1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTWON ROGERS, et al )

Plaintiffs ) C.A. No. 08-149 Erie

)

v. ) District Judge McLaughlin

) Magistrate Judge Baxter

UNITED STATES OF AMERICA, et al., )

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss or, alternatively, for summary

judgment filed by Defendants [Document # 52] be:

 - granted as to the Bivens and RFRA/RLUIPA claims of all Plaintiffs

regarding prayer oils due to their failure to exhaust in accord with the

PLRA;

- granted as to all the Bivens and RFRA/RLUIPA claims relating to the

Eid meal in January of 2006 by Plaintiff Campbell as he has failed to

exhaust in accord with the PLRA;

- granted as to the RLUIPA claims of all Plaintiffs;

- granted as to the RFRA claims of all Plaintiffs;

- denied as to the respondeat superior argument as to Defendants

Sherman and Robare;

- denied as to the First Amendment free exercise claim;

- denied as to the Fifth Amendment equal protection claim;

- granted as to the substantive due process claim under the Fifth

Amendment;

- granted as to the procedural due process claim under the Fifth 

Amendment;

- denied as to the qualified immunity defense of all individual

Defendants;

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 1 of 42
 See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 1

U.S. 388 (1971) (recognizing a private cause of action to recover damages against federal

officers for violations of constitutional rights.).

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- granted as to the dismissal of the FTCA claims against the individual

Defendants; and

- granted as to the FTCA claim against the United States.

It is further recommended that the Clerk of Courts be directed to terminated Plaintiff

Campbell from this action due to his failure to exhaust his Bivens and RLUIPA/ RFRA claims

and because the FTCA claims are without merit. 

It is further recommended that the Clerk of Courts should also be directed to terminate

the United States of America as a party to this action.

The retaliation claims of Plaintiffs Singh and Rogers remain pending as Defendants have

not moved for summary judgment on those claims.

A Case Management Order will be issued separately.

II. REPORT

A. Relevant Procedural History

On May 15, 2008, Plaintiffs Antwon Rogers, Andre Campbell and Desmond Singh,

Sunni Muslims incarcerated at the Federal Correctional Institution at McKean (“FCI-McKean”),

filed this pro se civil rights action. Plaintiffs allege statutory, constitutional and tort claims

related to the alleged denial of Halal meat in celebration of Eid-ul-Adha in January 2006. 

Plaintiffs also challenge the prison’s policy of selling scented oils used in Muslim prayer

services through the Commissary, rather than through the special purchase order program. The

three Plaintiffs assert statutory claims under the Federal Tort Claims Act, the Religious Land

Use and Institutionalized Persons Act, and the Religious Freedom Restoration Act, as well as

Bivens claims under the First and Fifth Amendments. Plaintiffs Rogers and Singh also raise a 1

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 2 of 42
2 Plaintiffs Singh and Rogers, along with several other Sunni Muslim inmates, 

filed nearly identical claims in a previous lawsuit involving the January 2005 Eid celebration.

That case was dismissed on February 23, 2009. See Ellis, et al v. United States of America, et

al, Civil Action No. 06-305Erie. 

Additionally, Keith Ellis filed a lawsuit with claims identical to those raised in

the present action involving the January 2006 Eid-ul-Adha celebration. Named as Defendants to

that action are: United States of America, Edward Roberts, James Sherman, S.L. Robare, Jan

Olowin, Brian Grimm, Gerald Desio, Michael Baldensperger, Tina Gee, Gary Buck, and Monica

Recktenwald. That case remains pending as it has survived a motion for summary judgment. 

See Ellis v. United States of America, et al, Civil Action No. 08-160E.

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retaliation claim. As relief, Plaintiffs seek monetary damages.

Named as Defendants are: the United States of America; Edward Roberts, the Federal

Bureau of Prison’s Northeast Regional Religious Service Administrator; James Sherman, former

Warden of FCI McKean; S.L. Robare, Assistant Warden at FCI McKean; Jan C. Olowin, former

Supervisory Chaplain at FCI McKean; Brian Grimm, Chaplain at FCI McKean; Gerald Desio,

Food Service Supervisor at FCI-McKean; and Michael Baldensperger, Trust Fund Supervisor at

FCI McKean. 

Defendants have filed a motion to dismiss or, in the alternative, motion for summary

judgment. Document # 52. Plaintiffs have filed a brief in opposition. Document # 56. This

matter is now ripe for consideration by this Court. 

B. Relevant Factual History 2

According to the Amended Complaint, in early October of 2005, Plaintiffs and other

Sunni Muslim inmates at FCI McKean (“Sunni inmates”) submitted an Inmate Request to

Defendant Grimm requesting that Halal lamb be served at their Eid-ul-Adha (“Eid”) celebration

in January 2006. Document # 41, Amended Complaint, page 13. Defendants acknowledge that

Eid-ul-Adha commemorates the sacrifice of Ibrahim and is one of two “required” holy days per

year for practitioners of Islam. Document # 53-7, Declaration of Defendant Jan Olowin,

Chaplain, page 6.

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Plaintiffs submitted a second request to Defendants Grimm and Olowin, dated

November 10, 2005, requesting to have Halal beef, rather than Halal lamb, served at the Eid

celebration, since the beef was available on the Institutional and/or Certified Menu. Document #

41, page 3. The next day, Plaintiffs and others met with Defendants Olowin and Grimm, at

which time the Defendants allegedly agreed to have Halal beef served at the Eid celebration, and

further agreed to ensure that all participating inmates were on the Religious Diet Program for the

day of the Eid-ul-Adha observance. Id. at 14.

On November 18, 2005, Plaintiffs again met with Defendants Olowin and Grimm to

discuss the January 2006 Eid observance, at which time Defendant Olowin allegedly informed

Plaintiffs that Halal beef was approved for the ceremonial meal. Id. Further, Defendant Olowin

allegedly told the group that the Halal beef had already been “purchased and provided for by the

food service budget.” Id. However, on January 10, 2006, the day the Eid observance was

scheduled to be held, Plaintiff alleges that “the Defendants refused to provide an appropriate

religious dietary meal (Halal beef...) as promised and attempted to coerce and force Plaintiffs

and others into rescheduling the Eid and into accepting a non-Halal meal.” Id.

In April 2006, Defendants Olowin and Grimm agreed that “the Religious Service would

purchase and provide Prayer oil to the Muslims like Defendants do for other Faith groups

concerning their religious items.” Id. at 16-17. However, the Religious Service stopped

purchasing and providing the prayer oil after only two months, and Muslims were not allowed to

use the Special Purpose Order (SPO) program to purchase the prayer oil. Id.

Plaintiffs Rogers and Singh claim that all these acts were done in retaliation against them 

based upon their involvement as litigants in Civil Action 06-305E. Id. See also Document # 56,

Opposition Brief, page 14.

C. Standards of Review

1. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 4 of 42
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than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,

555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read

“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);

Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal

pleading rules, during the initial stages of litigation, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.

1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make

inferences where it is appropriate. 

2. Motion to dismiss pursuant to 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint

must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41

(1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009)

(specifically applying Twombly analysis beyond the context of the Sherman Act). 

The Court need not accept inferences drawn by plaintiff if they are unsupported by the

facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906

(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. 

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 5 of 42
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Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also

McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. Aug. 245, 2009) quoting

Iqbal, ___ U.S. at ___, 129 S.Ct. At 1949 (“The tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”). A plaintiff’s factual

allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 556. Although the United States Supreme Court does “not require heightened fact

pleading of specifics, [the Court does require] enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. 

In other words, at the motion to dismiss stage, a plaintiff is “required to make a

‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008

WL 482469, at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008). “This does not impose a probability requirement at the pleading stage,

but instead simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Phillips, 515 F.3d at 232, quoting Twombly, 550

U.S. at 556 n.3. 

Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:

To prevent dismissal, all civil complaints must now set out sufficient factual

matter to show that the claim is facially plausible. This then allows the court to

draw the reasonable inference that the defendant is liable for the alleged

misconduct. 

* * *

After Iqbal, when presented with a motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. First, the factual and legal

elements of a claim should be separated. The district court must accept all

of the complaint’s well-pleaded facts as true, but may disregard any legal

conclusions. Second, a district court must then determine whether the facts

alleged in the complaint are sufficient to show that the plaintiff has a

plausible claim for relief. In other words, a complaint must do more than

allege the plaintiff’s entitlement to relief. A complaint has to show such an

entitlement with its facts. As the Supreme Court instructed in Iqbal, where the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged - but it has not shown - that the pleader

is entitled to relief. This plausibility requirement will be a context-specific task

that requires the reviewing court to draw on its judicial experience and common

sense. 

Fowler v. UPMC Shadyside, 578 F.3d. 203, 210-11(3d Cir. 2009).

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 6 of 42
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3. Motion for summary judgment 

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be

granted if the “pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Rule 56(e) further provides that when a motion for summary judgment is

made and supported, “an opposing party may not rely merely on allegations or denials in its own

pleading; rather, its response must – by affidavits or as otherwise provided in this rule – set out

specific facts showing a genuine issue for trial. If the opposing party does not so respond,

summary judgment should, if appropriate, be entered against that party.”

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the

initial burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574

(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the

non-movant must present affirmative evidence - more than a scintilla but less than a

preponderance - which supports each element of his claim to defeat a properly presented motion

for summary judgment). The non-moving party must go beyond the pleadings and show specific

facts by affidavit or by information contained in the filed documents (i.e., depositions, answers

to interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 7 of 42
 Exhaustion of a claim under the Federal Tort Claims Act is a separate and distinct 3

matter. See 28 U.S.C. § 2675.

