Purifoy v. Williams

• Court: District Court, W.D. Arkansas
• Decided: October 3, 2018
• Docket: 3:17-cv-03079
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION

GEORGE J. PURIFOY PLAINTIFF

V. CASE NO. 3:17-CV-03079

JERRY WILLIAMS, Jail Administrator, Carroll County Detention Center, CCDC; ANDREA MORRELL, Shift Supervisor, CCDC; MELISSA EASTER, Sergeant/Accounts Officer, CCDC; A. LEMUS, Sergeant/Shift Supervisor, CCDC DEFENDANTS

MEMORANDUM OPINION AND ORDER

Plaintiff George J. Purifoy filed this action pursuant to 42 U.S.C. § 1983. He

proceeds pro se and in forma pauperis. This case arises out of Plaintiff's incarceration

in the Carroll County Detention Center ("CCDC"). Plaintiff maintains his constitutional

rights were violated in the following ways: (1) he was denied adequate medical care,

primarily for hypoglycemia ;1 (2) he was served an inadequate diet; (3) he was charged

exorbitant prices for basic hygiene items and over-the-counter medications; (4) his

access to televised news was limited to one or two channels consisting of "a nonstop

barrage of political brainwashing "; (5) his possession of reading material was unfairly

restricted , and he was not allowed to have material mailed to him; and (6) he was denied

pastoral visits and church services. Plaintiff has named as Defendants to this action the

1 Hypoglycemia is defined as: "Symptoms resulting from low blood glucose (normal glucose range 60-100 mg/dl [3.3-5.6 mmol/L]), which are either autonomic or neuroglycopenic. Autonomic symptoms include sweating , trembling , feelings of warmth , anxiety, and nausea. Neuroglycopenic symptoms include feelings of dizziness, confusion, tiredness, difficulty speaking , headache, and inability to concentrate ." https://www.medilexicon .com/dictionary/42885 (accessed August 31 , 2018). Jail Administrator, Lieutenant Jerry Williams; two shift supervisors, Sergeant Andrea

Morrell and Sergeant A. Lemus; and the accounts officer, Sergeant Melissa Easter. The

case is now before the Court on the Defendants' Motion Summary Judgment (Doc. 22).

Plaintiff has responded to the Motion , see Doc. 26 , and the matter is now ripe for

decision.

I. BACKGROUND Plaintiff was booked into the CCDC on March 23, 2017. (Doc. 24-2 at 1). He had

no medication with him. His weight was noted as 170 pounds, and his height was 5'11 ".

Id.

A. Medical Care

During his deposition , Plaintiff testified that he had been hypoglycemic his entire life.

(Doc. 24-10 at 18). He claimed that if he did not get enough to eat, he would start feeling

lightheaded and shaky and sometimes pass out, but if he got something to eat, he would

be fine. He also confirmed that in the free world , he would carry a snack with him in case

he started feeling lightheaded . Id.

With respect to medical treatme.nt for hypoglycemia , Plaintiff testified that he had

not seen a doctor on a regular basis in 20 to 30 years. Id. at 19. Instead, he only saw a

doctor when something was wrong. Id. He preferred managing his hypoglycemia on his

own , through diet, and he testified that he had never taken any medication for this

condition. Id. at 19, 20. He also did not measure his blood sugar on a regular basis. Id.

at 21 . According to Plaintiff, his normal weight is about 180 pounds, but he does not

believe his weight affects his hypoglycemia. He testified that his episodes of

2 hypoglycemia would sometimes occur every few weeks or every few months, but other

times would occur more frequently, such as every day for a month. Id. at 22.

Shortly after he was incarcerated at the CCDC , Plaintiff began experiencing nose

bleeds, bleeding gums, bloody stool , and problems with urination . Id. at 26. According

to Plaintiff, he informed the jail staff about these symptoms, but he was ignored . About a

week or so after he entered CCDC custody, on March 31 , 2017 , Plaintiff submitted a

medical request in which he stated he had informed booking staff of his hypoglycemia

and had received no medical attention. (Doc. 24-5 at 1). He stated that he was beginning

to have tremors in his hands, his vision was sometimes cloudy in the evening, and he

occasionally had vertigo. Id. Plaintiff also complained in the grievance that the meager

rations he was served at the jail were insufficient to maintain his blood sugar level. Id.

He claimed that since he had no money in his jail account, he could not purchase

commissary items to supplement his diet. Id. Nurse W responded in writing to his

grievance, noting, "I have added this for you. " Id.

According to Plaintiff, on April 2, 2017 , he began receiving a snack at night. (Doc.

24-10 at 60) . Plaintiff testified that for most of the month of April , he was in solitary

confinement and did not have access to a kiosk. Id. at 45 . He indicated that he was

rarely let out of the cell during that time. Id. On April 25 , 2017, Plaintiff asked staff if he

needed to see the doctor to have his hypoglycemia addressed. (Doc. 24-5 at 2). He said

he had mentioned this condition during intake and had made a request to see a doctor at

that time, but he had not received any attention. Nurse W responded in writing that

Plaintiff was already receiving a peanut butter sandwich at night. Nurse W also indicated

3 that the extra sandwich was on his med list, and that the jail did not provide snacks during

the day.

On May 17, 2017, Plaintiff submitted a request stating he noticed jaundiced bruising

appearing on his left leg and was beginning to experience some pain. Id. at 4. Nurse W

responded that jaundiced bruising simply indicates a healing bruise. She advised Plaintiff

to have "Bing" look at it the next day at med pass. Id.

According to Plaintiff, Officer Collins handled the issue of his bruising by taking

pictures and sending them to Dr. Bell. (Doc. 24-10 at 44). On May 18, 2017, Dr. Bell put

Plaintiff on a low dose of aspirin and Ibuprofen. (Doc. 24-4 at 1). Plaintiff was told he

was put on the list to see the doctor.

On June 22, 2017 , Plaintiff asked that his prescriptions for 81 mg aspirin and 600

mg Ibuprofen be renewed. (Doc. 24-5 at 5). Nurse R responded that the medications

had been ordered. Plaintiff testified he did not ask to see a doctor with respect to this

request because he had already been told by Officer Collins that he was on the list to see

the doctor. (Doc. 24-10 at 48).

On July 15, 2017, Plaintiff submitted a request stating he had been told by Officer

Collins that the doctor wanted to see him. (Doc. 24-5 at 6). He also complained of having

"occasional chest pain and possible circulatory problems. " Id. He was told that he would

see the doctor the following month.

On August 4, 2017, Plaintiff submitted a request stating he had been passed over

several times for doctor's visits and wanted to make sure he was not forgotten the next

time the doctor came. Id. at 7. He stated he was experiencing several problems including

4 recent bleeding in his soft tissues and stool. Id. Nurse R responded that he was on the

list to see the doctor on August 18th.

