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Anthony K. Wells-Bey #210-590 v. Nancy K. Kopp

April 16, 2013


The opinion of the court was delivered by: Ellen Lipton Hollander United States District Judge


Anthony K. Wells-Bey, the self-represented plaintiff, is a Maryland state prisoner incarcerated at North Branch Correctional Institution ("NBCI"). Alleging that he is denied meals that comport with his Muslim religion, plaintiff filed suit, pursuant to 42 U.S.C. § 1983, against defendants Nancy K. Kopp, the State Treasurer; Gary D. Maynard, the Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"); Roderick R. Sowers, the Director of Correction for the North Region of DPSCS;*fn1 and Scott S. Oakley, the Director of the Inmate Grievance Office, an independent unit within DPSCS. Another inmate, Ross Farewell, has filed a motion seeking permissive joinder as a plaintiff in Mr. Wells-Bey's suit ("Joinder Motion") (ECF 16).

Defendants filed a motion to dismiss or, in the alternative, for summary judgment ("Defense Motion") (ECF 14), supported by a legal memorandum (ECF 14-1) and several exhibits, including some of plaintiff's medical records. Mr. Wells-Bey filed a response (ECF 17) in opposition to the Defense Motion, and defendants filed a reply (ECF 18).

Defendants also filed a response in opposition to Mr. Farewell's Joinder Motion (ECF 19).*fn2 No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons stated below, the Defense Motion will be granted in part and denied in part, and the Joinder Motion will be denied.


Maryland makes available to state prisoners an administrative process for the redress of a prisoner's "grievance against an official or employee of the Division of Correction." Md. Code (2008 Repl. Vol., 2012 Supp.), § 10-206 of the Correctional Services Article ("C.S.").*fn3

Regulations promulgated by DPSCS concerning the grievance process define a "grievance" to include a "complaint of any individual in the custody of the [DOC] . . . against any officials or employees of the [DOC] . . . arising from the circumstances of custody or confinement." COMAR Maryland state appellate case law indicates that the administrative grievance process applies to a wide variety of matters that "relate to or involve a prisoner's 'conditions of confinement.'" Massey v. Galley, 392 Md. 634, 651, 898 A.2d 951, 960 (2006) (citation omitted).

Under the grievance process, an inmate must first file his grievance pursuant to any administrative remedy procedure ("ARP") that is maintained by the institution in which he is confined. See C.S. § 10-206(b); see also Code of Maryland Regulations ("COMAR") The inmate may request review of an institutional denial of his grievance by submitting a complaint to the statewide Inmate Grievance Office ("IGO"). See COMAR; see also C.S. § 10-206. Complaints are reviewed preliminarily by the IGO. See C.S. § 10-207; COMAR If the IGO determines that the complaint is not "wholly lacking in merit on its face," C.S. § 10-208(c), it refers the matter to the Maryland Office of Administrative Hearings ("OAH"), for a hearing to be conducted by an administrative law judge ("ALJ"). See C.S. § 10-208; COMAR

A decision of an ALJ that dismisses an inmate's grievance in its entirety is considered a final agency determination. See C.S. § 10-209(b)(1). On the other hand, an ALJ's decision concluding that the inmate's complaint is wholly or partly meritorious constitutes a recommendation to the Secretary of the Department of Public Safety and Correctional Services ("DPSCS"), who is entitled to adopt or reject the ALJ's recommendation, in whole or in part. See C.S. § 10-209(b)(2), (c). In any event, an inmate may seek further judicial review, in Maryland state courts, of an unfavorable final agency decision. See C.S. § 10-210.

Mr. Wells-Bey's suit has its genesis in a grievance filed by another DOC inmate, Alonzo Turner-Bey, who is also Muslim and who was, at all relevant times, not incarcerated at the same DOC institution as Mr. Wells-Bey. In 2009, after exhausting the ARP process pertinent to his own institution, Mr. Turner-Bey filed a complaint with the IGO, claiming that he was "'improperly denied access to a "Halal" religious diet for Muslim inmates similar or equal to the "Kosher" religious diet provided to Jewish inmates.'" ECF 1-1 at 5 (quoting Turner-Bey IGO complaint). Mr. Turner-Bey's complaint was referred to the OAH, and ALJ D. Harrison Pratt held an evidentiary hearing on the matter. On January 15, 2010, ALJ Pratt issued a written Proposed Decision and Order concluding "as a matter of law that the DOC acted arbitrarily and capriciously, and in a manner inconsistent with the law, when it denied [Mr. Turner-Bey] Halal meals." ECF 1-1 at 14. Accordingly, ALJ Pratt recommended to the Secretary of DPSCS that "the DOC be required to provide [Mr. Turner-Bey] with Halal meals." Id. In January 2011, Secretary Maynard issued an Order affirming ALJ Pratt's Proposed Decision and Order. ECF 1-1 at 17.

