The opinion of the court was delivered by: Harold A. Baker United States District Judge
Before the court are Defendants, Donald Snyder, Jr. Manuel Rojas, Kurk Gaskill, Blair Leibach, Mary Nichols, Timothy Wright, Douglas Cravens, Marvin Cooley, Wanda Bass and Sheldon German's summary judgment motion, d/e 64, and the plaintiff's response, d/e 77.
A party moving for summary judgment must show, from the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ..." that there is no genuine issue of material fact and that the "moving party is entitled to judgment as a matter of law. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P.56(c) This burden can be satisfied by " 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir.1994). Credibility questions "defeat summary judgment '[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.' " Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed.R.Civ.P. 56(e)(other citations omitted). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir.1992).
The Plaintiff, Tiberius Mays, is a prisoner in the Illinois Department of Corrections. On January 2, 2004, he filed a petition to proceed in forma pauperis and submitted a complaint brought pursuant to 42 U.S.C. §1983. In his complaint, ultimately filed on August 30, 2004, the Plaintiff alleges the Defendants violated the Plaintiff's First, Eighth, and Fourteenth Amendment rights while he was housed at the Hill and Danville Correctional Centers.
Specifically, Plaintiff alleges the following violations at the Hill Correctional Center: 1) Defendants Snyder, Pierson, Bass, Rojas, Gaskill, German, and Cravens violated Plaintiff's First and Fourteenth Amendment rights by unconstitutionally disciplining him for a December 29, 2001 Disciplinary Report for allegedly receiving and eating a regular tray of fish and cheese which would not have been in compliance with the Plaintiff's vegan diet; 2) Defendant German violated Plaintiff's First and Fourteenth Amendment rights when he filed the aforementioned retaliatory Disciplinary Report against the Plaintiff because he had a lawsuit against Hill Correctional Center employees and because Plaintiff was able to have two prior Disciplinary Reports expunged; and 3) Defendant Gaskill violated Plaintiff's rights by filing a false incident report on December 29, 2001. (Plaintiff's Complaint, ¶ 1-25, 52-57).
Plaintiff alleges the following violations at the Danville Correctional Center: 1) Defendants Leibach, Wright, Nichols, and Cravens violated Plaintiff's First Amendment rights when they denied the Plaintiff his right to practice his religion by not providing the Plaintiff with a vegan diet once he asked for it and forcing him to have an established religious leader verify that the Plaintiff was a follower of the African Hebrew Israelite faith prior to being approved for the vegan diet; and 2) Defendant Cooley violated Plaintiff's Eighth Amendment rights by not providing the Plaintiff minimally adequate state issued clothing for the seasons. (Plaintiff's Complaint, ¶ 26-51, 58-62).
Material Facts*fn1 Claimed to be Undisputed
These facts are set forth for purposes of this order only and are set forth in the light most favorable to the plaintiff. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir.1992). Many are taken verbatim from the defendants' undisputed facts, to the extent not disputed by the plaintiff. Where a dispute exists, the plaintiff's version is set forth as fact, to the extent his affidavit is based on personal knowledge, corroborating documents, and he is competent to testify to the matters stated therein. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir.1992).
1. Defendant Snyder did not sign his name to the Administrative Review Board responses concerning Plaintiff's grievances. (Exhibit A, Douglas Cravens Affidavit, ¶ 4, d/e 65).
2. Instead, Administrative Review Board member Sandra Kibby-Brown*fn2, a designee for Defendant Snyder, signed the Administrative Review Board responses. (Id.). Ms. Brown did not sign her full name. She signed using her initials only. (Exhibit A, d/e 65).
3. Defendant Cravens, an Administrative Review Board member, addressed Plaintiff's appeals concerning being taken off of the vegan diet at Hill Correctional Center, a December 29, 2001 Disciplinary Report, request for the vegan diet at Danville Correctional Center, and inadequate state issued clothing at Danville Correctional Center. (Exhibit A, Douglas Cravens Affidavit, ¶ 7, d/e 65).
4. Defendant Snyder did not review the grievances at issue or the Administrative Review Board's decisions and would not have any independent knowledge of what Plaintiff had alleged in his grievances. (Id., ¶ 6).
5. Based on Defendant Cravens' review of Plaintiff's grievances, counselor's responses, and the grievance officer's responses, Craven determined that it appeared that the issues the Plaintiff had raised in the grievances had been appropriately addressed at the institution. (Id., ¶ 8-9).
6. Defendant Cravens was not personally involved in institutional disciplinary hearings as they are handled by correctional staff at that particular correctional institution. (Id.,¶ 11).
7. Defendant Cravens was not personally involved with the institutional disciplinary hearing concerning Plaintiff's December 29, 2001 Disciplinary Report and was not asked to determine whether or not Plaintiff should or should not be found guilty of said Disciplinary Report or what type of discipline, if any, Plaintiff should receive. (Id., ¶ 12).
8. Defendant Cravens was not personally involved with the institutional determinations concerning the Plaintiff's request for a vegan diet or what procedures the Plaintiff had to follow when requesting a religious diet. (Id., ¶ 14).
9. Defendant Craven reviewed the Plaintiff's grievances, the counselor's responses, and the grievance officer's responses and based on his review, he determined that it appeared that the issues Mr. Mays had raised in the grievances had been appropriately addressed at the institution. Cravens, therefore, recommended that the appeals of the grievances be denied or considered moot. (Cravens Affidavit, ¶¶ 8-10.)
