United States District Court, District of Columbia
May 22, 2001
LAWRENCE CALDWELL, PLAINTIFF,
WILLIE CAESAR, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Gladys Kessler, U.S. District Judge
MEMORANDUM OPINION ON DEFENDANTS' MOTIONS FOR
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
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.
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
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
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
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 to actions of the District of Columbia.
After arguing that the RFRA standards should not apply, the Aramark
Defendants point to earlier case law establishing that a prisoner's First
Amendment right to free exercise of his religion may be circumscribed to
some extent when the restriction is reasonably related to a legitimate
penological interest. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348
(1987). In Turner v. Safley, 482 U.S. 78, 89-90 (1987), the Court
identified four factors that determine the reasonableness of restrictions
placed upon a prisoner's exercise of his constitutional rights:
1. whether the regulation or action has a logical
relation to legitimate government interests invoked to
2. whether the inmate has an alternative means of
exercising the right;
3. the impact that accommodation of the asserted
constitutional rights would have on other inmates,
guards, and prison resources; and
4. the presence or absence of ready alternatives that
fully accommodate the prisoner's rights at de minimis
cost to valid penological interests.
The Aramark Defendants argue that the requirement that Plaintiff renew
his special diet request every 90 days was justified by a legitimate
penological interest and therefore was reasonable under the standards of
O'Lone and Turner.
Based on the totally inadequate record presented in support of the
motions, the Court concludes that Defendants have not shown that they are
entitled to summary judgment, as a matter of law, on the first count of
the complaint, whether the RFRA standards or the O'Lone-Turner standards
are applied. There are numerous material facts in dispute such as the
terms of the contract between Aramark and the District of Columbia, the
respective obligations of the parties under that contract,*fn9
genuineness of Plaintiff's religious beliefs, and the centrality of
vegetarianism to his religion and to his own religious beliefs. These
clearly disputed issues are material and cannot be resolved on a motion
for summary judgment; they must be resolved by a jury.
The only uncontested aspect of the contract between the District of
Columbia and Aramark is that the chaplain was required periodically to
review and approve each request for a religious diet. Rago Affid.,
¶¶ 4-7. Inexplicably, no party has provided a copy of the contract
itself. Robert Rago, Aramark's Resident District Manager, states that
the renewal requirement was placed in the contract at the insistence of
the District of Columbia, which wanted to limit the additional expense
involved in preparing special meals for inmates with religious (or
medical) dietary restrictions. Rago Affid., Aramark Motion, Ex.
1,¶ 5.*fn10 Rago asserts that "[i]t is common" for inmates on the
religious diet to choose to go through the regular line instead of taking
their special diet if they prefer the offerings on the regular line
(specifically baked chicken), resulting in waste of the more expensive
special vegetarian meals. Rago Affidavit ¶ 6.*fn11 According to
Rago, it was "[p]ursuant to this policy" that "an inmate must file a
renewed request for a special diet every ninety days." Id. ¶¶ 5, 6.
This justification for requiring renewal of a religious diet request
clearly cannot apply to Plaintiff since he was in segregation. Because
he was served his meals in his cell, Plaintiff could not choose to go
through the regular diet line. Thus, Plaintiff argues persuasively, no
correctional goal warranted a requirement that he renew his diet request
at 90 day intervals. Assuming that Plaintiff's religious convictions are
sincere, there was no reason to expect that his beliefs would change
within 90 days or to require him to reaffirm his convictions
periodically. The Defendants have not adequately demonstrated that the
renewal requirement itself serves even a legitimate penological purpose,
at least as to persons such as Plaintiff who are confined to their
cells, no less a compelling governmental interest.
The Aramark Defendants next contend that Plaintiff's adherence to a
vegetarian diet is not a basic tenet of his religion, see Wisconsin v.
Yoder, 406 U.S. 205, 215-16 (1972), and, therefore, the requirement for
periodic renewal of authorization for the diet is reasonable. Plaintiff's
own testimony and
that of his expert witness, Father William Delahunt,
were that adherence to a vegetarian diet is strongly encouraged by the
Liberal Catholic Church. There is, therefore, a genuine issue as to the
nature of Plaintiff's religious beliefs and the extent to which adherence
to a vegetarian diet is essential to his religion. Such a disputed issue
can only be resolved by a jury.