In March 2011, Mr. Wells-Bey he filed an ARP request with Bobby Shearin, the Warden of NBCI, in which he noted that Secretary Maynard had issued a ruling in January 2011 that required the provision of Halal meals for Muslim inmates, and asked that he be provided with Halal meals. See ECF 1-1 at 1. The record does not contain Warden Shearin's ruling as to the ARP request, but it apparently was not favorable to Mr. Wells-Bey, because Mr. Wells-Bey filed a complaint regarding his grievance with the IGO on June 16, 2011. See ECF 1-1 at 4. After preliminary review, the IGO referred Mr. Wells-Bey's grievance to the OAH. ALJ Jennifer M. Carter Jones held an evidentiary hearing as to Mr. Wells-Bey's grievance on December 15, 2011, and issued a Proposed Decision and Order on March 19, 2012.

In her Proposed Decision and Order, ALJ Jones made several factual findings, including the following, ECF 1-1 at 22:

That Mr. Wells-Bey, as a practicing Muslim, is religiously obligated to adhere to a Halal diet;

That, under a Halal diet, Mr. Wells-Bey could only eat meat that has been ritually slaughtered according to the dictates of Islam, but that he could eat vegetarian meals so long as they do not contain products considered harmful under Islam, including pork oils, or fats from animals not slaughtered according to Halal practices;

That the DOC provides a "Lacto-Ovo meal" and a vegetarian meal to Muslim inmates, but that these meal options do not include meat; and

That Mr. Wells-Bey is allergic to eggs.

In the proceedings before ALJ Jones, the DOC acknowledged ALJ Pratt's earlier decision regarding Mr. Turner-Bey's similar grievance, but asserted "that Secretary Maynard ultimately reversed his decision to affirm ALJ Pratt's decision and the matter is now on appeal in the Federal District Court."*fn4 ECF 1-1 at 24. Moreover, the DOC claimed that, "in the two years since ALJ Pratt's decision, it has confirmed with Muslim spiritual leaders that the lacto-ovo vegetarian meals provided by the DOC comply with the Halal diet." Id. at 24-25. In support of this claim, the DOC submitted a letter from the Halal Certification Department of the Islamic Society of the Washington Area ("ISWA"), as well as numerous declarations of Imams who serve as Muslim chaplains for the DOC, all opining that the DOC's lacto-ovo vegetarian diet is compatible with the standards of Islam. Id. at 25.

In her Proposed Decision and Order, ALJ Jones rejected the DOC's position. She stated, id. at 27:

Although the letters from the ISWA and declarations from DOC Imams each state that the DOC lacto-ovo vegetarian meals are acceptable to those of the Muslim faith, the DOC offered no reason why it should not make complete meals, including meat, available to Muslim populations as it does for other religious populations, including inmates who require kosher meals. Restricting the foods available to Muslim inmates amounts to disproportionate treatment of Muslim inmates as a result of their religious beliefs. In so finding, I note that this is not comparable to the situation in which an inmate voluntarily restricts his diet for personal reasons, including vegetarianism. Certainly, if the Grievant was a vegetarian, he might have less standing to challenge the DOC's failure to provide Halal meals. But the Grievant is not a vegetarian, and the DOC has offered no penological interest or allegation of negative impact to support the conclusion that the Grievant, as a meat-eating Muslim should be treated any differently than any other meat-eating inmate with valid religious restrictions.

Accordingly, ALJ Jones concluded "as a matter of law that the DOC acted arbitrarily and capriciously, and in a manner inconsistent with the law, when it denied [Mr. Wells-Bey] Halal meals." Id. at 28. The ALJ recommended that Mr. Wells-Bey's "grievance be granted and that the DOC be required to provide [Mr. Wells-Bey] with Halal meals." Id. On April 2, 2012, Secretary Maynard issued an Order in which he affirmed ALJ Jones's Proposed Decision and Order. ECF 1-1 at 19.

