Civil No. 3:12-CV-1441.

RICHARD POTTS, Plaintiff, v. RONNIE HOLT, et al., Defendants.

United States District Court, M.D. Pennsylvania.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER

Attorney(s) appearing for the Case

Richard Potts, Plaintiff, Pro Se.

Ronnie R. Holt, Defendant, represented by Timothy Judge , U.S. Attorney's Office.

Wayne Ryan, Defendant, represented by Timothy Judge , U.S. Attorney's Office.

A.F.S.A. Deshawn China, Defendant, represented by Timothy Judge , U.S. Attorney's Office.


MARTIN C. CARLSON, Magistrate Judge.


This lawsuit was brought by Richard Potts, an inmate in the custody of the Federal Bureau of Prisons currently housed at the United States Penitentiary in Atwater, Georgia. Potts was previously held at the United States Penitentiary at Canaan, in Waymart, Pennsylvania. Potts is a Muslim and adheres to a religious diet that conforms to the dictates of his faith. Potts claims that his constitutional and federal rights were violated in the summer of 2011 when prison officials temporarily suspended the service of the food services program, including religious diets, following a massive outbreak of salmonella poisoning at USP Canaan, which sickened hundreds of inmates.

This action now comes before the Court on the defendants' renewed motion to dismiss, or alternatively for summary judgment. (Doc. 69.) The Court previously found that the plaintiff's claims for violations of the Eighth Amendment failed, and that they were otherwise entitled to qualified immunity on the plaintiff's claims alleging violations of the First Amendment and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb et seq. On appeal, however, the Third Circuit reversed this decision, in part. After affirming the dismissal of the Eighth Amendment claims, the Third Circuit in a per curiam ruling found that the defendants had not on the limited factual record that was then before the court sufficiently demonstrated that they were entitled to qualified immunity on the remaining First Amendment and RFRA claims, which were grounded in Potts's claims that the defendants' temporary suspension of the certified food component ("CFC") of its food services program, which provided the plaintiff with a meal comporting with the dictates of his religious faith, violated federal law notwithstanding the reasons given for the emergency measure. In its ruling, however, the Third Circuit observed that it "express[ed] no opinion on the merits of those claims or on whether, at some later stage, defendants might show that they are entitled to qualified immunity." (Doc. 58-1, at 10.) The Third Circuit also expressed no opinion on any other arguments that the defendants raised in their initial motion to dismiss but which had neither been addressed in the district court's ruling or by the defendants on appeal. (Id.)

Mindful of this coda in the Third Circuit's decision, the defendants have renewed their motion, asserting a variety of legal arguments that they are entitled to judgment in their favor on the plaintiff's claims, and that they are entitled to qualified immunity on the undisputed facts. The defendants have also taken pains to develop a more fulsome evidentiary record. To this end, the defendants have supported their motion with eight affidavits from officials and personnel who were at USP Canaan at the time, including Warden Holt, Defendant China, investigators involved in responding to the food poisoning outbreak, a medical professional who were directly involved in the dietary prescriptions that were temporarily implemented, food services personnel, and corrections staff.1 These declarations consistently attest that USP Canaan suspended its food services operations on June 28, 2011, in the immediate aftermath of an unprecedented widespread outbreak of food-borne contagion in the prison. The essentially undisputed evidence further reveals that the defendant prison supervisors named in this lawsuit reinstated this food service within four days, and that as of mid-day on July 1, 2011, inmates entitled to CFC meals began receiving them again, and other inmates were provided meals from the enhanced diet typically provided at the prison.

Contrary to Potts's spare allegations regarding his own receipt of meals conforming to his religious requirements, these declarations indicate that for approximately the next two weeks following the institution-wide prescription of a medical diet for all inmates, meals continued to be delivered to the penitentiary from the adjacent camp, and that inmates receiving the enhanced diets received their meals first, and then CFC meals were distributed to inmates on religious dietary restrictions. The evidence indicates that none of the declarants was at any time aware that any inmates on the CFC program were complaining that they were not receiving CFC meals after July 1, when the medical diet was lifted and the enhanced diet was resumed.

Although the plaintiff attempts to argue that Defendant China previously provided contradictory evidence on this score, he is mistaken. Defendant China, the Assistant Food Services Administrator at the time, previously provided some description of the meals served during this period following the food-poisoning outbreak, and also attested generally that "[d]uring emergency situations, the Certified Food Component of the Religious Diet Program is met as soon as inmates can be located and identified as Certified Food Participants." (Doc. 23-1, Declaration of DeShawn China, at ¶ 27.) China's initial declaration provided little information regarding the provision of religious meals during this time, was essentially silent as to when CFC meals were resumed, and was in large measure not especially responsive to the claims Potts was actually making. In his current declaration, China expands upon his earlier attestations and now specifically has explained how the CFC component of the food services program was implemented during this temporary period when the food services operation within the penitentiary had been suspended, and food was being transported into the prison from the camp next door.

China and each of the declarants have stated that the medical diet remained in effect for all prisoners, without exception, from June 28 until lunch on July 1, 2011, and that CFC meals were prepared and provided to inmates as of that time. The declarants attest that the provision of CFC meals was not delayed until July 12 or 13, as Potts has claimed. On the basis of the factual representations made under oath in these declarations, the arguments raised in the defendants' motion, and the undisputed facts in the evidentiary record that Potts has not effectively disputed, we recommend that the defendants' motion be granted, because the record indicates that the institution-wide brief cessation of CFC meals — lasting from June 28, 2011 until lunch on July 1, 2011 — did not violate the plaintiff's federal rights, and because the defendants would otherwise be entitled to qualified immunity on these claims based upon the facts that are now clear.

In addition, to the extent the plaintiff is claiming that the suspension of religious meals at USP Canaan lasted for at least two weeks — something that the Third Circuit focused on somewhat in its decision, based on Potts's allegations — the undisputed factual record simply does not support this contention. To the contrary, the evidence demonstrates that the prison reinstituted CFC meals, alongside the enhanced diet typically served, beginning with the lunch meal on July 1, 2011.

