury. Id. Second, if a violation has been established, the court must

determine whether the right was “clearly established” at the time of the event. Id. The very action

in question need not have been held unlawful for an official to lose the protection of qualified

immunity. Hope, 122 S.Ct. at 2515; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97

L.Ed.2d 523 (1987). Officials can still be on notice that their conduct violates established law even

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in novel factual circumstances, and there is no requirement that previous cases be “fundamentally”

or even “materially” similar. Hope, 122 S.Ct. at 2516. Instead, the law merely must give

Defendants “fair warning” that their actions are unconstitutional. Id. In light of pre-existing law,

the unlawfulness must be apparent. Id.; Creighton, 483 U.S. at 640.

“In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by

decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the

state where the case arose.” Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir. 1998) (quoting Jenkins

v. Talladega City Bd. of Education, 115 F.3d 821, 826 n. 4. (11th Cir. 1997)).

D. Conclusions of Law Regarding Material Facts

1. Claims for Compensatory and Punitive Damages

Plaintiff seeks $100,000.00 in compensatory damages and $250,000.00 in punitive damages

for the alleged violation of his First Amendment rights. Provisions of the Prison Litigation Reform

Act of 1995 (Pub.L.No. 104-134, 110 Stat. 1321 (1996)) (“PLRA”) have significantly limited the

damages available to prisoners. Subsection (e) of 42 U.S.C. § 1997e states that “[n]o Federal civil

action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for

mental or emotional injury suffered while in custody without a prior showing of physical injury.”

The Eleventh Circuit has decided that the phrase “Federal civil actions” means all federal claims,

including constitutional claims. Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2000) (citing

Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000) (en banc)). In order to satisfy section

1997e(e), a prisoner must allege more than a de minimis physical injury. Harris v. Garner, 190 F.3d

1279, 1286-87 (11th Cir. 1999), reh’g en banc granted and opinion vacated, 197 F.3d 1059 (11th Cir.

1999), opinion reinstated in pertinent part en banc, 216 F.3d 970 (11th Cir. 2000)) (“We therefore

join the Fifth Circuit in fusing the physical injury analysis under section 1997e(e) with the

framework set out by the Supreme Court in Hudson [v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117

L.Ed.2d 156 (1992)] for analyzing claims brought under the Eighth Amendment for cruel and

unusual punishment, and hold that in order to satisfy section 1997e(e) the physical injury must be

more than de minimis, but need not be significant.”); Osterback v. Ingram, 2000 WL 297840, 13 Fla.

L. Weekly D 133 (N.D. Fla. 2000), aff’d. 263 F.3d 169 (11th Cir. 2001) (Table), cert. denied, 122

S.Ct. 2362, 153 L.Ed.2d 183 (2002) (holding that a prisoner plaintiff may not recover compensatory

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or punitive damages for mental or emotional injury without establishing that he suffered more than

de minimis physical injury).

In the instant case, Plaintiff alleges that as a result of his ingesting “minute” pieces of pork,

he could not breathe, his tongue became swollen, he experienced shortness of breath, his heart began

pounding, his head hurt, and he began seeing white spots (Doc. 19 at 7B). The medical records

show Plaintiff was diagnosed as suffering a thirty-minute episode of hyperventilation (Doc. 33, Ex.

J). People in regular and ordinary activities and events in their daily lives may hyperventilate, and

they treat the episode with a home remedy, such as engaging in breathing exercises and relaxation

techniques. This injury simply does not fall within the parameters of section 1997e(e). See Harris

190 F.3d at 1287 (“A ‘dry shave,’ without more, is simply not the kind of ‘injury’ that is cognizable

under section 1997e(e).”); Siglar v. Hightower, 112 F.3d 191, 194 (5th Cir.1997) (a sore, bruised

ear lasting for three days was not a sufficient physical injury under § 1997e(e) to support recovery

for emotional or mental suffering); Sarro v. Essex County Correctional Facility, 84 F.Supp.2d 175,

177 (D.Mass.2000) (difficult breathing which required the use of an inhaler did not satisfy the

physical injury requirement); Cain v. Commonwealth of Va., 982 F.Supp. 1132, 1135 & n. 3 (E.D.

