Bey v. Tennessee Department of Correction

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court are cross Motions for Summary Judgment [Docs. 89, 92] in this pro se prisoner civil rights action arising under 42 U.S.C. § 1983. For the reasons set forth herein, the Court will GRANT Defendants' Motion [Doc. 89] and DENY Plaintiff's Motion [Doc. 92]. Plaintiff's remaining Motions [Docs. 93, 94, 96] are DENIED AS MOOT, and this action will be DISMISSED WITH PREJUDICE.

         I. PROCEDURAL BACKGROUND

         On June 24, 2015, Plaintiff Boaz Bey, a pro se prisoner, filed a Complaint under 42 U.S.C. § 1983, against the following Defendants: Tennessee Department of Correction; Commissioner Derrick Schofield; Bennie Townsend; Warden Gerald McAllister; Assistant Craig Julian; Maurice Widener; John Walker; and Warden Randy Lee [Doc. 1].^[1] On September 30, 2015, after screening the Complaint, the Court permitted Plaintiff to advance as to his claims that Northeast Correctional Complex - the facility at which Plaintiff is presently incarcerated - discriminates against Muslim inmates with respect to its policies regarding both Halal meals and the Ramadan fast [Doc. 3 at 7-8]. The Court expressly dismissed Plaintiff's claims regarding (1) the purchase and use of prayer oil and other religious items, and (2) Plaintiff's purported inability to teach non-Muslims about his religion, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A [Id. at 4-7, 8-9]. Plaintiff subsequently filed a motion for reconsideration, which the Court granted in part on October 28, 2015, allowing Plaintiff to proceed with his constitutional claim that he is unable to practice his Muslim religion because the only prayer oil available for purchase is blessed by a Catholic priest [Doc. 7 at 3-4 (“The Court limits [the scope of the grant] to the allegation that Plaintiff is unable to obtain prayer oil blessed by a Muslim or non-blessed oil” and “reiterates that Plaintiff's prior allegations regarding purchasing religious items from a different website . . . remain dismissed.”); see also Doc. 6].

         On May 31, 2017, Defendants filed a Motion for Summary Judgment, along with a statement of undisputed material facts, supporting memorandum, and a single piece of evidence: the affidavit of Edgar Tabares [Docs. 89 through 91]. Plaintiff filed a Response to Defendants' Motion and a cross-motion for summary judgment, relying on his own affidavit and affidavits from several other NECX inmates as supporting evidence [Docs. 92, 92-1]. Defendants did not file a reply to Plaintiff's response, nor did they file a response to Plaintiff's cross-motion for summary judgment.

         II. SUMMARY JUDGMENT STANDARD

         Federal Rule of Civil Procedure 56 instructs the Court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where, as here, the parties here have filed cross-motions for summary judgment, the Court “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Hensley v. Gassman, 693 F.3d 681, 686 (6th Cir. 2012) (quoting Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994)).

         A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record, ” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its . . . pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at 586; Fed.R.Civ.P. 56). The nonmoving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248-49 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)); see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir. 2010). A mere scintilla of evidence is not enough; rather, there must be evidence from which a jury could reasonably find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

         The Court notes that Plaintiff is proceeding in this action pro se. The Court is mindful that pro se filings are liberally construed and are held to less stringent standards than the formal pleadings prepared by attorneys. Bridge v. Ocwen Fed. Bank, 681 F.3d 355, 358 (6th Cir. 2012). However, the leniency afforded to pro se plaintiffs is not boundless, and the Court is accordingly “not require[d] to either guess the nature of or create” claims or arguments on behalf of a pro se litigant. See, e.g., Leeds v. City of Muldraugh, 174 F. App'x 251, 255 (6th Cir. 2006). Likewise, “liberal treatment of pro se pleadings does not require lenient treatment of substantive law, ” and ultimately, those who proceed without counsel must still comply with the procedural rules that govern civil cases. Durante v. Fairlane Town Ctr., 201 F. App'x 338, 344 (6th Cir. 2006); Whitson v. Union Boiler Co., 47 F. App'x 757, 759 (6th Cir. 2002).

         III. MOTIONS FOR SUMMARY JUDGMENT

         A. Prayer Oil Claim

         Defendants argue that they are entitled to judgment as to Plaintiff's claim that his constitutional rights were violated because he was not permitted to buy certified Halal prayer oil, given that the oil provided to TDOC facilities is officially certified as Islamic and Halal [Doc. 91 at 3-4 (citing Doc. 91-1)]. In support, they rely on the affidavit of Edgar Tabares, the Director of Inmate Programs - Western Region, for Union Supply Group [Id.]. Tabares avers that: (1) Union Supply purchases prayer oil from Prime Products USA that it then sells to the TDOC; (2) “the prayer oils purchased by Plaintiff from Union Supply are officially certified as Islamic and Halal”; (3) in describing prayer oils as “officially blessed” in their catalogs, Union Supply indicates “that the products are approved for religious use and certified as Halal by the Islamic Society of the Washington Area”; and (4) “Union Supply has no information or knowledge that the oils are blessed by a catholic priest or by any representative of any other religious denomination” [Doc. 90-1 at 1-2]. Tabares attached “true and exact copies of the Islamic (Halal) certificates that were provided to Union Supply by Prime Products USA to ascertain the prayer oils' Halal status from April 2013 to May 2017” [Id. at 2, 4-11]. The certificates state that the oil products manufactured and distributed by Prime Products are under the “supervision” of the Islamic Society of the Washington Area, that they do not contain any “haram” items, and that “they are all considered suitable for consumption by Muslims and have complied with the Halal requirements according to Islamic Sharia food laws”^[2] [Id. at 4-11].