On August 14, 2017, Plaintiff submitted a request stating he was having increasing

difficulty with his symptoms of hypoglycemia. Id. at 8. He complained that the extra

peanut butter sandwiches he had been receiving in the evenings hardly contained any

peanut butter. He also asserted that the "meager diet provided here simply isn't enough

calories to get me through between mealtimes ." Id. Nurse R responded that he wou ld

be seeing the doctor on Friday and should talk to him about it.

Plaintiff testified that he was seen by Dr. Bell on Friday, August 18, 2017. (Doc. 24-

10 at 55 , 60). Plaintiff talked to Dr. Bell about his hypoglycemia. Dr. Bell ordered

Plaintiff's blood sugar to be tested twice a day for one week, put him on double portions

and a high protein diet, and continued his nighttime snack. Id.; Doc. 24-4 at 2. Plaintiff's

weight was recorded as 160 pounds on that date. (Doc. 24-4 at 2). Plaintiff indicated

during the medical visit that he did not believe it was necessary to test his blood sugar

so long as he had enough to eat. (Doc. 24-10 at 61 ). Dr. Bell , however, stated that he

wanted to see what Plaintiff's blood sugar was, so he ordered that it be tested.

Plaintiff testified that with respect to his diet, the kitchen staff claimed he was just

put on a high protein diet, which meant he received an "extra piece of tofu with [his]

meal. " (Doc. 24-10 at 55). Plaintiff testified he was not sure who had prevented him

from receiving double portions, but he knew that Sergeant Easter was "over the kitchen ."

Id. He testified that he did not believe Sergeant Easter had any reason to deprive him

of a medically ordered diet. Id. at 56.

5 On August 21, 2017 , Plaintiff submitted a request stating that the doctor had put him

on a special diet because he was 25 pounds underweight, but the evening snack he was

receiving consisted only of "two pieces of bread with barely any peanut but[t]er scraped

across one piece. " (Doc. 24-5 at 9) . He stated this was a direct threat to his personal

health. Sergeant Lemus noted that he had seen an inmate putting two tablespoons of

peanut butter on the sandwiches the previous morning. Nurse R also responded that two

tablespoons was more than enough peanut butter for a snack.

On August 23, 2017, Plaintiff submitted another request about the peanut butter

sandwiches. (Doc. 24-5 at 10). He said "[t]here is nowhere near two tablespoons of

peanut butter on these sandwiches and anyone that says so hasn't looked at them and

is lying or is completely blind. " Id. He stated he showed two officers the sandwiches on

different dates to prove how little peanut butter had been placed on them. In response,

Nurse R confirmed that she had been told that two tablespoons of peanut butter was

placed on each sandwich. Plaintiff submitted a second request that same day for medical

attention, in which he claimed he was not receiving his ointment or vitamins. (Doc. 24-5

at 11 ). In response, Nurse R stated that both items were on the medical cart.

On August 28, 2017, Plaintiff submitted another grievance about his blood sugar not

being tested twice a day as ordered by the doctor. (Doc. 24-3 at 21 ). He claimed his

blood sugar had only been tested successfully on one occasion since the doctor gave the

order. Nurse R responded that she would look into it. On September 5, 2017, Plaintiff

submitted another grievance , claiming nothing had been done yet about this issue. The

following day, Nurse R replied that the order was back on the list for his blood sugar to

be tested two times a day for a week.

6 On August 29, 2017, Plaintiff asked for his multi-vitamin to be administered at night.

(Doc. 24-5 at 12). Nurse R responded that she had changed it. On September 12, 2017,

Plaintiff submitted a request stating that his blood sugar was still not being monitored per

the doctor' s instructions. (Doc. 24-5 at 13). He claimed that it had been only taken once

since his last complaint. Nurse R responded that she would look into it. Then , on

·september 15, Nurse R sent Plaintiff a note stating that she had not realized they were

low on supplies to get his blood sugar tested . She informed him that supplies had been

ordered and once they were received , she would order his blood sugar to be taken .

On October 9, 2017 , Plaintiff submitted another grievance about his medical care,

explaining that he had been asking to see the doctor for two weeks, and he was told the

list for the month was full , so he would have to wait until the next month. (Doc. 24-3 at

29). Lieutenant Williams responded in writing , indicating that he had talked to medical

staff, and Plaintiff would be seen by the doctor that same month, on October 20 , 2017.

Plaintiff was also told that if he felt he had additional med ical concerns that rose to the

level of an emergency, he should not hesitate to inform the staff.

Plaintiff's medication sheet indicates that his blood sugar was to be checked daily

from October 18, 2017, until October 21 , 2017 . (Doc. 24-4 at 4). The sheet that covers

dates from April 2, 2017 , to October 18, 2017 , contains no other order for blood sugar

checks. The only change in his diet that appears on the medication sheet is the addition

of the peanut butter sandwich at bedtime on April 2, 2017.

Plaintiff was next seen by the doctor on October 20 , 2017. (Doc. 24-4 at 3). Plaintiff

was complaining of stress, anxiety, and poor sleep . His weight was noted to be 165

pounds. Dr. Bell ordered Plaintiff to have double portions of food at supper time and for

7 his blood sugar to be checked as needed. On October 24 , 2017, Plaintiff submitted a

request stating that the doctor had authorized double portions of food , and the tofu he

had been receiving was making him constipated. A handwritten note in Plaintiff's medical

file stated that the double portion order "was added to [his]list 10/25/17." Id.

Plaintiff testified that he did not know if any of the Defendants were aware of all the

delays he had been experiencing in trying to see the doctor. (Doc. 24-10 at 49). However,

he assumed that the Defendants knew because "they're the ones that are in charge, " and

"they're the ones that are running the show here ." Id. Plaintiff testified he never directly

talked to Lieutenant Williams about his medical care . Id. at 49-50. However, Lieutenant

Williams was involved in the grievance process and "there 's been some that he's chimed

in on ." Id. at 50.

With respect to Sergeant Morrell , Plaintiff testified that he did not believe she was

involved in any way with his medical grievances. Id. at 51. Plaintiff also testified that he

did not know if either Sergeant Easter or Sergeant Lemus was aware of his having been . . told by Officer Collins that the doctor wanted to see him. Id. at 51-54.

Plaintiff also did not know if the Defendants were personally involved in his medical

care. Id. at 53-54. None of the Defendants was present when Plaintiff was seen by the

doctor. Id. at 54. Plaintiff also testified that he never had a discussion with any of the

Defendants about his medical care , and none of them ever tested his blood sugar levels.

Id. at 65.