 It is not a plaintiff’s burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 4

199, 217 (2007) (“...failure to exhaust is an affirmative defense under the PLRA, and that

inmates are not required to specially plead or demonstrate exhaustion in their complaints.”); . 

Instead, the failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes,

285 F.3d 287, 295 (3d Cir. 2002).

8

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Company of Newark, N.J.

v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

D. Exhaustion of the Bivens and RFRA/RLUIPA Claims

1. The Prison Litigation Reform Act

Defendants argue that some of Plaintiffs’ Bivens and RLUIPA/RFRA claims should be

dismissed for failure to comply with the exhaustion requirements of the Prison Litigation

Reform Act , 42 U.S.C. § 1997e(a), which provides: 3

no action shall be brought with respect to prison conditions under section 1983 of

this title ... by a prisoner confined in any jail, prisons, or other correctional

facility until such administrative remedies as are available are exhausted.

Id.4

The requirement that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002); Cutter v. Wilkinson, 544 U.S. 709,

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 8 of 42
5 Importantly, a plaintiff’s failure to exhaust his administrative remedies does not

deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d

Cir. 2000) (“...[W]e agree with the clear majority of courts that §1997e(a) is not a jurisdictional

requirement, such that failure to comply with the section would deprive federal courts of subject

matter jurisdiction.”).

 There is no “futility” exception to the administrative exhaustion requirement. Banks 6

v. Roberts, 2007 WL 3096585, at * 1 (3d Cir.) citing Nyhuis, 204 F.3d at 71 (“[Plaintiff’s]

argument fails under this Court’s bright line rule that ‘completely precludes a futility exception

to the PLRA’s mandatory exhaustion requirement.’”). See also Woodford v. Ngo, 548 U.S. 81,

85 (2006) (“Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies

even where the relief sought-monetary damages-cannot be granted by the administrative

process.”). 

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723 n.12 (2005) (noting that the PLRA requires that “a prisoner may not sue under RLUIPA

without first exhausting all available administrative remedies.”); Concepcion v. Morton, 306

F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion

must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144

(1992). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the

available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136

(Unpublished Opinion) (10 Cir. May 8, 1997). The exhaustion requirement is not a th 5

technicality, rather it is federal law which federal district courts are required to follow. Nyhuis

v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language “no action shall be brought,”

Congress has “clearly required exhaustion”).6

The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the 

administrative review process in accordance with the applicable procedural rules of that

grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules ...”). Importantly, the

exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally

defective ... appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004)

(utilizing a procedural default analysis to reach the same conclusion) (“ Based on our earlier

discussion of the PLRA's legislative history, [...] Congress seems to have had three interrelated

objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 9 of 42
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prison administrators; (2) to encourage development of an administrative record, and perhaps

settlements, within the inmate grievance process; and (3) to reduce the burden on the federal

courts by erecting barriers to frivolous prisoner lawsuits.”).

2. The Administrative Process Available to Federal Inmates

 So then, no analysis of exhaustion may be made absent an understanding of the 

administrative process available to state inmates. “Compliance with prison grievance

procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of

detail necessary in a grievance to comply with the grievance procedures will vary from system to

system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). 

 The Bureau of Prisons has established a multi-tier system whereby a federal prisoner

may seek formal review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10, et seq. (1997). 

First, "an inmate shall ... present an issue of concern informally to staff, and staff shall attempt

to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 

Second, if an inmate at an institution is unable to informally resolve his complaint, he may file

"a formal written Administrative Remedy Request [to the Warden], on the appropriate form

(BP-9), [within] 20 calendar days following the date on which the basis for the Request

occurred." The warden has twenty (20) days in which to respond. An inmate who is not

satisfied with the warden's response may submit an appeal, on the appropriate form (BP-10), to

the appropriate Regional Director within twenty (20) calendar days from the date the warden

signed the response. An inmate who is not satisfied with the Regional Director's response may

submit an appeal, on the appropriate form (BP-11), to the General Counsel within thirty (30)

calendar days from the date the Regional Director signed the response. The Regional Director

has thirty (30) days and the General Counsel has forty (40) days to respond. The administrative

remedies process is not considered exhausted until the fourth step of the process is complete and

the appeal is denied by the General Counsel. Id. 

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3. Exhaustion Applied

Defendants argue that all Plaintiffs have failed to exhaust their Bivens and

RLUIPA/RFRA claims with regard to the price of scented oils and that Plaintiff Campbell has

failed to exhaust his Bivens and RLUIPA/RFRA claims regarding the 2006 Eid celebration. 

These arguments will be addressed separately.

a. Prayer oils

Defendants argue that none of the Plaintiffs has filed any administrative remedies

complaining about the cost of the prayer oils. In support of their argument, Defendants have

provided the declaration of Vanessa Herbin-Smith, the Supervisory Paralegal Specialist for the

Northeast Region of the Bureau of Prisons. Ms. Herbin-Smith’s declaration indicates that

neither Rogers, Singh nor Campbell has filed any administrative remedies as to the cost of

prayer oils. Document # 53-1, ¶¶ 5-7.

Plaintiffs have not provided evidence to the contrary and, indeed, have not made any

argument as to this issue in their opposition brief, instead choosing to focus on the merits of the

issue. In the face of a supported motion for summary judgment, Plaintiffs must provide contrary

evidence in order to save their case. See Fed.R.Civ.P. 56(e) (providing that when a motion for

summary judgment is made and supported, “an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.”). 

Accordingly, the motion for summary judgment should be granted in this regard and the

Bivens and RLUIPA/RFRA claims involving the sale or cost of prayer oils should be dismissed

from this action in accordance with the requirements of the PLRA. 

b. all claims of Plaintiff Campbell

Next, Defendants argue that Plaintiff Campbell has not exhausted his administrative

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 11 of 42
 As the undersigned concluded in Ellis, 06-305: 7

“The terms “recognized” and “inmate organization” are addressed in Program

Statement 5381.05. Document # 125-17, Declaration of Executive Assistant

Monica Recktenwald, Exhibit 3, ¶ 2; Document # 125-19, Program Statement

5381.05 (establishing basic procedures concerning the establishment, regulation

and operation of inmate organizations and providing a uniform system whereby

all organizations will operate within a similar framework of administrative and

financial management.). Although the Bureau of Prisons permits “inmate

organizations for recreational, social, civic and benevolent purposes,” religious

groups are not included. Moreover, the Program Statement explains that to be a

“recognized”organization, the inmate organization must request prior approval

from the Warden. Id. The record evidence demonstrates that there were no

“recognized inmate organizations” at FCI McKean during the relevant time

frame. Document # 125-17, Recktenwald Declaration, Exhibit 3, ¶ 4.” 

Ellis v. United States, 2009 WL 440390, at * 7 n.5 (W.D.Pa. February 23, 2009). See also Clark

v. Sherman, 2009 WL 57085 (W.D. Pa. Jan. 8, 2009). The same analysis applies here. 

12

remedies as to any of the Bivens or RLUIPA/RFRA claims. The Declaration of Ms. HerbinSmith indicates that Plaintiff Campbell has not filed a single administrative remedy as to any of

the issues raised in this case. Id. Again, Plaintiffs have not provided evidence or argument to

the contrary, as they must in order to survive the fully supported motion for summary judgment. 

To the extent that the Amended Complaint alleges that “Plaintiffs and others, on behalf

of the Members of the Sunni Community at FCI-McKean, has [sic] exhausted administrative

remedies as required” (Document # 41, page 11), this allegation is factually and legally

incorrect. 

Generally, the Bureau of Prisons regulations provide that “an inmate may not submit a

request or appeal on behalf of another inmate.” 28 C.F.R. § 542.10(a). However, as Plaintiffs

cite in their Amended Complaint, Program Statement 1330.13, Section Six provides for an

exception in that “the president of a recognized inmate organization may submit a request on

behalf of that organization regarding an issue that specifically affects that organization.” 

However, Plaintiffs do not allege that either Singh or Rogers was the President of a recognized

organization. Therefore, no other inmate could have exhausted administrative remedies on 7

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 12 of 42
 In 1993, the Religious Freedom Restoration Act was enacted by Congress. A few

8

years later, in City of Boerne v. Flores, the Supreme Court held the RFRA unconstitutional as to

state and local governments. 521 U.S. 507 (1997). However, RFRA claims against the federal

government “remain viable.” Jama v. Esmor Correctional Services, Inc., 577 F.3d 169, 172 n4

(3d Cir. Aug.12, 2009) citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418 (2006). The Religious Land Use and Institutionalized Persons Act was enacted as a

replacement to the RFRA in 2000, and the Third Circuit has held that the provisions of the

RLUIPA are “nearly identical” to the provisions of the RFRA. Norwood v. Strada, 249

Fed.Appx. 269, at *2 (3d Cir. 2007). 

13

behalf of Campbell as no one was authorized to do so. Williams v. Beard, 482 F.3d 637, 639

(3d Cir.2007) quoting Spruill, 372 F.3d at 231 (“‘[P]rison grievance procedures supply the

yardstick’ for determining what steps are required for exhaustion.”).

Accordingly, the motion for summary judgment should be granted in this regard and the

Bivens and RLUIPA/RFRA claims of Plaintiff Campbell should be dismissed from this action in

accordance with the requirements of the PLRA. 

E. The RLUIPA/RFRA Claims8

1. RLUIPA 

Under the Religious Land Use and Institutionalized Persons Act, “government” is

defined as “a State, county, municipality, or other governmental entity created under the

authority of a state,” and “any branch, department, agency, instrumentality or official, thereof,

and “any other person acting under color of State law.” 42 U.S.C. 2000c5(4). Accordingly,

federal courts have held that RLUIPA “only applies to state and local governments, not a federal

prison.” Pineda-Morales v. DeRosa, 2005 WL 1607276, at *4 (E.D. N.J. 2005). See also

Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9 Cir. 2008). th

Because Plaintiffs are federal inmates, the RLUIPA claims should be dismissed.