In sum. Given the sign9ficantly more fulsome factual background which has now been developed in this case, what we are left with is a record that shows USP Canaan suspended the CFC program for at most four days, along with the plaintiff's individual claim that he personally did not receive religious until mid-July — something that finds support only in the plaintiff's declaration and in an affidavit submitted by the plaintiff's cellmate at the time.2 Even if this limited evidence provided some support for Potts's claims on an individual basis, however, Potts fails to adduce any evidence — or really even to allege — that the three named defendants personally directed, or were otherwise involved in any way, with this alleged deprivation. In our review of the record, we find no evidence that would support a finding that any policy regarding the cessation of religious meals within USP Canaan continued beyond lunch on July 1, 2011, and no evidence that any of the defendants had any involvement in the alleged deprivation of Potts's meals during the ensuing two-week period, or that they were even aware that Potts was claiming he was not receiving CFC meals.3 Indeed, the evidence indicates that none of the declarants, and none of the defendants, was even aware that Potts was claiming he had not received a religious diet for an extended period.4 Because settled federal law requires that a defendant have had personal involvement in a claimed violation of the First Amendment or the RFRA to be subject to liability, the absence of evidence on this score alone warrants summary judgment in the defendants' favor.

Finally, because the defendants have thoroughly documented the chronology of the food-poisoning outbreak and their response to it, and because this chronology reveals that CFC meals were reinstituted at most four days after an unprecedented health crisis broke out within the prison, it will be recommended that the Court again find that the defendants are entitled to qualified immunity on Potts's claims. In reversing the Court's prior finding that qualified immunity applied, the Third Circuit explained that its ruling in no way precluded a subsequent finding that qualified immunity may be warranted; the court simply found that the defendants had not sufficiently established their entitlement to qualified immunity in the face of Potts's claims, which asserted that CFC meals were not provided until the end of the lockdown of the penitentiary on July 13, 2011.

The record, now fully developed, compels a finding that the defendants should be granted qualified immunity for their involvement in the decision to temporarily suspend the CFC component of the food services program for what we now know was at most four days in duration, since no reasonable federal official in their position would have realized that this response to an institution-wide health crisis would violate the United States Constitution or federal law — something that finds support in case law from the Third Circuit and other federal courts on similar facts. See Norwood v. Strada, 249 F. App'x 269 (3d Cir. 2007) (finding that inmate had not demonstrated that his religious expression was substantially burdened for purposes of the RFRA where he had been denied seven religious meals during an emergency lockdown).


The defendants have again filed a motion to dismiss or, in the alternative, for summary judgment. The legal standards governing the motion are set forth below.

A. Rule 12(b)(6) B Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45B46 (1957) ). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of necessary elements of the plaintiff's cause of action. Id. at 556. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 555).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir.2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment."). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994).

B. Rule 56(a) — Motion for Summary Judgment

The defendants have alternatively moved for judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, which provides that "[t]he court shall 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. Rule 56(a). Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine dispute as to any material fact," Fed. R. Civ. P. 56(a), and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party Afails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,@ summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment." Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). This rule applies with particular force to parties who attempt to rely upon hearsay statements to establish material issues of fact which would preclude summary judgment. With respect to such claims, it is well-settled that: "In this circuit, hearsay statements can be considered on a motion for summary judgment [only] if they are capable of admission at trial." Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223, n.2 (3d Cir. 2000), citing Stelwagon Mfg. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275, n.17 (3d Cir. 1995). In this regard it has been aptly observed that:

It is clear that when considering a motion for summary judgement, a court may only consider evidence which is admissible at trial, and that a party cannot rely on hearsay evidence when opposing a motion for summary judgment. See Buttice v. G.D. Searle & Co., 938 F.Supp. 561 (E.D.Mo.1996). Additionally, a party must respond to a hearsay objection by demonstrating that the material would be admissible at trial under an exception to hearsay rule, or that the material is not hearsay. See Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351 (N.D.Ga.2003). The mere possibility that a hearsay statement will be admissible at trial, does not permit its consideration at the summary judgment stage. Henry v. Colonial Baking Co. of Dothan, 952 F.Supp. 744 (M.D.Ala.1996).

Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa. Aug. 26, 2005).

Thus, a party may not rely upon inadmissible hearsay assertions to avoid summary judgment. Therefore, where a party simply presents inadmissible hearsay declarations in an attempt to establish a disputed material issue of fact, courts have typically rebuffed these efforts and held instead that summary judgment is appropriate. See, e.g., Synthes v. Globus Medical, Inc., No. 04-1235, 2007 WL 2043184 (E.D.Pa. July 12, 2007); Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa. Aug. 26, 2005); Carpet Group Int'l v. Oriental Rug Importers Assoc., Inc., 256 F.Supp.2d 249 (D.N.J. 2003).

Similarly, it is well-settled that: "[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F.App'x 896, 899 (3d Cir. 2007)(citation omitted). Thus, A[w]hen a motion for summary judgment is made and supported . .., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. Of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982)."[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).

Finally, a party who seeks to resist a summary judgment motion must also comply with Local Rule 56.1, which specifically directs a party opposing a motion for summary judgment to submit a Astatement of the material facts, responding to the numbered paragraphs set forth in the statement required [to be filed by the movant], as to which it is contended that there exists a genuine issue to be tried"; if the nonmovant fails to do so, A[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted." L.R. 56.1.Under the local rules, the failure to follow these instructions and appropriately challenge the material facts tendered by the defendant means that those facts must be deemed, since:

A failure to file a counter-statement equates to an admission of all the facts set forth in the movant's statement. This Local Rule serves several purposes. First, it is designed to aid the Court in its determination of whether any genuine issue of material fact is in dispute. Second, it affixes the burden imposed by Federal Rule of Civil Procedure 56(e), as recognized in Celotex Corp. v. Catrett, on the nonmoving party `to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designated specific facts showing that there is a genuine issue for trial.' 477 U.S. 317, 324 (1986) (internal quotations omitted) (emphasis added). Doe v. Winter, No. 04-CV-2170, 2007 U.S. Dist. LEXIS 25517, *2 n.2 (M.D. Pa. Apr. 5, 2007) (parallel citations omitted; court's emphasis). A party cannot evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 U.S. Dist. LEXIS, *15 (M.D. Pa. July 20, 2010) (pro se parties Aare not excused from complying with court orders and the local rules of court"); Thomas v. Norris, No. 02-CV-01854, 2006 U.S. Dist. LEXIS 64347, *11 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules of Civil Procedure).