Plaintiff has presented substantial evidence that he was required to
renew his religious diet at arbitrary and inconsistent intervals. See,
e.g., Caldwell Dep. pp 69-78, 109-14; Plaintiff's Opposition to
Defendants' Motion, Exhibits O, P, Q, R. The Court concludes that there
is a genuine issue of fact as to whether the requirement that prisoners
such as Plaintiff renew their requests for a religious diet every 90
days, or at arbitrarily designated intervals, was a substantial burden on
Plaintiff's exercise of his religious beliefs and whether that
requirement was the least restrictive means of satisfying either a
compelling governmental interest or a legitimate penological interest.
Moreover, the record does not show whether Plaintiff has any alternative
means of observing his own religion while he is in prison. For this
reason, the burden of requiring Plaintiff to reaffirm his religious
beliefs periodically would exceed the burden on other inmates who, for
example, are able to engage regularly in group prayer with ministers of
their own faith. See Turner, 482 U.S. at 89-90. The Aramark Defendants'
motion for summary judgment on the first claim will, therefore, be denied
because numerous material issues of fact are in dispute.*fn12
2. The Argument of the District of Columbia and Rev. Caesar*fn13
These Defendants do not discuss at length whether Plaintiff's First
Amendment rights have been violated by the procedures governing his
request for a religious diet and the implementation of that request.
They simply suggest that the Court need not consider "whether the Liberal
Catholic Church is a recognized religion" or whether Plaintiff's
religious beliefs "are sincere." Without argument and without reference
to any portion of the record, they state that Plaintiff has not provided
facts to support his claim that Defendants have acted purposely to
interfere with his exercise of his religious beliefs. The motion will be
denied for the reasons stated in connection with the motion of the
B. The Fifth Amendment Claim: Discrimination Based on Race
In the second count of the complaint, Plaintiff charges the District of
Columbia and Rev. Caesar with racial discrimination in violation of the
Fifth Amendment. Plaintiff may prevail if he can demonstrate that the
treated him differently from others in similar circumstances
without any rational relationship to a legitimate penological purpose and
because of purposeful or intentional racial discrimination. See Snowden
v. Hughes, 321 U.S. 1 (1943); Brandon v. DC Board of Parole, 823 F.2d 644,
650 (D.C. Cir. 1987); Marshall v. Reno, 915 F. Supp. 426, 432 (D.D.C.
1996). Racial discrimination in the administration of religious diet
requests plainly would violate clearly established constitutional law, as
any reasonable correctional officer or prison psychologist knew or should
have known. See Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir.
1998); cf. Bolling v. Sharpe, 347 U.S. 497 (1954).
Defendants argue that Plaintiff has failed to prove that the delay in
approving his religious diet requests was based on his race. They suggest
that the only evidence adduced is Plaintiff's own testimony that he
observed that two African-American inmates who were housed near him were
not required to renew their diet requests as frequently as he was.
Plaintiff has testified that he is Caucasian;*fn14
that Defendant Caesar is African-American.*fn15
Defendants have not
contradicted Plaintiff's testimony that on many occasions he was required
to request renewal of his religious diet at considerably shorter
intervals than the 90 days that the contract allegedly specified.
Caldwell Dep. pp. 69-78, 109-14. Plaintiff's testimony is supported by
copies of numerous renewal requests he made during 1998 and 1999 when his
vegetarian diet had been suspended at less than 90 day intervals. See
Exhibits O, P, Q, and R to the opposition to the District of Columbia's
motion. Plaintiff testified that the only evidence he has for his
contention that he was treated differently from African-American inmates
was his observation of the experience of the other two inmates. Caldwell
Dep. pp. 45-46, 52.*fn16
Based on these observations, Plaintiff contends
that his diet was discontinued "more often than with African-American
prisoners." Caldwell Dep. p. 131.