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 13 of 42
 “Exercise of religion” is defined by the statute as including “any exercise of religion, 9

whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5. 

14

2. RFRA 

RFRA provides, in relevant part, that no prison that receives federal funding shall

impose a substantial burden on the religious exercise of a person confined to the prison even if

the burden results from a rule of general applicability, unless the government demonstrates that

the imposition of the burden on that person is in furtherance of a compelling governmental

interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b). 

Generally, the provisions of the statute “protects institutionalized persons who are unable freely

to attend to their religious needs and are therefore dependent on the government's permission

and accommodation for exercise of their religion.” Cutter, 544 U.S. at 721.

Under RFRA, the “government shall not substantially burden a person’s exercise of

religion.” 42 U.S.C. § 2000bb-1(a). “The burden of proving the existence of a substantial 9

interference with a religious exercise rests on the religious adherent.” Baranowski v. Hart, 486

F.3d 112, 124 (5 Cir. 2007). See also Washington v. Klem, 497 F.3d 272, 283 (3d Cir. 2007). th

The United States Court of Appeals for the Third Circuit has held that a “substantial

burden” lies where:

 1) a follower is forced to choose between following the precepts of his

religion and forfeiting benefits otherwise generally available to other

inmates versus abandoning one of the precepts of his religion in order to

receive a benefit; OR 

2) the government puts substantial pressure on an adherent to substantially

modify his behavior and to violate his beliefs. 

Washington, 497 F.3d at 280 (capitalization in original) adopting the definition of “substantial

burden” enunciated by the Fifth Circuit in Adkins v. Kaspar, 393 F.3d 559 (5 Cir. 2004). See th

also Heleva v. Kramer, 330 Fed. Appx. 406, 409 (3d Cir. 2009).

Once a plaintiff establishes a prima facie case, the burden shifts to the government to

demonstrate that “application of the burden” to the plaintiff “is in furtherance of a compelling

governmental interest” and “is the least restrictive means of furthering that compelling

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 14 of 42
 A sister circuit court has characterized these types of claims as consisting of four 10

elements, with a shifting burden of proof: “Plaintiff has the burden of proving both that his

religious exercise has been burdened, and that the burden is substantial. The burden then shifts

to the government to show both that the burden furthers a compelling governmental interest, and

that the burden is the least restrictive means of achieving that compelling interest.” See Logan

v. Lockett, 2009 WL 799749, at *3 (W.D. Pa. March 25, 2009) (M.J. Bissoon) and Sharp v.

Johnson, 2008 WL 941686, at *21 (W.D. Pa.) (M.J. Hay), both quoting Spratt v. Rhode Island

Dept. Of Corrections, 482 F.3d 33 (1 Cir. 2007). st

15

governmental interest.” 42 U.S.C. § 2000bb-1(b). “When considering the government’s 10

burden, we owe due deference to the experience and expertise of prison and jail administrators

in establishing necessary regulations and procedures to maintain good order, security and

discipline, consistent with consideration of costs and limited resources.” Smith v. Kyler, 295

Fed.Appx. 479, 484 (3d Cir. 2008) citing Cutter, 544 U.S. at 722. 

Here, Plaintiffs allege that Defendants refused to provide Halal beef and attempted “to

coerce and force Plaintiffs and others into rescheduling the Eid and into accepting food that is

not require (sic) for the success (sic) completions of the Eid-ul-Adha.” Document # 41, page

14, ¶ 4.8. In their Declarations, Plaintiffs Singh and Rogers explain that this day “is the holiest

event in the Islamic faith” and consists of three components: “1) the community Salat (prayer),

2) the Khutab (sermon), and 3) the sacrifice or eating of camel, lamb, or beef.” Document # 56-

1, Declaration of Plaintiff Rogers, page 3; Document # 56-2, Declaration of Plaintiff Singh, page

3. Plaintiffs further explain that: “if anyone of those components that make up Eid-ul-Adha is

missing then the Eid-ul-Adha is incomplete. Therefore, once you miss the obligations for that

event you also miss the blessings that come with performing those obligations which you can

never again gain in life.” Id.

However, the denial of a single meal has been held to not constitute a substantial burden

on the exercise of one’s religion. Pratt v. Corrections Corp. of America, 267 Fed.Appx. 482,

483 (8 Cir. March 7, 2008) (RFRA claim fails “because he did not show that defendants placed th

a ‘substantial burden’ on his ability to practice his religion by failing to provide him with Halal

meat” instead of a vegetarian diet). See also Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 810-

12 and n. 8 (8th Cir. 2008) (prison's meal plan regulations did not substantially burden Muslim

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 15 of 42
 Because Plaintiffs have not demonstrated a substantial burden on their “religious 11

exercise,” the burden of proof does not shift to Defendants. Therefore, the Court need not

review Defendants’ arguments regarding whether a compelling governmental interest is being

furthered by the least restrictive means. Washington, 497 F.3d at 278, 283.

 To the extent that Plaintiffs allege any Bivens claims against the United States, such 12

claims should be dismissed based upon sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S.

471, 477-78 (1994); Johnstone v. United States, 980 F.Supp. 148, 151 (E.D. Pa. 1997)

(explaining that Bivens actions “may only be maintained against federal officers; sovereign

immunity bars such actions against the United States or agencies thereof.”).

16

inmate's free exercise rights where inmate had access to only vegetarian entrees, and some of

those entrees he had to pay for himself); Abdul-Malik v. Goord, 1997 WL 83402, at *5-7

(S.D.N.Y. 1997) (holding that the failure to provide Muslim inmates with Halal meat several

times per week did not substantially burden their exercise of religion under RFRA). 

Thus, Plaintiffs have failed to establish a prima facie RFRA claim regarding the denial 11

of Halal beef for the observance of the January 2006 Eid-ul-Adha and summary judgment

should be granted in favor of Defendants with regard to this claim.

F. The Bivens Claims under the First and Fifth Amendments12

1. Respondeat Superior

Defendants Sherman and Robare argue that they should be dismissed from this case

because Plaintiffs have failed to allege their personal involvement and therefore have failed to

state a claim against them. The Court disagrees. 

When a supervisory official is sued in a civil rights action, liability can only be imposed

if that official played an “affirmative part” in the complained-of misconduct. Chinchello v.

Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Although a supervisor cannot encourage

constitutional violations, a supervisor has “no affirmative constitutional duty to train, supervise

or discipline so as to prevent such conduct.” Id. quoting Brown v. Grabowski, 922 F.2d 1097,

1120 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). The supervisor must be personally

involved in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1958, 1207 (3d Cir. 1988). 

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 16 of 42
17

Section 1983 liability cannot be predicated solely on respondeat superior. Rizzo v. Goode, 423

U.S. 362 (1976); see also Monell v. Department of Social Services, 436 U.S. 658 (1978)

(superiors of line officers who act in violation of constitutional rights may not be held liable on

a theory of vicarious liability merely because the superior had a right to control the line officer’s

action); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-1295 (3d Cir. 1997) (to hold

police chief liable under § 1983 for violating female subordinate officer’s rights, she was

required to prove that he personally participated in violating the her rights, that he directed

others to violate her rights, or that he had knowledge of and acquiesced in his subordinates’

violations). If a grievance official’s only involvement is investigating and/or ruling on an

inmate’s grievance after the incident giving rise to the grievance has already occurred, there is

no personal involvement on the part of that official. Rode, 845 F.2d at 1208; Cooper v. Beard,

2006 WL 3208783 at * 14 (E.D.Pa. Nov. 2, 2006).

Here, Plaintiffs raise the following specific allegations against Defendants Sherman and

Robare:

Plaintiff and other leaders from the Sunni Muslim community was [sic]

planning and discussion [sic] the 2006 Eid-ul-Adha celebration with

Defendants, James F. Sherman, S.L. Robare,... since May 2005.... The

reason for this intense and long planning and discussion was to prevent

problems from occurring like there did [sic] for the 2005 Eid-ul-Adha. 

During the planning phase Defendants ordered the Plaintiff and others to

submit an Inmate Request to Staff to the Religious Service concerning

the Eid-ul-Adha for 2006. 

* * *

Defendants James F. Sherman, Edward Roberts, Jan C. Olowin, Brian

Grimm, Gerald Desio and unknown others acted in concert with each

other to arbitrary [sic] and capriciously deny and deprive Plaintiff of his

religious feast.... 

Document #41, pages 12, 15.

Thus, Plaintiff claim that Defendants Sherman and Robare participated and/or had input

into the discussions leading up to the decision to deny Halal meat for the 2006 Eid celebration. 

These allegations are sufficient to, at least, call into question the personal involvement of both

Defendants Sherman and Robare in the central decision-making process at issue in this case.

Additionally, Plaintiffs Rogers and Singh provide declarations that Sherman and Robare were

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 17 of 42
 The Turner analysis “... assumes as a predicate that the plaintiff inmate has 13

demonstrated that a constitutionally protected interest is at stake.” DeHart v. Horn, 227 F.3d 47,

51 (3d Cir. 2000). “The mere assertion of a religious belief [by a prisoner] does not

automatically trigger First Amendment protections ... [O]nly those beliefs which are both

sincerely held and religious in nature are entitled to constitutional protection.” Id. quoting Africa

v. Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981) cert. denied, 456 U.S. 908 (1982) (“A

court's task is to decide whether the beliefs avowed are (1) sincerely held, and (2) religious in

nature...”).

