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Endicott v. Allen

United States District Court, E.D. Missouri, Southeastern Division

December 21, 2017

FRANKLIN G. ENDICOTT, Plaintiff,
v.
LARRY ALLEN, et al., Defendants.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon initial review following plaintiff's filing of his second amended complaint.[1] After reviewing the second amended complaint, the Court will partially dismiss the complaint and will order the Clerk to issue process or cause process to be issued on the non-frivolous portions of the complaint.

         Legal Standard

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is undertaken for the purpose of harassing the named defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not 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).

         The Complaint

         Plaintiff, an inmate at Northeast Correctional Center (“NECC”), brings this action against Missouri Department of Corrections (“MDOC”) and seventeen prison officials and food services staff at NECC, seeking monetary, declaratory, and injunctive relief pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc, et seq. (“RLUIPA”), and under 42 U.S.C. § 1983. Plaintiff has named as defendants in both their individual and official capacities: Larry Allen (Food Service Manager, NECC); Troy Bartley (Food Service Coordinator, MDOC); Frank Campbell (Correction Officer, NECC); Travis Case (Canteen Manager, NECC); Alan Earls (Deputy Division Director, Missouri Adult Institutions); Sandy Everheart (Food Service Cook, NECC); Catherine Flock (Food Service Cook, NECC); Chantay Godert (Assistant Warden, NECC); Richard Griggs (Assistant Warden, NECC); James Hurley (Warden, NECC); William Jones (Deputy Warden, NECC); Gil Long (Central Canteen Manager, MDOC); Murry Phillips (Chaplain, NECC); Anne L. Precythe (Director, MDOC); Melvina Richardson (Food Service Cook, NECC); Ron White (Correctional Officer, NECC); Debbie Williams (Food Service Cook, NECC); and MDOC.

         CRD Meals on Sabbath, High Holy Days, and Passover

         Plaintiff first claims that the certified religious diet (“CRD”) kosher meals prepared by NECC violate Jewish dietary laws on the Sabbath, High Holy Days, and Passover. Plaintiff states that the CRD meals would need to include grape juice, matzo, fish and meat items on the Sabbath, High Holy Days, and Passover to conform to Jewish dietary laws. Plaintiff refers to these items as ritual kosher food items. Further, the NECC canteen does not sell kosher grape juice, matzo, or any kosher meat item, and therefore plaintiff has no means to abide by his Jewish dietary laws on the Sabbath, High Holy Days, and Passover. Plaintiff states Jewish offenders are served peanut butter in the CRD kosher meals during Passover, which is strictly prohibited under Jewish dietary law. None of the items served to Jewish offenders on Passover are labeled as “Kosher Passover.”

         Additionally, to qualify for kosher meals on the Sabbath, High Holy Days, and Passover, NECC requires offenders to adhere to the daily kosher dietary law. Offenders are not allowed to engage in dietary restrictions under their religion only on the Sabbath, High Holy Days, and Passover. In contrast to the treatment of Jewish offenders, plaintiff states Muslim offenders are not required to be receiving daily CRD Muslim meals to participate in Ramadan services. He states these groups are provided their religious dietary meals every evening and morning of Ramadan services.

         Failure to Provide Religious Materials

         Plaintiff alleges defendants have refused to provide him with a Torah, Judaism prayer books, and dietary practice materials in violation of his First Amendment right to free exercise of religion and in violation of his statutory rights under the RLUIPA.

         Plaintiff also claims that his rights under the Establishment Clause have been violated because NECC has a religious policy that prevents offenders from attending Judaism services unless there are a minimum of five offenders attending bible studies and services. Because there are fewer than five practicing Jewish offenders at NECC, they do not qualify as a “community” and thus Offender Canteen funds are not available to purchase Torahs, religious calendars, and literature regarding Jewish dietary laws. Plaintiff asserts that NECC's Christian and Muslim communities are large enough to qualify for distribution of money from the Offender Canteen fund.

         Plaintiff also alleges he was denied access to a Torah while in the segregation unit, because the NECC chapel did not have Torahs available to bring to the segregation unit. Plaintiff states, however, that Bibles and Qurans are provided to the Christian and Muslim offenders assigned to the segregation unit.

         Canteen Allegations

         Plaintiff states many allegations against the defendant canteen managers, Gil Long and Travis Case. He alleges these defendants refuse to add kosher items already being sold in the canteen to the offender's approved CRD purchase list. Defendants only list items as kosher, and qualified for CRD offender's purchase, if the vendor of the items lists the items as kosher on their invoice. Offenders on CRDs cannot purchase many of the technically kosher items in the canteen, because the vendor of these items has not listed them on the invoice as kosher. If plaintiff buys a kosher product that is not listed on the vendor purchase invoice as kosher, the offender is ordered off the CRD meal program for six months for his first violation; twelve months for his second violation; and forever for his third violation. Plaintiff alleges defendants Long and Case manipulate the CRD purchase list to catch plaintiff buying kosher foods not on the CRD approved list, so they can retaliate and take him off his CRD meal program.

         Plaintiff states defendants Hurley, Jones, Godert, Griggs, Case, Allen, and Phillips are members of the Offender Canteen Committee and are all personally involved in approving what items are obtained from the central office canteen warehouse and sold in the NECC canteen.

         Food Service Allegations

         Plaintiff also alleges his CRD kosher meals often contain rotten fruits and vegetables, bug infested broccoli, and smaller food portion sizes compared the non-CRD meals. He states offenders have to take their opened or broken crackers, cereal, and rotten fruits and vegetables to NECC food service cooks to be replaced. Plaintiff states he is being targeted and discriminated against by NECC staff because of his continued complaints to food service cooks and his grievances concerning the lack of nutrition, small servings, and rotten fruits and vegetables.

         Retaliation-Allegations Against Defendant Frank Campbell

         On August 26, 2016, plaintiff alleges defendant Frank Campbell sent an email to defendant Chaplain Phillips requesting that plaintiff be removed from his CRD kosher meals. Campbell accused plaintiff of sharing his crackers and jelly from his CRD tray with another offender not authorized to have CRD foods. Plaintiff states NECC took him off CRD kosher meals without following their internal procedures. Namely, plaintiff did not receive a conduct violation, a CRD non-compliance form, and was never allowed to provide witness statements to prove the allegation was false.

         During his six-month discipline, plaintiff was required to eat non-kosher foods from the regular food service line. Plaintiff complains this food is often cold or not cooked to the specifications he believes it should be held to. He complains of dirty trays, cups, and utensils; communal salt and pepper shakers; dead rats and birds hidden in the pipes and food storage areas; food stuck to the ceiling and walls; and slippery floors.

         Housing ...


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