Defendant Caesar states in a declaration that he treated all inmates
the same. He asserts that he would approve a religious diet for any
inmate who requested one and that he is "pretty sure that I approved the
religious diet for Lawrence [Caldwell] before I became aware that he had
filed a lawsuit about it." He suggests that perhaps Plaintiff "never
sent the requests" for a religious diet, or that the requests had been
lost somehow in the prison mail, or that he had been so busy that he
could not act on the request "immediately." Motion of District of
Columbia and Caesar, Caesar Decl., unpaginated, pp. 2-4.*fn17 These
statements are reasonably consistent with those Defendant Caesar made in
an affidavit prepared in connection with an earlier motion to dismiss
filed by these Defendants. In that affidavit Defendant Caesar claimed
that he did not know Plaintiff at the time
he reviewed the requests, and
that he had not associated the person he had spoken to in the prison yard
with the requests that were in his office waiting for approval.
Moreover, he asserted in this first affidavit, he did not know that the
Caldwell who had requested the religious diet was Caucasian until he
received a copy of the complaint, which was filed in July 1998.
Plaintiff's Opposition to Motion for Summary Judgment, Exhibit B.
To contradict these declarations, Plaintiff relies on notes he sent to
Defendant Caesar several months before the complaint was filed,
expressing his belief that he was being discriminated against because of
his race. One note, sent on March 8, 1998, complained that Plaintiff had
been obliged to renew his diet at one or two month intervals, and that
because "[o]thers have not been subjected to this harassment . . . I must
presume it is because I am Caucasian, Christian, and litigious." On April
29, 1998, Plaintiff sent Caesar a similar note stating that he was being
subjected to different treatment from that accorded African American
prisoners. Plaintiff had been advised that his religious diet, which had
been renewed a month earlier on March 21, had to be renewed again.
Plaintiff asserted in the note that African-American prisoners either
were not required to renew their religious diet requests at all or only
at 90 day intervals. Six days later in a third note to Rev. Caesar,
Plaintiff asked that he not be subjected to disparate treatment.
Plaintiff's Opposition, Exhibit P.
Defendants have not presented any evidence, other than Rev. Caesar's
rather self-serving denial, to contradict Plaintiff's testimony that he
was required to renew his diet requests more often than the designated 90
days and at more frequent intervals than African American prisoners.
Plaintiff's testimony and the contemporary notes that he wrote to Rev.
Caesar provide sufficient direct and circumstantial evidence, albeit
perhaps not the strongest, from which a reasonable jury could find that he
was accorded disparate treatment because of his race.
Rev. Caesar's primary defense to this claim is that he is entitled to
qualified immunity. A local official faced with a claim of violation of
constitutional rights under 42 U.S.C. § 1983 may be entitled to
qualified immunity if the conduct alleged "does not violate . . . clearly
established . . . constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
determining whether a particular official is entitled to the immunity
from suit accorded by qualified immunity, the Court must determine
whether the defendant's conduct was objectively reasonable under "clearly
established" law. Harlow, 457 U.S. at 818.
Although Plaintiff's claim is based on alleged discrimination on the
grounds of race, Defendant Caesar does not claim he would be entitled to
immunity if he is found to have discriminated against Plaintiff because
of his race. Any such claim would be frivolous. In the memorandum in
support of the motion, Defendant attacks the genuineness of the Liberal
Catholic Church and appears to suggest that because Rev. Caesar had not
heard of the Liberal Catholic Church, he was justified in delaying
approval of Plaintiff's diet requests.*fn18 In any event, Defendant
the nature of the qualified immunity defense. It is the
constitutional right to non-discriminatory treatment under the Fifth
Amendment that must be "clearly established," not the validity of the
particular individual's underlying substantive claim which, in this case,
is his claim to exercise his First Amendment right to freedom of
To reiterate, Rev. Caesar does not and cannot claim that he was unaware
that it would violate Plaintiff's constitutional rights if he were
treated differently because of his race. As noted, there is sufficient
evidence, direct and circumstantial, for a jury reasonably to conclude
that Plaintiff was treated differently from African American prisoners
and that Rev. Caesar, despite his denials, was aware that Plaintiff is
Caucasian. Qualified immunity does not provide Rev. Caesar a defense to
this action. Defendants' motion for summary judgment on the second count
of the complaint will be denied.
C. The Eighth Amendment Claim: Unsanitary Food and Inadequate
Although "[t]he Constitution `does not mandate comfortable prisons,' .