Potts claims that the defendants' temporary suspension of the CFC aspect of the prison meal program, and the prescription of a medical meal service throughout the penitentiary for several days following the outbreak of food poisoning throughout the prison, violated his rights under the RFRA and the First Amendment.

The general right of inmates to receive a religiously acceptable diet is not in dispute, and the defendants do not argue that Potts was, as a general matter, not entitled to receive religious meals as an inmate. What is in dispute is whether the admitted suspension of that religious diet violated Potts's rights under the First Amendment or the RFRA. Although these claims are similar in many respects, "[c]laims under the First Amendment and claims under the RFRA are analyzed separately." Garraway v. Lappin, 490 F. App'x 440, 443 (3d Cir. 2012). Accordingly, Potts's First Amendment and RFRA claims are addressed individually below.

A. First Amendment

The First Amendment provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S. Const. amend. I. "Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). In accordance with the retention of these constitutional rights, it has long been settled that prisoners are entitled to religiously acceptable meals while they are incarcerated. Williams v. Bitner, 455 F.3d 186, 192 (3d Cir. 2006); Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003); DeHart v. Horn, 227 F.3d 47, 52, 59 & n.8 (3d Cir. 2000) (en banc); see also Norwood v. Strada, 249 F. App'x 269, 271 (3d Cir. 2007) ("[C]ases generally indicate that prison administrators must provide an adequate diet without violating an inmate's religious dietary restrictions in order not to unconstitutionally burden free exercise rights.").

At the same time, "the fact of incarceration and the valid penological objectives of deterrence of crime, rehabilitation of prisoners, and institutional security justify limitations on the exercise of constitutional rights by inmates." DeHart, 227 F.3d at 50-51 (citing Pell v. Procunier, 417 U.S. 817, 822-23 (1974)). Thus, absent a legitimate penological interest, an inmate generally retains the right to receive a diet consistent with his beliefs under the Free Exercise Clause. DeHart, 227 F.3d at 52; see also Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014) (inmate has right under the First Amendment to a diet that is consistent with his "religious scruples").

The fact that inmates generally retain their right to a diet that conforms to their religious tenets does not mean that prison officials are powerless to impose limits or regulations on that right in certain circumstances. In Turner v. Safley, the United States Supreme Court instructed that any such restrictions on an inmate's free exercise of his religion while incarcerated must be reasonable, and prescribed a four-part standard that must be satisfied in determining whether a given restriction is lawful. Those four factors are: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest" put forward to justify it; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) whether there is an "absence of ready alternatives" to the regulation. Williams v. Morton, 343 F.3d 212, 217 (quoting Turner, 482 U.S. at 89-90); see also DeHart, 227 F.3d at 51 (courts apply the Turner factors to determine whether the curtailment of the right at issue is "reasonably related to penological interests.").5

Turner does not specifically address whether the inmate or the prison bears the burden of proving the factors, but the Third Circuit applies "a two-step analysis for determining whether a prison's regulation is reasonably related to a penological interest." Sharp v. Johnson, 669 F.3d 144, 156 (3d Cir. 2012). The prison has the burden of demonstrating the first Turner factor. This burden is slight, and in some circumstances the connection be "a matter of common sense." Id. If the prison meets this first burden, then the court proceeds to consider the remaining three Turner factors.

In its prior ruling, the district court found that the state of the record as it existed at that time did not allow for sufficient analysis of these four factors. Although we did not previously address these factors in depth because the facts as they were interpreted at the time suggested to the Court that the claims in this case were subject to qualified immunity analysis, we consider them more fully in light of the evidence that has been developed.

With respect to the first factor, the defendants have asserted that after becoming aware that hundreds of prisoners within the penitentiary were complaining of experiencing substantially similar gastrointestinal and related acute illness suggestive of food poisoning, prison officials, including food services personnel and medical professionals, made the decision to impose a blanket suspension of the normal meal delivery system, and to place all inmates on a bland or medical diet starting with the lunch meal on June 28, 2011. The defendants have supported their justification for taking this step through the affidavits of multiple individual employees at USP Canaan who have attested to the following facts, none of which the plaintiff has disputed:

• On June 26, 2011, after scores of inmates began complaining of stomach cramps, vomiting, diarrhea, fever, and headaches, health services professionals began attempting to determine the cause of the prisoners' illness and keep the prison population hydrated and nourished. • CFC meals continued to be distributed from June 26, 2011, until lunch on June 28, 2011, when USP Canaan was placed on an institutional lockdown while prison officials and the Health Services department addressed the outbreak of what appeared to be widespread food poisoning. • During the first two days of an institution-wide lockdown, bagged meals were provided to all inmates, and inmates who were participating in the CFC program received CFC meals that were compliant with religious dietary restrictions. • On June 28, 2011, an outside hospital advised officials at USP Canaan that test results returned positive for salmonella virus, and the decision was made following the breakfast meal temporarily to suspend all USP Canaan food service operations. Because officials determined that they were confronting a health crisis, Warden Holt and other administrators deferred to the clinical judgment of licensed health services professionals at the prison with respect to the institution's response in terms of food preparation and service. To that end, the Health Services Department specifically ordered that all foods maintained in the penitentiary's kitchen be destroyed, and that the entire food services department be subject to cleaning. The Health Services department further ordered that beginning with lunch on June 28, 2011, all inmates be provided with a medical or "bland" diet for each of the three daily meals. This dietary restriction lasted until lunch on July 1, 2011, when regular diets were resumed. During this temporary measure, all breakfast food served to all inmates was CFC compliant, and all meals were prepared in a satellite prison camp kitchen and delivered into the penitentiary where there were distributed among the housing units. • During this temporary suspension of the regular meal program, and the outsourcing of food preparation to the camp facility, prison and health officials had not identified the sources of the salmonella contamination. Potts has not disputed this, other than to assert — based only on his own alleged personal understanding — that no inmates on the CFC diet had been sickened. Nothing in Potts's complaint or his declaration or his brief provides any compelling explanation as to how he came to know this "fact." He does not dispute the assertion that health officials had not isolated the source of the contamination, and it is difficult to perceive how Potts possibly could do so. • After the breakfast meal on July 1, it was confirmed that no new cases of possible food-borne illness had been reported as of June 30, 2011, and there had been a steady decline in sick-call complaints. Prison officials conferred with Central and Northeast Regional Health Services Administrators, and Health Services made the decision to lift the medical diet restrictions that had been implemented. • The penitentiary thereafter returned to an "enhanced" diet, and at the same time reinstated CFC meals for inmates who had been approved to participate in the program. CFC meals were frozen and stored in a freezer box at the prison camp, and were heated at the camp before being delivered and distributed to inmates within the penitentiary. • Officials responsible for overseeing food preparation and delivery of meals, including the CFC meals, have attested that after these meals were reinstated on July 1, they did not receive any complaints from inmates claiming that they had been denied CFC meals.