Va.1997) (unbearable headaches, vision loss, numbness in arms and legs, joint pain, stomach

cramps, lower back pain, and blackouts were not a sufficient physical injury to recover under §

1997e(e) for mental injury); Canon v. Burkybile, No. 99 C-4623, 2000 WL 1409852 (N.D. Ill. July

25, 2000) (headaches, insomnia, stress, and stomach anxiety did not meet the physical injury

requirement of § 1997e(e)). Because the PLRA forbids the litigation of Plaintiff’s claims for

compensatory and punitive damages while Plaintiff is imprisoned, there is no valid legal basis for

these claims. Accordingly, the claims for compensatory and punitive damages should be dismissed

without prejudice. Napier, 314 F.3d at 531-32; Harris, 190 F.3d at 1290. 

2. Claim for Nominal Damages

Plaintiff’s second amended complaint includes a general prayer for relief, and his initial

response to Defendant’s special report clarifies that this request includes a request for nominal

damages (Doc. 19 at 8A; Doc. 42 at 5). Defendant maintains he is entitled to summary judgment

on qualified immunity grounds. He argues Plaintiff cannot establish Defendant knowingly fed him

pork. Furthermore, Plaintiff’s right to not be accidentally fed pork was not clearly established at the

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time of the alleged incident. Additionally he argues as a matter of law a single instance of being fed

pork is not a First Amendment violation.

The first issue to be addressed is whether Defendant was engaged in a “discretionary

function” when he performed the acts of which Plaintiff complains. See Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004). This inquiry is two-fold: (1) was the

government employee “performing a legitimate job-related function (that is, pursuing a job-related

goal)” and (2) “through means that were within his power to utilize.” Id. at 1255-56 (citation

omitted). 

To pass the first step of the discretionary function test for qualified immunity, the

defendant must have been performing a function that, but for the alleged

constitutional infirmity, would have fallen with his legitimate job description. . . .

After determining that an official is engaged in a legitimate job-related function, it

is then necessary to turn to the second prong of the test and determine whether he is

executing that job-related function--that is, pursuing his job-related goals--in an

authorized manner. . . . Each government employee is given only a certain “arsenal”

of powers with which to accomplish her goals. For example, it is not within a

teacher’s official powers to sign her students up for the Army to promote patriotism

or civic virtue, or to compel them to bring their property to school to redistribute

their wealth to the poor so that they can have firsthand experience with altruism.

Id. at 1266 (citation omitted).

Under this standard, Defendant--as a matter of law--was undoubtedly engaged in a

discretionary function when he distributed the food trays. Though Defendant is not empowered to

violate constitutional rights as part of his official duties, he did have the responsibility of distributing

food trays to the inmates. The fact that he may have distributed Plaintiff’s tray in an

unconstitutional manner does not change the fact that he was fulfilling a legitimate job-related

function. Moreover, the way in which he attempted to pursue this job-related goal (giving Plaintiff

another food tray when Plaintiff complained about the contents of the first tray)--examined on a

general level rather than in this specific application--was a legitimate prerogative of his job. From

an alternate perspective, putting aside Plaintiff’s First Amendment claim, Defendant’s actions would

undoubtedly be considered part of his duties and a legitimate exercise of his authority.

Consequently, under the two-prong test articulated above, Defendant’s activities in relation to the

food tray incident were discretionary acts for which he may seek qualified immunity.

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The next step in the qualified immunity inquiry is to determine whether Plaintiff’s

allegations, if true, establish a constitutional violation. Hope, 536 U.S. at 736. In making this

determination, the court must take the “facts” in the light most favorable to Plaintiff and determine

the legal issue of whether Plaintiff’s “facts,” if proven, show that Defendant violated clearly

established law. Priester, 208 F.3d at 925 n. 3 (citing Kelly v. Curtis, 21 F.3d 1544, 1546 (11th Cir.

1994)). Defendant contends Plaintiff cannot establish a constitutional violation because there is no

evidence that Defendant knew the second tray was not an alternate food tray. Plaintiff states that

twice before Defendant removed the first tray, Defendant suggested to him that he simply remove

the pork and eat the remaining food (Doc. 19 at 7A). Plaintiff additionally states that after he

realized there was pork on the second tray and alerted Defendant, Defendant came to his cell with

a smile on his face (id. at 7B). Plaintiff states the second tray contained pieces of pork, and it did

not contain navy beans, which was the entree served on the alternate food trays (see Doc. 19 at 7A;

Doc. 45, Plaintiff’s Declaration, ¶ 11). Lastly, Plaintiff states the nurse who treated him told him

that “the officer” stated Plaintiff had been served beef sausage, not pork (Doc. 45, Plaintiff’s

Declaration, ¶ 9), and the medical records submitted by Defendant include a notation, “Officer D.

