1I construe the claims against the NHDOC as claims against

the NHDOC Commissioner, William L. Wrenn, in his representative

capacity.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Charles Jay Wolff

v. Civil No. 06-cv-321-PB

New Hampshire Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Charles Jay Wolff brings this action

pursuant to the Civil Rights Act, 42 U.S.C. § 1983, and the

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §

2000cc et seq. (“RLUIPA”). Construed liberally, the complaint

alleges that defendants have denied Wolff a kosher diet

consistent with his faith, thereby abridging his right to freely

exercise his religion and substantially burdening his religious

practices (document nos. 5, 7 and 10). Named as defendants are

the New Hampshire Department of Corrections (“NHDOC”)1 and three

NHSP employees: Jeff Perkins, Director of Food Services; Gency

Morse; and James Daly. 

The complaint is before me for preliminary review to

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2

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I conclude that

Wolff has stated Section 1983 and RLUIPA claims against Wrenn,

Perkins and Daly based on the denial of free exercise of religion

and the substantial burden on religious practices.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleadings liberally and in favor of that party. See Ayala

Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this preliminary

stage of review, all factual assertions made by a plaintiff and

the inferences reasonably drawn therefrom must be accepted as

true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

(explaining that all “well-pleaded factual averments,” not bald

assertions, must be accepted as true). This review ensures that

pro se pleadings are given fair and meaningful consideration. 

See Eveland v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988). 

I apply this standard in reviewing Wolff’s complaint.

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3

Background

While incarcerated at the NHSP, Wolff allegedly was denied a

kosher diet consistent with his faith. Although he has not

identified his affiliation with a particular religion or a

religious group, Wolff contends that he was previously provided a

kosher diet for religious reasons and now seeks to have his

kosher diet reinstated. He adds that a bland diet is necessary

for an underlying and undisclosed medical condition. By denying

Wolff a kosher diet and other special food items required by his

faith, defendants allegedly have interfered with his free

exercise of religion. 

Jeff Perkins, Director of Food Services at the NHSP,

allegedly imposed Wolff’s current non-kosher diet and removed him

from his kosher diet after discovering that Wolff had eaten nonkosher ice cream. Wolff contends that the ice cream was kosher,

as later verified by NHSP Chaplin Dan Smith and a rabbi. Perkins

subsequently assured Wolff that he would reinstate his kosher

diet but failed to do so. As a result of the diet imposed by

Perkins, Wolff allegedly has consumed only bread and water and

has suffered a weight loss of forty-nine pounds. 

Wolff alleges that he has exhausted the administrative

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2Although Wolff also alleges that he submitted a grievance

to Morse, he has not identified the substance of the grievance or

provided a copy of the grievance to this Court.

4

grievance procedures available to him at the NHSP and, in doing

so, has advised prison officials of his religious dietary needs. 

Through grievances allegedly submitted to William L. Wrenn,

Commissioner of the NHDOC, Greg Crompton, Deputy Warden of the

NHSP, and Daly from December 2005 through July 2006, Wolff

requested a kosher diet and informed defendants of the

restrictions placed on his religious dietary needs.2 Although

Wolff has not provided copies of the grievances filed with the

defendants, he claims that the defendants had knowledge of his

dietary needs, failed to adequately respond to his requests and

failed to provide him with a kosher diet and other special food

items. Over one year has elapsed since Wolff made his initial

request, and to date his request has not been met. 

He now brings this action, alleging that defendants’ acts

and omission not only abridge his First Amendment right to free

exercise of religion under Section 1983 but also violate

provisions of RLUIPA. He requests a kosher diet and 

particularized food items that ostensibly are required by his

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3The particularized food items sought by Wolff include: 

kosher donuts; kosher cakes; Carnation Instant Breakfast Milk;

prepackaged day cereal; prepackaged oatmeal; fresh fruit; kosher

rye bread; kosher condiments; water with Nutraboost fortified

iced tea mix or milk; kosher cookies; and a kosher diabetic

snack. In addition, he requests that his frozen kosher meals be

reheated by civilian staff personnel. (Complaint (doc. No. 10)

at p. 1-2)

4The relevant provision of the Constitution provides that

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” U.S. Const.

Amend. I (hereinafter “Free Exercise Clause”).

5

faith.3

Discussion

I. Section 1983

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

accord Conn v. Gabbert, 526 U.S. 286, 290 (1999). In order to be

held liable for a violation under Section 1983, a defendant’s

conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). The premise of Wolff’s Section 1983 action is

that defendants, acting under color of state law, have violated

his rights under the First Amendment’s Free Exercise Clause,4 as

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applied to the states through the Fourteenth Amendment.

A. Free Exercise of Religion

It is well-established that convicted prisoners do not

forfeit all constitutional protections by reason of their

incarceration. See Bell v. Wolfish, 441 U.S. 520, 545 (1979). 

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

those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological

objectives of the corrections system,” Pell v. Procunier, 417

U.S. 817, 822 (1974), including the right to free exercise of

religion, see O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972)); accord

Moorish Science Temple, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.

1982) (“[A] prisoner retains those First Amendment guarantees,

including the right to participate in practices which are an

integral part of his religious faith . . ..”). Prisons must

provide all inmates reasonable opportunities to exercise their

religious freedom. See Cruz, 405 U.S. at 322 n.2. 