(Doc. 72, Ex. 1, China Decl. ¶¶ 3-9; Ex. 2, Holt Decl., ¶¶ 2-5; Ex. 3, Gintz Decl., ¶ 3; Ex. 4, Holloway Decl., ¶¶ 4-11; Ex. 5, Branning Decl., ¶¶ 4-6; Ex. 6, Slawtisky Decl., ¶¶ 4-7; Ex. 7, McCutcheon Decl., ¶¶3-5; Ex. 8, Brandenburg Decl., ¶¶ 4-5.)

It is beyond argument that prison officials are responsible for inmate health and safety, and that prison regulations aimed at protecting prison are "central to all other corrections goals." Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (quoting Pell v. Procunier, 417 U.S. 817, 823 (1974)); see also Sample v. Angelone, 173 F.3d 425 (4th Cir. 1999) (table) (district court properly determined that prison regulation requiring PPD testing of inmates and staff for tuberculosis is reasonably related to "the legitimate penological objective of ensuring the health and welfare of inmates"). We submit that in the face of the undisputed fact that USP Canaan was confronted with an outbreak of foodborne illness that quickly afflicted hundreds of inmates, which was confirmed to be salmonella poisoning of unknown origin, and which necessitated the shuttering and cleaning of the penitentiary's food services operations, the defendants have amply demonstrated that they had a legitimate penological interest in temporarily suspending the regular food services program, and placing inmates on a medical diet, until the source of the contamination could be isolated, and health officials reasonably assured that the crisis had been contained.6

With respect to the remaining factors, the district court previously found that there was inadequate evidence that could permit the court to determine whether Potts remained able to practice his religion through avenues other than his diet. (Doc. 54, at p. 18.) Potts has, in fact, not suggested that his ability to practice his faith was impaired other than by having some of his CFC meals withheld, and he has not offered any allegation or evidence to suggest that his right to practice his religious faith was otherwise impaired. Although the court appreciates that in some circumstances courts may need to inquire into the ways in which a prisoner's faith is practiced and the extent to which he was able to practice his religion in non-dietary ways, in this case that seems difficult to do since Potts has not claimed that his right to practice his religion was impaired as a general matter; he has claimed that the deprivation of religiously-acceptable meals alone violated his rights. With respect to this point, the record reflects that all breakfast meals served during the temporary shutdown of the food services operations were CFC-compliant, and that no-flesh alternatives were also made available. (Def. SMF ¶¶ 76-82.) But assuming that Potts received meals during the shutdown that were not CFC-compliant, there is nothing in this case to suggest that Potts was in any other way prevented from fully exercising his religious faith.

Turner instructs that where "`other avenues' remain available for the exercise of the asserted right, . . . courts should be particularly conscious of the `measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.'" Turner, 482 U.S. at 90 (quoting Pell, 417 U.S. at 827). In contrast, "where the regulation leaves no alternative means of exercising the asserted right, the inmate's interest in engaging in constitutionally protected activity is entitled to greater weight in the balancing process." DeHart, 227 F.3d at 53. With respect to this point, the Supreme Court has further made clear that when determining whether "alternative means of exercising the right" remain open, "`the right' in question must be viewed sensibly and expansively." Thornburgh, 490 U.S. at 417 (quoting Turner, 482 U.S. at 92).

The expansive nature of this inquiry is made further clear in O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), where inmates challenged policies adopted by New Jersey prison officials which resulted in the inmates' inability to attend Jumu'ah, a weekly Muslim congregational service. The Supreme Court recognized that Jumu'ah is "commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. . . . There is no question that respondents' sincerely held religious beliefs compelled attendance at Jumu'ah." 482 U.S. at 345. The Court recognized that the prison regulation being challenged — which restricted the right to attend Jumu'ah — meant that "there are no alternative means of attending Jumu'ah." Id. at 351. However, the Court found that the plaintiffs did have "alternative means of expressing their Muslim faith generally." DeHart, 227 F.3d at 53 (discussing O'Lone). In this regard, the right in question is the "right to religious expression. In other words, we must inquire whether [Potts] has alternative means of exercising his [Muslim] beliefs generally (e.g., by prayer, worship, meditation, scripture study, etc.)." Id. at 54.

Potts has framed this dispute as being over the restrictions placed on his religious diet; he has not asserted in any way that his right to practice his faith was otherwise restricted or affected. While the defendants have not submitted evidence to catalog the other ways in which Muslim inmates could continue to practice their faith during the time of the lockdown and suspension of food services, it is submitted that the absence of evidence on this score does not warrant, much less compel, a finding that the Turner factors are not satisfied, particularly in light of the other evidence supporting the decision of prison and medical officials to suspend temporarily the food services operations, and the CFC program, in the face of an alarming health emergency, where Potts does not even allege that his right to practice his faith was impacted in any way aside from his diet.

The third Turner factor requires the Court to analyze the impact of accommodating Potts's dietary request on inmates, prison personnel, and allocation of prison resources. DeHart, 390 F.3d at 269. Notwithstanding Potts's claim that he personally did not receive religiously acceptable meals until July 12, 2011, the evidence submitted by the defendants uniformly attests to the fact that the defendants ordered resumption of service of regular and CFC meals as of lunch on July 1, 2011, and Potts has not effectively disputed that this resumption went into effect on an institution-wide basis at that time. He has instead attested that he did not receive CFC meals for almost two more weeks. We thus view Potts's claim as asserting that he should have continued to be provided with CFC meals throughout the lockdown, notwithstanding the medical emergency that existed, because prison and health officials should have realized that inmates on the CFC diet had not been sickened, and therefore should have concluded that the source of the food poisoning came from somewhere other than CFC meals. The record on this score is, however, decidedly to the contrary.

