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Zevez Murrell v. Timothy F. Bukowski

March 11, 2011

ZEVEZ MURRELL, PLAINTIFF,
v.
TIMOTHY F. BUKOWSKI, ET AL.,



The opinion of the court was delivered by: Harold A. Baker United States District Judge

E-FILED

Friday, 11 March, 2011 04:47:53 PM Clerk, U.S. District Court, ILCD

MEMORANDUM OPINION AND ORDER

Before the court are the Defendants, Timothy Bukowski, Michael D. Downey, Todd Schloendorf, Zachery Richmond, Shanika Stevenson and Angela Ahrens' summary judgment motion [54], the Plaintiff, Zevez Murrell's response [64] and the Defendants' reply [67]. Defendants move for summary judgment pursuant to Fed. R. Civ. Pro. Rule 56.

Standard

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The party moving for summary judgment must show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56©, the court may . . . grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56©. In order to be a "genuine" issue, there must be more than "some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e). Further, "[t]he plaintiff cannot merely allege the existence of a factual dispute to defeat summary judgment .. Instead, he must supply evidence sufficient to allow a jury to render a verdict in his favor." Basith v. Cook County, 241 F.3d 919, 926 (7th Cir. 2001). Specifically, the non-moving party "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K&R Express Systems, Inc., 176 F.3d 390, 390 (7th Cir. 1999). Failure by the non-movant to meet all of the above requirements subjects him to summary judgment on his claims.

Affidavits must be based on the personal knowledge of the affiant and "set out facts that would be admissible in evidence." Fed. R. Civ. P. 56(c)(4) (emphasis added). Personal knowledge may include inferences and opinions drawn from those facts. Visser v. Packer Eng. Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991). "But the inferences and opinions must be grounded in observation or other first-hand personal experience. They must not be based on flights of fancy, speculations, hunches, intuitions or rumors remote from that experience." Visser, 924 F.2d at 659. It is also well settled that "conclusory allegations and self-serving affidavits, if not supported by the record, will not preclude summary judgment. Keri v. Barod of Trustees of Purdue University, 458 F.3d 620, 628 (7th Cir.2006)(citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997).

Background

After screening the plaintiff's complaint and holding a merit review conference with the plaintiff, the court allowed the plaintiff to proceed on the following First Amendment claims: (1) that he was denied a vegetarian/Halal meal by Downey and Bukowski on various dates in 2007, 2008, and 2009, while Kosher and vegetarian diets were provided to three Jewish inmates; (2) that he was denied religious services and counseling on December 14, 2006, and November 22, 2006; (3) that his Ramadan rights were continuously violated in 2007 and 2008 because breakfast was not served before sunrise and dinner was served before sunset; (4) that he was denied a celebratory feast with other Muslims at the end of Ramadan in 2008; and, (5) that Richmond took his prayer rug with the approval of Schloendorf. As discussed below, Defendants are entitled to summary judgment as to each of these claims.

Undisputed Statement of Facts

1. At all times relevant to the Amended Complaint, Plaintiff Zevez Murrell was a pre-trial detainee at the Jerome Combs Detention Center ("JCDC") in Kankakee, Illinois (Michael Downey's Aff., ¶ 4, Exhibit A [doc. 55]).

2. On April 27, 2010, Plaintiff transferred to the custody of the Illinois Department of Corrections (Ex. A, Downey's Aff., ¶ 5).

3. At all times relevant to the Amended Complaint, Defendant Timothy F. Bukowski was the Kankakee County Sheriff (Timothy Bukowski's Aff., ¶ 1, Exhibit B [doc. 55[).

4. At all times relevant to the Amended Complaint, Defendant Michael D. Downey was the Chief of Corrections for the Kankakee County Sheriff's Department (Ex. A, Downey's Aff., ¶ 1).

5. At all times relevant to the Amended Complaint, Defendants Jeffery Bright, Joe English, Todd Scholendorf, Zachery Richmond, Kent Smith, Chris Young, Shanika Stevenson, and Thomas Dorries were correctional officers at JDCD in Kankakee, Illinois (Ex. A, Downey's Aff., ¶ 3).

6. Bukowski is and was not involved in the day-to-day operations of the JCDC, including the handling of grievances or requests from inmates regardless to whom they are addressed (Ex. B, Bukowski's Aff., ¶¶ 2, 5-8).

Religious Diet Claim.

7. Plaintiff is a practicing Muslim and has been for the past ten years (Plaintiff's Oct. 16, 2009, Dep., p. 70, Exhibit C [doc. 55]).

8. As a Muslim, Plaintiff is prohibited from eating any food containing pork or pork byproducts (Plaintiff's Feb. 25, 2005, Dep., pp. 27, 29 and 35, Exhibit D [doc. 55]).

9. Halal meat is meat which has been slaughtered in a particular prescribed fashion from certain animals as dictated in the Qu'ran (Ex. D, Plaintiff's 2005 Dep., pp. 25, 28, 29, and 35-38).

