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Plaintiff’s third amended complaint (Doc. 43) is a 45 page document, exclusive of the attachments. Unless

otherwise noted, all references to the page numbers of this complaint are to the page number assigned by the clerk of

court. 

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KELVIN BOWMAN,

Plaintiff,

vs. Case No.: 3:03cv568/RV/EMT

JAMES CROSBY, et al.,

 Defendants.

_______________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Plaintiff’s Third Amended Civil Rights Complaint filed

pursuant to 42 U.S.C. § 1983 (Doc. 43) and Plaintiff’s Motion for a Preliminary and Permanent

Injunction (Doc. 45). Leave to proceed in forma pauperis has been granted (Doc. 9). 

Named as Defendants in this action are James V. Crosby, Secretary of the Florida

Department of Corrections (“DOC”); Thomas J. Hamilton and Orlester Dickens, representatives of

the Secretary of the DOC; Charles W. Shockley, Grievance Administrator for the DOC; R. Castle;

and the following employees of the Santa Rosa Correctional Institution (“SRCI”): retired Warden

J.S. Petrovsky, Assistant Warden A. Haskin, Grievance Coordinator M. Booker, Warden L.E.

Griffis, Chaplain Jones and Chaplain Gray (Doc. 43 at 1-4).1

 Plaintiff alleges Defendants violated

his right to freely exercise his religion under the First Amendment, the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”) and the Florida Constitution, and discriminated

against him on the basis of his religion. He seeks declaratory relief, injunctive relief and monetary

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Plaintiff states “all Defendants are being sued in their individual capacity for monetary damages . . . [and] in

their official capacity for declaratory and injunction [sic] relief” (Doc. 43 at 1).

3

Plaintiff later alleges that there are actually “four religious group[s] of the genre of Jewish” (Doc. 43 at 28).

Thus, it appears that the two listed by the Chaplain were the closest to Plaintiff’s religion, but that others were available.

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damages.2

After careful consideration, it is the opinion and recommendation of the undersigned that

Plaintiff’s complaint should be dismissed for failure to state a claim upon which relief may be

granted. 

I. BACKGROUND

Plaintiff alleges the following facts in support of his claims. He was housed at Washington

Correctional Institution (“WCI”) from approximately January to April of 2003. WCI officials

denied Plaintiff’s requests to “have his religious files reflect that he is a black Hebrew by nationality,

a Yisraelite by race and a Yehudaite (Jew) is his tribe” (Doc. 43 at 19). However, because the WCI

chaplain made a sincere effort to accommodate Plaintiff’s religious beliefs, Plaintiff states he is not

suing him (id. at 20).

Plaintiff was transferred from WCI to SRCI in July or August of 2003. Upon arrival at SRCI

he filed a request with Defendant Jones, advising him that he was a “Hebrew, Yisraelite (Jew),” and

seeking placement on the “high holy day and festival fast day list” according to the Jewish calendar

(id. at 20). Plaintiff also requested that his prison record reflect his religion (id.). Defendant Jones

advised Plaintiff that it was “impossible to determine exactly what [his] religious preference is” and

that he knew of no such verified faith group (id. at 21). Plaintiff was given the option of declaring

his religion as either Hebrew-Israelite or Jewish,3 and if he did so, his record would reflect the

change, although Plaintiff was advised that the prison had no Hebrew-Israelite calendar (id.).

Plaintiff failed to declare a religion because the available options did not accurately reflect his

religion, thus the computer continued to list Plaintiff as “unknown regarding religious preference”

(id. at 21-22). Plaintiff avers that there are differences between the Hebrew-Yisraelite and HebrewIsraelite religions (id. at 25). Specifically, one follows the solar calendar and the other follows a

lunar calendar (id. at 26)

Plaintiff filed numerous grievances seeking recognition of his religion and those things

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Plaintiff later refers to his wife as his “wife/fiancee” (see Doc. 43 at 28), just as he did in his second amended

complaint (see Doc. 29 at 7(i)). It was suggested to Plaintiff that he clarify, in his third amended complaint, whether he

is married or engaged (see Doc. 38 at 10), but Plaintiff failed to do so.