. . neither does it permit inhumane ones. . . ." Farmer v. Brennan,
511 U.S. 825, 832 (1976) (quoting Rhodes v. Chapman, 452 U.S. 337, 349
(1981)). "[I]t is now settled that `the treatment a prisoner receives in
prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.'" Farmer, 511 U.S. at 832 (quoting
Helling v. McKinney, 509 U.S. 25, 31 (1993)). Conditions of confinement
will violate the Eighth Amendment if the deprivation is sufficiently
serious, judged objectively, that is, when the prisoner is denied "the
minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834
(quoting Rhodes, 452 U.S. at 347). Moreover, the prison official(s) must
have acted with deliberate indifference to the health or safety of the
inmate, that is, with recklessness. Farmer, 511 U.S. at 834-35; Wilson
v. Seiter, 501 U.S. 294, 303 (1991). In order to find an Eighth
Amendment violation respecting conditions of confinement, the evidence
must show that the prison official was "both aware of facts from which
the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Plaintiff contends that the Eighth Amendment was violated because the
food served had been prepared and served in
unsanitary conditions that
presented a serious risk of physical harm. He also argues that the meals
themselves provided inadequate nutrition.
1. Sanitary Aspects of Food Preparation and Service
In their motion for summary judgment, the Aramark Defendants point out
that Plaintiff has not provided any evidence that he was actually exposed
to any contaminated food or that he suffered any ailment that would have
resulted from contamination. They argue, therefore, that he has failed to
produce evidence of the injury that is a necessary element of an Eighth
Amendment claim. They rely on Helling v. McKinney, 509 U.S. 25 (1993)
and Scott v. District of Columbia, 139 F.3d 940 (D.C. Cir. 1998). The
District of Columbia Defendants contend that the food handling areas at
Maximum were sanitary, citing only the testimony of Plaintiff's expert
witness, Robert Powitz, that the kitchen is "relatively well maintained
and . . . sanitary." Powitz Dep. p. 36.*fn19
In opposing the motions, Plaintiff relies primarily on the report and
deposition testimony of Robert Powitz, an expert in public and
environmental health, who examined the food service facilities,
maintenance and housekeeping at Lorton as an expert witness on behalf of
the District of Columbia in 1997,*fn20 and again in December 1999, this
time on behalf of Plaintiff. Powitz was of the opinion that conditions
had "continued to erode" since he had observed the food handling
practices in 1997. Plaintiff's Opposition, Attachment F. In his
deposition as well as in his written report, Powitz describes various
food handling practices that were "unsanitary and unsafe," "conducive to
ill health and discomfort and . . . below all reasonable accepted
standards of human habitability." Plaintiff's Opposition, Exhibit F, p.
1.*fn21 When Powitz toured the kitchen at Maximum in December 1999, he
observed instances of moldy bread being served, food kept at improper
temperatures, unclean cooking equipment, Powitz Dep. pp 10-11, 16-17,
water from pipes dripping on food, id., pp. 17-18, the aroma of cat urine
in the food storage areas, id., p. 8, an inconsistent food dating
system, id., p. 7, and mingling of personal clothing with kitchen
utensils, id., pp. 14-15. He testified that refrigerator doors and one
thermometer were broken, although the refrigerators were at appropriate
temperatures. Id., pp. 13-15, 52. He found several instances in which
dried food remained on food service equipment. Powitz was particularly
critical of the apparent failure of service personnel to wash their
hands, which he
testified was a clear violation of standards of
cleanliness for food service entities. He did not observe any hand
washing by food preparers during the several hours of observation at the
facility. Moreover, he testified, soap and towels were not available in
some toilet facilities used by food preparers, and when soap was
available there was no indication that it in fact had been used because
it was dry and there was no evidence of water in the basins. Id., pp.
3-5, 24-29, 53-58.
The District of Columbia ignores this testimony as to the unsanitary
conditions in the kitchen that were immediately under the control of its
agent Aramark. Nor does it address the testimony by Powitz and by
Plaintiff himself describing unsanitary conditions in connection with
food service provided to inmates confined to their cells. Powitz
testified that there was risk from the multiple handling of trays
delivered to inmates in cells, sometimes by as many as six individuals.
As a result "the sanitation or maintaining the integrity of the food" was
lost. Powitz Dep. pp. 30-31. He also observed risk in the decisions of
the staff to remove their gloves within moments of being issued them.
