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Ervin v. Foxwell

United States District Court, D. Maryland

June 1, 2018

ROBERT ERVIN, Plaintiff,
v.
RICKY FOXWELL, Warden of E.C.I. and ROBERT TROXELL, CDM, Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         This case arises from an isolated error at a Maryland prison on October 25, 2017, which resulted in the provision of sausages to inmates at breakfast that contained 2% or less of pork stock.

         The self-represented plaintiff, Robert Ervin, is an inmate currently housed at Eastern Correctional Institution (“ECI”) in Westover, Maryland. He brings this civil action pursuant to 42 U.S.C. §1983 against Warden Ricky Foxwell and Certified Dietary Manager Robert Troxell, defendants. ECF 1. Ervin seeks compensatory and punitive damages of $3, 000, 000 for defendants' alleged violation of his constitutional rights under the First Amendment. Id. at 3.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 13. The motion is supported by a legal memorandum (ECF 13-1) (collectively, the “Motion”) and several exhibits. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Ervin was informed by the court that, inter alia, the failure to file a response in opposition to the defendants' Motion could result in dismissal of the Complaint. ECF 14. Ervin did not respond.

         Upon review of the record, exhibits, and applicable law, the court deems a hearing unnecessary. See Local Rule 105.6 (D. Md. 2016). Defendants' Motion, construed as a motion for summary judgment, shall be granted.

         I. Factual Background

         Ervin states that on October 25, 2017, while he was incarcerated at ECI, he ate breakfast, consisting of what he believed to be maple sausage links. ECF 1 at 2.[1] Later that day, Ervin was informed by an inmate who had helped to prepare breakfast that the sausages were “pork sausages.” Id. Ervin claims that he “has practiced Christianity his entire life” and that consuming pork is against his religion. Id. He “immediately filed an ARP [Administrative Remedy Procedure] complaining that Maryland Department of Corrections is prohibited from serving pork products” and that “ECI and its dietary department has violated his First Amendment right to practice his religion.” Id.; see ECF 1-2. As a result of the occurrence, Ervin claims that he has suffered psychologically, mentally, and spiritually. ECF 1 at 2.

         In his Declaration (ECF 13-3), Troxell avers that Ervin never submitted any written request for a non-pork diet on the basis of his Christian faith. Id. at ¶ 5. During Ervin's incarceration at ECI, Ervin signed and dated three Religious Preference Registration forms, each of which included a staff witness signature, informing ECI staff of the faith group that Ervin intended to practice. ECF 13-2 at 14-16. In 2011 and 2013, Ervin selected item “9010 None, ” indicating that he did not intend to practice a religion. Id. at 14, 16. In 2012, Ervin selected item “0331 Nation of Islam, Farrakhan” as the religion he intended to practice. Id. at 15. At no time did Ervin select item “1500 Rastafari, ” which was listed as an option on the 2011 and 2012 Religious Preference Registration forms. See Id. at 14-15. To Troxell's knowledge, during the 27 years of his tenure in the Correctional Dietary department, no inmate, apart from Ervin, has ever requested a non-pork diet on the basis of a purported Christian faith. ECF 13-3, ¶ 5.

         Troxell maintains that, in accordance with the policy of the Maryland Department of Public Safety and Correctional Services (“DPSCS”), “no prison inmate food items of any kind may contain any pork or pork by-products out of general consideration of established Muslim and Jewish religious dietary restrictions, which forbid consumption of any pork[.]” Id. ¶ 3. Moreover, “[c]ertified Halal and Kosher diets are provided for Muslim and Jewish inmates, respectively, on the basis of widely recognized and established Muslim and Jewish religious convictions.” Id. ¶ 4. However, those religious diets are “only provided to inmates who submit a written dietary request and have been approved by the prison chaplain once the chaplain has interviewed them individually to ascertain the veracity and sincerity of their respective religious faiths to warrant accommodation of a religious diet rather than the general population meals.” Id.

         It is clear that, at the relevant time, the DPSCS did not order sausages with any pork. An Invoice dated September 27, 2017, reflects that ECI contracted to purchase 192 cases of turkey maple sausage links from a commercial food vendor. ECF 13-2 at 2. Notably, the Invoice expressly states, in part: “Sausage, Turkey Maple Link . . . .” Id. Payment was due by October 27, 2017. Id. And, the Purchase Requisition (id. at 3) indicates an “Item Description” of “Turkey Sausage Links.” Further, the “Receiving Report” describes the “articles” as “Turkey Sausage links.” Id. at 4.

         Of relevance, all commercial vendors supplying inmate food items to ECI are explicitly informed prior to sale that any food items must not contain any pork or pork by-products, in accordance with DPSCS policies. See ECF 13-3, ¶ 6. Troxell avers that ECI relies on the commercial food vendors to comply with this policy with respect to the inmate food items supplied to ECI. Id. Defendants also expect ECI staff to comply with the Directives and ECI policies regarding inmate meals. Id. at ¶ 7; ECF 13-5, ¶ 3. Defendants do not dispute, however, that “sausage that contained 2% or less dehydrated pork stock” was served to ECI inmates on October 25, 2017. See ECF 13-1 at 4.[2]

         On November 14, 2017, Ervin filed an Administrative Remedy Procedure (“ARP”) complaint ECI-2971-17, complaining that by serving pork at breakfast on the date in question, ECI staff violated his First Amendment right to practice his religion. ECF 13-2 at 5-8. Ervin stated that his “way of life is Rastafarian, which is Christianity based.” Id. at 6. He sought, inter alia, monetary compensation. Id. at 8.

         When responding to an ECI inmate's ARP complaint, Defendant Foxwell relies on the review and investigation by the staff. ECF 13-5, ¶ 4. During the investigation of Ervin's ARP complaint by ECI staff, a correctional officer assigned to the “feed up” meal duty for October 25, 2017, provided a statement indicating that, to the officer's knowledge, no pork products were purchased or served in the DOC [Division of Correction], that ...


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