Wolff v. NHDOC

2008 DNH 071

• Court: District Court, D. New Hampshire
• Decided: April 2, 2008
• Docket: CV-06-321-PB
• Status: Published

Opinion

Wolff v . NHDOC CV-06-321-PB 04/02/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charles Jay Wolff

v. Civil N o . 06-cv-321-PB Opinion N o . 2008 DNH 071 New Hampshire Department of Corrections, et a l .

MEMORANDUM AND ORDER

Charles Jay Wolff, a prisoner at the New Hampshire State

Prison (“NHSP”) brings claims under 42 U.S.C. § 1983 and

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §

2000cc et seq. (“RLUIPA”). Wolff’s primary claim is that the New

Hampshire Department of Corrections (“NHDOC”) and several

employees and officials of NHDOC violated his constitutional

right to free exercise of religion and placed a substantial

burden on his religious practices when they failed to provide him

with a religiously and nutritionally acceptable kosher diet.

Defendants move for summary judgment on Wolff’s claim, arguing

that there is no genuine issue of material fact and that the

undisputed facts demonstrate that Wolff’s constitutional rights

were not violated. For reasons discussed below, I grant defendants’ motion for summary judgment as to this claim only.

I. BACKGROUND1

Charles Wolff has been incarcerated since approximately

1996. Wolff has received medical treatment throughout his

incarceration, including treatment for hypertension, post-

traumatic stress disorder, high cholesterol, diabetes, Cushing’s

Syndrome, metabolic syndrome, coronary artery disease, hypomania,

and prostate cancer. See Testimony of Leeka at 19-22. During

his time in prison he has had numerous surgeries including

removal of his left adrenal gland, removal of a benign adenoma of

his colon, implantation of a radiation seed to treat prostate

cancer, and implantation of a stent in his right coronary artery.

See id.; Testimony of Wolff at 41-47.

1 The facts are drawn from Defendants’ Memorandum in Support of Motion for Summary Judgment (Doc. N o . 96-2) and the sworn testimony of witnesses at the preliminary injunction hearing held before Judge Muirhead on August 1 , 2007. See Transcript of Preliminary Injunction Hearing, Wolff v . N.H. Dept. of Corr. et a l . , Case N o . 06-cv-321-PB (Aug. 1 , 2007), Testimony of Wolff (Doc. N o . 74) [hereinafter “Testimony of Wolff”]; Transcript of Preliminary Injunction Hearing, Wolff v . N.H. Dept. of Corr. et a l . , Case N o . 06-cv-321-PB (Aug. 1 , 2007), Testimony of Stacy, Leeka, and Daly (Doc. N o . 100) [hereinafter “Testimony of [Witness]”]. I note those facts that Wolff disputes, and I base my decision solely on undisputed facts.

-2- In approximately 2003, NHSP began offering kosher meal plans

to inmates who demonstrated religious dietary requirements.

Wolff, who identifies as Jewish, has received kosher meals for

lunch and dinner since at least 2004. At first, the prison

served pre-packaged frozen kosher meals, but as the number of

inmates on kosher diets increased, limited freezer space caused

the prison to switch to pre-packaged shelf-stable kosher meals.

Jeff Perkins, the NHSP Food Service Supervisor, states that

“there have been numerous instances of Charles Wolff eating non-

kosher food and as a sanction being taken off his kosher diet for

a short period of time.” Aff. of Perkins at ¶ 2 8 . Specifically,

Perkins points to June 2006, when Perkins received a report that

Wolff had eaten non-kosher hot dogs and Wolff allegedly threw

away his kosher meal and confirmed to Perkins that he had eaten

the hot dogs. Id. Perkins stated that due to that incident, he

then failed to provide Wolff with a kosher meal pursuant to New

Hampshire DOC Policy and Procedure Directive (“PPD”) N o . 7.17

V(G)(2)(d) (2006). 2

2 Under PPD 7.17, the Unit Manager is authorized to suspend an inmate’s religious diet for six months if he determines that the inmate knowingly violated the religious diet. (See Ex. C to Def.’s Mot. for Summ. J.)

-3- The warden and prison chaplain reinstated Wolff’s kosher

diet at some point following this suspension, and Perkins was

told that, in the future, decisions about suspending an inmate’s

kosher diet were to be made by the Unit Manager. Aff. of Perkins

at ¶ 2 8 . Perkins also states that Wolff told Perkins that he

would eat non-kosher scrambled or fried eggs, that a kitchen

staff member reported seeing Wolff eating scrambled eggs, and

that Wolff’s canteen sales report from May 2005 to November 2005

shows that Wolff purchased numerous non-kosher foods. Id. at ¶

25-26.