Powitz Dep. pp. 30-31. In addition to his expert's testimony, Plaintiff
himself testified that inmate servers dispersing the open food trays had
not been given a health screen and often were not wearing hair or beard
guards or gloves. Caldwell Dep. pp. 161-63, 196-98. Plaintiff testified
that open trays were dragged across dirty floors by inmates and
Department of Correction staff, Caldwell Dep. p. 152, and that on at
least one occasion mace was sprayed near open trays spread out on two
tables (although inmate tiermen said the trays served ultimately were not
the original trays). He testified that on perhaps six occasions he found
"some foreign object" in his own tray, primarily hair, sometimes grit or
rock, and that a hair had been in his bag lunch the day of his
deposition. Caldwell Dep. pp 157-58.[fn20a] Use of gloves, hair guards,
and sealed trays appears to be sporadic according to entries in
Plaintiff's diary, Plaintiff's Opposition, Exhibit V.
Plaintiff has shown more than what the District of Columbia terms "the
lack of aesthetically-pleasing food"[fn21a] to support his Eighth
Amendment claim. Plaintiff has produced significant evidence of
unsanitary conditions in the Maximum Security Facility kitchen and in the
procedures for distributing food trays to inmates such as he who were
confined to their cells. Neither Aramark nor the District of Columbia
contend that they were unaware of these conditions.
An Eighth Amendment violation may be supported by a serious risk of
future harm. See Helling v. McKinney, 509 U.S. 25, 36 (1993), in which
the Court pointed out that a prisoner can complain about demonstrably
unsafe water without waiting to develop dysentery. When asked to
"quantify the level of risk to" Plaintiff from the conditions he observed
in the kitchen at Maximum, which Aramark controlled, Powitz testified
[t]here are only two issues that rise to a point of
concern. One I was not able to
determine. That's the
HACCP. But the other is the personal hygiene. And the
personal hygiene leaves much to be desired, in terms of
supervision of the kitchen staff. There you can expect
oral-fecal contamination of food, if personal hygiene
is not effected in the proper manner. And that's
universal. That's more than 50 percent of all food-borne
illnesses, are directly correlated to personal hygiene.
. . . Personal hygiene is a high level of risk.
Powitz Dep. pp. 22-23 (Emphasis added).
Powitz's testimony differentiates this case from Scott v. District of
Columbia, supra. Scott involved a claim by Lorton inmates that the Eighth
Amendment had been violated when they were exposed to second-hand smoke.
The opinion by the Court of Appeals focused solely on the propriety of
granting injunctive relief and the scope of that relief. In this case,
Plaintiff seeks only monetary damages and thus Scott is not relevant
authority for granting summary judgment to the Defendants in this case.
The significant evidence that the food served to prisoners at Maximum
was prepared and served under unsanitary conditions is sufficient to
raise a jury question as to whether Plaintiff's Eighth Amendment rights
were violated; the extent of violation and the appropriate amount of
damages will be up to the jury to determine.
2. Adequacy of Nutrition
Plaintiff also bases his Eighth Amendment claim on his contention that
the food supplied was nutritionally inadequate and at times did not
comply with the requirements of a vegetarian diet. Aramark contends that
the evidence shows that the meals provided to prisoners on a
lacto-ovo-vegetarian diet are nutritionally balanced and adequate.*fn22
It relies on the deposition testimony of two expert nutritionists
retained by Plaintiff, Jenny Roper and Patricia Bertron, and on a written
opinion by its employee-nutritionist Dorothy Zimmer. Plaintiff argues, in
opposition, that he weighs less than is desirable for a man of his height
and age as a result of the inadequate meals provided by Defendants.
Although his evidence shows that he gained weight while at Maximum, his
last measured weight, 180 lbs., was at the low end for persons of his
The dieticians agree that the sample lacto-ovo-vegetarian menus
provided adequate nutrition for a man of Plaintiff's age and height.
Bertron Dep. pp. 65-68, 94-95; Roper Dep. pp. 27-28; Zimmer report,
Aramark Exhibit 11.*fn23 Plaintiff objects that the meals he was
actually served did not comply with the lacto-ovo-vegetarian meal plans
prepared by Aramark headquarters.*fn24 He testified that on occasion
was provided regular meals with the meat or fish removed and without any
meat substitute to provide protein. At least one time all the food on the
tray was contaminated by meat gelatin*fn25 that had melted so that he
could not eat any of the food served. Caldwell Dep. pp. 150-51.
