United States District Court, E.D. Tennessee
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
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