Free exercise claims brought by prisoners are “judged under

a ‘reasonableness’ test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional

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rights.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)

(quoting O’Lone, 482 U.S. at 349). See also Shaw v. Murphy, 532

U.S. 223, 227-229 (2001). The Supreme Court has held that a

prisoner’s sincerely held religious beliefs must yield if

contrary to prison regulations that are “reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S.

78, 89 (1987); see also, Washington v. Harper, 494 U.S. 210, 224

(1990) (prison restrictions that implicate constitutional rights

are judged by the reasonableness standard); O’Lone, 482 U.S. at

351-352 (the Constitution does not require the prison to

sacrifice legitimate penological objectives to satisfy an

inmate’s desire to exercise his religion so long as an inmate is

not deprived of all forms of religious exercise).

Here, Wolff alleges that during his incarceration at the

NHSP, Perkins and Daly have denied him a kosher diet consistent

with his religion. Although he has not identified his

affiliation with a particular religion or religious group, he

appears to allege that a kosher diet is required by his faith and

was provided to him previously for religious purposes. Through

grievances submitted to Wrenn and Daly from December 2005 through

July 2006, Wolff repeatedly informed defendants of his need for a

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5Although Wolff alleges that he submitted a grievance to

Morse, he has not identified the substance of the grievance or

provided a copy of the grievance to this Court.

8

kosher diet and the restrictions placed on his religious dietary

needs.5 Wolff also informed Perkins of his religious dietary

needs, however, Perkins allegedly imposed a non-kosher diet upon

Wolff and refused to reinstate his former kosher diet. As a

result of the diet imposed by Perkins, Wolff allegedly has

suffered a weight loss of forty-nine pounds. 

Despite Wolff’s repeated requests, defendants have denied

him a kosher diet, thereby interfering with his free exercise of

religion. More than one year has elapsed since he first informed

defendants of the alleged deprivations but to date he has not

received an adequate response. If true, these allegations may

state a cognizable claim under the First Amendment’s Free

Exercise Clause against Wrenn, Perkins and Daly. 

In addition, Wolff broadly alleges that Morse failed to

respect him and his religion. There is no indication in the

record that Morse denied Wolff a kosher diet or otherwise

interfered with his religious dietary needs. Because Wolff has

failed to allege sufficient predicate facts in support of a First

Amendment claim against Morse, I recommend that this claim be

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dismissed in its entirety.

II. RLUIPA Claim

I liberally construe the complaint to allege that

defendants’ actions have burdened Wolff’s religious practice

under RLUIPA which, in certain circumstances, prohibits

government infringement on the practice of religion. See

Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002).

Under RLUIPA, governmental imposition of “substantial burden

on the religious exercise” of a prisoner is prohibited, unless

the burden “(1) is in furtherance of a compelling governmental

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

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

The phrase “religious exercise” is to be construed liberally to

include belief and profession as well as the performance of

physical acts such as assembling with others to worship or

participating in sacramental use of bread and wine. See Cutter

v. Wilkinson, 544 U.S. 709, 720 (2005). RLUIPA applies to both

substantial burdens imposed by programs or activities that

receive federal financial assistance and to substantial burdens

on religious exercise having an effect on interstate commerce. 

Id at 715-16; 42 U.S.C. § 2000cc-1(b). Once a plaintiff produces

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prima facie evidence to support a free exercise violation, the

plaintiff bears the burden of persuasion on whether the

regulation substantially burdens his exercise of religion and the

state bears the burden of persuasion on all other elements. 42

U.S.C. § 2000cc-2(b).

Construed liberally, the complaint alleges that Wrenn,

Perkins and Daly have substantially burdened Wolff’s religious

beliefs by denying him a kosher diet and preventing him from

observing his faith. If true, these allegations may state a

cognizable claim under RLUIPA against Wrenn, Perkins and Daly. 

Because Wolff has failed to allege sufficient predicate facts

against Morse, I recommend that the RLUIPA claim against him be

dismissed in its entirety.

III. Official Capacity

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by the Wrenn, Perkins and

Daly as state actors in their official capacities. It is wellsettled that the Eleventh Amendment bars suits against state

entities and state agents working in their official capacities

unless the state has expressly waived immunity, which has not

been done by New Hampshire for actions brought under Section

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1983. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 144 (1993) (absent waiver, neither a State

nor agencies acting under its control may be subject to suit in

federal court); Will v. Michigan Dep’t of State Police, 491 U.S.

58, 71 (1989)(holding that neither a state nor its officials

acting in their official capacities are “persons” under Section

1983). Official capacity suits against officers of an agency are

simply “another way of pleading an action against an entity of

which an officer is an agent.” Monell, 436 U.S. at 690 n.55. To

the extent Wolff brings official capacity claims for monetary

relief against the state defendants, all of whom are officials or

employees of the NHDOC or NHSP, I recommend that those claims be

dismissed. 

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10. Thus, Wolff is not barred

from bringing claims for prospective injunctive relief against

the defendants in their official capacities.

Conclusion

For the reasons stated above, I find that Wolff has alleged

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Section 1983 and RLUIPA claims against Wrenn, Perkins and Daly

based on the denial of free exercise of religion and the

substantial burden on religious practices.

If this report and recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the complaint. If the plaintiff disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this report

and recommendation, or he must properly move to amend the

complaint. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See Unauthorized

Practice of Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir.

1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.

1986).

______________________________

James R. Muirhead

United States Magistrate Judge

Date: January 26, 2007

cc: Charles Jay Wolff, pro se

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