With respect to the existence of any Carroll County policy or custom, Plaintiff

testified that "someone was not following the doctor's order." He conceded , however,

that this was not a policy of the County. Nevertheless, Plaintiff maintains the facts

8 "clearly demonstrate negligence on the part of the Defendants in that they failed in their

administrative capacity to assure the execution of valid orders from a licensed medical

professional." (Doc. 26 at 2).

B. Diet

Plaintiff submitted grievances about his diet on the following days:

6/8/2017-food being served by other inmates; one of them rubbed his eyes and was picking his nose and then handed out my food and drink;

6/10/2017-inmates still handing out my food ; did not receive milk this morning;

6/16/2017-situation regarding inmates handing out my food has not been rectified;

6/17/2017-breakfast tray served by another inmate and Corporal Madel was in the pod;

6/19/2017-over weekend and this morning inmates allowed to pass trays;

6/22/2017-situation regarding inmates handing out trays not getting rectified ; inmates "cherry picking for larger portions;" inmates "scratching" themselves ; he asked that the inmates at least be given gloves;

6/26/2017-inmates delivering trays;

6/28/2017-inmates serving trays;

7/5/2107-inmates serving trays;

7/24/2017-food portions have become miniscule and unevenly divided ; cornbread and brownie have been tiny slivers where as other inmates' helpings were twice as big ; inmate server laughed when something was mentioned about poor portioning of food ;

7/26/2017-issue has not been resolved; brownie half an inch by maybe an inch and a half and hard as a rock; putting trash on someone 's plate is a personal affront; we are people not dogs; people doing life

9 sentences for murder are better fed than us and I have not been convicted ; diet is substantially below federal guidelines;

8/14/2017-sandwiches has barely any peanut butter on them ; I have aggressive hypoglycemia and barely get enough as it is on the meager diet; I depend on those calories to get me through the night until breakfast; situation is a direct threat do my health ;

8/19/2017-doctor ordered an extended diet yesterday and I am not getting it;

8/20/2017-eggs this morning were rotten , brown with a foul odor;

8/21/2017-served a sandwich with a dead fly smashed into the breach ; check sandwiches every time to see what color the bologna is and make sure it is edible; believe fly was intentionally put on my sandwich because of someone's annoyance with having to prepare me a special extended diet;

8/23/2018-inmates know who gets the special trays in the pod; since August 18th our trays have been noticeably smaller as well as being served the smallest blueberry muffins and brownies from the corner section of the pan , where they are almost always overcooked if not burnt; I was placed on an augmented diet for being twenty-five pounds underweight after being in the CCDC for only five months;

9/1 /2017-served another rotten egg ; it was brown and had a bad smell ; I returned it and got nothing in its place; meager diet is bad enough without being served rotten food ; am on a special diet and should be getting more calories than that provided to other inmates.

9/12/2017-my trays are consistently less proportional than other inmates; I believe this is intentional because I get a special diet; I always get half as much as other inmates.

(Doc. 24-3 at 1-26).

Plaintiff testified at his deposition that the inmates received no vitamin C, did not get

any fruit, and did not get a whole lot of vegetables. (Doc. 24-10 at 27 & 69). They would

get beans for protein. Id. at 69. When they did get vegetables , it would be a tossed

salad, "which (was] more roughage than anything ," or steamed cabbage , which they got

"quite a bit. " Id. Plaintiff did not believe the inmates were receiving a "healthy, balanced

10 diet. " Id. at 69-70 . He did not believe the diet was varied enough. Id. at 70. Plaintiff

testified the meals were the same every day, and they did not get vegetables containing

beta carotene or other vitamins and minerals that "anyone would consider part of a

healthy diet. " Id.

Plaintiff indicated he had no way of knowing how many calories inmates were getting

or how many he needed in a day. (Doc. 24-10 at 28-29). Plaintiff testified he weighed

170 pounds 2 when he was booked in and got down to only 155 pounds in May or June.

(Doc. 24-10 at 32, 36). He got back up to about 170 pounds after he began receiving

double portions in the evenings. Id.

According to Plaintiff, on August 18, 2017, the doctor ordered him to receive both

double portions and a high protein diet. Id. at 55. However, Plaintiff stated the notation

in his file only ordered double portions. Plaintiff testified that it was not until October 23 ,

2017 , that he began receiving double portions in the evening. Id. at 32 . Plaintiff also

testified that after he was incarcerated , he began noticing blood in his stool, bleeding

from his gums, and increasing trouble with urination. Id. at 71. Plaintiff believed it was

a possibility that these physical problems were related to the lack of fruit and the lack of

a variety of vegetables. Id.

Sergeant Lemus responded to most of the grievances, but Lieutenant Williams

responded to a couple of them . Id. at 78 . According to the grievance responses,

Sergeant Lemus checked with various staff members mentioned by Plaintiff to get the

problems regarding his meals and portion sizes resolved. (Doc. 24-3). Sergeant Easter

2 The booking records confirm that his weight was 170. (Doc. 24-2 at 2). 11 responded to the two grievances about rotten eggs, stating she would speak to the

officers and kitchen staff about the issues. Id. at 19, 22 .

C. Price Gouging-Hygiene Items and Over-the-Counter Medications

Plaintiff's next claim is that he was charged too much for basic hygiene products

and over-the-counter medications. Plaintiff testified that inmates even pay for toilet paper

and soap. (Doc. 24-10 at 82). He believed he was charged about 50 cents for one roll

of toilet paper, but in the free world , he could buy four rolls of toilet paper for about 99

cents, and even less if the product was on sale. Plaintiff did not believe inmates should

be charged for toilet paper or other basic hygiene items. He agrees, however, that he

was never denied toilet paper when he needed it unless the jail was out of it.

With respect to over-the-counter medications , Plaintiff believes it is a violation of

federal law to sell products marked "not for individual sale ." Id. at 84. He believes

Defendants bought medications , such as Ibuprofen, in bulk and then charged inmates

twenty cents per pill. He claims that th is was a "crazy amount of money." Id. Plaintiff

also testified that he knew that in the Arkansas Department of Corrections, inmates were

not charged for basic hygiene items or over-the-counter medications. Id. at 82 , 85 .

Plaintiff was asked in his deposition whether any of the named Defendants was

involved in the pricing of commissary items. Id. at 86. He responded that he believed

Lieutenant Williams "most certainly" was involved in decisions about what to charge for

the items. Id. Plaintiff cla ims he spoke directly with Lieutenant Williams about the cost

of the items at some point. Id. at 86-87.

