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).
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.
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 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