In his amended complaint, Wolff denies that he ever ate non-

kosher food. See Response to Order Directing P l . to File Amended

Compl. at 5 (Doc. N o . 1 0 ) . Wolff claims that the people accusing

him of purchasing and eating non-kosher food were mistaken; the

food was actually kosher. Id. at 4-5. Wolff claims that on one

occasion where the Head of Recreation at NHSP reported to Perkins

that Wolff had eaten non-kosher ice cream, both a prison chaplain

and a rabbi confirmed that the ice cream was kosher. Id.

In August 2006, Wolff brought claims under 42 U.S.C. § 1983

and RLUIPA on the grounds that various prison officials have

denied him free exercise of religion and have placed a

-4- substantial burden on his religious practices. On January 2 6 ,

2007, I accepted Magistrate Judge Muirhead’s recommendation that

Wolff adequately stated First Amendment and RLUIPA claims against

William Wrenn (Commissioner of the NHDOC), Perkins, and Deacon

James Daly, a prison chaplain. Specifically, Wolff claimed that

the defendants violated his rights in two ways: first, by taking

away his kosher diet as a sanction for eating non-kosher food

and, second, by serving kosher food that is inadequate to meet

his medical and nutritional needs.

Wolff moved for emergency injunctive relief in July 2007; an

evidentiary hearing was held on the motion before Judge Muirhead

on August 1 , 2007. Testifying at the hearing were: Richard

Stacy, a prison Kitchen Supervisor; Joyce Leeka, the NHSP

Administrator of Health Information Management; Daly; and Wolff.

At that hearing, Wolff stated that he had been offered kosher

meals consistently, but that he regularly refused them because

they caused him to have stomach cramps and diarrhea. Testimony

of Charles Wolff at 63-65. Wolff also alleged that the prison

officials failed to provide him with an appropriate dosage of

ibuprofen and failed to fill his prescription for Mylanta. Id.

at 27-29. Wolff made several other unsubstantiated allegations

-5- against various prison employees that I need not address.3

At the hearing, Leeka testified as to Wolff’s medical

history, and Stacy testified as to the prison’s policies and

procedures regarding kosher meal service. Stacy testified that

the kosher meals are prepackaged and either heated or cooled

(depending on the type of meal) in the packaging so that the

kitchen staff handles only the outer packaging, not the food

itself. Testimony of Stacy at 7-9. Stacy testified that if

Wolff presented the kitchen staff with an order from Health

Services saying that he had a medical problem with eggs or other

food, he would give Wolff a substitution. Id. at 11-12.

The Magistrate Judge issued a preliminary order on August 2 ,

2007, directing defendants to provide the court with a

notification of what actions the prison would take in order to

evaluate Wolff’s medical condition and what remedy the prison

3 Wolff alleged at the hearing that a kitchen worker named Phil took his ID and kept it for three days, causing Wolff to miss nine meals, physical therapy, and a medical appointment. Testimony of Wolff, Transcript at 1 5 . At another point during the hearing, he alleged that a kitchen worker named Paul Laflamme was throwing his meals out. Testimony of Wolff, Transcript at 2 0 . Neither of these workers or incidents are named in Wolff’s complaint and no evidence has been provided to substantiate these claims, therefore I do not address them here.

-6- would employ, if it were found that Wolff could not tolerate the

meals being provided. Defendants complied and monitored Wolff at

the prison infirmary from August 7-14, 2007.

Defendants submitted detailed observational notes from this

week-long period. See Response r e : Order on Motion for Prelim.

Injunction (Doc. N o . 5 0 ) . During this time, Wolff ate four pre-

packaged shelf-stable kosher meals and refused the other kosher

meals. On two occasions, he complained of cramping. He also

complained of having diarrhea, but medical staff observed his

stools and determined that, except for one occasion where a

“scant” amount of loose stool was found, all of the stools were

firm and not affected by eating the prepackaged kosher meals.

After receiving the results of the seven-day evaluation, the

Magistrate Judge issued a Report and Recommendation denying

Wolff’s motion for an injunction on October 1 7 , 2007. I approved

the Report and Recommendation on October 3 0 , 2007.

In addition to the seven-day observation, D r . Celia

Englander, the Chief Medical Officer for the New Hampshire

Department of Corrections, ordered additional medical testing and

evaluations for Wolff. See Aff. of Englander at ¶ 4-8. Dr.