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necessary to accommodate his religious beliefs, including a Kosher diet, a conjugal relationship with

his wife,4 and the ability to celebrate his holy days, which include Passover, Feast of Unleavened

Bread, Feast of Weeks, fast day, Feast of Shavvot, Yom Kippur, Feast of Sukkot, Holy Day of Gad

(Seventh Month, New Moon), Feast of Tabernacle and the Sabbath (“every Friday sunset until

Saturday sunset no work, lighting fires or traveling”) (id. at 21-23). Plaintiff’s grievances were

denied, as he failed to select an available religious option, although the options of Hebrew-Israelite

or Jewish were available to him (id. at 23). Plaintiff’s informal grievances were denied by

Defendant Jones (id. at 23); his formal grievances were denied by Defendants Booker, Haskin,

Petrovsky, Griffis and Hamilton (id. at 24, 25); and, upon appealing to Defendant Crosby, Plaintiff

claims his appeal was not answered within thirty days as required, although it appears it was

ultimately denied by Defendant Dickens (id. at 24; see also Doc. 43, Ex. 1 at 8). Plaintiff alleges

that Defendant Castle responded to grievance number 0303-110-176 (id. at 21), although the

grievances attached to Plaintiff’s complaint do not contain Castle’s name or signature, and he is

mentioned nowhere else in the complaint.

Plaintiff claims that his inability to receive Kosher meals resulted in an “inadequate

nutritional food diet,” weight loss (fifteen pounds), muscle atrophy, hunger headaches, fatigue,

confusion, an inability to fight off illnesses and recover from a brain tumor, as well as heart, kidney

and liver problems, although Plaintiff acknowledges that a Kosher diet was available to white

inmates classified as “Jewish” and that such inmates were allowed to observe Jewish holidays (id.

at 27). Plaintiff further acknowledges that no inmate, regardless of his or her faith, is allowed

conjugal visits (id.).

II. ANALYSIS

Because Plaintiff is proceeding in forma pauperis, this Court has a statutory duty to dismiss

this action at any time if the court determines it is frivolous or malicious, fails to state a claim upon

which relief may be granted or seeks monetary relief against a Defendant who is immune from such

relief. See 28 U.S.C. § 1915(e)(2)(B). The court must read Plaintiff’s pro se allegations in a liberal

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fashion. Haines v. Cornier, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In determining

whether the complaint states a claim upon which relief may be granted, the court accepts all facts

set forth in the complaint as true. See Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1393

(11th Cir. 1997). The complaint fails to state a claim only when it appears beyond all doubt that

Plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Brown

v. Budget Rent-A-Car Systems, Inc., 119 F.3d 922, 923 (11th Cir. 1997). Because the language of

section 1915 tracks the language of Fed.R.Civ.P. 12(b)(6), Rule 12(b)(6) standards apply in

determining whether a Plaintiff’s case is subject to dismissal under section 1915(e)(2)(B)(ii). See

Mitchell v. Farcass, 112 F.3d 1483, 1487 (11th Cir. 1997).

A. Free Exercise of Religion Claims

“In the First Amendment context . . . a prison inmate retains those First Amendment rights

that are not inconsistent with his status as a prisoner or with the legitimate penological objectives

of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d

495 1974); Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996). A prisoner’s right to exercise

his religion is not absolute; it is only required that he be accorded a reasonable opportunity to pursue

his religion. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per

curiam). Thus, while inmates maintain a constitutional right to freely exercise their sincerely held

religious beliefs, this right is subject to prison authorities’ interests in maintaining safety and order.

O’Lone v. Estate of Shabazz, 482 U.S. 342, 345, 107 S.Ct. 2400, 2402, 96 L.Ed.2d 282 (1987);

Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Cruz v. Beto, supra. The

Supreme Court held in Turner that when a prison regulation or policy impinges upon an inmate’s

constitutional rights, the policy is valid if it is reasonably related to legitimate penological interests.

Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63; Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir.

1996). Prison administrators should be given great deference in adopting and executing policies and

practices. Absent substantial evidence in the record indicating that officials exaggerated their

response to considerations of order, discipline, and security, courts ordinarily should defer to their

judgment. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); see

also McCorkle v. Johnson, 881 F.2d 993 (11th Cir. 1989).

The recently enacted Religious Land Use and Institutionalized Persons Act of 2000

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Although Plaintiff suggests in one part of his complaint that the Kosher meal program has not yet been

implemented (see Doc. 43 at 24), he acknowledges in other parts of his complaint that “Jewish dietary accommodations”

exist (id. at 26), that Defendants refuse to provide him with the available Kosher diet (id. at 27), and that other inmates

receive Kosher meals and celebrate Jewish holidays (id.). 

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(“RLUIPA”) provides a standard of review less deferential to prison officials:

 No government shall impose a substantial burden on the religious exercise of a

person residing in or confined to an institution . . . even if the burden results from a

rule of general applicability, unless the government demonstrates that imposition of

the burden on that person . . . is in furtherance of a compelling governmental interest[

] and . . . is the least restrictive means of furthering that compelling governmental

interest.

42 U.S.C. § 2000cc-1(a). 

This legislation was passed, at least in part, in response to the Supreme Court’s decision in

City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), where the Court

held the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq., was

unconstitutional as applied to the states because it exceeded Congress’s authority under the

Fourteenth Amendment of the Constitution. The Court’s decision in Boerne marked the return to

the standard employed in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990), and in the context of prison cases, O’Lone v. Shabazz, supra, which was the Turner

“reasonableness” standard.

In the instant complaint, Plaintiff has failed to establish a federal constitutional claim. First,

a mere failure to list Plaintiff’s religious preference in his official prison record imposes no burden

upon Plaintiff’s exercise of his religion. Similarly, a failure to recognize his particular faith as a

verified faith group imposes no burden upon Plaintiff in and of itself. Plaintiff alleges the practice

of his religion is burdened by his inability to obtain Kosher meals, observe holy days, and otherwise

participate in permissible religious observances. However, the burden is self-imposed, not imposed

by Defendants. Plaintiff is burdened only because he refuses to select a recognized faith group that

most closely resembles his faith. As Plaintiff admits, if he were to select one of the four recognized

faith groups of the “genre of Jewish,” he would experience his important worship traditions,

including the observance of Jewish holy days and the consumption of Kosher meals.5

 Although

Plaintiff alleges that the holy days recognized by the verified Jewish faith groups are not identical

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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.

7

Plaintiff has not alleged that selecting a religious preference other than Hebrew-Yisraelite requires that he

disavow his sincerely held religious beliefs.

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to those of his faith (one follows the lunar calendar and the other follows the solar calendar), he has

failed to demonstrate that the differences would result in a substantial burden on the exercise of his

religion. In fact, Plaintiff specifically requested placement on the “high holy day and festival fast

day list” according to the Jewish calendar (Doc. 43 at 20) and admits that the Jewish holidays are

similar to those of his own faith, as both observe the “Feast of Pesach (Passover), Feast of

Unleavened Bread, Feast of Sheafs, Feast of Weeks/Pentacost, Yom Kippur and the Feast of Sukkot

(Tabernacle), etc.” (id. at 27). Thus, the holy days and fast days recognized by the DOC sufficiently

accommodate Plaintiff’s beliefs and are available to him.

To the extent Plaintiff claims that the forced selection of a faith similar but not identical to

his own violates his constitutional rights, Plaintiff has failed to state a claim. The Supreme Court

has made it clear that the Free Exercise Clause affords prisoners “reasonable opportunities” to

exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972)

(per curiam). The Court recognized, however, that limits may be placed on the religious rights that

must be afforded to inmates: 

We do not suggest, of course, that every religious sect or group

within a prison--however few in number--must have identical

facilities or personnel. A special chapel or place of worship need not

be provided for every faith regardless of size; nor must a chaplain,

priest, or minister be provided without regard to extent of the

demand. 