Defendant China and other declarants have attested to the fact that during the time period when the medical diet was prescribed to all inmates by Health Services personnel, the CFC program had also been suspended as a cautionary measure because the nature of the outbreak had not been narrowed to any specific food, storage area, or food preparation area. (Def. SMF ¶ 64.) At this time, the prison's priority was in making these health determinations, preventing new illness from spreading, and treating the hundreds of inmates who had become ill. Defendant China attested that because the source or sources of the contamination had not been identified, "[t]he institution had to take immediate steps to contain and treat the illness and could not wait until the source of the contamination was confirmed." (China Decl, ¶ 7.)

Dr. Holloway, for his part, similarly attested that as of June 28, an outside hospital confirmed positive tests for salmonella virus, and the Health Services department promptly ordered the disposal of all food maintained by Food Services and that all kitchen areas be cleaned. He further affirmed that because the source of the salmonella was yet unknown, and because of the "rapidly-growing number of inmates reporting symptoms consistent with a food-borne illness, there was a need to promptly contain the spread of the illness and treat the inmates who reported the illness." (Holloway Decl., ¶¶ 7-8.) At that time, the Clinical Director at the prison ordered that a medical diet be prescribed for all inmates, beginning with lunch on June 28, and ending on July 1. (Id., ¶ 8.)

Defendant Holt likewise attested that under the emergent circumstances, he deferred to the clinical judgment of trained and licensed healthcare professionals who ordered the medical diet be prescribed without exception. (Holt Decl., ¶¶ 4, 6.) Defendant Holt was unequivocal: "The suspension of the religious meals under the Certified Food Component (CFC) program was necessary during the implementation of the bland diet, because the salmonella outbreak had not been linked with any particular food, food storage area, or food preparation utensil." (Id., ¶7.) Potts's unsupported assertions to the contrary are ineffective to dispute the defendants' uniform attestations on this score.

The evidence in this case thus reveals that prison and medical officials, in collaboration, determined that the appropriate response to the health emergency they encountered was the temporary suspension of all food services at USP Canaan, the outsourcing of food preparation to the prison camp, and the prescription of a medical diet for all inmates while the situation was assessed and contained. The evidence also shows that this process lasted, on an institution-wide basis, from June 28 to lunch on July 1. The only competent evidence before the Court warrants the conclusion that Potts's requested accommodation of continuing to receive a CFC diet for all three meals during this emergency period was incompatible with the institutional needs at the time, and thus it is submitted that the third Turner factor tilts sharply in favor of the defendants.

Finally, the fourth Turner factor looks at whether prison administrators had readily available alternatives that would have accommodated Potts's request for religious meals during this time. The existence of such alternatives "may be evidence that the regulation is not reasonable, but is an `exaggerated response' to prison concerns." Turner, 482 U.S. at 90. Potts has simply not identified, in any plausible way, the existence of such obvious or easy alternatives to the temporary imposition of the medical diet while the food services operations at USP Canaan were suspended. Indeed, the record is now replete with declarations attesting to the determination of prison officials, food services personnel, investigators, and a medical professional, demonstrating that the brief suspension of the CFC program and the regular meal service at the prison was imposed as a necessary cautionary measure in response to a massive outbreak of food poisoning that had, at the time of the suspension, not been isolated to any specific food, storage facility, or preparation area within the penitentiary.

Thus, upon consideration of the significantly more robust evidentiary record that the defendants have now presented, it is submitted that Potts has failed to demonstrate either that the Turner factors weigh in his favor on his claim regarding the cessation of the CFC program, and he has not adduced evidence to show a genuine issue of material fact in support of his narrow First Amendment claim on the facts of this case. It will therefore be recommended that, on the merits, the court enter judgment in favor of the defendants on Potts's First Amendment claim.7


The RFRA was enacted to restore the "compelling interest" test for "striking the balances between religious liberty and competing prior governmental interests." 42 U.S.C. § 2000bb(a)(5). Under the RFRA, the "Government shall not substantially burden a person's exercise of religion even if the burden results from a general rule of applicability," unless the government can demonstrate that "the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. The plaintiff has the burden of establishing the elements of a prima facie case, and once a prima facie case has been established, the government bears the burden of showing a compelling interest and that it used the least restrictive means to carry out that interest. Conestoga Wood Specialties v. Sebelius, 917 F.Supp.2d 394, 410 (E.D. Pa. 2013).

The Third Circuit has explained that the government substantially burdens an individual's exercise of religion where (1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning the precepts of his religion in order to receive a benefit or (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs. Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007); see also Norwood v. Strada, 249 F. App'x 269, 271 (3d Cir. 2007). It is only after a prisoner has demonstrated that the government has substantially burdened the exercise of his religious beliefs that the government has the obligation to show that it has a compelling interest justifying its actions, and that it is furthering those interests by the least restrictive means possible. Garraway v. Lappin, 490 F. App'x 440, 444 (3d Cir. 2012) (citing Small v. Lehman, 98 F.3d 762, 767 (3d Cir. 1996)). As the Third Circuit explained in Norwood, "this is a constitutional right not to be forced into a Hobson's choice of either eating food items which offend one's religious beliefs, or eating very little or nothing at all." 249 F. App'x at 272.

The defendants have submitted evidence showing that inmates receiving CFC diets continued to receive them from June 26 until breakfast on June 28, 2011, when the medical diet was prescribed to all inmates as an emergency medical measure. The defendants have also attested that at the time the medical diet was implemented for all inmates, breakfast meals were CFC-compliant. The question, thus, appears to be whether the failure to provided religious diets at lunch and dinner from June 28 until lunch on July 1 imposed a "substantial burden" on Potts's exercise of his religion.