12 D. Television and Reading Material

On August 7, 2017 , Plaintiff submitted a grievance about the television being left on

the CNN channel for three weeks straight. (Doc. 24-3). Sergeant Lemus responded that

he was sure he had changed the television to FOX News last week. Plaintiff replied that

Sergeant Lemus was wrong . Sergeant Lemus then responded that he would have the

officers change the channel.

Plaintiff testified that the television is on in the jail 24 hours a day, 3 and the volume

was set at a level where it could be heard even within the cells. (Doc. 24-10 at 88, 90).

He claimed there was nothing one could do to muffle the sound, "so everything is a really

big echo. " Id. at 88 . He also indicated that he was tired of hearing propaganda on the

news and of not having the office of the President accorded dignity and respect. Plaintiff

later clarified in his deposition that the jail played news channels during the week, but on

the weekends, the jail staff turned the channel to "TV Land" to broadcast non-news

shows.

Plaintiff believes he has a First Amendment right to decide what he wants to see or

hear, and that inmates should be allowed to change the television channels themselves.

In his pod at the time of his deposition, there were 12 inmates, and Plaintiff explained that

he believed his pod mates should be able to decide by majority consensus which channels

to watch.

Plaintiff also complained that the CCDC's rule that inmates may only have three

books in their cells at a time is unconstitutional. Id. at 93 . He believes that under the

3 This testimony contradicts several other grievances Plaintiff submitted. See Doc. 24-3 at 2, 9, 11. Plaintiff stated in those other grievances that the television was not on early in the day. Id. 13 Constitution , he should be entitled to have as many books in his cell as he wishes. He

also noted that the jail policy prevents people from mailing inmates any books. He argues

that the book restriction is potentially ambiguous in its application , as jail staff are

permitted to determine what does, and does not, qualify as a "book." Id. at 94. However,

he concedes that the jail permits him to keep "envelopes full of' religious materials in his

cell at all times, id. , and allows him to keep the religious pamphlets he receives in the mail

and the reading materials his pastor leaves for him when he visits. In addition to all that,

the jail also permits Plaintiff to keep "two translations of the Scriptures" in his cell and has

not required that he lim it the number of religious texts in his cell due to the three-book

limitation or any other jail rule. Id. at 93.

E. Religious Visits and Materials

Plaintiff claims he was raised as a Roman Catholic but came to the realization that

"modern day Christianity is not in tune with how the early church was founded ." (Doc. 24-

10 at 75). He indicates that he believes what "your standard Christian would believe ," but

he looks to the "Book of Acts , Chapter 24, where Paul talks about [being] a follower of the

Way ." Id. Plaintiff testified he gets a "lot of literature from a place called Yahweh 's

Assemblies in Yahshua ." Id. at 76. The pastor who visits him every Thursday at the

CCDC is from "a group called Ozark Hebrew Heritage," which is a "Messianic Hebrew

organization ." Id. While Plaintiff believes in the New Testament, the members of his

church , Ozark Hebrew Heritage, "follow more of the way [of] the early Jewish Christians. "

On July 1, 2017, Plaintiff submitted a grievance stating he had been denied his

pastoral visit on June 29th. (Doc. 24-3 at 8). He indicated he was in the visitation section

14 the whole time, and the guards were notified about his pastor's presence three times.

Sergeant Morrell responded that he would look into it. However, Sergeant Morrell noted

that there were times where the office,rs got busy, and June 29th may have been one of

those times.

On July 13, 2017, Plaintiff claimed that again he missed his pastoral visit. See id.

at 13. Plaintiff stated that he was denied written material the pastor left for him. Plaintiff

indicated that the material was "directly related to prophecy from the Bible that we have

been studying ." Id. Sergeant Lemus responded that he was not aware of this incident

and would figure out what was going on .

On July 21, 2017, Plaintiff complained that he had not yet received the material left

for him by his pastor. Id. at 23 . Plaintiff asserted that the jail officers were not qualified

to determine what type of material was relevant to his religious beliefs. Sergeant Lemus

responded that the only reason he could see that the material was not immediately given

to Plaintiff was that it contained staples. It appears the staples were eventually removed

and the material was given to Plaintiff.

On August 31, 2017 , Plaintiff submitted a grievance stating that the guard did not

come to take him to visitation with his pastor in a timely manner. On September 9, 2017 ,

Plaintiff claimed in a grievance that his pastor had left religious material for him on

September 7, 2017 , and he had not received it. Id. at 24. Sergeant Lemus responded

that he would look into it. On September 10, 2017, Plaintiff claimed he had not yet

received the religious material mentioned in the September 7 grievance. Id. at 25.

Sergeant Morrell replied that the only material he was aware of was a full-size calendar

that was not an "allowed" item.

15 On September 12, 2017 , Plaintiff submitted a grievance about his failure to receive

a calendar that denotes when sabbath feasts occur. Id. at 27 . Plaintiff stated that the

calendar provided the only way of knowing when these special sabbath fasts took place ,

and without it, Plaintiff would not be able to practice his religion effectively. Lieutenant

Williams responded that, after consulting with the County attorney, the CCDC would be

making Plaintiff photocopies of the calendar so as not to deprive him of the religious

information . On September 13, Plaintiff complained the copies provided by the jail were

poor and illegible. Plaintiff indicated he could not read the time that each sabbath feast

began , and that some of the recommended scripture readings were illegible. In response ,

Lieutenant Williams suggested that if the photocopies were insufficient, Plaintiff should

request that the source material be provided in a different way so the jail staff would be

permitted to give it to him .

On September 14, 2017 , Plaintiff submitted a grievance stating he had been denied

a visit with his pastor. (Doc. 24-3 at 28). He stated his pastor was there every Thursday

at 2:00 p.m. and visited with Plaintiff and Jeremiah Bliss. Plaintiff also stated that there

were times his pastor was kept waiting for up to an hour, which resulted in Plaintiff's visit

being cut short. Plaintiff mentioned there were times staff were slow in switching out the

Plaintiff and Bliss. Plaintiff apparently suggested the possibility of a group meeting in M

pod with the pastor and Bliss, and Sergeant Lemus indicated he would look into that

possibility and speak with Sergeant Morrell about why the staff were unable to switch

inmates in a timely manner.

Plaintiff further claims that when he was in solitary confinement, he was not allowed

to attend church services. Id. at 99. There do not appear to be any other facts alleged to

16 support this claim . As for who might be liable for the alleged violations of his right to free

exercise of religion, Plaintiff could not say if any of the named Defendants denied him the

opportunity to see his pastor. Instead , he testified that he sued the named Defendants

because "they're the ones that are in an administrative capacity," and he believed they

"were the ones handing down the orders. " (Doc. 24-10 at 39) . . In Plaintiff's view, the

Defendants were the "ones who allow certain behaviors to carry on even after I've spoke

up , you know. " Id.