Glass said that inmate was served beef sausage not pork” (Doc. 33, Ex. J). From this evidence a

jury could infer Defendant knew the second tray was not an alternate tray and/or that it contained

pork or traces of pork, the consumption of which violated Plaintiff’s religious beliefs. 

Defendant next contends a single instance of feeding Plaintiff pork is not a violation of a

Muslim inmate’s First Amendment right, however, Defendant provides no legal authority in support

of this position. While prisoners retain First Amendment rights, including the First Amendment

right of free exercise of religion, policies or conduct “alleged to infringe constitutional rights [in

prison] are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights.” See O’Lone v. Estate of Shabazz, 482 U.S. 340,

349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). O’Lone directs courts to give respect and

deference to the judgment of prison officials even in First Amendment challenges raised within the

confines of prison. Id. The standard of review requires that challenged regulations or conduct be

upheld if they are “reasonably related to legitimate penological interests.” O’Lone, 482 U.S. at 350

(utilizing the standard of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).

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Thus, to find a free exercise violation in the prison context, a plaintiff must demonstrate that prison

officials employed a policy or engaged in conduct not reasonably related to any legitimate

penological interest or security measure, which substantially burdens a practice of his religion or

prevents him from engaging in conduct or having a religious experience which the faith mandates.

This interference must be more than an inconvenience; the burden must be substantial and

significantly interfere with Plaintiff’s practice of his religious beliefs. Cf. Thornburgh v. Abbott,

490 U.S. 401, 418, 109 S.Ct. 1874, 1884, 104 L.Ed.2d 459 (1989) (noting that O’Lone found prison

regulations valid in part because the prisoners were permitted to participate in other Muslim

religious ceremonies). Also relevant to the court’s consideration is whether an “alternative means

of exercising the right . . . remain open to prison inmates.” O’Lone, 482 U.S. at 351. It must be

recognized, however, that an “absence of ready alternatives” may be “evidence of the reasonableness

of a prison regulation.” Turner, 482 U.S. at 90, 107 S.Ct. at 2262. However, it does not mean that

prison officials must “set up and then shoot down every conceivable alternative method of

accommodating the claimant’s constitutional complaint.” Turner, 482 U.S. at 90-91, 107 S.Ct. at

2262. This is a “reasonableness” test, not a “least restrictive” alternatives test. Id. at 91, 107 S.Ct.

at 2262.

Prior to considering the reasonableness of a regulation, as set forth in Turner, the court must

first determine whether an infringement has occurred, specifically, whether the inmate has been

substantially burdened in practicing his religion. Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir.

1995). The Supreme Court held:

“Where the state conditions receipt of an important benefit upon conduct proscribed

by a religious faith, or where it denies such a benefit because of conduct mandated

by religious belief, thereby putting substantial pressure on an adherent to modify his

behavior and to violate his beliefs, a burden upon religion exists. While the

compulsion may be indirect, the infringement upon free exercise is nonetheless

substantial.” 

See also Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450, 108 S.Ct. 1319,

99 L.Ed.2d 534 (1988) (“[I]ndirect coercion or penalties on the free exercise of religion, not just

outright prohibitions, are subject to scrutiny under the First Amendment.”) (citations omitted);

Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 94 L.Ed.2d

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3

The RFRA provides in pertinent part: 

Government may substantially burden a person’s exercise of religion only if it demonstrates that

application of the burden to the person--1) is in furtherance of a compelling governmental interest and

2) is the least restrictive means of furthering that compelling government interest. 

42 U.S.C. § 2000bb-1. Although RFRA was declared unconstitutional as applied to the States, see City of Boerne v.

Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the definition of “substantially burden” is helpful in

analyzing First Amendment claims. 

4

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding

precedent all former Fifth Circuit decisions rendered before October 1, 1981.