In Norwood, the Third Circuit provided guidance that is particularly apt given what we now know about the facts surrounding the emergency measures taken following the salmonella outbreak, and the temporary prescription of a medical diet throughout the prison. As the court stated in that case, where an inmate claimed he had been deprived of seven religious meals during a temporary prison lockdown, the issue is "much more circumscribed; it is whether a short denial of such a diet during an emergency lock-down was a `substantial burden,' or a mere de minimis intrusion." 249 F. App'x at 272. In that case, the district court had concluded that "it is incredible that in such a short time period Norwood would have been forced to abandon one of the precepts of his religion, or that he would have felt substantial pressure to modify his beliefs." Id. The Third Circuit agreed, finding that the plaintiff had failed to submit sufficient evidence to show that his religious beliefs were substantially burdened by the emergency measures that had been taken at the time he was deprived of several religious meals. Id.

The result should be no different in this case, where the defendants have now supported their motion for summary judgment with evidence attesting to the extremely limited duration of the emergency lockdown, the temporary suspension of the entire penitentiary's food service program, the fact that prison and health officials did not know the source of the outbreak or what may have remained contaminated, and that medical professionals deemed an institution-wide medical diet necessary for a brief period of time. As in Norwood, it is difficult to conceive how the cessation of CFC meals from June 28 to July 1, 2011, could constitute a "substantial burden" on Potts's exercise of his religious beliefs, and it is submitted that the defendants have submitted adequate and undisputed evidence attesting to the reasons for the temporary changes made to the prison food program, and to the brevity of any deprivation inmates on the CFC program may have endured.

C. Lack of Personal Involvement

We turn now to Potts's disputed contention that he was not provided any meals comporting with his religious beliefs until the lockdown at USP Canaan was lifted on July 12 or 13, 2011. Potts has offered evidence in support of this assertion by way of a declaration from his cellmate, which was attached to the amended complaint, and through Potts's own declaration offered in opposition to the defendants' motion for summary judgment. Although this evidence is substantially dwarfed by the defendants' declarations regarding the resumption of CFC meals beginning on July 1, to the extent the record contains a dispute on this score, the named defendants are still entitled to judgment in their favor.

In a Bivens action, "government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Accordingly, "[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. Thus, to the extent that Potts is suing Warden Holt, or the two men who were in charge of the Food Services department at USP Canaan, under a theory that they are liable in their supervisory capacities, this provides an insufficient basis to impose liability.

Review of the amended complaint reveals that Potts has not alleged that any of the three named defendants took any specific personal and individual action with respect to his personal food service between July 1 and 13. Instead, Potts claims that he raised his concerns with housing unit officers and lieutenants who are not named in the amended complaint. Thus, Potts has not alleged in any plausible way that Warden Holt, or Defendants Ryan and China, were personally involved in the alleged violations of his rights under the First Amendment or the RFRA after July 1. Instead, the record indicates only that Warden Holt and the Food Services Department acceded to advice of the Health Services department to institute a medical diet for all inmates in the first few days following the outbreak of foodborne illness had spread throughout the prison, while officials isolated the cause of the contamination, and ensured that inmates nutritional and hydration needs were addressed. The evidence also shows, again, that the suspension of the CFC program at this time lasted only until July 1 — and not until July 12 or 13, as Potts has claimed. Regardless of whether the three named defendants can be said to have had personal involvement in that brief suspension of the CFC program, we have previously explained why we believe that Potts's First Amendment and RFRA claims fail for that time period.

To the extent that Potts is continuing to claim that he did not receive religiously acceptable meals after July 1, there is no evidence to show how any of the three named defendants were personally involved in the alleged deprivation. The defendants have adamantly maintained that the decision to impose a medical diet — and by extension, to temporarily suspend the CFC diet — was made by health officials, to whom Warden Holt had delegated certain authority during the emergency period. (Doc. 72-1, Ex. 1, China Decl., ¶ 12, Ex. 2, Holt Decl., ¶ 4.) Furthermore, the evidence shows that these officials, in consultation with health officials, lifted the medical diet that had been imposed as of July 1.

Thereafter, the only evidence before the Court shows that on an institution-wide basis, CFC meals were again delivered to inmates who were supposed to receive them beginning with lunch on July 1. No evidence shows that Warden Holt, Wayne Ryan, or DeShawn China were charged with delivering meals personally to housing units within the penitentiary, and Potts never alleges as much. Instead, the evidence indicates that after the medical diet had been lifted, and religious meals were reinstated along with the regular menu, unit officers within the prison would contact the food services department to report the number of CFC meals that were necessary, after which someone from the food services department would deliver CFC meals to the housing units for distribution to the inmates who were to receive them.

Michael Slawitsky, attested that after CFC meals had been reinstated, he did not receive complaints that inmates had not received religious meals, or that an insufficient number of meals had been delivered, or that inmates were being forced to eat non-religious meals. (Doc. 72-1, Ex. 6, Slawitstky Decl., ¶ 7.) Rodney Branning, a cook foreman at USP Canaan, declared that CFC-compliant meals were prepared and delivered beginning on July 1, 2011, and denied that he disobeyed orders to provide these meals to inmates authorized to receive them. (Doc. 72-1, Ex. 6, Branning Decl., ¶ 6.) Louise Brandenburg, who was at that time a corrections officer at USP Canaan, has attested that after the medical diet was lifted "CFC meals were delivered to the housing units by Food Service staff." (Doc. 72-1, Ex. 8, Brandenburg Decl., ¶ 4.) In her capacity as Acting Activities Lieutenant, she would make rounds through the housing units and did not receive any complaints that inmates had not received CFC meals. (Id., ¶ 5.) Larry McCutcheon, who at the time was a Cook Supervisor, has affirmed that after the medical diet ended, Unit Officers would advise him regarding the inmates in their respective units who were to receive CFC meals, and he personally would verify the information before having the CFC meals delivered to each unit for distribution to the inmates receiving them. (Doc. 72-1, Ex. 7, McCutcheon Decl., ¶ 5.)

Thus, aside from averring that he did not receive CFC-compliant meals until mid-July, 2011, Potts has not plausibly alleged that any of the three defendants actually named in this case had any personal involvement in this alleged deprivation, and the evidence indicates that the distribution of these meals was overseen and carried out by other staff. Nothing in the record would support a finding that Warden Holt, Wayne Ryan, or DeShawn China had any personal involvement the failure to deliver Potts his CFC meals after the medical diet was lifted, and it is therefore recommended that the defendants' motion be granted for this reason as well.