II. LEGAL ST AND ARD

Summary judgment is appropriate if, after viewing the facts and all reasonable

inferences in the light most favorable to the non moving party, Matsushita Elec. Indus. Co.

v. Zenith Radio Corp. , 475 U.S . 574 , 587 (1986), the record "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) . "Once a party moving for summary judgment has made a

sufficient showing , the burden rests with the non-moving party to set forth specific facts,

by affidavit or other evidence , showing that a genuine issue of material fact exists. " Nat'/

Bank of Commerce v. Dow Chemical Co., 165 F.3d 602 , 607 (8th Cir. 1999).

The non-moving party "must do more than simply show that there is some

metaphysical doubt as to the material facts. " Matsushita , 475 U.S. at 586 . "They must

show there is sufficient evidence to support a jury verdict in their favor. " Nat'/ Bank, 165

F.3d at 607 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986)) . "A case

founded on speculation or suspicion is insufficient to survive a motion for summary

judgment. " Id. (citing Metge v. Baehler, 762 F.2d 621 , 625 (8th Cir. 1985)). "When

opposing parties tell two different stories, one of which is blatantly contradicted by the

17 record, so that no reasonable jury could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for summary judgment. " Scott v. Harris ,

550 U.S. 372 , 380 (2007).

II. DISCUSSION

Defendants maintain they are entitled to summary judgment because : (1) they were

not deliberately indifferent to Plaintiff's medical needs with respect to his diet or his need

for blood testing ; (2) there is no constitutional right to particular pricing on commissary

items; (3) Plaintiff's First Amendment rights were not violated with respect to Plaintiff's

access to information or his free exercise of religion ; (4) Defendants are entitled to

qualified immunity; and (5) there is no basis for official capacity liability.

A. Conditions of Confinement Claims

The Eighth Amendment to the United States Constitution prohibits the imposition of

cruel and unusual punishment. 4 U.S. Const. amend. VIII. The Cruel and Unusual

Punishment Clause of the Eighth Amendment forbids cond itions that involve the "wanton

and unnecessary infliction of pain ," or are "grossly disproportionate to the severity of the

crime." Rhodes v. Chapman , 452 U.S. 337, 347 (1981 ).

"[W]hen the State takes a person into its custody and holds him there against his

will , the Constitution imposes upon it a corresponding duty to assume some responsibility

for his safety and general well-being ." Cnty. of Sacramento v. Lewis, 523 U.S. 833 , 85 ~

4 Plaintiff is a pretrial detainee. However, the Eighth Circu it has consistently applied the Eighth Amendment to conditions of confinement claims brought by pretrial detainees. See, e.g., Davis v. Oregon Cnty. , Mo., 607 F.3d 543 , 548 (8th Cir. 2010) ("Pretrial detainees are entitled to the same protection under the Fourteenth Amendment as imprisoned convicts receive under the Eighth Amendment") (internal quotation marks and citation omitted). 18 (1998) (citation omitted). The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones. Farmer v. Brennan , 511 U.S. 825, 832 (1994).

"The Eighth Amendment prohibits punishments that deprive inmates of the minimal

civilized measure of life's necessities. " Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.

1996). Jail or prison officials must provide reasonably adequate ventilation , sanitation ,

bedding, hygienic materials, food , and utilities. Id. Prison conditions claims include

threats to an inmate's health and safety. Irving v. Dormire, 519 F.3d 441 , 446 (8th Cir.

2008) (citation omitted).

To state an Eighth Amendment claim , the plaintiff must allege that prison officials

acted with "deliberate indifference" towards conditions at the detention facility that created

a substantial risk of serious harm . Farmer, 511 U.S. at 834 . "Conditions of confinement,

however, constitute cruel and unusual punishment 'only when they have a mutually

enforcing effect that produces deprivation of a single, identifiable human need such as

food, warmth , or exercise ."' Whitnack v. Douglas Cnty. , 16 F.3d 954, 957 (8th Cir. 1994)

(quoting Wilson v. Sieter, 501 U.S. 294 (1991)).

The deliberate indifference standard involves both an objective and a subjective

component. The objective component requires an inmate to show that "he is incarcerated

under conditions posing a substantial risk of serious harm. " Farmer, 511 U.S. at 834

(citations omitted); see also Hudson v. McMillian , 503 U.S. 1, 2 (1992) (objective

component is "contextual and responsive to contemporary standards of decency")

(quotation omitted). To satisfy the subjective component, an inmate must show that

prison officials had "a sufficiently culpable state of mind. " Farmer, 511 U.S. at 834

(citations omitted); see also Brown v. Nix, 33 F.3d 951 , 954-55 (8th Cir. 1994). The

19 subjective component "requires proof of a reckless disregard of a known risk ." Crow v.

Montgomery, 403 F.3d 598, 602 (8th Cir. 2005) (citation omitted).

1. Denial of Medical Care

The Eighth Amendment prohibition on cruel and unusual punishment prohibits

deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 429

U.S. 97 , 106 (1976) . "'The [Plaintiff] must demonstrate (1) that [he] suffered [from]

objectively serious medical needs and (2) that the prison officials actually knew of but

deliberately disregarded those needs."' Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir.

2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).

To show he suffered from an objectively serious medical need, Plaintiff must show

he "has been diagnosed by a physician as requiring treatment" or has an injury "that is so

obvious that even a layperson would easily recognize the necessity for a doctor's

attention ." Schaub v. Von Wald, 638 F.3d 905 , 914 (8th Cir. 2011) (internal quotations

and citations omitted). Defendants admit that hypoglycemia is a serious medical

condition , but they argue there is no evidence Plaintiff actually has that condition. Medical

staff, however, assumed Plaintiff's health complaints were true and provided him with a

bedtime snack, and later ordered that he receive double portions of food and a high

protein diet. Defendants treated Plaintiff as though he had an objectively serious medical

need , and the Court will assume that medical need , as well , for purposes of discussion.

To establish the subjective prong of deliberate indifference, "the prisoner must show

more than negligence, more even than gross negligence, and mere disagreement with

treatment decisions does not give rise to the level of a constitutional violation . Deliberate

indifference is akin to criminal recklessness , which demands more than negligent

20 misconduct. " Popoalii v. Corr. Med. Servs., 512 F.3d 488 , 499 (8th Cir. 2008) (internal

quotation marks and citations omitted).

Here, Defendants argue they cannot be held liable for any of Plaintiff's medical

complaints because they are non-medical personnel who were not personally involved in

Plaintiff's medical care. While it is true that § 1983 liability requires some personal

involvement or direct responsibility, this does not mean that non-medical personnel are

necessarily insulated from liability. In this case , however, Plaintiff testified that he did not

know if the named Defendants were aware of his complaints about delays in receiving

medical care or about the doctor's orders not being carried out. Plaintiff does not argue

that any of the Defendants were personally involved in the provision of medical care to

him.

