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Lee v. Foxwell

United States District Court, D. Maryland

October 31, 2019

TRACY SAMUEL LEE, MERVYN BIVENS, BRUCE ANTONIO RICKS, Plaintiffs,
v.
RICKY FOXWELL, Warden of ECI, ROBERT TROXELL, CDM, and DEPARTMENT OF PUBLIC SAFETY, AND CORRECTIONAL SERVICES, Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         This case arises from an isolated error on October 25, 2017, at Eastern Correctional Institution (“ECI”), a State prison 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 Tracy Samuel Lee, Mervyn Bivens, and Bruce Antonio Ricks were inmates housed at ECI. See ELH-18-3882 (Lee Compl.), ECF 1; Case ELH-19-18 (Bivens Compl.), ECF 1; Case ELH-19-56 (Ricks Compl.), ECF 1. They brought separate suits pursuant to 42 U.S.C. § 1983 against ECI Warden Ricky Foxwell, Dietary Manager Robert Troxell, Sr., and the Department of Public Safety and Correctional Services (“DPSCS”).[1]Claiming that consumption of pork is against their religion as Sunni Muslims, each plaintiff seeks compensatory and punitive damages for defendants' alleged violation of their First Amendment rights. Additionally, Lee seeks injunctive relief in the form of transfer to another institution. Case ELH-18-3882, ECF 1.

         By Order of January 29, 2019, I consolidated plaintiffs' cases. Case ELH-18-3882, ECF 6. And, because Mr. Lee's case was the first of the three to be filed, I designated it as the lead one for filing purposes. Id.; see also ELH-19-18, ECF 6; ELH-19-56, ECF 8. Hereafter, all citations reflect their electronic pagination in case ELH-18-3882.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ELH-18-3882, ECF 20. The motion is supported by a memorandum of law (ECF 20-1) (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 an opposition to the defendants' Motion could result in dismissal of their suit or judgment against them. ECF 21 (Lee); ECF 22 (Bivens); ECF 23 (Ricks). Bivens and Lee filed responses in opposition to defendants' Motion. ECF 24 (Bivens); ECF 26 (Lee); ECF 27 (Lee). Ricks filed motions for summary judgment. ECF 25; ECF 28. 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). Defendant DPSCS shall be dismissed from suit. Ricks's motions for summary judgment shall be denied. Defendants' Motion shall be construed as a motion for summary judgment as to the remaining defendants and shall be granted.

         I. Factual Background

         Plaintiffs state that on October 25, 2017, while incarcerated at ECI, they were served sausages that contained pork. See ECF 1 (Lee Complaint); ECF 7 (Bivens Complaint); ECF 12 (Ricks Complaint). Plaintiffs allege that defendants knew the sausages contained pork but decided to serve them nonetheless. See ECF 1 at 5; ECF 7 at 2; see also ECF 25 at 2. Plaintiffs claim that they are all practicing Sunni Muslims and that consuming pork is against their religion. ECF 1 at 2; ECF 7 at 3; ECF 12 at 2.

         As a result of eating the sausages, Bivens claims that he became ill and suffered vomiting, nausea, and diarrhea. ECF 7 at 3. Ricks claims that he began to have stomach pains and vomiting, prompting him to fill out a sick call slip. ECF 12 at 2.

         Troxell was the Correctional Dietary Manager at ECI during the relevant time. ECF 20-3 (Troxell Declaration), &1. In his Declaration, Troxell states that, in accordance with DPSCS policy, “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. Troxell avers that none of the plaintiffs ever submitted a written request for a Halal special diet on the basis of his Muslim faith. Id. ¶5.

         It is clear that, at the relevant time, the DPSCS did not order sausages with 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 20-2 (DPSCS Records) at 3. 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 4) indicates an “Item Description” of “Turkey Sausage Links.” Further, the “Receiving Report” describes the “articles” as “Turkey Sausage links.” Id. at 5.

         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 20-3, ¶6. Troxell avers that ECI relies on the commercial food vendors to comply with this policy. Id. Defendants also expect ECI staff to comply with Division of Correction Directives and ECI policies regarding inmate meals. Id. at ¶7; ECF 20-5 (Foxwell Declaration), ¶3.

         Defendants do not dispute, however, that 12 of the 192 cases of “sausage that contained 2% or less dehydrated pork stock” were served to ECI inmates on October 25, 2017. See ECF 20-1 at 6.[2] Troxell states that once the sausage links were discovered to contain pork stock, they were not served again and the remaining 180 cases of the turkey sausage links were returned to the commercial vendor for credit. ECF 20-3, ¶9. The Bill of Lading business record reflecting the original order of 192 cases of turkey sausage includes a handwritten notation that 180 cases were returned. See ECF 20-2 at 6.