D. Qualified Immunity

Finally, although the Third Circuit previously found that the defendants initially had not adequately demonstrated that they were entitled to qualified immunity from Potts's claims, the Third Circuit observed that it "express[ed] no opinion on the merits of those claims or on whether, at some later stage, defendants might show that they are entitled to qualified immunity." (Doc. 58-1, at 10.) We are now presented with such a subsequent motion, backed by a far more detailed, fulsome and expansive evidentiary record. Given this more extensive evidentiary showing and more carefully calibrated legal argument shaped by the insights provided by the appellate court in its previous decision, it is submitted that a finding of qualified immunity is now warranted based upon the much more complete evidentiary record that has been presented.8

Federal officials sued in the performance of their job duties are entitled to qualified immunity, and are shielded from monetary damages, Ainsofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects public officials Afrom undue interference with their duties and from potentially disabling threats of liability." Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). In accordance with this doctrine, government officials will be immune from suit in their individual capacities unless, Ataken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right" and Athe right was clearly established" at the time of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise their discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in consideration of the circumstances presented by the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818 (2009).

"The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202. This inquiry Amust be undertaken in light of the specific context of the case." Id. at 201. Accordingly, Ato decide whether a right was clearly established, a court must consider the state of the existing law at the time of the alleged violation and the circumstances confronting the officer to determine whether a reasonable state actor could have believed his conduct was lawful." Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010).

Qualified immunity exists because it is "inevitable" to law enforcement officials "will in some cases reasonably but mistakenly" believe that their actions are legally justified. Anderson v. Creighton, 483 U.S. 635, 641 (1987). The doctrine "gives ample room for mistaken judgments" and "protect[s] all but the plainly incompetent or those who knowingly violate the law." Kelly, 622 F.3d at 254. Accordingly, qualified immunity will apply unless the conclusion that the defendant-officer acted unreasonably is "beyond debate." Mullenix v. Luna, ___ U.S. ____, 136 S.Ct. 305, 209 (2015). Stated differently, qualified immunity attaches unless "every reasonable official would [have understood] that what he [was] doing violate[d]" the right at issue. Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012). While the Supreme Court does not "require a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix, 136 S. Ct. at 308. The Third Circuit has emphasized that district courts must take care to not define the right at issue too broadly for purposes of considering a qualified immunity defense. Michtavi v. Scism, 808 F.3d 203, 206 (3d Cir. 2015); see also Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308 (2015).

Mindful of the Third Circuit's prior ruling rejecting the defendants' qualified immunity defense, we submit that the Third Circuit's decision was plainly grounded in its view, at that time, that the record contained insufficient evidence to support a finding that the suspension of CFC meals did not violate the clearly established law of Turner and the RFRA, without "some nexus between the outbreak/lockdown and defendants' ability to provide religious meals. . . ." In full, the Third Circuit's analysis was as follows:

At the time of the defendants' alleged conduct, it was clearly established in this Circuit that prisoners' general right to freely exercise their religion gives them the more specific right to be served religiously acceptable meals while in prison. It also had long been established that prison officials may constitutionally infringe that specific First Amendment right when prison administration so requires, but only when the infringement is reasonable under the Turner factors. And RFRA clearly establishes that defendants may not substantially burden an inmate's exercise of religion without satisfying the standard set forth in 42 U.S.C. § 2000bb-1(b). Thus, at the time of defendants' alleged conduct, it was clearly established that Potts had a right to religiously acceptable meals and that defendants could not infringe on that right without sufficient justification under Turner and RFRA.

Potts v. Holt, 617 F. App'x 148, 151-52 (3d Cir. 2015) (internal citations omitted). The court of appeals thus appears to have defined the right in question in a manner that tracks Turner and the RFRA, and then concluded that the district court had an insufficient factual basis to conclude that there was "some nexus between the outbreak/lockdown and defendants' ability to provide religious meals. . . ." Id. at 152.

Based on what has now been introduced into the evidentiary record — and which has effectively gone unchallenged by Potts — it is submitted that there is indeed "some nexus" between the medical emergency that had broken out at USP Canaan, and which compelled the Health Services department to shutter the food services operations within the penitentiary while prescribing a medical diet for all inmates, and the defendants' ability to provide religious meals. Moreover, the Third Circuit's decision was also plainly informed by its acceptance of Potts's claim that the prison-wide suspension of CFC meals lasted for two weeks — something that the evidence of record now simply does not support, something made clear in the defendants' moving papers and declarations from eight officers or other personnel at USP Canaan who were directly involved in prison administration, the institutional and medical investigation into the outbreak, and those involved with providing food to inmates both before, during, and after the medical diet was prescribed from June 28 to July 1, 2011.

As explained above, we believe that the evidence that has now been submitted satisfies the requirements prescribed by Turner, and demonstrates conclusively that the temporary cessation of CFC-compliant meals did not substantially burden Potts's exercise of his religious beliefs in violation of the RFRA. Because this evidence supports the decision to temporarily prescribe a medical diet for a period lasting at most four days (and not the two weeks that Potts alleges the suspension lasted), and because the evidence in any case does not in any way suggest that the three named defendants were personally involved in any deprivation of CFC-compliant meals after the medical diet was lifted on July 1, 2011, it is again recommended that the district court find that the defendants are entitled to qualified immunity from the remaining claims in this case.

E. Injunctive Relief

Lastly, we note that Potts has purported to seek injunctive relief on his claims. While qualified immunity does not provide a defense to claims for injunctive relief, Montanez v. Secretary, Pennsylvania Department of Corrections, 773 F.3d 472, 488 (3d Cir. 2014), such claims are subject to a mootness defense, Potts v. Holt, 617 F. App'x at 152 n.7. The Third Circuit noted that it may be appropriate to consider this issue again on remand. Id.

Potts seeks a ruling that would enjoin the defendants to continue serving certified religious meals during all controlled lock-downs, apparently without limitation. Potts no longer resides at USP Canaan, and instead is now housed at USP Atwater. This change in his circumstances renders questionable his efforts to enjoin the conduct of officials at USP Canaan — none of whom, as it happens, continue to be employed at that institution.