The only Defendant directly involved in responding to one of Plaintiff's medical

grievances was Lieutenant Williams , who took action in response to Plaintiff's grievance

about seeing the doctor when the waiting list was full for the month. Plaintiff does not

dispute that Lieutenant Will iams contacted medical personnel and assured Plaintiff that

he would be seen by the doctor that month. Therefore, Lieutenant Williams' actions do

not suggest deliberate indifference on his part-quite the opposite in fact. Assuming the

facts in the light most favorable to Plaintiff, the Court concludes that no individual liability

claims are stated with respect to the denial of medical care claims, and they are

accordingly subject to dism issal with prejudice .

As for Plaintiff's official capacity claim , he argues that Defendants failed in their

administrative capacity to assure that the doctor's orders were faithfully executed . A claim

against the Defendants in their official capacities is the equivalent of a cla im against the

21 governmental entity that employs the officials, here Carroll County. Will v. Michigan Dep 't

of State Police, 491 U.S . 58 , 71 (1989) . To establish Carroll County's liability, Plaintiff

must show an unconstitutional policy or custom that was the moving force behind the

violation of his Eighth Amendment right to adequate medical care. Jenkins v. Cnty. of

Hennepin, 557 F.3d 628 , 633 (8th Cir. 2009). The summary judgment record lacks any

suggestion of the existence of such a custom or policy. Moreover, Plaintiff's official

capacity claim fails because he suffered no constitutional deprivation . Cooper v. Martin ,

634 F.3d 477, 481-82 (8th Cir. 2011) ("In order for municipal liability to attach , individual

liability must first be found on an underlying substantive claim. ") (internal quotation marks

and citation omitted). For these reasons , the official capacity claims are likewise

dismissed with prejudice.

2. Diet

The Eighth Amendment's prohibition against cruel and unusual punishment is

violated if an inmate is not provided with meals adequate to maintain his health. See,

e.g. , Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996); Wishon v. Gammon, 978 F.2d

446, 449 (8th Cir. 1992) (prisoners have a right to nutritionally adequate food) ; Campbell

v. Cauthron , 623 F.2d 503, 508 (8th Cir. 1980) (prisoners are guaranteed a reasonably

adequate diet). "The Eighth Amendment requires only that prisoners receive food that is

adequate to maintain health ; it need not be tasty or aesthetically pleasing. " LeMaire v.

Maass, 12 F.3d 1444, 1456 (9th Cir. 1993).

As discussed above , an Eighth Amendment claim has both an objective and

subjective component. Farmer, 511 U.S. at 834. In claims involving allegations of an

inadequate diet, the subjective component requires the Plaintiff to show that the

22 Defendants were deliberately indifferent to his dietary needs. Wishon , 978 F.2d at 449.

"Because control of the administrative details of a prison remains exclusively in the hands

of prison officials, control of the diet is within their discretion , assuming it is adequate ."

Burgin v. Nix , 899 F.2d 733, 734 (8th Cir. 1990).

Plaintiff first complains about the "meager" meals inmates were provided . He

maintains he lost a significant amount of weight as a result. The record , viewed in the

light most favorable to Plaintiff, shows that Plaintiff's weight was 170 pounds at booking,

dropped to 155 pounds in May or June, went up to 165 pounds after he was ordered to

receive double portions in August, and eventually went back up to 170 pounds. A loss of

15 pounds over the course of two to three months is not insignificant. Clearly, the

Constitution would not permit the "incremental starvation" of inmates, George v. King, 837

F.2d 705 , 707 (5th Cir. 1988); however, the loss of weight must be considered in context.

According to the National Institutes of Health ("NIH") Body Mass Index ("BMI")

calculator, a man of Plaintiff's size and weight on the day of booking (5'11 ," 170 pounds),

would have had a BMI of 23.7, which is within the normal range of 18.5-24.9. Even at a ¥ weight of 155 pounds, Plaintiff's BMI of 21.6 fell well within the normal range. 5 The NIH

indicates that "a reasonable and safe weight loss is 1-2 pounds per week. "6 Viewing the

evidence in the light most favorable to Plaintiff, he lost weight at a rate of approximately

two pounds per week, which is considered by the NIH to be reasonable and safe.

5 https://www.nhlbi.nih.gov/health/educational/lose_wt/BMl/bmicalc.htm (accessed August 30 , 2018). 6 https://www.nhlbi.nih.gov/health/educational/lose_wt/control.htm (accessed August 30, 2018). 23 The fact that Plaintiff lost 15 pounds over the course of several months suggests

nothing more than that he no longer had control over the portion size and content of his

meals , perhaps did not get served foods he enjoyed, and did not have access to food in

between meals unless he had funds to purchase commissary items. "Unlike life outside

of the jail , inmates are not allowed to 'raid the refrigerator' thereby having unlimited access

to food. This is simply one of life's pleasures that confinement must restrict for safety and

security reasons ." Lane v. Hutcheson , 794 F. Supp. 877 , 882-83 (E.D. Mo. 1992); see

also Lunsford v. Bennett, 17 F .3d 1574, 1578 (7th Cir. 1994) (inmates not entitled to food

that is "tasty, hot, or even appetizing").

Next, Plaintiff contends that his diet contained no vitamin C, no fresh fruits, and few

fresh vegetables, except for the occasional tossed salad , and that portion control was

almost nonexistent. Plaintiff testified , however, that he frequently received cooked

cabbage with his meals. With respect to the lack of fresh fruits and vegetables, the

Constitution provides only that inmates be provided with reasonably adequate food .

Campbell, 623 F.2d at 508. Further, there is nothing in the record that suggests Plaintiff's

health suffered from any vitamin deficiency while he was incarcerated at the CCDC.

The fact that Plaintiff did not for a period of time receive the double portions ordered

by the doctor does not demonstrate Defendants' deliberate indifference to Plaintiff's

health or safety. Further, Plaintiff has presented no facts to suggest that this alleged

failure was attributable to any of the named Defendants. See, e.g. , Martin v. Sargent,

780 F.2d 1334, 1338 (8th Cir. 1985) (for liability to attach , defendants must be involved

in or directly responsible for incidents that injured the plaintiff).

24 Plaintiff also maintains that the food service at the CCDC was unsanitary because

the inmates served the meal trays without wearing gloves and were not trained

professionals. Inmates, however, served the food only part of the time. Further, food

service workers not wearing gloves is a "problem" faced by the vast majority of the

population , whether or not incarcerated . While the use of gloves may be desirable,

"absent some indication that the food or drink itself is unsanitary or that the server has a

medical condition which poses a risk of harm to inmates who consume the food and

drinks," no constitutional claim is stated . Hall v. Jarrigan , No. 2:07-cv-127, 2008 WL

5377893 , at *5 (E.D . Tenn . Dec. 18, 2008) (citations omitted).

