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May 22, 2001


The opinion of the court was delivered by: Gladys Kessler, U.S. District Judge


Plaintiff, a District of Columbia prisoner, has sued Aramark Correctional Services, Inc. ("Aramark"), two of its employees,*fn1 the District of Columbia, and Willie Caesar, who was the Chaplain at Lorton Reformatory's Maximum Security Facility ("Maximum"), for damages suffered as a result of alleged actions in violation of the Civil Rights Act, 42 U.S.C. § 1983, and District of Columbia law. The four claims in the complaint relate to Aramark's operation of the food service at Maximum under contract with the District of Columbia. The first claim alleges that all Defendants violated his First Amendment rights by restricting his access to a vegetarian diet which he asserts is based on religious principles. (Complaint, Count I). The District of Columbia and Caesar alone are named in a count charging violation of the Fifth Amendment because of racial bias in their responses to Plaintiff's requests for renewal of his religious diet. (Complaint, Count II). Finally, Plaintiff asserts that the food service at Maximum provided inadequate nutrition and was handled under conditions so unsanitary as to violate the Eighth Amendment (Complaint, Count III) and to constitute negligence under District of Columbia law (Complaint, Count IV).

Discovery has been completed and the Defendants have filed motions for summary judgment. After consideration of the pleadings, the applicable case law, and the entire record herein, the motion of Defendant Caesar for summary judgment on the third and fourth counts of the complaint will be granted. In all other respects, the motions will be denied.*fn2

I. The Standard of Review

A motion for summary judgment should be granted if the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In considering whether there is a triable issue of fact, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248. Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)); Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

II. Statement of Facts

Plaintiff, who is 54 years old, joined the Liberal Catholic Church in 1978. He had adopted a vegetarian diet for health reasons when he was 16 years old and maintains that diet now for religious reasons, because he believes it is ecologically sound, and because he believes that meat production is cruel to animals. Caldwell Dep. pp. 7, 27-28, 33-34, 38-41, 43-44. According to Father William Delahunt, an ordained priest of the Liberal Catholic Church, the Church is not dogmatic and does not require any doctrinal beliefs of its members. The Church does, however, "exhort and counsel and encourage people to follow certain patterns and habits and lifestyles that are spiritually encouraging and uplifting." Delahunt Dep. pp. 15-16; Caldwell Dep. pp. 25-26, 37-38, 43-44. Among those lifestyles that the church encourages but does not require is a vegetarian diet. Delahunt Dep. p. 16; Caldwell Dep. pp. 25-26, 37, 42.
Plaintiff was incarcerated at the Maximum Security Facility at Lorton from May 1997, until it closed in January 2001. Caldwell Dep. p. 12. Aramark provided food service at Maximum pursuant to a contract with the District of Columbia Department of Corrections. Affidavit of Robert Rago, Aramark's Resident District Manager, Aramark Motion Ex. 1, ¶ 1. The contract required Aramark to provide a lacto-ovo-vegetarian diet to prisoners who were authorized by the Chaplain to receive a religious diet; Aramark itself had no authority under the contract to authorize a prisoner to receive a "religious" diet. Rago Affid. ¶¶ 4, 5, 8, 9. When the Chaplain authorized the diet, he submitted a form to Aramark, whose personnel entered the prisoner's name into Aramark's computerized accounting system to receive the lacto-ovo-vegetarian diet. The prisoner then was authorized to receive the religious diet for 90 days. At the end of that period, unless the authorization was renewed, the prisoner's name was automatically deleted from the Aramark computer list of those authorized to receive the religious diet. Rago Affid. ¶ 7.
Although many inmates came to the dining hall for meals, Plaintiff and others who were in segregation received trays in their cells. Caldwell Dep. pp. 47. After Aramark prepared the food for those prisoners, its employees placed the meals on trays that were loaded onto carts. Rago Affid. ¶ 10. Inmates and employees of the District of Columbia Department of Corrections then were responsible for delivering the food on the carts to the various cell blocks. Rago Affid. ¶ 10. Guards at the cell blocks sorted the trays for distribution to the tiers and to individual cells. Rago Affid. ¶ 10. Aramark had no control over whether a prisoner actually received a religious diet. Rago Affid. ¶ 11. If notified that a special tray had been mis-delivered, Aramark would provide a replacement meal. Rago Affid. ¶ 12.

