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Drummond v. Foxwell

United States District Court, D. Maryland

April 24, 2019

JOSEPH L. DRUMMOND, KENNETH A. JONES, Plaintiffs,
v.
RICKY FOXWELL, Warden of ECI, ROBERT TROXELL, CDM, Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         This consolidated case arises from an isolated error that occurred on October 25, 2017, at Eastern Correctional Institution (“ECI”), a Maryland prison located in Westover, Maryland. The error resulted in the provision of sausages to inmates at breakfast that contained 2% or less of pork stock.

         At the time of the incident, plaintiffs Joseph L. Drummond and Kenneth A. Jones were inmates housed at ECI. See ECF 1 (Drummond Compl.); Civil Action No. ELH-18-1105, ECF 1 (Jones Compl.).[1] They brought separate suits pursuant to 42 U.S.C. § 1983 against ECI Warden Ricky Foxwell and Dietary Manager Robert Troxell. Id. Claiming that consumption of pork is against their religion, each plaintiff seeks compensatory and punitive damages of $3, 000, 000 for defendants' alleged violation of their First Amendment rights. Id. Jones also included exhibits with his suit.

         By Order of July 6, 2018, I consolidated Mr. Jones's case with that of Mr. Drummond. I also designated Mr. Drummond's case as the lead one for filing purposes. See Jones, ELH-18-1105, ECF 4.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 11. Their motion is supported by a memorandum of law (ECF 11-1) (collectively, the “Motion”) and several exhibits. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court informed plaintiffs that the failure to file a response in opposition to the defendants' Motion could result in dismissal of their Complaint. ECF 13, 18. Jones filed a response in opposition to the defendants' Motion; Drummond did not. ECF 19. Defendants did not reply.

         Upon review of the record, exhibits, and applicable law, the court deems a hearing unnecessary. See Local Rule 105.6 (D. Md. 2018). Defendants' Motion shall be construed as a motion for summary judgment and shall be granted.

         I. Factual Background

         Plaintiffs state that on October 25, 2017, while incarcerated at ECI, they ate breakfast consisting of what they believed to be maple sausage links. Drummond Compl. at 2; Jones Compl. at 2.[2] Thereafter, plaintiffs were informed by an inmate who had prepared breakfast that the sausages contained pork. Id. Drummond claims that he is a devout Rastafarian with a background in Islam, while Jones claims that he “has been a Christian his entire life.” Drummond Compl. at 3; Jones Compl. at 2. Both state that consuming pork is against their religion. Id.

         Each plaintiff “immediately filed an A.R.P. [Administrative Remedy Procedure] complaining that Maryland Department of Corrections is prohibited from serving pork products” and that “ECI and it's [sic] dietary department has violated his first Amendment right to practice his religion, and the free exercise clause.” Jones Compl. at 2; see also Drummond Compl. at 2. As a result of the occurrence, plaintiffs claim that they have suffered psychologically, mentally, and spiritually. Drummond Compl. at 4; Jones Compl. at 3. Drummond also claims that he suffered stomach cramps, diarrhea, and vomiting spells. Drummond Compl. at 2.

         Troxell was the Correctional Dietary Manager at ECI during the relevant time. ECF 11-3 (Troxell Declaration), &1. In his Declaration, Troxell avers that neither plaintiff ever submitted any written request for a non-pork diet on the basis of their respective Rastafarian and Christian faiths. Id. at &5. To Troxell's knowledge, during the 27 years of his tenure in the Correctional Dietary department, no inmate has ever requested a non-pork diet on the basis of those faiths. Id.

         During Drummond's incarceration at ECI, he signed and dated several Religious Preference Registration forms, each of which included a staff witness signature, informing ECI staff of the faith group that he intended to practice. ECF 11-2 at 18-22. In the most recent form, dated August 23, 2017, Drummond selected “Rastafarian” as the religion he intended to practice. Id. at 22. Likewise, during Jones's incarceration at ECI, he signed and dated several Religious Preference Registration forms. Id. at 23-29. In the most recent form, dated August 9, 2018, Jones selected “No Religious Affiliation, ” indicating that he did not intend to practice a religion. Id. at 29.

         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[.]” ECF 11-3 at ¶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. at ¶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.

         Notably, at the relevant time, 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 11-2 at 2. Of import here, 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.

         Also 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 policy. See ECF 11-3 at ¶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 11-6 at ¶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 11-1 at 5-6.[3]

         On October 26, 2017, Drummond filed ARP complaint ECI-2788-17, asserting that by serving pork at breakfast on the date in question, ECI staff violated his First Amendment right to practice his religion. ECF 11-2 at 5-6. Drummond stated that he “is Rastafarian and is not allowed to eat any kind of pork products, because it is unholy, and unpure.” Id. He sought, inter alia, monetary compensation. Id.

         On November 7, 2017, Jones filed ARP complaint ECI-2889-17, asserting that by serving pork at breakfast on the date in question, ECI staff placed his health “in jeopardy.” Id. at 9-10. Jones claimed that as a result of eating pork, he vomited and suffered from diarrhea. Id. He also sought, inter alia, monetary compensation. Id.

         When responding to an ECI inmate's ARP complaint, Defendant Foxwell relies on the review and investigation by the staff. ECF 11-6 at ¶4. During the investigation of plaintiffs' ARP complaints 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 the food item in question was turkey sausage, and that eggs were available if any inmate wanted a substitute. ECF 11-2 at 7.

         On January 3, 2018, Foxwell provided the following response to plaintiffs' ARP complaints, id. at 5, 9:

Your request for Administrative Remedy has been investigated and is Meritorious in Part; upon review of reports from staff and supporting documentation, it has been determined that sausage that contained 2% or less dehydrated pork stock on 10/25/17. This was served as an oversite [sic] by multiple departments and the vendor. This product has been pulled and will not be served in the future. Eating of pork products does not cause health issues. Staff has been advised to check labels prior to serving.

         On December 21, 2017, before receiving a response from Foxwell, Jones filed an appeal of his ARP complaint to the Commissioner of Correction, arguing that Foxwell failed to timely respond. Id. at 11. On January 17, 2018, the Commissioner responded, id. at 12:

Your appeal has been investigated and is hereby found meritorious in part in that the Warden failed to adhere to the established timeframe outlined in OPS.185.0002. The investigation revealed you signed for the warden's response 8/19/17. The warden fully addressed your initial complaint. You were advised in the warden's response that staff has been instructed to check labels prior to serving. The relief you seek will not be provided.
The Warden is directed to adhere to the established timeframe outlined in OPS.185.0002.
No further action is warranted through the ARP process.

         On March 15, 2018, Jones filed a grievance appeal of the disposition of ARP complaint ECI-2889-17 with the Inmate Grievance Office (“IGO”). See ECF 11-5 at ¶4. The grievance was administratively dismissed, effective May 18, 2018, when Jones failed to respond to a letter from the IGO requesting that he provide supporting paperwork within 30 days. Id. On June 13, 2018, Jones filed another grievance appeal of the disposition of ARP complaint ECI-2889-17 with the IGO. That grievance is pending and, to my knowledge, no administrative decision has been issued. Id.

         There is no record that Drummond filed any further appeal of his ARP complaint with the IGO. See Id. at ¶3.

         II. ...


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