18

personally involved “in the planning, denial, deprivation, and rescheduling of the 2006 Eid-ulAdha.” Documents #56-1, 56-2. Because the evidence is conflicting, a genuine issue of

material fact remains. Accordingly, Defendants’ motion to dismiss Defendants Sherman and

Robare from this case, based on Plaintiffs’ failure to allege their personal involvement, should

be denied.

2. First Amendment - Free Exercise of Religion Claim 

Despite their incarceration, prisoners have a First Amendment right to practice their

religion. Bell v. Wolfish, 441 U.S. 520, 544 (1979). However, these constitutional rights are

limited by the fact of incarceration as well as valid penological objectives. See O’Lone v.

Shabazz, 482 U.S. 342, 348 (1987) (free exercise rights are “necessarily limited by the fact of

incarceration, and may be curtailed in order to achieve legitimate correctional goals or maintain

prison security”). The evaluation of penological objectives in this context is “committed to the

considered judgment of prison administrators,” and to ensure appropriate deference to those

judgments, courts review challenged prison regulations under the overall reasonableness test of

Turner v. Safley, 482 U.S. 78 (1987). O’Lone, 82 U.S. at 349 quoting Bell, 441 U.S. at 562. 

The Turner v. Safley reasonableness analysis focuses on four factors: 13

1. whether there is a legitimate rational connection between the

prison regulation and the governmental interest;

2. whether the prisoners have alternative means of exercising the

constitutional right at hand; 

3. the impact that accommodation of the constitutional right would

have on other prisoners, guards, and prison resources in general;

and 

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 18 of 42
 See also Brothers v. Lawrence County Prison Board, 2008 WL 146828, at *5 14

(W.D.Pa Jan.14, 2008) (describing the Turner reasonableness test as “a multi-factored factintensive test” which does not lend itself to resolution on a motion to dismiss); Ford v.

McGinnis, 352 F.3d 582, 596 (2 Cir. 2003) (referring to Turner analysis as “fact – and context nd

– specific.”); Johnson v. Guiffere, 2007 WL 3046703, at *6 (N.D.N.Y., 2007)(“Such an inquiry

[under Turner] is particularly fact-laden, and generally ill-suited for resolution on motion for

summary judgment.”).

19

4. the availability of alternatives to the regulation. 

482 U.S. at 89-90, reaffirmed in Overton v. Bazzetta, 539 U.S. 126, 131 (2003). See also Beard

v. Banks, 548 U.S. 521, 535 (2006) (plurality opinion). As the Third Circuit explained:

The first two Turner factors focus on the prison’s decision – to what extent is it

justified by legitimate and neutral concerns and what options does it leave open

to the inmate [...] The third and fourth factors, on the other hand, focus on the

specific religious practice or expression at issue and the consequences of

accommodating the inmate for guards, for other inmates, and for the allocation of

prison resources.

DeHart v. Horn, 227 F.3d 47, 57 (3d Cir. 2000). These four factors function as guidelines to be

weighed in the overall determination of reasonableness - they are not prongs of a four-part test

in which each prong must be met. See Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999);

Whitney v. Brown, 882 F.2d 1068, 1071 (6 Cir. 1989). The Turner analysis is exceedingly th

fact-intensive. See Wolf v. Ashcroft, 297 F.3d at 308 (“evaluations of prison restrictions under

Turner require a contextual, record-sensitive analysis.”). “Furthermore, the burden is not on 14

the state to prove the validity of the challenged regulation, but instead is on the inmate to

disprove it.” Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003) citing Overton, 539 U.S.

126. 

Defendants argue that Plaintiffs’ First Amendment free exercise of religion claims

should be dismissed because their alleged denial of the Halal meat for the Eid meal passes

constitutional muster. On the contrary, Defendants’ presentation raises genuine issues of

material fact that should preclude summary judgment. 

Plaintiffs maintain that on the scheduled day for the Eid-ul-Adha celebration,

“defendants refused to provide an appropriate religious dietary meal (Halal beef ...) as promised

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 19 of 42
20

and attempted to coerce and force Plaintiffs and others into rescheduling the Eid and into

accepting food that is not required for the success (sic) completions of the Eid-ul-Adha.”

Document # 41, Amended Complaint, page 14. See also Document # 56, Opposition Brief,

page 8. In response, Defendants, through the Declaration of Defendant Olowin, swear that the

Muslim inmates “were never denied the opportunity to have a ceremonial meal on the Eid-ulAdha in 2006,” but instead they “chose not to celebrate this feast because we, the Chaplains ...,

reasonably decided that our budget constrained us from purchasing traditional or cultural food

items for religious groups during the 2006 fiscal year, including Halal meat for the Eid.” 

Document # 53-7, page 8, 20. 

This is the first of several factual disputes which should preclude summary judgment on

Plaintiffs’ free exercise claim under the First Amendment. Whether Defendants denied Plaintiffs

the Halal meat after first promising it to them (as Plaintiffs argue) or Plaintiffs chose not to

observe Eid after Defendants decided not to purchase the Halal meat (as Defendants contend) is

a material issue of fact, the resolution of which will affect the outcome of this case. See

Anderson v. Liberty Lobby, 477 U.S. at 248 (credibility determinations are jury functions and

are not appropriate for a judge to make in ruling on a motion for summary judgment). 

Similarly, the disputed factual issue revolving around whether the Eid-ul-Adha

celebration can be observed without Halal meat also precludes a summary judgment

determination.

Defendant Olowin declares that Eid can be commemorated by a day of “work

proscription, prayer, and may include a ceremonial meal.” Document # 53-7, Olowin

Declaration, page 6 (emphasis in original). In a later clarifying Declaration, Defendant Olowin

states that “halal meats such as beef, camel, ram or lamb are not required for the Eid-ulAdha ceremonial meal. Although Halal lamb or other appropriately slaughtered animal meat is

a traditional food for the Eid-ul-Adha, it is not a mandatory requirement for the ceremonial

feast.” Document # 53-19, page 5 (emphasis in original). Similarly, Defendant Edward

Roberts, the Religious Services Administrator for the Bureau of Prisons, explains that the

“religious requirements for this feast include a special prayer [...] and a type of sermon. In the

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 20 of 42
 In his Declaration drafted for Civil Action No. 06-305E, Ellis, et al v. United States, 15

et al, and resubmitted in the present case, Aziz explains:

The celebration of Eid-ul-Adha commemorates the sacrifice of Ibrahim

(Abraham) [...] In the Bureau of Prisons, this day is commemorated by a day of

work proscription and prayer, and may include a ceremonial meal. Although

most Bureau of Prisons institutions celebrate the Muslim annual faith meal on

Eid Al Fitr marking the completion of the fasting month of Ramadan.(sic) All

faith groups in the Bureau of Prisons are offered the privilege of an annual meal. 

The ceremonial meal if celebrated at Eid-ul-Adha may be celebrated with any

food items that do not violate Islamic teachings. Per Program Statement 5360.09,

Religious Beliefs, the ceremonial meal is to be selected from foods that are

provided from the master menu. All Fish is Halal and is provided on the master

menu. The selection of fish and the absence of the lamb at Eid-Ul-Adha (sic) did

not violate the celebration of the holiday meal. While lamb, beef, camel or any

other slaughtered item is traditional, they are not religiously required. I have

been advised that the Plaintiffs in the above-referenced case (06-305) are

asserting they belong to the Traditional Orthodox Sunni doctrine of the Four

School of Jurisprudence which requires the serving of Halal lamb at this feast. I

also belong to these groups. Our Sunni schools of thought do not place any such

requirement which specifies any particular food or menu. It is customary in

Muslim settings to have a festive meal which may be made up of any food items

that do not violate Islamic dietary teachings.

Document # 53-17, page 3.

21

Bureau of Prisons, this feast is commemorated by a day of work proscription and prayer, and

may include a ceremonial meal.” Document # 53-16, Roberts Declaration, page 3 (emphasis in

original). 

Defendants go on to explain that: 

The Muslim ceremonial meals are required to consist of Halal foods. Halal, 

which means lawful and includes all foods that are not unlawful. [...] The

guidance provided by the Bureau of Prisons lists the following foods as Halal:

milk from cows, sheep, camels and goats; honey, fish; plants which are not

intoxicants; fruits and vegetables, fresh, frozen or dried; legumes and nuts; and

various grains.

Document # 53-7, Olowin Declaration, page 6. See also Document # 53-17, Declaration of

Ibraham Aziz, Religious Services Administrator at FCI-Fort Dix. 

15

On the other hand, Plaintiffs Singh and Rogers swear that the Eid celebration consists of

three components: “1) the community Salat (prayer), 2) the Khutab (sermon), and 3) the

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 21 of 42
22

sacrifice or eating of camel, lamb, or beef.” Document # 56-1, Declaration of Plaintiff Rogers,

page 3; Document # 56-2, Declaration of Plaintiff Singh, page 3. Plaintiffs further explain that:

“it is a mandatory and a central requirement to follow the Sunnah or

Traditions/Customs of Prophet Muhammad, sallallalhu alayhi wa sallam, and this

includes the eating of Halal meat (camel, lamb, or beef) for Eid. The eating of

any of those meats during Eid is to symbolize the required sacrifice for those who

cannot afford or are unable to offer a sacrifice to the Eid. This act

commemorates the sacrifice made by Abraham and his son. Moreover, the eating

of those meats on the day of the Eid is not simply a celebration dinner, but rather,

is similar to the required foods of Passover for the Jewish inmates, the

ceremonial tea for the Chinese inmates, and the wine and bread of communion

for the Catholic inmates. Just as the Catholic inmates drink wine and eat bread

during communion to commemorate the sacrifice made by Jesus the Sunni

Muslims eat Halal meats (camel, beef, or lamb) during the Eid to commemorate

the sacrifice made by Abraham and his son.”