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190 (1987) (quoting and reaffirming Thomas v. Review Bd. of Ind. Employment Security Div., 450

U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)). In the context of the Religious Freedom

Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, the Eleventh Circuit defined “substantial burden”

as one that prohibits a religious adherent from engaging in conduct that his religion requires.3

Cheffer, 55 F.3d at 1522. This burden must be more than inconsequential. See Employment Div.,

Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-882, 110 S.Ct. 1595, 108 L.Ed.2d

876 (1990); Walsh v. La. High School Athletic Ass’n, 616 F.2d 152, 158 (5th Cir. 1980).4 Indeed,

in the context of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §

2000cc(a)(1), the Eleventh Circuit recently held:

[A] “substantial burden” must place more than an inconvenience on religious

exercise; a “substantial burden” is akin to significant pressure which directly coerces

the religious adherent to conform his or her behavior accordingly. Thus, a substantial

burden can result from pressure that tends to force adherents to forego religious

precepts or from pressure that mandates religious conduct. 

Midrash Sephardi Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). Only if Plaintiff

demonstrates a substantial burden on his religious practice, is it necessary to apply the

reasonableness test of Turner to determine if Defendant’s actions were reasonably related to a

legitimate penological interest. Wilson v. Moore, 270 F.Supp.2d 1328, 1349 (N.D.Fla. 2003); see

also Midrash, 366 F.3d at 1225 (Plaintiff bears burden of showing substantial burden on religious

practice before invoking protections of RLUIPA). If Plaintiff fails to provide evidence that a

particular practice is essential to his faith or that its absence would be a substantial burden to the

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exercise of his religion, then he has failed to show that its denial violated the First Amendment.

Wilson, 270 F.Supp.2d at 1350.

In the instant case, the parties do not dispute that the Muslim holy book states Muslims are

forbidden from consuming pork (see Doc. 19 at 7). Thus, Plaintiff has established that abstaining

from consuming pork products is an important and sacred part of his religious practice. Although

Defendant did not directly compel Plaintiff to consume the contaminated food, direct coercion is not

required to show that the burden upon Plaintiff’s free exercise was substantial. Defendant indirectly

compelled Plaintiff to violate his religious beliefs by assuring him the meal was not contaminated

with pork, although Defendant knew that it was (according to Plaintiff’s version of the facts).

Although the infringement was limited to one occasion, it prevented Plaintiff from actively

practicing his faith. Furthermore, the magnitude of the infringement was not insignificant, as

evidenced by the fact that the DOC had policies in place to accommodate prisoners whose religions

prohibited the consumption of pork, such as the existence of the alternate entree program to provide

meal options for inmates whose religions had dietary restrictions against pork and the policy of

allowing inmates to preview the menu and choose an alternate meal, as well as the fact that staff was

“refreshed” in the procedure for ordering and distributing food trays in the confinement unit as a

result of Plaintiff’s filing a grievance concerning the incident (see Doc. 42, attachment). Therefore,

this Court concludes as a matter of law that Defendant’s conduct compelled Plaintiff to engage in

conduct that violated a significant aspect of his religious practice, thereby imposing a “substantial

burden” on Plaintiff’s free exercise of his religion. See Shakur v. Selksy, 391 F.3d 106, 112-13 (2d

Cir. 2004) (plaintiff sufficiently stated substantial burden on religious practice where he alleged he

missed a single religious feast); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (requiring

Rastafarian inmate to take medical test for detection of tuberculosis constituted substantial burden

on free exercise of religion); Vanscoy v. Hicks, 691 F.Supp. 1336, 1337-38 (M.D. Ala. 1988) (single

instance of an officer’s denying an inmate the right to enter the chapel constituted a violation of the

inmate’s First Amendment rights and thereby entitled the inmate to nominal damages); but see Gill

v. DeFrank, 8 Fed.Appx. 35, 36, 2001 WL 388057, at *1 (2d Cir. 2001) (holding that “missing one

religious service does not constitute a substantial burden on an inmate’s right to the free exercise

of his religion.”).

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Additionally, taking the facts in the light most favorable to Plaintiff, Defendant has provided

no rational reason for failing to provide Plaintiff an alternate meal. Defendant states Plaintiff did

not order an alternate meal when he had the opportunity to do so; however, Plaintiff states he did

(Doc. 33, Affidavit of M.S. Williams, ¶ 2; Doc. 45, Plaintiff’s Declaration, ¶ 7). Regardless of

whether Plaintiff ordered an alternate meal, Defendant has provided no rational reason for failing

to obtain one at the time food was being served in administrative confinement. Indeed, Defendant

denies that it would have been a threat to security and the orderly operation of the prison for him to

obtain an alternate tray at the time food was served in administrative confinement (see Doc. 46, ¶

17; Doc. 45, Plaintiff’s Request for Admissions, ¶ 17). Therefore, the facts according to Plaintiff

establish a violation of his First Amendment rights.