"Mootness asks whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." Ehrheart v. Verizon Wireless, 609 F.3d 590, 596 (3d Cir. 2010) (internal quotation marks omitted). "If developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Id. At the same time, under the "capable of repetition" exception to the mootness doctrine,

A court may exercise its jurisdiction and consider the merits of a case that would otherwise be deemed moot when "(1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again."

Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). This exception is, however, "narrow and available `only in exceptional situations.'" Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).

Nothing in the record of this case suggests that Potts is likely to be returned to USP Canaan, and Potts has not suggested as much. Because Potts is no longer housed at USP Canaan, and because none of the defendants named in this litigation is any longer employed by that facility, it is submitted that this aspect of the plaintiff's amended complaint has been rendered moot by subsequent events, and may be appropriate for dismissal.


For all of the foregoing reasons, it is RECOMMENDED that the defendants' renewed motion to dismiss, or for summary judgment (Doc. 69), be GRANTED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


1. In the defendants' first motion to dismiss, or for summary judgment, they attached a single, brief affidavit from DeShawn China, the Assistant Food Services Administrator at USP Canaan, along with some documents regarding the BOP's meal program. After the Third Circuit found that the defendants had failed to offer sufficient evidence in support of their motion to defeat the plaintiff's allegations, the defendants' new motion includes a more robust roster of eight declarants all of whom had direct involvement either in the investigation into the food poisoning outbreak and the prison's response, including: DeShawn China; Ronnie Holt, the Warden at the time; J. Gintz, Jr., a Special Investigative Agent at USP Canaan; McDaniel Holloway, Jr., M.D., a Medical Officer at the prison; Rodney Branning, a Cook Foreman; Michael Slawitsky, a Lieutenant; Larry McCutcheon, a Cook Supervisor; and Louise Brandenburg, a Corrections Officer.
2. The record further indicates that during the period when Health Services personnel not named in this case prescribed a medical diet be served to all inmates, and CFC meals were suspended, all breakfast meals served remained CFC-compliant. Thus, the record indicates that from June 28 until July 1, inmates at USP Canaan did not receive CFC-compliant meals at lunch and dinner.
3. Indeed, some of the declarants have attested that they were unaware that any prisoner at USP Canaan had alleged that he had not received a CFC-compliant meal during this time. (Doc. 72-1, Ex. 1, Declaration of DeShawn China, ¶ 11; Ex. 6, Declaration of Michael Slawitsky, ¶ 7; Ex. 8, Declaration of Louise Brandenburg, ¶ 5.)
4. To the extent that Potts is tacitly asserting that unnamed correctional officers failed to deliver him meals conforming to his religious requirements, he has not named them as defendants or even identified any of these individuals by name. What Potts has done is sue the Warden and the two individuals who oversaw the entire food services operation at USP Canaan and he has neither alleged nor provided any evidence to show that these individuals was personally involved in the alleged ongoing deprivation of a religious diet to Potts, aside from their involvement in implementing a bland medical diet for four days while food services operations were moved off-site and medical investigators worked to gain control over a health crisis.
5. The Third Circuit has explained the balance that this assessment is intended to strike in an institutional setting as follows: "[W]hile this standard of review requires a court to respect the security, rehabilitation and administrative concerns underlying a prison regulation, without requiring proof that the regulation is the least restrictive means of addressing those concerns, it also requires a court to give weight, in assessing the overall reasonableness of regulations, to the inmate's interest in engaging in constitutionally protected activity." DeHart, 227 F.3d at 51. Application of the four Turner factors is the means by which courts are to assess the reasonableness of a prison regulation that may impinge upon an inmate's constitutional rights. Id.
6. The defendants have attested that at least 400 inmates were sickened during this incident. Approximately 500 lawsuits were filed in this Court relating to the incident, with inmates seeking damages relating to the sickness they claimed to have experienced from salmonella poisoning. USP Canaan penitentiary currently houses 1,206 inmates. https://www.bop.gov/locations/institutions/caa/. We submit that the unpredicted and unprecedented onset of acute illness affecting nearly 1/3 of the prison population, when the cause of that illness and the source of contamination were unknown, supports the defendants' assertion that they had a legitimate penological interest in taking steps directed by medical professionals to stanch the spread of the illness, identify and isolate its cause, and provide for the nutritional and hydration needs of the inmate population.
7. We emphasize that the undisputed evidence now shows that on an institution-wide basis, the cessation of the CFC program at USP Canaan was commensurate with the cessation of the regular diet, and lasted only as long as the institution-wide prescription of the medical diet, which was lifted at lunch on July 1, 2011. We recognize that Potts is also claiming that he did not receive religiously acceptable foods until July 12, something that is in conflict with the defendants' uniform showing that CFC meals were resumed as of July 1. Although Potts has submitted a declaration to this effect from himself and his cellmate, we recommend that judgment be entered in the defendants' favor regarding this aspect of the alleged deprivation not because the Turner factors warrant it, but because Potts has not shown that any of the defendants actually named in this lawsuit had any personal involvement in this alleged deprivation after July 1. Quite the contrary, the undisputed evidence discloses that the defendants named in this lawsuit had directed resumption of this meal service by July 1. Therefore, if Potts did not receive religious meals after July 1, it was not because of action taken by the defendants. Rather, it was in contradiction of directives issued by the defendants. While this conduct might create some liability for other unnamed individuals, the fact that the defendants' instructions were allegedly violated by unnamed staff in Potts' case does not describe a constitutional infraction which can be brought against these defendants, who ordered resumption of this meal service. Because the evidence that has been submitted shows that CFC meals were resumed as of July 1, our assessment of the Turner factors is limited to this period, when the defendants admittedly did not serve religious diets during the emergency suspension of food services operations, and while the health services professionals were directing the serving of a medical diet. We will address the defendants' lack of personal involvement further below.
8. In our prior report and recommendation, and in the district court's ruling, it was acknowledged that the Third Circuit has not expressly held that a defendant may be entitled to qualified immunity from a RFRA claim. Nevertheless, both courts concluded, based upon review of decisions from other circuit and district courts, that the rising tide of authority suggested that qualified immunity principles apply to such claims. (Doc. 51, at 17-18; Doc. 54, at 11-12.) Because this issue has been considered and answered by the district court, we do not repeat that prior analysis here.


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