10. The Muslim faith requires Plaintiff to eat a Halal meal, and allows, but does not require, a vegetarian or fish meal (Ex. D, Plaintiff's 2005 Dep., pp. 34, 43-44; Ex. C, Plaintiff's Oct. 16, 2009, Dep., p. 70).

11. The JCDC, through its third party food service provider, provides inmates with three nutritionally adequate, non-pork meals consisting of at least 2400 calories per day (Ex. A, Downey's Aff., ¶¶ 8, 12, 14, 16; Aleta Lowe's Aff., ¶¶ 1, 6, 8, Exhibit E [doc. 55]).

12. Per its contract with the JCDC, the food service provider is budgeted $3.05 per meal per inmate (Ex. A, Downey's Aff., ¶ 10; Ex. E, Lowe's Aff., ¶ 6).

13. The JCDC's regular menu complies with the allotted budget and nutritional and caloric requirements of the County Jail Standards (Ex. E, Lowe's Aff., ¶¶ 2, 6).

14. The JCDC's menu includes fruits, vegetables, grains, pasta, fish, and other nonmeat items (Ex. E, Lowe's Aff., ¶ 7).

15. Individualized meals are not provided to inmates, unless ordered by a physician for medical reasons (Ex. A, Downey's Aff., ¶ 15).

16. Providing a standardized dietary plan promotes administrative and staff efficiencies in that the same meal is purchased and served to all inmates at the same time (Ex. A, Downey's Aff., ¶ 18).

17. Offering a standard meal plan also avoids jealousy among inmates and therefore promotes jail order and security (Ex. A, Downey's Aff., ¶ 19).

18. The cost of providing a nutritionally adequate vegetarian meal is $5 per meal and therefore exceeds the allotted per meal budget by 64 % (Ex. E, Lowe's Aff., ¶ 13).

19. The additional cost of a vegetarian meal stems from the low-caloric nature of such foods which requires the purchase of more food to comply with the prison's 2400 caloric requirement (Ex. E, Lowe's Aff., ¶ 13).

20. The cost of providing certified Halal meals that meet or exceed the required calorie content would be $15 per meal, based upon the quantity of meals purchased and the type of meat contained therein. This is 391% higher than allotted under the contract with Kankakee County (Ex. E, Lowe's Aff., ¶ 11, 14).

21. In order to accommodate the religious dietary requirements of Muslim inmates, all meals served at the JCDC are completely free of pork and pork by-products (Ex. A, Downey's Aff., ¶ 16; Ex. E, Lowe's Aff., ¶ 6).

22. Chief Downey implemented the pork-free policy over 14 years ago in response to requests from Muslim inmates (Ex. A, Downey's Aff., ¶ 17).

23. In March of 2006, U.S. District Court Judge Harold Baker granted summary judgment to in favor of Defendants Downey and Bukowski in Murrell v. Downey, 04 cv 2277, finding that Plaintiff is not entitled to a vegetarian diet or specially prepared Halal meal, and that Defendants had complied with their constitutional duties to Muslim inmates, including Plaintiff, by providing a pork-free meal system (Case No. 04 cv 2277, Order granting Sum. Judg., d/e 32, p. 5, March 29, 2006, Exhibit F [doc. 55]).

24. Since obtaining summary judgment in the prior litigation, Defendant Downey has relied upon Judge Baker's decision in continuing the policy and practice of the JCDC to provide all inmates with pork-free meals and to deny a vegetarian diet to Plaintiff (Ex. A, Downey's Aff., ¶ 21).

25. The JCDC has housed other Muslim inmates besides Plaintiff, and no other Muslim inmate has ever requested a vegetarian diet in accordance with their religious practices or submitted a grievance stating that the provision of a pork-free diet did not comport with their religious practices (Ex. A, Downey's Aff., ¶ 22).

26. The JCDC has never provided certified Kosher meals to inmates (Ex. A, Downey's Aff.,¶ 25).

27. There was an federal inmate by the name of Robert Katzman who was detained at the JCDC from May 17, 2007, to May 24, 2007 (Ex. A, Downey's Aff., ¶ 26).

28. Katzman requested a Kosher diet in accordance with his Jewish religious practices (Ex. A, Downey's Aff., ¶ 26).

29. Chief Downey responded to Katzman that the JCDC does not provide Kosher meals (Ex. A, Downey's Aff., ¶ 26).

30. Katzman was never provided a Kosher or vegetarian meal, although he may have been provided certain types of food items, at his request, that the Country Table was able to accommodate based on the existing menu and within the contractual per meal budget (Ex. A, Downey's Aff., ¶ 27).

31. Katzman was returned to the MCC in Chicago, in part, because the JCDC could not accommodate his request for Kosher meals (Ex. A, Downey's Aff., ¶ 28).

32. Michael Nelson was a Jewish inmate detained at the JCDC from October 18, 2007, to September 21, 2009 (Ex. A, Downey's Aff., ΒΆ ...


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