The next issue in the qualified immunity analysis is determining whether the law was clearly

established so as to put Defendant on notice that his behavior was a violation. It is Plaintiff’s burden

to cite case law, in force at the time of Defendant’s conduct, that would have made it absolutely

clear that Defendant’s conduct violated federal law. See Wilson, 526 U.S. at 609. As discussed

supra, “[a] right is clearly established if, in light of already-existing law, the unlawfulness of the

conduct is ‘apparent.’” Akins v. Fulton County, Ga., ___ F.3d ___, 2005 WL 1958333 (11th Cir.

Aug. 17, 2005) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)).

Thus, “[i]f reasonable public officials could differ on the lawfulness of a defendant’s actions, the

defendant is entitled to qualified immunity.” Storck v. City of Coral Springs, 354 F.3d 1307, 1314

(11th Cir. 2003). To demonstrate that the law is clearly established, a party is not required to cite

cases with materially similar facts; rather, the state of the law at the time of the unconstitutional act

must be established sufficiently to give “fair warning” to the official that his conduct is unlawful.

Hope, 536 U.S. at 741, 122 S.Ct. at 2516. 

In the instant case, Defendant contends Plaintiff cannot show binding precedent establishing

that Defendant had a duty to ensure that Muslim inmates did not accidentally ingest pork (Doc. 33

at 7). However, in light of this Court’s conclusion that, viewing the facts in the light most favorable

to Plaintiff, a reasonable jury could infer Defendant purposefully gave Plaintiff a food tray that he

knew was contaminated with food prohibited by Plaintiff’s religion, the legal precedent regarding

a defendant’s accidental conduct is irrelevant.

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Case No.: 5:03cv192/MCR/EMT

Defendant further contends the law was not clearly established that a single instance of being

fed pork is not a violation of a Muslim inmate’s First Amendment rights (id. at 11-12). As discussed

supra, Supreme Court precedent dating well before 2001 clearly stated that conditioning a religious

adherent’s receipt of an important benefit upon conduct proscribed by the adherent’s faith imposes

an impermissible burden on the free exercise of religion. The Eleventh Circuit clearly stated in 1995

that prohibiting a religious adherent from engaging in conduct that his religion requires constitutes

a substantial burden on free exercise of religion. Cheffer, 55 F.3d at 1522. Thus, a reasonable

officer would have known that compelling a Muslim inmate to consume pork violated the First

Amendment, even if the compulsion was indirect, such as knowingly misrepresenting that the food

tray was an alternate. This Court thus concludes that, at the time of the incident in June of 2001, the

clearly defined preexisting law would have indicated to Defendant that his conduct was

unconstitutional.

IV. CONCLUSION

Based on the foregoing, the undersigned concludes that Defendant’s motion for summary

judgment should be granted to Defendant in his official capacity. Furthermore, summary judgment

should be granted to Defendant in his individual capacity on the issues of compensatory and punitive

damages. The motion for summary judgment should be denied to Defendant in his individual

capacity on the issue of nominal damages for the alleged First Amendment violation. Additionally,

Defendant is not entitled to the defense of qualified immunity on the First Amendment claim at this

stage. Of course the court does not on this record resolve the disputed factual issues. It will be

Plaintiff’s burden to prove his version of the facts to a jury.

Accordingly it is respectfully RECOMMENDED: 

1. That Defendant’s motion for summary judgment (Doc. 33) be GRANTED IN

PART. Summary judgment should be GRANTED to Defendant in his official capacity.

Additionally, summary judgment should be GRANTED to Defendant in his individual capacity on

the issues of compensatory and punitive damages. Summary judgment should be DENIED to

Defendant in his individual capacity on the issue of nominal damages.

2. That the clerk be directed to enter judgment accordingly and return the file to the

undersigned for further proceedings.

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Case No.: 5:03cv192/MCR/EMT

At Pensacola, Florida this 12th day of September 2005.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

ten (10) days after being served a copy thereof. A copy of objections shall be served upon all

other parties. Failure to object may limit the scope of appellate review of factual findings. See

28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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