Englander ordered an outside nutritional consultation at Catholic

-7- Medical Center that was held on August 3 1 , 2007, arranged for

allergy testing of Wolff in October 2007, and sent Wolff to

Catholic Medical Center for an upper GI x-ray in October 2007 and

an upper endoscopy in December 2007. At his nutritional

consultation, the nutritionist determined that Wolff’s weight was

normal. Id. at 4 . The allergy testing was negative as to an egg

allergy, and Wolff refused further allergy testing. Id. at 5-6.

The upper GI x-ray detected mild acid reflux but was otherwise

normal, and the upper endoscopy revealed a small hiatel hernia,

mild esophageal inflammation, and mild acid reflux. Id. at 7-8.

Dr. Englander concluded that there is no medical evidence that

Wolff’s diet is having an adverse effect on his health or his

stomach. Id. at ¶10.

Defendants now seek summary judgment on Wolff’s claims,

arguing that there is no genuine issue of material fact as to

whether Wolff’s rights were violated.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

-8- genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95

F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.

III. ANALYSIS

Wolff’s primary claim is that Wrenn and Perkins4 interfered

with his free exercise of religion and placed a substantial

burden on his religious freedom by serving him kosher meals that

he is unable to eat for medical reasons. Wolff claims that these

actions violate his First Amendment constitutional right to

freedom of religion and his statutory rights under RLUIPA. He

brings his constitutional claim pursuant to 42 U.S.C. § 1983.

4 Wolff orally dismissed his claims against Daly at the hearing. Testimony of Wolff at 2 1 .

-9- Wolff’s claim is not that kosher meals have been denied to

him, but that he is unable to eat the kosher meals served at the

prison because they make him sick. See Testimony of Wolff at 64-

6 5 , Testimony of Daly at 35-37 (statements of Wolff); Report and

Recommendation of October 1 7 , 2007 at 1 1 . For Wolff’s claim to

succeed, he must establish that the meals made him ill in some

way. Because Wolff has not submitted evidence from which a

reasonable juror could conclude that a causal link exists between

his claims of illness and the prison’s kosher meals, his claim

must fail.

While Wolff claims that there is some substance in the

shelf-stable meals, such as a chemical or preservative, that

makes them intolerable to him, he has failed to submit any

evidence to substantiate this speculation. See Testimony of

Wolff at 6 4 , Testimony of Daly at 37-38. His medical records, as

well as the extensive testing and evaluations ordered by D r .

Englander, are devoid of any suggestion that he is unable to

tolerate the kosher meals being offered to him. See Aff. of

Englander at ¶ 10-11. Wolff offers only his own subjective

complaints about the meals, and his claims of illness as a result

of the meals are wholly unsubstantiated. Therefore, I grant

-10- defendants’ motion for summary judgment with respect to Wolff’s

claim that the prison is violating his constitutional rights by

serving the shelf-stable kosher meals.

Finally, I note that Wolff also raised allegations at the

evidentiary hearing regarding the prison’s failure to provide him

with his requested dosage of ibuprofen and the prison pharmacy’s

failure to fill his prescription for Mylanta. See Testimony of

Wolff at 44-46. With respect to both claims, Wolff has failed to

show that the prison officials acted with “deliberate

indifference to [his] serious medical needs” by not increasing

his dosage of ibuprofen and by requiring him to purchase a liquid

antacid at the canteen rather than providing Mylanta at the

prison pharmacy. See Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976).

Where a plaintiff’s allegations “simply reflect a disagreement on

the appropriate course of treatment,” the allegations “fall[]

short of alleging a constitutional violation.” See Feeney v .

Corr. Med. Servs., Inc., 464 F.3d 1 5 8 , 162 (1st Cir. 2006).

Therefore, to the extent that Wolff stated a claim for inadequate

medical care or treatment arising from these issues, the claim

-11- fails as a matter of law.5

IV. CONCLUSION

For the reasons stated above, defendants’ motion for summary

judgment (Doc. N o . 96) is granted in part. If the defendants wish

to seek summary judgment on Wolff’s remaining claim, they shall

file a motion with 30 days.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 2 , 2008

cc: Charles J. Wolff, pro se Deborah B . Weissbard, Esq.

5 Wolff also asserts that the prison officials interfered with his free exercise of religion and placed a substantial burden on his religious freedom when they revoked his kosher meals pursuant to PPD 7.17 based on erroneous allegations that he had purchased and eaten non-kosher food. The defendants’ summary judgment motion fails to adequately address this claim. Therefore, this summary judgment order extends only to the claim addressed in defendants’ motion and Wolff’s claim regarding deprivation under PPD 7.17 is not affected by this order. If the defendants believe they have a basis for summary judgment on this claim, they shall file a motion within 30 days.

-12-