It is clear that Plaintiff did not like the meals served at the CCDC ; however, his

allegations set forth in detail above are insufficient to establish a constitutional violation .

A constitutionally inadequate diet must constitute an "unquestioned and serious

deprivation of basic human needs ." Rhodes v. Chapman , 452 U.S. 337 , 347 (1981).

Here, none of the diet and food safety issues raised by Plaintiff suggest that he was

deprived of the minimal civilized measure of life's necessities or that Defendants were

deliberately indifferent to an excessive risk of harm to Plaintiff's health or safety. Farmer,

?11 U.S. at 834. In short, the inadequacies identified by the Plaintiff are insufficient to

create a genuine issue of material fact as to whether the diet he received was so

inadequate that it violated the Eighth Amendment.

Additionally, Plaintiff has not identified any evidence to suggest that the named

Defendants were personally involved in , or directly responsible for, determining what diet

should be served to the inmates. Plaintiff alleges that Sergeant Easter was in charge of

the kitchen , but mere supervisory authority is insufficient to establish liability. See, e.g. ,

25 Clemmons v. Armantrout, 477 F.3d 962 , 967 (8th Cir. 2007) ("To establish personal

liability of the supervisory defendant, [Plaintiff] must allege specific facts of personal

involvement in , or direct responsibility for, a deprivation of his constitutional rights .").

Finally, with respect to Plaintiff's official capacity claim concerning his diet, he must

show the Defendants acted pursuant to an official custom or policy. Monell v. Oep 't of

Soc. Servs., 436 U.S. 658 , 690-94 (1978). The policy or custom must also be the moving

force behind the alleged constitutional violation . Id. at 694 ("Instead, it is when execution

of a government's policy or custom .. . inflicts the injury that the government as an entity

is responsible under § 1983."). Pla intiff has made no such showing . For all of these

reasons, Defendants are entitled to summary judgment on all of Plaintiff's dietary claims.

3. Prices Charged for Hygiene Items and Over-the-Counter Medication

Plaintiff maintains that inmates should not be required to pay for basic hygiene

items. Further, he maintains the prices charged for the hygiene items and for over-the-

counter medication are excessive. Although the record reflects there were certain

occasions when the facility was out of some hygiene items and Plaintiff and others had

to wait until new supplies came in , Plaintiff concedes he was never denied any hygiene

items when he needed them. Plaintiff does not suggest he was denied any medication.

Plaintiff's claims as to hygiene and over-the-counter medications fails for several

reasons . First, even if exorbitant amounts are charged by the jail , no constitutional claim

is stated . See, e.g., Emery v. Helder, 2018 WL 715463, at *9 (W.D . Ark. Feb. 2, 2018)

(no constitutional right to access to a commissary or to purchase items at free world

prices); Lewis v. Holloway, 2017 WL 3461303 , at *4 (W .D. Ark. Aug . 11 , 2017) (no

constitutional claim stated even if exorbitant amounts are charged); Pagan v. Westchester

26 Cnty., 2014 WL 982876 , at *17 (S .D.N.Y. March 12, 2014) (even if the facility charges

high prices for items, no constitutional claim will be stated). Second, Plaintiff does not

claim he was denied any basic hygiene items or medication . Third, Plaintiff does not

identify any named Defendants as being involved in or responsible for these claims.

Finally, Plaintiff fails to allege the existence of any custom or policy that was the moving

force behind these alleged constitutional violations. For all of these reasons , Defendants

are entitled to summary judgment on these claims, and they will be dismissed with

prejudice.

B. First Amendment Claims

"Prison walls do not form a barrier separating prison inmates from the protections of

the Constitution. " Thornburgh v. Abbott, 490 U.S. 401 , 407 (1989) . "[A] prison inmate

retains those First A_mendment rights that are not inconsistent with his status as a prisoner

or with the legitimate penological objectives of the corrections system. " Pell v. Procunier,

417 U.S. 817 , 822 (1972). Among other things, the "Constitution protects the rights to

receive information and ideas. " Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).

1. Television Tuned to News Channels

Plaintiff objects to the day-room television remaining set to one or two news

channels during the week. Plaintiff believes the jail should provide more of a variety of

programming rather than just the news. He also maintains that inmates should have a

say as to what channels are played on the television. These claims fail. While inmates

have a right to some source of news media , there is no constitutionally protected right to

watch television. See, e.g., Murphy v. Walker, 51 F.3d 714, 718 n. 8 (7th Cir. 1995);

Manley v. Fordice, 945 F. Supp. 132, 137 (S .D. Miss. 1996). It necessarily follows that

27 inmates have no right to select the channel on the television . The Defendants are entitled

to summary judgment on the claims related to television programming .

2. Limitations on Reading Materials

Plaintiff first maintains that the jail's policy limiting each inmate to three books in

a cell at a time is unconstitutional. He asserts that under the Constitution , he should be

entitled to have as many books as he wants in his cell. He does not claim that the book

limitation is restricting his ability to freely exercise his religion, as he admits that he is

permitted to keep all his religious texts in his cell. He simply argues that his decision to

keep religious materials in his cell could potentially mean that he might be deprived of

possessing other non-religious books in his cell, such as a Webster's dictionary. He also

contends that the jail does not permit inmates to receive books sent in the mail.

Apparently, "Bible studies and pamphlets and things like that" are permitted to be

received by mail, but Plaintiff has been told he's "not allowed to have people mail books."

(Doc. 24-10, p. 95).

Inmates' First Amendment rights may be restricted or limited by prison regulations

that are reasonably related to legitimate penological needs. "[l]ncarceration necessarily,

and constitutionally, entails restrictions , discomforts, and a loss of privileges that

complete freedom affords. " Rhodes v. Chapman , 452 U.S . 337, 369 (1981 ). There is

no constitutional right to possess a certain number of non-religious books in one's cell.

Plaintiff concedes "that there's a limitation on space here in the jail, " but he nonetheless

believes inmates "should be able to occupy our personar space with what we decide to

occupy it with , provided it's not dangerous material or anything ." (Doc. 24-10, p. 94).

Defendants respond that the jail's three-book restriction is valid based on the "logistics

28 of the operation of the jail and the limited space available ," which "necessitate some

restriction on the amount of property that an inmate may keep in his/or her living area. "

(Doc. 23 at 9). There are no facts in the summary judgment record to suggest that

Plaintiff has suffered a violation of his rights of constitutional dimension due to the three-

book policy. Defendants have explained the reason behind the rule , and the rule is

justified due to prison logistics and space considerations; further, implementation of the

rule has not had the effect of depriving Plaintiff of any of his religious materials.