405 U.S. at 322, n. 2, 92 S.Ct. 1079. An inmate is not free to do that which he might wish to do, nor

may he do allowable things at a time and in a manner he might prefer. Muhammad v. Lynaugh, 966

F.2d 901, 902 (5th Cir.1992). In Hill v. Estelle, 537 F.2d 214, 215 (5th Cir. 1976),6 the Fifth Circuit

reiterated the long-standing principle that “lawful incarceration results in the necessary limitation

of many privileges and rights of the ordinary citizen.” Thus, although Plaintiff would prefer that his

record reflect he is a Hebrew-Yisraelite Jew rather than a Hebrew-Israelite Jew,7

 the prison need not

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do so, as long as reasonable accommodations are available that accommodate his beliefs and

religious traditions.

Finally, Plaintiff claims that conjugal visits are commanded by his religion and should be

permitted by the DOC, although Plaintiff’s complaint does not establish that is married, nor that he

was married during the time frame relevant to this complaint. Furthermore, visitation privileges are

a matter subject to the discretion of prison officials. See Montana v. Commissioners Court, 659 F.2d

19, 21-22 (5th Cir. 1981), cert. denied, 455 U.S. 1026 (1982). It is well settled that failure to permit

conjugal visits does not deny an inmate a federal constitutional right. McCray v. Sullivan, 509 F.2d

1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Tarlton v.

Clark, 441 F.2d 384, 385 (5th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971)

(federal prisoner). See also Hernandez v. Coughlin, 18 F.3d 133, 137 (2nd Cir. 1994) (“The [U.S.]

Constitution . . . does not create any protected guarantee to conjugal visitation privileges while

incarcerated,” as “[r]ights of marital privacy . . . are necessarily and substantially abridged in the

prison setting”). Accordingly, Plaintiff has failed to state a constitutional claim concerning the

denial of conjugal visits.

B. Equal Protection Claim 

Plaintiff has alleged a denial of equal protection, claiming that Defendants provide white

Jewish inmates Kosher meals and allow them to observe religious holidays, yet deny those same

rights to him. Plaintiff, however, has failed to state a constitutional violation. It is well established

that equal protection “does not require that all persons be treated identically.” Hendking v. Smith,

781 F.2d 850, 851 (11th Cir. 1986) (citing Stanton v. Stanton, 421 U.S. 7, 14, 95 S.Ct. 1373, 1377,

43 L.Ed.2d 688 (1975)). The Equal Protection Clause merely requires that “similarly situated

persons be treated equally.” Duncan v. Moore, 754 So.2d 708, 712 (Fla. 2000) (citing Clebrune v.

Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (The Equal

Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly

situated should be treated alike.”)). “[I]f the distinctions between similarly situated individuals are

to withstand an equal protection analysis, such distinctions must be reasonable, not arbitrary, and

must rest on grounds having a fair and substantial relation to the object of the legislation.”

Hendking, 781 F.2d at 851. Thus, to establish an equal protection violation, Plaintiff must make two

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showings. First, Plaintiff must demonstrate that Defendants acted with the intent to discriminate

against him. McClesky v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987);

Mencer v. Hammonds, 134 F.3d 1066, 1070 (11th Cir. 1998). Second, Plaintiff must establish he

was among a group of similarly situated persons that unreasonably or arbitrarily suffered different

treatment by Defendants. See Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 2331, 120 L.Ed.2d

1 (1992); see also Hendking, 781 F.2d at 850. Conclusory allegations or assertions of personal

belief of disparate treatment or discriminatory intent are insufficient. GJR Investments, Inc. v.

County of Escambia, 132 F.3d 1359, 1367-68 (11th Cir. 1998); Coon v. Georgia Pacific Corp., 829

F.2d 1563, 1569 (11th Cir. 1987).