         In their responses to defendants' Motion, plaintiffs assert that ECI correctional dietary officers had been aware that the sausages contained pork prior to serving them. See ECF 24 at 3-6; ECF 25 at 2; ECF 26. To support their assertion, all three plaintiffs attached as an exhibit a Notice of Incident/Matter of Record (“MOR”) dated October 25, 2017, and completed by ECI correctional officer Sgt. T. Twilley. It states, ECF 24-1; ECF 26-1; ECF 28-1:

On 10/25/17 I Sgt. T. Twilley CDO II reported for duty as East Dietary First Officer at 0750. At approximately 0825 Sgt. Farina CDO II reported for duty and I called for the AM dietary workers. As a couple of the workers arrived to work they asked if the sausage for breakfast was pork; I told them no it should not be, the warehouse/dietary does not get pork to serve to population, they said they were told by some of the PM workers it had pork in it, I again told them it could not be we don't get pork products of any sort to serve. The sausage for the seg line and part of the food line to start was cook [sic] that night. I went into the walk in to check the labels there were no labels on any of the boxes, so I held firm they were turkey sausage. After the seg line had been completed I went to the back flipped over the back, there was a MOR with a sausage label on it. I took a fast look at the label and it said Turkey Sausage. I did not read the MOR or the label any more, the sausage were [sic] turkey. I was still asked by some of the kitchen workers if it was pork sausage I told them no it was turkey. After the second line went through, I was asked again. I was in the back with food service work getting product out. The 3rd line started and was about ½ or more through when I came out of the back. I at this time went into the office, to read Sgt. Riddick CDO's MOR. At this time of reading it I found that the item in the Turkey Sausage there was pork stock, I didn't read any more to see if it was natural . . . . I went to the front line only to find there were only approx 6-10 people left in the line. I spoke to some of the PM shift later and was told they had pointed it out to Sgt. Morris CDO II when the sausage came in and he acted as if he did not care, and stated they will eat it anyway. I don't know if he said this I was not there. On Friday 10/27/17 when Sgt. Riddick came back to work I asked her about it. She stated she wrote a MOR about it, and that she kept getting told because Sgt. Morris was told when the food service truck came in and did not care and would do nothing about it, and still had them pan the sausage up. She said when she asked him about it, he acted as they [sic] it did not matter and he did not care. This product should have never been sent into the compounds from the warehouse. The warehouse foods officer whom [sic] received the products from vendors should have caught this and never received this product.

         On November 10, 2017, Ricks filed Administrative Remedy Procedure (“ARP”) complaint ECI-2908-17, and on November 12, 2017, Bivens filed ARP complaint ECI-2927-17. ECF 20-2 at 7-8, 24-26. Both plaintiffs asserted that by serving pork at breakfast on the date in question, ECI staff violated their First Amendment right to practice their religion. Id. Both plaintiffs also stated that they became ill after consuming pork. Id. They sought, inter alia, monetary compensation. Id.

         When responding to an ECI inmate's ARP complaint, Foxwell relies on the review and investigation by the staff. ECF 20-5, ¶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 Division of Correction, that the food item in question was turkey sausage, and that eggs were available if any inmate wanted a substitute. ECF 20-2 at 35.

         On November 28, 2017, Foxwell provided the following response to Bivens's ARP complaint, id. at 7:

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. Per the Chaplains [sic] office; not to eat pork is a religious preference. Eating of pork products does not cause health issues. Staff has been advised to check labels prior to serving.

         Foxwell provided a similar response with regard to Ricks's ARP complaint on November 30, 2017. Id. at 24.

         Both Bivens and Ricks appealed their respective ARP complaints, asserting that, pursuant to prison procedures, “no pork or pork products shall be purchased or served for inmate food services.” See Id. at 13-18; 29-30. The Commissioner of Correction dismissed both appeals, stating: “You were advised in the warden's response that staff has been advised to check labels prior to serving.” Id. at 12, 28. The Commissioner also advised Bivens and Ricks that the relief or remedy they sought would not be provided. Id.

         Thereafter, Bivens filed a grievance with the Inmate Grievance Office (“IGO”), No. 20180163, which was reviewed and dismissed on March 12, 2018. ECF 20-4 (Hassan Declaration), ¶3. Ricks also filed a grievance with the IGO, No. 20180162, which was reviewed and dismissed on July 18, 2018. Id. at ¶3. There is no record that Lee filed any ARP appeal regarding this incident with the IGO. See Id. at ¶5.

         I. Standard of Review

         Defendants' Motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011).

         Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary judgment under Rule 56, ” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see Adams Housing, LLC v. The City of Salisbury, Maryland, 672 Fed App'x 220, 222 (4th Cir. 2016) (per curiam). But, when the movant expressly captions its motion “in the alternative” as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         A district judge has “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the parties' procedural rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material “is likely to facilitate the disposition of the action, ” and “whether discovery prior to the utilization of the summary judgment procedure” is necessary. Id. at 165-67.

         Summary judgment is generally inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 Fed. App'x 632, 638 (4th Cir. 2016) (per curiam); McCray v. Maryland Dep't of Transportation, 741 F.3d 480, 483 (4th Cir. 2015). However, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting E ...


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