Id. Plaintiffs also note that the Bureau of Prisons and FCI-McKean have historically provided

Halal lamb or meat during the observance of Eid. Document # 56, page 5.

In addition to their own declarations, Plaintiffs provide documents from the Internet that

illustrate the central importance of the Halal meat to the observance of the Eid celebration. 

Document #56-3, page 27(from www.islamallday.com, “One should eat the meat of the

sacrifice, give it to relations and friends, (to non-Muslims also) and to the poor in charity.”); id.

at page 30 (from www.islamallday.com, “The following ... things have been prescribed to be

done on Eid-ul-Adha: ... To distribute the meat of the sacrifice among the poor, friends, relatives

and neighbors and also to cook and eat the meat of sacrifice.”); id. at page 33 (from

www.infoplease.com, “The festival is celebrated by sacrificing a lamb or other animal and

distributing the meat to relatives, friends, and the poor. The sacrifice symbolizes obedience to

Allah and its distribution to others is an expression of generosity, one of the five pillars of

Islam.”); id. at pages 35-6 (from www.wikipedia.org, after the sacrifice of a suitable animal,

“according to the Quran, the meat is divided into three shares, one share for the poor, one share

for the relatives and neighbors, and the last to keep to oneself. A large portion of the meat

MUST be given towards the poor and hungry people so they can all join in the feast. ... The

remainder is cooked for the family celebration meal in which relatives and friends are invited to

share. The regular charitable practices of the Muslim community are demonstrated during Eidul-Adha by the concerted effort to see that no impoverished Muslim is left without sacrificial

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 22 of 42
 “Although the factors are intended to serve as guides to a single reasonableness 16

standard, ‘the first factor looms especially large’ because it ‘tends to encompass the remaining

(continued...)

23

food during these days. Eid-ul-Adha is a concrete affirmation of what the Muslim community

ethic means in practice. [...] Distributing meat among people is considered an essential part of

the festival during this period...”); and id. at page 39 (from www.britannica.com, “During the

festival, families that can afford to sacrifice a ritually acceptable animal (sheep, goat, camel, or

cow) and then divide the flesh equally among themselves, the poor, and friends and neighbors.

[...] This festival commemorates the ransom with a ram of the biblical patriarch Ibrahim’s son

Ismael.”).

So then, whether the Eid-ul-Adha celebration can be observed with Halal foods (as

Defendants maintain) or must be observed with Halal meat (as Plaintiffs contend) is a matter of

factual dispute between the parties. This factual dispute represents an ecclesiastical question

upon which this Court may not express an opinion. See Ford, 352 F.3d at 590 quoting

Hernandez v. Comm’r. of Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not within the

judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity

of particular litigant’s interpretations of those creeds.”); Thomas v. Review Bd. of Indiana

Employment Sec. Div., 450 U.S. 707, 714 (1981) (“The determination of what is a ‘religious’

belief or practice is more often than not a difficult and delicate task ... However, the resolution

of that question is not to turn upon a judicial perception of the particular belief or practice in

question”).

Besides the obvious factual dispute, the resolution of this question also directly impacts

the Court’s analysis as to whether the government’s expressed “legitimate penological interest”

is rationally related to the denial of the Halal meat for the Eid-ul-Adha observance under the

first prong of the Turner reasonableness test. 

The First Turner Factor

The first Turner factor examines the relationship between the challenged policy and the 16

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 23 of 42
(...continued) 16

factors, and some of its criteria are apparently necessary conditions.’” Waterman v. Farmer, 183

F.3d 208, 213-14 (3d Cir. 1999) quoting Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998). 

 Generally, budgetary constraints may constitute a valid penological interest and 17

restricting religious-based meals has been held to be rationally related to that interest. See

Williams v. Morton, 343 F.3d 212, 217-18 (3d Cir. 2003); Fraise, 283 F.3d at 517-18; DeHart,

227 F.3d at 53. 

24

articulated penological interest. “A prison regulation fails this prong if it promotes an interest

that is illegitimate or not neutral, or ... bears no valid, rational connection to the asserted

interest.” Fraise v. Terhune, 283 F.3d 506, 516 (3d Cir. 2002). “Turner requires prison

authorities to show more than a formalistic logical connection between a regulation and a

penological objective.” Beard, 548 U.S. at 535. 

Here, Defendants argue that “the Chaplains at FCI McKean reasonably decided not to

purchase traditional or cultural food items for ceremonial meals for any religious group

during the 2006 fiscal year.” Document # 53, page 22. Defendants explain that Bureau of 17

Prisons policy provides that “food items related to religious purposes may be procured by the

Chaplain through Food Service in the minimum quantities necessary for the fulfillment of the

ritual observance.” Document # 53-13, Declaration of Food Services Administrator Defendant

Gerald Desio, page 3. Defendant Olowin further explains:

Chaplains may use a small portion of the annual Chaplaincy Services budget to

acquire traditional/ritual food items to supplement the mainline foods served

for the ceremonial meal. [...] Accordingly, the applicable procedure

demonstrates a distinction between ceremonial meals - which are provided by

Food Services and paid for through that department’s budget – and

traditional/ritual food items – which are provided to supplement the mainline

foods and paid for through Religious Services’ budget. These traditional/ritual

food items are not entrees provided to each inmate in a religious group; rather

they are of such limited quantities as to provide merely a taste for each inmate.”

Document # 53-19, Supplemental Declaration of Olowin, page 6. See also Document # 53-8,

Bureau of Prisons Program Statement on Religious Beliefs and Practices (P5360.09), pages 20-

22 (“The chaplain may arrange for inmate religious groups to have one appropriate ceremonial

or commemorative meal each year for their members ... Chaplains may use a small portion of

the annual Chaplaincy Services budget to acquire traditional/ritual foods to supplement the

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 24 of 42
 The Bureau of Prisons Program Statement also provides that each individual 18

institution will develop an Institutional Supplement for operating religious programs and

activities, which “must include ... procedures for ... ceremonial meals and whether appropriated

funds will be used to supplement the ceremonial meals with traditional/ritual foods.” 

Document # 53-8, pages 20-22. The McKean Supplement, MCK 5360.09, provides:

Liturgical/ceremonial meals: the observance of once a year

liturgical/ceremonial meal by a religious group in the institution will be

permitted. The food will be made available through food service’s budget, not

religious services. ... The menu of a ceremonial meal will be taken from the

Food Service institutional master menu. 

Document # 53-9, page 8.

 The Chaplaincy and the Religious Services Department appear to be the same 19

department.

25

mainline foods served for the ceremonial meal.”). 

18

Defendants explain that “faced with the need to reduce expenses and based on the

recommendation of Chaplaincy Services, the Chaplains at FCI McKean reasonably decided not

to purchase traditional or cultural food items for ceremonial meals for any religious group

during the 2006 fiscal year.” Document # 53, page 22. In support of their contention in this

regard, Defendants have provided evidence that the budget of the Religious Services

Department was decreased by fifteen percent for fiscal year 2005 and remained nearly the 19

same for fiscal year 2006. Document # 53-7, Declaration of Olowin, page 5. 

Defendants maintain that the Chaplains’ decision was made at least, in part, “based on

the recommendation of Chaplaincy Services.” Document # 53, page 22. The Chaplaincy

Services recommendation reads: 

While Bureau of Prisons policy gives institutions the option to use a small

portion of the chaplaincy budget to acquire traditional/ritual foods to

supplement the ceremonial meal ... This practice is not recommended in this

era of fiscal restraint. The local decision not to serve ritual/traditional foods for

ceremonial meals reflects sound financial management. 

Document # 53-10, “Update” from Chaplaincy Services dated August 2004, page 2. 

Importantly, Defendants’ professed legitimate penological interest of limiting expenditures in

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 25 of 42
 In this Court’s opinion, serving a ham on Easter Sunday may be traditional for 20

Catholics, and may be considered cultural by some, but that Easter ham is not ritual,

ceremonial, commemorative, or liturgical. Wine and communion wafers are liturgical (in

the truest sense of the word), and possibly ritual (depending on the definition), but may or may

not necessarily be considered commemorative, ceremonial, cultural, or even traditional. 

26

compliance with the Chaplaincy’s Recommendation is not borne out by the record before this

Court. The Chaplaincy Recommendation on which Defendants rely recommends curtailing

purchases of both traditional and ritual foods. Defendant Olowin’s own declaration illustrates

that FCI McKean did not follow the National Chaplaincy’s recommendation. Document #53-7,

page 5 (Religious Services Department “did not purchase traditional or cultural food items for

ceremonial meals for any religious group during the 2006 fiscal year.”). Instead, FCI McKean

purchased ritual items, but not traditional or cultural food items. 

 It is worth noting at this point that in their evidentiary documents, Defendants use the

terms “ceremonial,” “commemorative,” “traditional,” “ritual,” “liturgical,” and “cultural”

as guideposts for their decision-making process, yet these terms are not defined and are used

inconsistently throughout the record. For example, the Bureau of Prisons Program Statement 20

equates the words “traditional” and “ritual” and takes them together indicating that such food

items will be purchased from the Chaplaincy’s budget, while Defendant Olowin contrasts the

term “traditional” from “ritual,” and instead equates the word “traditional” with “cultural”

in his Declarations. See Document # 53-7, page 5 (“In contrast to traditional or cultural food

items, such ritual food items are required for specific faiths.”). However, Olowin himself also

uses the terms traditional and ritual together in a Memo dated November 4, 2005 rejecting an

inmate’s request for Halal lamb for the 2006 Eid observance. See Document # 53-12, page 2.