In the instant case, Plaintiff alleges no facts suggesting he was among a group of similarly

situated persons, such as a group of inmates that practiced the Hebrew-Yisraelite religion or a group

of African-American inmates, that suffered disparate treatment based upon membership in that

group. Similarly, Plaintiff has failed to allege that other members of any particular group were

treated similarly; he alleges only that he was singled out for disparate treatment. These allegations

do not state an equal protection claim.

C. Respondeat Superior

As a final matter, to the extent Plaintiff seeks to hold Defendants Crosby, Hamilton, Dickens,

Shockley, Castle, Petrovsky, Haskin, Booker and Griffis liable on a respondeat superior theory of

liability, those claims should be dismissed. It is well established that supervisory officials are not

liable under section 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.

2003) (internal quotation marks and citations omitted). Supervisory liability may occur, however,

either when the supervisor personally participates in the alleged unconstitutional conduct or when

there is a causal connection between the actions of a supervising official and the alleged

constitutional deprivation. Id. (citation omitted). This connection may be established “when a

history of widespread abuse puts the responsible supervisor on notice of the need to correct the

alleged deprivation, and he fails to do so, or when a supervisor’s custom or policy ‘result[s] in

deliberate indifference to constitutional rights’ or when facts support ‘an inference that the

supervisor directed the subordinates to act unlawfully or knew that the subordinates would act

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unlawfully and failed to stop them from doing so.’” Id. (internal quotation marks and citations

omitted); Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999), cert. denied, 120 S.Ct. 1974, 146

L.Ed.2d 804 (2000).

Isolated incidents are generally insufficient to establish a supervisor’s liability, and filing a

grievance with a supervisory person does not alone make the supervisor liable for the allegedly

violative conduct brought to light by the grievance, even if the grievance is denied. Wayne, 197

F.3d at 1106; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff'd, 915 F.2d 1574

(6th Cir. 1990); see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Knowledge imputed

to the supervisor “must be so pervasive that the refusal to prevent harm rises to the level of a custom

or policy of depriving inmates of their constitutional rights.” Tittle v. Jefferson County Com’n, 10

F.3d 1535, 1542 (11th Cir. 1994). The failure to act or implement policy must be in the face of

repeated violations or other indicators signifying a strong likelihood that the situation will recur.

See Harris v. City of Marion, 79 F.3d 56, 58-59 (7th Cir. 1996). Supervisors are generally entitled

to rely on their subordinates to respond appropriately to situations absent clear or widespread

evidence to the contrary. “The standard by which a supervisor is held liable in [his] individual

capacity for the actions of a subordinate is extremely rigorous.” Cottone, 326 F.3d at 1360 (internal

quotation marks and citation omitted).

Plaintiff suggests there is a causal connection between these Defendants’ actions and the

alleged federal law violations based on the Defendants’ failure to implement policies that require

the recognition and accommodation of Plaintiff’s religion. Alternatively, he seeks to impose liability

based upon their failure to overrule Chaplain Jones’ denials of his grievances. However, there must

first be a finding of violative conduct before supervisory liability can be imposed. Because there

has been no unlawful conduct at any level, the supervisory officials or those that denied Plaintiff’s

grievances cannot be held liable. Furthermore, Plaintiff has not alleged that any of these Defendants

directed subordinates to act unlawfully or knew the subordinates would act unlawfully and failed

to stop them from doing so. Accordingly, Plaintiff has failed to establish a claim against these

Defendants and his claims should be dismissed. 

Plaintiff’s claim against Defendant Gray should likewise be dismissed, as he has alleged no

facts demonstrating Defendant Gray’s participation in any of the alleged unconstitutional conduct.

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Defendant Gray is named as a Defendant on pages one and two of Plaintiff’s complaint, but does

not appear elsewhere in the complaint.

For the aforementioned reasons it is respectfully RECOMMENDED:

1. That this action be DISMISSED WITH PREJUDICE for failure to state a claim

upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

2. That Plaintiff’s Motion for a Preliminary and Permanent Injunction (Doc. 45) be

DENIED as moot.

3. That the clerk be directed to close the file.

At Pensacola, Florida this 21st day of October 2005.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within ten

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

magistrate judge and 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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