When determining whether a restriction is valid , the court must consider: (1)

whether a valid, rational connection exists between the regulation and a neutral ,

legitimate government interest; (2) whether alternative means exist for inmates to

exercise the constitutional right at issue; (3) what impact the accommodation of the right

will have on inmates, prison personnel , and allocation of prison resources; and (4)

whether obvious, easy alternatives exist. Turner v. Safely, 482 U.S. 78 , 89 (1987). If

the Court were to assume that the three-book limit impacted Plaintiff's constitutional

rights in some respect, the Court would nonetheless find that Defendants articulated a

legitimate government interest supporting that limitation. Further, Plaintiff has failed to

carry his burden on summary judgment of showing that there are genuine, material facts

in dispute regard_ing any deprivation of his First Amendment right resulting from the jail 's

three-book policy or any other policy regarding reading materials. This claim will

therefore be dismissed on summary judgment.

3. Limitations on Pastoral Visits and Church Services

Inmates retain many protections afforded by the First Amendment , including its

directive that "no law shall prohibit the free exercise of religion. " O'Lone v. Estate of

29 Shabazz, 482 U.S. 342, 348 (1987); see also Cruz v. Beto, 405 U.S. 319 (1972). This

right , however, is not without limitation . The Supreme Court has recognized that

"incarceration brings about the necessary withdrawal or limitation of many privileges and

rights ." O'Lone, 482 U.S. at 348 . "The free exercise right is limited insofar as a prisoner's

adherence to religious practices may be regulated by prison authorities, so long as such

regulations are 'reasonably related to legitimate penological interests."' Murphy v. Carroll,

202 F. Supp. 2d 421, 424 (D . Md . 2002) (quoting Turner, 482 U.S. at 89 ; O'Lone, 482

U.S. at 348-349; Cruz, 405 U.S. at 322); see also Thomas v. Gunter, 32 F.3d 1258,

1259-60 (8th Cir. 1994).

In analyzing a First Amendment free-exercise claim , the Court first addresses the

"threshold issue of whether the challenged governmental action 'infringes upon a

sincerely held religious belief,' and then app[ies] the Turner factors to determine if the

regulation restricting the religious practice is 'reasonably related to legitimate penological

objectives ."' Murphy v. Mo. Oep 't of Corr., 372 F.3d 979 , 983 (8th Cir. 2004). According

to Plaintiff's testimony , his pastor visited him at the jail once a week on Thursdays at 2:00

p.m. The pastor often visited both Plaintiff and another inmate named Jeremiah Bliss.

On June 29 , July 13, August 31 , and September 14, Plaintiff submitted grievances about

missing his pastoral visits. Plaintiff testified , however, that there were as many as ten or

more occasions when jail staff either negligently or intentionally denied his visits with his

pastor. In addition , Plaintiff claims his constitutional rights were violated when he was

denied the opportunity to attend church services while in solitary confinement.

With respect to inmates' access to clergy, the CCDC policies provide as follows:

Detainee visitation with a pastor may be requested by the detainee or at the request of a pastor for a specific detainee. All personal visits between

30 detainees and pastors are held in the visitation room . Length of visit should equal normal visiting timeframe of 50 minutes unless more time is specifically requested by the detainee and approved by the Jail Administrator.

Worship services have been approved for Tuesday through Sunday each week at 3:00 p.m. These services are held for male detainees in the hallway outside E Pod. Ava ilable space and security concerns require that detainee attendance is rotated equally among the mail pods . ... One hour is allotted for .. . services.

* * * Although access to clergy . .. will be made . available whenever possible, emergency situations and times when· large numbers of detainees are being moved within or from this facility may alter the scheduled time for these visits. The Shift Supervisor may delay or cancel these visits or worship services under these circumstances.

(Doc. 24-9 at 8-9).

Defendants attach to their Motion a log that purports to show the dates and times

that Plaintiff was taken to and from his visits with his pastor. (Doc. 24-8 at 3-4). Plaintiff

points out that the log itself contains inconsistencies as to certain dates, including June

15, June 22 , July 8, August 17, September 18, and September 21 . Id. On these dates,

the log contains two separate entries for the time Plaintiff was taken "from " visitation , with

the entries varying in time by as much as two hours. Id. These inconsistencies

concerning the timing of the visits are not material , though ; the issue is whether visits

occurred at all . There are two dates, June 29 and July 13, that are listed on the log and

correspond to the dates Plaintiff submitted grievances stating he never saw his pastor,

even though Plaintiff was waiting to see him in the visitation room . Id. No explanation

is offered by Defendants as to why the log would show a visit with the pastor when none

occurred . No other information has been submitted on summary judgment that would

provide further information about the times that inmates are generally moved to the

31 visitation room and removed from the visitation room , and what generally occurs when

two inmates are seeing the same pastor on the same date.

Two pages of the log contain the dates and times that Plaintiff attended church

services. (Doc. 24-8 at 1-2). Plaintiff does not claim he was denied perm ission to attend

church services in general. Rather, he only contends he was denied the ability to attend

church services while in solitary confinement. Defendants' log indicates that Plaintiff

attended church services on 16 occasions between May 20 and October 14. Plaintiff

was also permitted to keep his religious texts with him while he was in solitary

confinement.

With respect to these free-exercise claims, Plaintiff "bears the burden of

establishing that the correction facility placed a substantial burden on his sincerely-held

religious belief. " Gladson , 551 F.3d at 833. However, if Plaintiff "fails to put forth

sufficient evidence that his ability to practice his religion has been substantially burdened ,

then the court need not apply the Turner test. " Id. Here, after examining the record and

assuming the facts in the light most favorable to the Plaintiff, the Court concludes that

he has not shown that the actions or restrictions he complains of "inhibit[ed] or

restrain[ed] [his] conduct or expression ; meaningfully curtail[ed] [his] ability to express

adherence to [his] faith ; or denie[d] [him] reasonable opportunities to engage in those

activities that are fundamental to [his] religion . As a result, [Plaintiff] ... [has] not offered

sufficient evidence to create a genuine issue of material fact sufficient for a jury to find

that [his] ability to practice [his religion] has been substantially burdened. " Id. at 834.

The Court therefore need not address whether the actions or restrictions alleged were

32 reasonably related to any legitimate penological objective, and Defendants will be

granted summary judgment on this claim.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment

(Doc. 22) is GRANTED, and the ca; s DISMISSED WITH PREJUDICE.

IT IS SO ORDERED on this~ day of October, 201 .