By way of further example, the Bureau of Prisons Program Statement refers to 

“ceremonial or commemorative” meals and limits the observance of such meals to once per

year per religious group. See Document # 53-8, Bureau of Prisons Program Statement on

Religious Beliefs and Practices, (P5360.09), pages 20-22. Yet the corresponding McKean

Supplement limits the observance of “liturgical/ceremonial” meals to once per year per

religious group. See Document # 53-9, McKean Supplement MCK 5360.09, page 8. The terms

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 26 of 42
 The term liturgical generally connotes Eucharist, or communion. It strains credulity

21

to believe that Catholic inmates at FCI McKean are receiving only one Eucharistic (or

“liturgical”) meal per year. The McKean Supplement stipulates that expenditures for

liturgical/ceremonial meals will come from Food Service budget, not the budget of Religious

Services, yet Defendant Olowin states that he considers wine for Catholics as ritual and such

wine is purchased from the budget of Religious Services (even though the purchase orders for

fiscal year 2006 contradict Olowin’s Declarations in this regard). See footnote 22. 

 The fiscal year 2006 purchase orders reflect purchases of: 22

- Grape juice from Kedem Food Products, International (a provider of Kosher

(continued...)

27

ceremonial and commemorative are drastically different than the terms liturgical and

ceremonial. The term liturgical is generally defined as “relating to a Eucharistic rite” or

“relating to a rite or body of rites prescribed for public worship” which is certainly much

narrower than any denotation of the term ceremonial.

21

In his Supplemental Declaration, Olowin attempts to clarify some of this confusion and 

disorder by noting a difference between 1) traditional or cultural food items, and 2) ritual

food items that are required for the proper practice of one’s religion. Document # 53-19, page 6. 

Further, “examples of traditional or cultural food items include buffalo for American Indian

inmates, Halal lamb for Muslim inmates, and mooncakes for Chinese Confucianist or Buddhist

inmates. Examples of ritual food items include Communion for Catholic inmates and Matza

and grape juice for Jewish inmates.” Id. In further support of his sworn statements, Defendant

Olowin provides the purchase orders for all food items purchased by the Religious Services

Department for the fiscal year 2006, explaining that these documents “reflect purchases of

ritual food items that are required by a religion for the proper practice of an inmate’s religion,

such as wine for Catholics and Matzos for the Jewish faith.” Document # 53-7, page 5. 

However, despite Defendant Olowin’s specific averment that the purchase orders represent

purchases of “ritual food items ... such as wine for Catholics,” the purchase orders themselves

belie his sworn assertions as there is not a single purchase order for wine or communion wafers

in the record for the entire fiscal year. See Document # 53-11, Purchase Orders, pages 2- 14. 22

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 27 of 42
(...continued) 22

foods) on October 5, 2005 in the amount of $310.00

- Dates from BrokenStraw for Ramadan on October 5, 2005 in the amount of

$170.25

- Honey bears for Teas from Thorne’s Bilow on October 1, 2005 in the amount of

$17.94

- Kinck-nick, flat cedar and bear barry from Crazy Crow Trading Post (a supplier

of Native American Indian goods) on October 19, 2005 in the amount of $ 114.95

- Ceremonial Tea for the Chinese (from Long Life) on November 16, 2005 in the

amount of $ 84.00

- Dates for Ramadan from Brokenstraw on October 17, 2005 in the amount of

$113.50

- Hamantash cookies for Purim from ALEPH on March 3, 2006 in the amount of

$7.50

- Matches, fish, batteries, duster, horseradish, chicken boulin (sic) from TOPS on

April 8, 2006 in the amount of $48.50

- Seder plates, matza, macaroons from ALEPH on March 15, 2006 in the amount

of $180.00

- Ceremonial Tea from Long Life on April 6, 2006 in the amount of $ 83.00

- Kosher grape juice from Kedem Food Products on April 24, 2006 in the amount

of $ 300.00

- Ceremonial Tea from Long Life on August 24, 2006 in the amount of $80.00

- Dates for Ramadan from Crescent on August 16, 2006 in the amount of $432.00

Document # 53-11.

28

 Additionally, despite his affidavit attempting to distinguish traditional/cultural food

items from ritual food items, in a Memo dated November 4, 2005, Olowin himself rejects a

request for Halal lamb for the Eid celebration because “in this era of cost cutbacks and financial

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 28 of 42
29

restraint it is not necessary nor is it fiscally prudent to provide traditional or ritual foods for a

ceremonial meal.” Document # 53-12, page 2. Olowin’s affidavit saying that ritual foods are

purchased, while traditional/cultural are not is in direct contradiction to this Memo. Document #

53-19.

 Defendants’ failure to define these terms in their evidentiary documents, or to at least

use the terms in a consistent manner, is the death knell to their motion for summary judgment. 

Without clear parameters as to what types of items will be purchased by Religious Services, it is

impossible for this Court to determine whether the professed budgetary constraints of the

Religious Services Department are rationally related to the denial of Halal meat for the Eid

observance. 

So then, there is at least one material issue of disputed fact as to whether Defendants

expressed “legitimate penological interest” of following the Chaplaincy’s Recommendation and

limiting expenditures from the decreased budget of the Religious Services’ Department is

rationally related to the denial of the Halal meat for the January 2006 Eid-ul-Adha observance. 

Defendants own evidentiary records reflect that the Chaplaincy’s Recommendation was not

fully followed, and so this Court finds that the expressed “legitimate penological interest” is not

“rationally related” to the denial of the Halal meat. And, because of Defendants imprecise use

of language, it is impossible to determine whether the denial of the meat is rationally related to

the decreased Religious Service’s budget. 

Accordingly, this Court expresses no conclusion as to whether the first Turner factor

weighs in favor of Plaintiffs or Defendants. Nonetheless, although there are material issues of

fact as to the first Turner factor, the remaining factors must be addressed herein. While “the

first factor is ‘foremost in the sense that a rational connection is a threshold requirement - if the

connection is arbitrary or irrational, the regulation fails, irrespective of whether the other factors

tilt in its favor. But, ... we do not view it as subsuming the rest of the inquiry.” Sutton, 323

F.3d at 253 quoting Wolf v. Reno, 297 F.3d 305, 310 (3d Cir. 2002). See also Warren v.

Pennsylvania, 316 Fed. Appx. 109, 115 (3d Cir. 2008) (“Although the district court summarized

the Turner precepts and weighed in on the first factor of the analysis, it did not undertake the

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 29 of 42
 See also DeHart, 227 F.3d at 56 n.5 (“We stress that the second factor of the Turner 23

test is directed solely to evaluating the interest of the inmate in having his requested

accommodated. Our holding with respect to the impropriety of disregarding a sincerely held

belief solely because it is not an Orthodox one relates specifically to the issue of whether

alternative means of expression are available to the inmate.”).

30

test of overall reasonableness.”).

The Second Turner Factor

The second Turner factor “requires a court to assess whether inmates retain alternative

means of exercising the circumscribed right.” Fraise, 283 F.3d at 518 quoting Turner, 482 U.S.

at 90. The analysis focuses specifically on whether the inmate “has alternative means of

practicing his [] religion generally, not whether an inmate has alternative means of engaging in

the particular practice in question.” DeHart, 227 F.3d at 55 (emphasis added). “If the policy

does afford the inmate alterative means of expressing his religious beliefs, that fact tends to

support the conclusion that the regulation at issue is reasonable.” Id. at 57. When weighing this

factor, “we must, of course, focus on the beliefs of the inmate asserting the claim. It is

obviously impossible to determine whether a regulation leaves an inmate with alternative ways

of practicing the inmate’s religion without identifying the religion’s practices.” Sutton, at *12

quoting Fraise, 283 F.3d at 518. However, this factor “is not intended to require courts to

determine whether an inmate’s sincerely held religious belief is sufficiently orthodox to deserve

recognition.” Id. quoting DeHart, 227 F.3d at 55. 

23

Defendants argue that Plaintiffs had the means to observe Eid-ul-Adha by not working

and with the opportunity to pray, but also acknowledge that this day is one of two “required”

holy days per year for Muslims. See Documents # 53-7, and 53-19. Plaintiffs refute this by

swearing that the Eid observance is not complete without all three parts - the prayer, the sermon,

and the eating or sacrificing of Halal meat. See Document # 56-1, and 56-2. 

Therefore, there is a material issue as to the second Turner factor.

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 30 of 42
31

The Third Turner Factor

Under Turner's third factor, this Court must examine the impact of an accommodation

on other inmates, prison staff, and the available resources within the prison, but “should defer to

prison officials when the accommodation ‘will have a significant ripple effect on fellow inmates

or on prison staff ....’” Fraise, 283 F.3d at 520 quoting Turner, 482 U.S. at 90. 

Defendants argue that accommodating Plaintiffs by providing the Halal meat would have

required the Religious Services Department to provide traditional or cultural foods to each of

the other approximately twenty religious groups at FCI McKean. Document # 53. 

It is not clear from the record before this Court that such an accommodation would have

been a further strain on the Religious Service’s budget as there is a material issue of disputed

fact as to whether the Halal meat is required for the observance. If the Halal meat is not

required for the religious observance as Defendants maintain, the purchase of this meat from the

Religious Services budget would have opened the door for other non-required food items to be

purchased for other religious groups. However, if the Halal meat is required for the observance

of Eid as Plaintiffs contend, this purchase would not have opened the door for further purchases

for other religious groups, because, as Defendants explain, the Religious Services Department

was already providing the food items “required for the practice of one’s religion.” 

Therefore, there is a material issue of fact as to the third Turner factor.