On April 12, 2012, Mr. Wells-Bey wrote three requests to Warden Shearin, NBCI Chaplain Kenneth Lamp, and the NBCI food service, requesting to be placed on a Muslim Halal meal in accordance with Secretary Maynard's Order. See Complaint at 4; ECF 1-1 at 30-32. Mr. Wells-Bey states that, in response to his request, Warden Shearin claimed he was investigating the matter, and the Chaplain informed Wells-Bey that there was no Halal meal plan. Complaint at 4. Mr. Wells-Bey further alleges that on April 17, 2012, he suffered "a full body allergic breakout after eating portions of a meal that was in close proximity to an egg by-product." ECF 1-1 at 38.

Plaintiff wrote to Secretary Maynard on June 12, 2012, requesting that he compel staff at NBCI to comply with ALJ Jones's ruling, as approved by the Secretary's Order. Complaint at 4. Mr. Wells-Bey claims that, on July 13, 2012, a correctional officer at NBCI presented him with a "memo" from Warden Shearin denying that Wells-Bey was allergic to eggs, on the basis of an allergy test that had been previously performed. Complaint at 4-5. Moreover, Warden Shearin allegedly asserted in the memo that the lacto-ovo vegetarian meal constituted a Halal meal and Wells-Bey would be placed on the lacto-ovo meal plan immediately. Id. Mr. Wells-Bey further claims that the correctional officer who presented him with the Warden's memo insisted that Wells-Bey sign the memo after reading it in order to verify that he had been informed of its contents. See ECF 1-1 at 37 & 40.*fn5

Mr. Wells-Bey was placed on the lacto-ovo vegetarian diet as of the dinner meal on July 16, 2012. Because he believed this action was contrary to Secretary Maynard's Order, Mr. Wells-Bey filed another ARP complaint with Warden Shearin the next day, asserting that the Warden's decision to place him on the lacto-ovo diet "places [his] health and welfare in danger by forcing [him] to be placed on an egg based diet." ECF 1-1 at 38. Mr. Wells-Bey contended that DOC was "persist[ing] in trying to force [him] into becoming a Vegetarian against [his] will and at the expense of [his] health and well being." Id.

Plaintiff has submitted a letter from Jon P. Galley, the Executive Director of Regional Operations for the North Region of DPSCS.*fn6 See ECF 1-1 at 39. Mr. Wells-Bey claims that he received Mr. Galley's letter on July 23, 2012, but notes that it is dated July 13, 2012, the same day that he received Warden Shearin's memo. See ECF 1-1 at 40. In the letter, Mr. Galley indicated that he was responding to Mr. Wells-Bey's letter of June 12, 2012, to Secretary Maynard. ECF 1-1 at 39. Further, Mr. Galley stated: "After review of your IGO Case . . . and contact with the Administration at [NBCI], it has been found that you have agreed and signed a memo that the Lacto-Ova [sic] Diet would be provided to you by the Food Service Department at the institution. Your issue is now moot." Id.*fn7

On July 25, 2012, Mr. Wells-Bey wrote to Secretary Maynard, again asking him to enforce his Order affirming ALJ Jones's decision. See ECF 1-1 at 40-41. With respect to Mr. Galley's assertion that he had agreed to be placed on the lacto-ovo diet, Mr. Wells-Bey queried: "Why would I sign an agreement to accept the very things I complained about for over a year, and finally accomplished through the A.L.J. proposed order 3/9/12 and your affirmation order 4/2/12 in my favor[?]" Id. at 41. Mr. Wells-Bey reiterated his claims that he is "allergic to eggs," that he is "a meat-eating Moslem," and that "the Vegetarian meal N.B.C.I. offer[s] is an egg base[d] diet." Id. In sum, he asked Secretary Maynard to "reverse" Mr. Galley's decision and "have the Warden of N.B.C.I. . . . carry out [the Secretary's] original order." Id.

On August 2, 2012, Mr. Wells-Bey initiated this suit.

As indicated, another state inmate, Mr. Farewell, has moved to intervene in this case as a plaintiff. In his Joinder Motion, Mr. Farewell states that he is a Sunni Muslim who "wishes to receive Halal Meats during recognized 'special holy day' meals and, is currently on-going [sic] the ARP process against Warden Bobby P. Shearin et al." Joinder Motion at 1.*fn8 Farewell reports that his grievance proceeding was placed in "Abeyance" pending the outcome of Mr. Turner-Bey's suit in this court, Turner-Bey v. Maynard, et al., Civil Action JFM-10-2816 (D. Md). See Joinder Motion at 1-2. However, Mr. Farewell alleges ...

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