10. Plaintiff is an African Hebrew Israelite and because of his religion he needs a vegan diet. (Plaintiff's Complaint, p. 1-2).
11. A vegan diet consists of fleshless meals where no kinds of meat or flesh products or dairy products are consumed. (Exhibit B, Manuel Rojas Affidavit, ¶ 10, d/e 65).
12. Special religious diets are expensive and require additional administrative attention to implement. For example, special outside vendors may be required to supply the food for the diet, contracts for outside vendors have to be approved which require special monetary authorization for purchases from said vendors. Furthermore, depending on the diet and staffing concerns, additional staff may be needed to administer the religious diet to the inmate(s). Therefore, an attempt is made to limit special religious diets to those inmates who hold a sincere belief and faithfully observe such diets. (Exhibit B, Manuel Rojas Affidavit, ¶ 3).
13. Prior to receiving a vegan diet, an inmate must make a request for the diet. The Illinois Administrative Code requires that the request contain written verification that the inmate is a member of a faith group that requires adherence to a particular diet and the specific requirements of the diet. 20 Ill. Admin. Code §425.70(c). (Exhibit B, Manuel Rojas Affidavit, ¶ 4).
14. Eligibility to receive an alternative diet for a specific religious reasons is determined by the facility chaplain who ordinarily confers with a religious leader or faith representative of the faith group at issue. 20 Ill. Admin. Code §425.70(c). (Exhibit B, Manuel Rojas Affidavit, ¶ 5).
15. The facility chaplain and religious leader or faith representative may interview the committed person. 20 Ill. Admin. Code §425.709(c). (Exhibit B, Manuel Rojas Affidavit, ¶ 5).
16. This request and verification process is the same at all of the Department of Corrections' facilities and is required for all inmates requesting a religious diet. (Exhibit B, Manuel Rojas Affidavit, ¶ 6). However, the plaintiff alleges that the verification process for the vegan diet has been different for the plaintiff at every prison that he has been in when he requested a religious diet.
17. Once the inmate has provided this documentation and the information is verified, the inmate signs a Religious Dietary Agreement. (Exhibit B, Manuel Rojas Affidavit, ¶ 11; Exhibit C, Sheldon German Affidavit, ¶ 6).
18. The Religious Dietary Agreement requires that the inmate follow the guidelines/refrain from eating and possessing any foods that did not meet the requirements of the diet and that the inmate's participation in the diet would be closely monitored. Specifically, the Agreement provides that "[p]articipation depends upon [the inmate's] agreement to follow the guidelines set forth in this contract." Paragraph 4 of the Agreement provides Ensure that no food that is not a part of your requested diet is in your possession." (Exhibit B, Manuel Rojas Affidavit, ¶ 12; see also Mays' Exhibit 4 ).
19. The Religious Dietary Agreement also provides that the diet could be terminated if the inmate was found to be non-compliant. (Exhibit B, Manuel Rojas Affidavit, ¶ 13).
20. Mr. Mays signed such an agreement. (Exhibit B, Manuel Rojas Affidavit, ¶ 14).
21. On December 29, 2001, Defendant Gaskill wrote an Incident Report about witnessing the Plaintiff accepting a regular food tray instead of his vegan food tray. (Plaintiff's Complaint, Plaintiff's Exhibit 2).
22. The Plaintiff does not know why Defendant Gaskill wrote the December 29, 2001 Incident Report. (Exhibit D, Plaintiff's Deposition, p. 40, l. 5-18).
23. Defendant Gaskill informed Defendant German that the Plaintiff had went through the serving line and took a regular food tray, i.e. non-vegan, even though the Plaintiff was on a vegan diet. (Exhibit C, Sheldon German Affidavit, ¶ 3).
24. As a result of this information, Defendant German then observed the Plaintiff eating from a tray that contained a fish sandwich and macaroni and cheese. (Exhibit C, Sheldon German Affidavit, ¶ 4). The plaintiff admits that he ate fruit the regular tray. (Plaintiff's exhibit A, Mays' Affidavit, ¶ 16, ).
25. These items are not served on the vegan diet at Hill Correctional Center and as a vegan, Plaintiff is not to consume said products as they are non-vegan. (Exhibit C, Sheldon German Affidavit, ¶ 5).
26. Plaintiff admits that on December 29, 2001, he did, at some point in time, have another inmate's tray in his possession. (Exhibit D, Plaintiff's Deposition, p. 37, l. 1-17).
27. When Defendant German witnessed Plaintiff's conduct, he was aware that Plaintiff had to sign a Religious Dietary Agreement and that a vegan diet required that special foods be purchased, prepared, and served to the inmate on said diet. (Exhibit C, Sheldon German Affidavit, ¶ 6-7).
28. Since special efforts and money had been made to provide the vegan food trays, it was necessary to insure that those individuals who had requested a vegan diet receive their vegan diet food tray and not a non-vegan food tray. (Exhibit C, Sheldon German Affidavit, ¶ 8).
29. Pursuant to Departmental rule 20 Ill. Admin. Code §504.30(b), if Defendant German witnesses or if he receives information from a reliable witness, that an inmate is violating Departmental rules, with the exception of the violations listed in 400 series of Table A, he is required to write a Disciplinary Report if he believes that an IDR is not necessary to resolve the situation . (Exhibit C, Sheldon German Affidavit, ¶ 9, Mays' Exhibit Z ). The plaintiff ...