         Liberally construing his filing, Plaintiff appears to argue that there is, at a minimum, a genuine issue of material fact as to whether the prayer oil available for purchase at NECX (1) is blessed by a Catholic priest, and (2) is “naturally Halal” - that is, according to Plaintiff, “from a Islamic vendor who has Muslims handling the prayer oil, packaging the prayer oil and shipping the prayer oil” [Id. at 1-4]. Plaintiff argues that the unavailability of an Islamic vendor from which to purchase “naturally Halal” or unblessed prayer oil is a substantial burden on the practice of his Muslim faith [Id.].^[3]

         For support, Plaintiff relies primarily upon the unsworn declaration of Chuck Womack, a fellow NECX inmate [Id.; Doc. 92-1 at 2]. Womack avers that he was present in the office of NECX Chaplin Weidner in June 2014 when Weidner called Union Supply Company's customer service line; he placed the phone in speaker mode so that Womack could hear the conversation [Doc. 92-1 at 2]. A woman answered the call, at which time Weidner asked what “officially blessed” meant in regards to the prayer oil listed in the company's product catalog [Id.]. According to Womack, the woman's response was that “the prayer oil is officially blessed by a Catholic Priest” [Id.]. Womack thereafter told his fellow inmates, including Plaintiff, about the conversation [Id.].

         Plaintiff relies on one additional piece of documentary evidence in support of this argument. On July 5, 2015, Plaintiff submitted an inmate inquiry stating: “Please call Union Supply Direct. The last time I checked, the oil they sold was blessed officially by a Catholic Priest. I want to check again and make sure the oil was still blessed that way before I purchased any.” [Doc. 92-1 at 3]. According to Plaintiff's affidavit, he filed this request form in response to hearing Womack's account of the June 2014 phone call, as he wanted to “confirm[]” that Union Supply Company's prayer oil was officially blessed by a Catholic priest [Id. at 7]. On July 8, 2015, Widener responded to the inquiry stating “Nothing has Changed!” [Id. at 3].

         After careful consideration, however, the Court concludes that Plaintiff's evidence constitutes inadmissible hearsay. “‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801; Back v. Nestle USA, Inc., 694 F.3d 571, 577 n.1 (6th Cir. 2012) (quoting United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009)). In this case, Petitioner relies upon the declaration of Womack, wherein Womack recounts the statement of unidentified female customer service representative who allegedly stated on a telephone call that the prayer oil sold by Union Supply is blessed by a Catholic priest. This statement is clearly offered to prove the truth of the matter asserted - that is, that the prayer oil available to purchase from Union Supply is blessed by a Catholic priest and therefore not Halal - and is clearly not made by the declarant herself during testimony or under oath. As such, this statement constitutes hearsay.

         For the same reason, Plaintiff's request form must also be deemed inadmissible hearsay. Plaintiff's statement is simply a recitation of the same hearsay statement identified above, as it was, by his own admission, based on Womack's recounting of the statement of the identified Union Supply customer service representative. Weidner's response on Plaintiff's request is somewhat vague. First, it is unclear from the statement “nothing has changed” whether Weidner complied with Plaintiff's request that he call Union Supply again or whether he is simply stating that he has had no reason to think that anything has changed. Further, he does not expressly confirm or refute Plaintiff's stated assumptions about the oil being blessed by a Catholic priest. However, even if the Court liberally construes his response as a confirmation of Plaintiff's stated assumptions, such a statement involves two layers of hearsay: first, from Weidner himself, who has not made any such statement during testimony or under oath, and also from whomever Weidner spoke to at Union Supply about the prayer oil.

         The Court cannot identify any clear exception to the hearsay rule that would render these statements admissible. Because these statements constitute inadmissible hearsay, they may not be considered by the Court at the summary judgment stage. See Fed. R. Civ. P. 56(c)(2); Fed.R.Evid. 801(c); see also, e.g., Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir. 2003).

         Thus, the only remaining evidence as to this claim is Tabares' affidavit and the accompanying certificates from the Islamic Society of the Washington Area [Doc. 91-1]. Tabares avers that “the prayer oils purchased by Plaintiff from Union Supply are officially certified as Islamic and Halal, ” that “officially blessed” in the Union Supply catalog means “that the products are approved for religious use and certified as Halal by the Islamic Society of the Washington Area, ” and that “Union Supply has no information or knowledge that the oils are blessed by a catholic priest or by any representative of any other religious denomination” [Doc. 90-1 at 1-2]. The attached certificates confirm that the manufacture and distribution of these oils is under the ...