Plaintiff's expert witnesses testified that the regular menus with the
meat product removed would not provide a nutritionally adequate diet.
Bertron Dep. pp. 49-51, 63-64; Roper opinion, Plaintiff's Exhibit C, 2d
page. Plaintiff's Exhibit S is his record of 28 meals during 1999 when he
was served a regular tray with the only protein being meat.
Even if on occasion Aramark was responsible for delivering to Plaintiff
a diet which was inconsistent with his vegetarian regime, this might not
constitute a violation of the Eighth Amendment. Rev. Delahunt testified
that each member of the Liberal Catholic Church should determine his "own
level of vegetarian practice after carefully considering his
physiological and hygienic status, so that the health is maintained and
enhanced and not imperished [sic — imperilled?]." Plaintiff's
Amended Opposition, Delahunt Dep. p. 42. Thus, Defendants suggest, it was
Plaintiff's own choice to decline to eat if a non-vegetarian meal was
served, a choice not mandated by his religious beliefs. Moreover, when on
occasion non-vegetarian meals were served, Plaintiff was able to
supplement his meals with tuna fish that he purchased from the canteen.
Caldwell Dep. pp. 29-30.
The evidence as to whether the meals provided Plaintiff were
sufficiently nutritious is, however, contested. There is a genuine issue
of material fact as to whether the meals actually served Plaintiff were
so lacking in nutrition on sufficient occasions as to deprive him of
adequate food necessary to maintain his health and thus to constitute
cruel and unusual punishment. For these reasons Defendants' motions for
summary judgment on Count III will be denied.
D. The Negligence Claim
The Aramark Defendants argue that Plaintiff cannot establish the
elements of a negligence claim under District of Columbia law because he
cannot demonstrate an applicable standard of care that has been breached
by the Aramark Defendants or that he has suffered any injury as a result
of actions of these Defendants. The District of Columbia Defendants state
without any discussion or analysis that Plaintiff has failed to allege
or prove the elements of a negligence claim.*fn26
On the contrary, Plaintiff has shown at a minimum that the conditions
of food service were such as to violate District of Columbia law
requiring persons involved in food service to wash their hands
regularly. Title 23, Subtitle B of the District of Columbia Municipal
Regulations provides in pertinent part:
Any person who works in any capacity, the activities of
which include contact with unprotected food for human
consumption or the care or use of food contact surfaces
in a food operation, shall wash his or her hands
thoroughly in an approved hand-washing facility before
starting work, and as often as may be necessary to
remove soil and contamination.
23 DCMR § 2600.3. Furthermore, "[n]o person shall resume work
after visiting the toilet room without washing his or her hands."
23 DCMR § 2600.4. Neither Aramark nor the District of Columbia
argue that these regulations were not applicable to food service
Aramark contends that expert testimony is needed to assess these
issues in the context of a prison. The Court disagrees. An average juror
is capable of deciding whether food was prepared and served in a sanitary
or an unsafe manner. Whether in a home or in an institution, moldy bread
is inedible, hot food must be maintained at a minimum temperature to
prevent the growth of harmful bacteria, ceiling water should not drip on
food, pots and utensils should be washed. It is elementary that persons
engaged in food preparation and service should wash their hands after
handling raw foods and after using the toilet. The testimony of Robert
Powitz, discussed above, creates an issue of fact as to whether these
sanitation standards were violated by practices by the food preparation
and service at Maximum. Plaintiff's own testimony, if credited, would
support a claim for negligence in the delivery of meals to inmates unable
to go to the dining hall.*fn28 Expert testimony is not necessary when
the causal connection between a situation and an injury is clear or
relates to common experience. Williams v. Patterson, 681 A.2d 1147 (D.C.
1996). The question whether and to what extent Plaintiff was injured or
may become ill in the future because of the unsanitary practices is for a
Because there is no evidence that Defendant Caesar was involved in the
food preparation or delivery except in connection with authorization of
medical or religious diets, summary judgment will be granted for him on
Counts III and IV and denied as to all other Defendants.
Summary judgment, therefore, will be granted for Defendant Caesar on
the Third and Fourth Counts of the Complaint. The motions for summary
judgment in all other respects will be denied.
An appropriate order accompanies this Memorandum Opinion.