The Fourth Turner Factor

The fourth Turner factor requires this Court to assess whether there are alternatives to

the regulation that would impose only “de minimus cost to valid penological interests.” Turner,

482 U.S. at 91. “The absence of ready alternatives is evidence of the reasonableness of a prison

regulation.” Id. However, “if an inmate claimant can point to an alternative that fully

accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may

consider that as evidence that the regulation does not satisfy the reasonable relationship

standard.” Id. 

Plaintiffs have not specifically identified any alternative, and therefore, the fourth Turner

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 31 of 42
32

factor weighs in favor of Defendants. 

The Overall Reasonableness Determination

The numerous disputed factual issues preclude a determination as to the overall

reasonableness of the challenged action. Accordingly, Defendants motion for summary

judgment should be denied as to the First Amendment claim.

3. Fifth Amendment - Equal Protection Claim

Next, Plaintiffs claim that the denial of Halal meat for the Eid celebration violated their

equal protection rights. The Equal Protection Clause provides that no state shall “deny to any

person ... the equal protection of its laws.” U.S. Const. Amend. XIV, §1. All persons “similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432,

439 (1985). 

The Turner v. Safley reasonableness analysis applies to the equal protection claim, just

as it applies to the First Amendment claim. See DeHart, 227 F.3d at 61 (“Turner is equally

applicable [to the equal protection claim], and the appropriate analysis for this claim is the same

as that for [the] Free Exercise claim.”). However, as a threshold matter, in order to establish an

equal protection violation, a plaintiff must “...demonstrate that [he has] been treated differently

by a state actor than others who are similarly situated simply because [he] belongs to a particular

protected class.” Keevan v. Smith, 100 F.3d 644, 648 (8 Cir. 1996). th

Here, Plaintiffs’ equal protection claim is based solely on their treatment as Sunni

Muslims as compared to other religiously active inmates at FCI-McKean. Plaintiffs allege that

Buddhists, Catholics and Jews are treated better than Muslims. Specifically, Plaintiffs swear

that the Jewish inmates receive several religious ceremonial meals per year. Document # 56-1,

page 4. Plaintiffs also allege that Defendants “purchased and provided Kosher items and meats

for the Jewish inmates for their Passover and their other ceremonial occasions” and Defendants

“also purchased and provided special food and items for other faith groups and secular holidays,

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 32 of 42
33

such as New Years, Easter Sunday, the Fourth of July, and Labor Day, Thanksgiving, and

Christmas.” Document # 41, page 15. 

Defendants have provided evidence that Chaplains Grimm and Olowin decided “not

purchase any traditional or cultural foods for ceremonial meals for any religious group during

the 2006 fiscal year.” Document # 53-7, Olowin Declaration, page 5. Defendants also claim

that the purchase orders for fiscal year 2006 “reflect purchases of ritual food items that are

required by a religion for the proper practice of an inmate’s religion, such as ... Matza for the

Jewish faith.” Document #53-7, pages 5-6.

In response, Plaintiffs provide the following evidence by sworn affidavit: 1) that eating

Halal meat is “a central requirement” during Eid-ul-Adha as it “commemorate[s] the sacrifice

made by Abraham and his son,” and 2) that Kosher meat meals and matzah were provided to

Jewish inmates during Passover. Document # 56-1, page 2. In other words, Plaintiffs claim that

eating Halal meat in observance of Eid-ul-Adha is similar to the required foods of Passover for

the Jewish inmates. 

Therefore, at the very least, a genuine issue of material fact exists as to the threshold

inquiry of whether these similarly situated inmates were treated differently. This precludes

summary judgment, so that the Turner analysis need not be reached here. See DeHart, 227 F.3d

at 61.

Defendants’ motion for summary judgment should be denied as to this claim.

4. Fifth Amendment - Due Process Claim

Plaintiffs aver, generally, that their due process rights under the Fifth Amendment were

violated by Defendants. Plaintiffs’ allegations in this regard are barely more than a mere

mention and Plaintiffs do not articulate whether the due process challenge is procedural or

substantive in nature.

The Due Process Clause, guaranteed through the Fourteenth Amendment of the United

States Constitution, provides that no state shall “deprive any person of life, liberty, or property,

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 33 of 42
34

without due process of law.” U.S. Const. Amends. V; XIV. The Due Process Clause was

promulgated to secure the individual from the arbitrary exercise of the powers of government. 

The "procedural" aspect of the Due Process Clause requires the government to follow

appropriate procedures to promote fairness in governmental decisions; while the “substantive”

aspect of the Clause bars certain government actions regardless of the fairness of the procedures

used to implement them so as to prevent governmental power from being used for purposes of

oppression. Daniels v. Williams, 474 U.S. 327, 329-33 (1986). 

a. Substantive due process

The constitutional right to "substantive due process" protects individuals against

arbitrary governmental action, regardless of the fairness of the procedures used to implement

them. Foucha v. Louisiana, 504 U.S. 71, 80 (1990). See also Collins v. Harker Heights, 503

U.S. 115, 126 (1992) (the Due Process Clause was intended to prevent government officials

from abusing power, or employing it as an instrument of oppression); Wolff v. McDonnell, 418

U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against

arbitrary action of government."). 

The Supreme Court has declined to set forth a precise rule that defines the scope of

impermissible "arbitrary" conduct for purposes of applying the substantive component of the

Due Process Clause. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (clarifying that

governmental conduct does not violate a person's substantive due process rights unless it

amounts to an abuse of official power that "shocks the conscience."). A substantive due

process claim based upon alleged arbitrary and capricious action is not easily mounted, because

the relevant level of arbitrariness required in order to find a substantive due process violation

involves not merely action that is unreasonable, but rather, something more egregious, which the

Third Circuit has termed "conscience shocking." Hunterson v. DiSabato, 308 F.3d 236, 246-47

(3d Cir. 2002). This Circuit has made clear that "only the most egregious conduct will be

considered arbitrary in the constitutional sense." Id. at 247-48. 

Nothing in the complaint rises to the level of conscience shocking behavior that would

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 34 of 42
 If a liberty interest is found, the next step in the due process inquiry is to determine 24

what process is due. "Due process ... is not a technical conception with a fixed content unrelated

to time, place and circumstances." Gilbert v. Homar, 520 U.S. 924, 930 (1997). "[D]ue process

is flexible and calls for such procedural protections as the particular situation demands."

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). At a minimum, due process requires notice

and the opportunity to be heard. Paul v. Davis, 424 U.S. 693, 724 (1976) (“Where a person's

good name, reputation, honor, or integrity is at stake because of what the government is doing to

him, notice and an opportunity to be heard are essential.”). 

 See Washington v. Glucksberg, 521 U.S. 702 , 720 (1997) (“The [Due Process] 25

Clause [...] provides heightened protection against government interference with certain

fundamental rights and liberty interests. [In] a long line of cases, we have held that, in addition

to the specific freedoms protected by the Bill of Rights, the liberty specially protected by the

Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have

children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education

and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of

Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965);

to use contraception, ibid.; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin

v. California, 342 U.S. 165 (1952), and to abortion, [Planned Parenthood of Southeastern

Pennsylvania v.] Casey, [505 U.S. 833 (1992)].”). 

35

support a substantive due process claim. Accordingly, to the extent that Plaintiffs are

attempting to state claims of substantive due process, summary judgment should be entered in

favor of Defendants with regard to such claims.

b. Procedural due process

The procedural aspect of the Due Process Clause guarantees the availability of certain

procedural mechanisms, typically the right to notice and a hearing, before the government can

deprive an individual of a liberty or property interest. To establish a procedural due process

violation, a person must demonstrate that he has been deprived of a constitutionally-protected

property or liberty interest. Daniels, 474 U.S. at 339. If a person does not have a

constitutionally-protected interest, he is not entitled to the procedural protections afforded by the

Due Process Clause.24

A constitutionally-protected interest may arise either from the Due Process Clause itself,

or from a statute, rule, or regulation. Hewitt v. Helms, 459 U.S. 460, 466 (1983). Plaintiff 25

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 35 of 42
 In other words, “[w]hen an officer’s actions give rise to a §1983 claim, the privilege 26

of qualified immunity, in certain circumstances, can serve as shield from suit. The primary

purpose of affording public officials qualified immunity, thus insulating them from suit, is to

(continued...)

36

does not have either a property or liberty interest in receiving a Halal meat for the Eid-ul-Adha

meal. See Russell v. Wilkinson, 79 Fed.Appx. 175 (6 Cir. 2003) (holding that the denial of th

kosher meals did not involve a property or liberty interest for purposes of due process analysis). 

Therefore, Plaintiffs cannot support claims based upon a violation of their procedural due

process rights, and summary judgment should be entered in favor of Defendants with regard to

such claims.

5. Qualified Immunity 

Alternatively, Defendants contend that they are entitled to qualified immunity as to the

Bivens and RLUIPA/RFRA claims because it was objectively reasonable for the Individual

Defendants to believe that they did not violate any clearly established statutory or constitutional

rights by making the decisions at issue in this case. Because this Court has recommended the

dismissal of the statutory claims under RLUIPA/RFRA on other grounds, the analysis will

focus solely on the First Amendment and equal protection claims of Plaintiffs Rogers and

Singh.

The doctrine of qualified immunity insulates government officials from liability for

damages insofar as their conduct does not violate clearly established rights. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). An officer performing his discretionary functions is

“shielded from liability for civil damages insofar as [his] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.” 

Curley v. Klem, 278 F.3d 271, 277 (3d Cir. 2002). “Qualified immunity operates to ensure that

before they are subjected to suit, officers are on notice that their conduct is unlawful.” Hope v.