III. Discussion

A. The First Amendment Claim: Free Exercise of Religion

1. The Arguments of the Aramark Defendants.

These Defendants do not dispute that, as an inmate, Plaintiff retains the right under the First Amendment to free exercise of his religion.*fn3 Rather, they argue that Plaintiff has not shown that they have violated this right. First, they contend that the restraints placed on his ability to receive the vegetarian diet were imposed not by Aramark, but by the District of Columbia, in an appropriate effort to control costs. Next, they suggest that Plaintiff has failed to show that adherence to a vegetarian diet is an essential practice of his religion. Finally, they argue that in any event the renewal requirement was permissible because it did not unreasonably restrict Plaintiff's ability to practice his religion.*fn4

Opposing the motion for summary judgment, Plaintiff argues that his desire to restrict his diet is a legitimate and sincerely held religious belief. He claims that his right to free exercise of his religion was burdened impermissibly in three ways: (1) by the requirement that he request renewal of his religious diet at 90 day intervals; (2) by the termination of his religious diet at less than 90-day intervals; and (3) by Aramark's failure to provide him consistently with a strictly vegetarian diet even during periods when the diet had been authorized.

Plaintiff principally relies on the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, which provides that a government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless the burden "is the least restrictive means of furthering [a] compelling governmental interest." Plaintiff argues that Defendants have not shown a "compelling governmental interest" for what he claims was a substantial burden on his religious practices.

Aramark argues that the RFRA is unconstitutional and that the governing standards for prison regulations regarding religious observances are those established in O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) and Turner v. Safley, 482 U.S. 78 (1987). Under O'Lone and Turner, a prisoner's right to free exercise of his religion can be curtailed to some extent when the restriction is reasonably related to a legitimate penological interest.

The RFRA was enacted by Congress in 1993 specifically to overturn the decision in Employment Division v. Smith, 494 U.S. 872 (1990),*fn5 and to reinstate previous judicial interpretations of the First Amendment. In Smith, the Supreme Court held that the First Amendment allows governments to apply neutral, generally applicable laws to religious practices without a showing of a compelling governmental interest. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that the RFRA was unconstitutional as applied to the states and rejected the argument that the Act was a proper exercise of the power given to Congress in Section 5 of the Fourteenth Amendment "to enforce, by appropriate legislation, the provisions of" that amendment.

The primary discussion in City of Boerne was whether the RFRA was a proper exercise of the power given to Congress to regulate state conduct under the Fourteenth Amendment. There has been no Supreme Court decision as to whether the RFRA is a constitutional application of the Congressional power to regulate conduct of the federal government and the District of Columbia. As amended after the decision in City of Boerne, the RFRA now specifically includes the District of Columbia as a "covered entity." 42 U.S.C. § 2000bb2(2).

In two cases, the Court of Appeals for this Circuit has assumed without discussion that the statute remains viable as to the federal government. Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000); Alamo v. Clay, 137 F.3d 1366, 1368 (D.C. Cir. 1998).*fn6 There appears to be no decision of either the Court of Appeals for this Circuit or this District Court that has dealt with the question on the merits. Compare Jackson v. District of Columbia, 89 F. Supp.2d 48 (D.D.C. 2000);*fn7 and Henderson v. Stanton, 76 F. Supp.2d 10, 14 n. 1 (D.D.C. 1999) (assuming the RFRA constitutional as applied to federal actions) with Branch Ministries, Inc. v. Rossotti, 40 F. Supp.2d 15, 24 n. 6 (D.D.C. 1999) (noting that the federal defendant did not challenge the constitutionality of the RFRA as to it) and Branch Ministries, Inc. v. Richardson, 970 F. Supp. 11, 13 n. 1 (D.D.C. 1997) (simply noting the decision in City of Boerne).*fn8

Decisions in other circuits are divided. Compare, e.g., Waguespack v. Rodriguez, 220 B.R. 31 (W.D.La. 1998) and United States v. Sandia, 6 F. Supp.2d 1278 (D. NM 1997), aff'd, 188 F.3d 1215 (10th Cir. 1999) (emphasizing supremacy of the Supreme Court in defining constitutional rights and holding the RFRA unconstitutional) with, e.g., Christians v. Crystal Evangelical Free Church, 141 F.3d 854 (9th Cir.), cert. denied, 525 U.S. 811 (1998) (holding, 2-1, the RFRA within the power of Congress to provide additional protections for religious entities in bankruptcy proceeding) and United States v. Ramon, 86 F. Supp. 665 (W.D.Tex. 2000) (assuming the RFRA still applicable to federal government).

Given the context of this motion for summary judgment and its ultimate resolution, the Court will assume that the RFRA is constitutional as applied ...

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