Pelzer, 530 U.S. 730, 739 (2002).26

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 36 of 42
(...continued) 26

protect them from undue interference with their duties and from potentially disabling threats of

liability. The privilege of qualified immunity, however, can be overcome when state officials

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Wright v. City of Philadelphia, 409 F.3d 595, 599-600 (3d Cir. 2005) (internal

citations omitted), declined to follow on other grounds, Kossler v. Crisanti, 564 F.3d 181, 193

(3d Cir. Apr. 21, 2009).

37

The analytical framework that district courts have traditionally employed in determining

whether the defense of qualified immunity applied was set forth by the Supreme Court in

Saucier v. Katz, 533 U.S. 194 (2001). The Third Circuit summarized that framework as

follows: 

The [Supreme] Court explained that a qualified immunity analysis must begin

with this threshold question: do the facts alleged, viewed in the light most

favorable to the party asserting the injury, show that the officer’s conduct

violated a constitutional right? Saucier, 121 S.Ct at 2156. If the plaintiff fails to

allege the violation of a constitutional right, no further inquiry is necessary. If,

however, the alleged facts show that there was a constitutional violation, then the

next step is to ask whether the right was clearly established. See id. In other

words, a court must consider whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted. Id. This inquiry, the

Court noted, must be undertaken in light of the specific context of the case, not

as a broad general proposition. Id. If a court concludes that an officer’s conduct

did violate a clearly established constitutional right, then it must deny him the

protection afforded by qualified immunity. See id. at 2156-57.

Curley, 278 F.3d at 277. See also Hope, 536 U.S. 730; Doe v. Delie, 257, F.3d 309 (3d Cir.

2001).

However, the rigid two-step inquiry set forth in Saucier has recently been relaxed by the

Supreme Court in Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808 (Jan. 21, 2009). See also

Bumgarner v. Hart, 2009 WL 567227 (3d Cir. March 6, 2009). As the Supreme Court

explained: “[b]ecause the two-step Saucier procedure is often, but not always, advantageous, the

judges of the district courts and the courts of appeals are in the best position to determine the

order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case.”

Pearson, 555 U.S. at ___, 129 S.Ct. at 821. 

Another district court within this Circuit summarized the current state of the Saucier

framework in the post-Pearson era:

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 37 of 42
38

By noting that in many instances a court need not reach whether a constitutional

violation is alleged to determine if qualified immunity is appropriate, the Court

stated that the first prong “sometimes results in a substantial expenditure of

scarce judicial resources on difficult questions that have no effect on the outcome

of the case. There are cases in which it is plain that a constitutional right is not

clearly established but far from obvious whether in fact there is such a right.” In

addition, “[a]lthough the first prong of the Saucier procedure is intended to

further the development of constitutional precedent,” the first prong “create[s] a

risk of bad decisionmaking,” specifically in those instances where a court decides

a rather nuanced constitutional claim early on in litigation where the factual basis

for the claims have not been fully developed through discovery. Thus, courts are

“permitted to exercise their sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.”

DeLauri v. New Jersey Div. of State Police, 2009 WL 222983, at *5 (D.N.J., Jan. 27, 2009),

quoting Pearson, ___ U.S. at ___, 129 S.Ct. at 818-20. See also Jarovits v. Monroe County

Children and Youth Services, 2009 WL 3004044, at *3 (3d Cir. Sep.21, 2009) (proceeding

directly to the second step of the Saucier analysis); Newland v. Reehorst, 2009 WL 1298414, at

*2 (3d Cir. May 12, 2009) (same).

Although the record is replete with disputed issues of fact which limit a determination as

to the first step under Saucier (i.e., whether the Defendants’ conduct violated Plaintiffs’

constitutional rights), in the spirit of Pearson and its progeny, this Court may proceed to the

second step of the Saucier analysis - whether those constitutional rights were “clearly

established.” 

“The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202. The Supreme Court has observed:

for a constitutional right to be clearly established, its contours must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in question has

previously been held unlawful; but it is to say that in the length of preexisting law the unlawfulness must be apparent. 

Hope, 536 U.S. at 739. 

In this case, the legal precedent regarding a prisoner’s First Amendment right to the free

exercise of religion was clearly established at the time of the Defendants’ alleged actions in

January of 2006. See Cruz v. Beto, 405 U.S. 319 (1972); Bell, 441 U.S. 520 (1979); O’Lone,

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 38 of 42
39

482 U.S. 342 (1987); Turner,482 U.S. 78 (1987). Additionally, the legal precedent regarding

Plaintiffs’ right to equal protection under the Fifth Amendment were clearly established at the

time of the Defendants’ alleged actions. See City of Cleburne, 473 U.S. at 439 (1985)(Equal

Protection Clause provides that all persons “similarly situated should be treated alike”); Plyler v.

Doe, 457 U.S. 202 (1982) (same). Thus, a reasonable government officer would be on notice

that the conduct alleged here was unlawful. 

Accordingly, Defendants are not entitled to qualified immunity and the motion for

summary judgment should be denied in this regard.

G. Claims of All Plaintiffs under Federal Tort Claims Act.

1. Individual Defendants

 The Federal Tort Claims Act (“FTCA”) grants jurisdiction to the federal courts to hear

suits against the United States Government for torts committed by its employees while in the

scope of their employment. See 28 U.S.C. § 2675(a). The FTCA sets forth the government's

consent to be sued for the negligent conduct of its employees "in the same manner and to the

same extent as a private individual under like circumstances." Howell v. United States, 932 F.2d

915, 917 (11th Cir.1991) (citations omitted). The FTCA allows federal inmates to sue the

United States for injuries sustained while incarcerated. 28 U.S.C. § 2674. 

All actions brought pursuant to the FTCA must be brought against the United States of

America and not in the name of the allegedly negligent agency, entity or employee. 28 U.S.C.

§§ 2671-2680; 28 U.S.C. § 1346(b). The only proper party in an FTCA action is the United

States of America. To the extent that Plaintiffs allege an FTCA claim against the individual

Defendants, such claim should be dismissed.

2. United States

The FTCA does not create a substantive cause of action against the United States, but

provides a mechanism by which a plaintiff may bring a state law tort action against the federal

Case 1:08-cv-00149-SJM-SPB Document 57 Filed 02/09/10 Page 39 of 42
40

government in federal court. Hence, in a FTCA action, the district court applies the law of the

state in which the act occurred. See 28 U.S.C. § 1346(b); Castillo v. U.S., 2002 WL 1752235, at

*3 (7th Cir.2002). The United States may only be held liable under the FTCA if a private

person would be liable under the tort law of the state where the conduct at issue occurred. See

28 U.S.C. § 1346(b)(1); Williams, 242 F.3d at 175. The FTCA’s limited waiver of sovereign

immunity extends no further than the limits of private tort liability under state law, and a claim

based on federal constitutional law may not be involved under the FTCA. Washington v. Drug

Enforcement Administration, 183 F.3d 868, 873 (8 Cir. 1999). th

In their Amended Complaint, Plaintiffs specifically allege that the United States should

be liable under the FTCA for “the intentional gross negligence, unlawful and malicious

deprivation of Plaintiffs’ religious exercise for the sole purpose of discriminating against

Plaintiffs, to impose a substantial burden on Plaintiff’s religious exercise, and cause them harm

that constituted a derelict of duty, which also from negligence or wrongful acts or omissions by

federal employees....” Document # 41, pages 18-19.

To the extent that Plaintiffs are alleging an intentional tort, there is no FTCA claim. 28

U.S.C. § 2680(h). To the extent that Plaintiffs are alleging a negligence claim, such should be

dismissed because Plaintiffs have not alleged any physical injuries as required by the FTCA. 

28 U.S.C. § 1346(b) (2) (“No person convicted of a felony who is incarcerated while awaiting

sentencing or while serving a sentence may bring a civil action against the United States ... for

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

injury.”). 

Accordingly, the FTCA claims of all Plaintiffs should be dismissed and the United

States of America should be terminated as a Defendant to this action.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion to dismiss or,

alternatively, for summary judgment filed by Defendants [Document # 52] be:

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 - granted as to the Bivens and RFRA/RLUIPA claims of all Plaintiffs

regarding prayer oils due to their failure to exhaust in accord with the

PLRA;

- granted as to all the Bivens and RFRA/RLUIPA claims relating to the

Eid meal in January of 2006 by Plaintiff Campbell as he has failed to

exhaust in accord with the PLRA;

- granted as to the RLUIPA claims of all Plaintiffs;

- granted as to the RFRA claims of all Plaintiffs;

- denied as to the respondeat superior argument as to Defendants

Sherman and Robare;

- denied as to the First Amendment free exercise claim;

- denied as to the Fifth Amendment equal protection claim;

- granted as to the substantive due process claim under the Fifth

Amendment;

- granted as to the procedural due process claim under the Fifth 

Amendment;

- denied as to the qualified immunity defense of all individual

Defendants;

- granted as to the dismissal of the FTCA claims against the individual

Defendants; and

- granted as to the FTCA claim against the United States.

It is further recommended that the Clerk of Courts be directed to terminated Plaintiff

Campbell from this action due to his failure to exhaust his Bivens and RLUIPA/ RFRA claims

and because the FTCA claims are without merit. 

It is further recommended that the Clerk of Courts should also be directed to terminate

the United States of America as a party to this action.

The retaliation claims of Plaintiffs Singh and Rogers remain pending as Defendants have

not moved for summary judgment on those claims.

A Case Management Order will be issued separately.

In accordance with Fed.R.Civ.P. 72, the parties are allowed fourteen (14) days from the

date of service to file written objections to this Report and Recommendation. Any party

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opposing the objections shall have fourteen (14) days from the date of service of objections to

respond thereto. No extensions of time will be granted. Failure to file timely objections may

constitute a waiver of appellate rights. See Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: February 9, 2010

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