United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE.
is an inmate confined in the Florida penal system. He
initiated the case, pro se, by filing a Complaint (Doc. 2) in
the Circuit Court of the Eighth Judicial Circuit, in and for
Bradford County, Florida on March 12, 2014. Defendants
removed the case to this Court. See Notice of
Removal (Doc. 1). Plaintiff is represented by counsel and is
proceeding on the Amended Complaint of Kelvin Frazier
(Amended Complaint) (Doc. 45) pursuant to 42 U.S.C. §
1983 and the Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C. § 2000cc (RLUIPA).
cause is before the Court on Defendant's Motion for
Summary Judgment (Motion) (Doc. 63). Plaintiff responded.
See Summary Judgment Notice (Doc. 64);
Plaintiff's Response in Opposition to Defendant's
Motion for Summary Judgment (Response) (Doc. 72);
Plaintiff's Notice of Filing Documents in Support of Its
Response to Defendant's Summary Judgment Motion (Notice)
(Doc. 73). Defendant filed a Reply to Plaintiff's
Response to Defendant's Motion for Summary Judgment
(Reply) (Doc. 84).
Summary Judgment Standard
judgment is appropriate only 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.'"
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir.
2011) (quoting Fed.R.Civ.P. 56(a)). "If the moving party
meets this burden, 'the nonmoving party must present
evidence beyond the pleadings showing that a reasonable jury
could find in its favor.'" Ekokotu v. Federal
Exp. Corp., 408 F.App'x 331, 333 (11th Cir.) (per
curiam) (quoting Fickling v. United States, 507 F.3d
1302, 1304 (11th Cir. 2007)), cert. denied,
565 U.S. 944 (2011).
contends that the Amended Complaint should be dismissed as
Plaintiff's claims are now moot. Motion at 1, 7-8. Also,
to the extent that Plaintiff is now making an argument that
he has a problem with his kosher diet, Defendant asserts that
Plaintiff has failed to exhaust administrative remedies.
Id. at 8 n.4. Plaintiff counters that summary
judgment is improper because he has not been provided
"with healthy kosher meals." Response at 7.
Plaintiff contends the case is not moot because
"Defendant's unwillingness to provide a healthy,
balanced kosher meal demonstrates its lack of conviction to
the kosher program and along with the timing of the decision
to provide Plaintiff kosher meals (years after this action
was filed), further demonstrates the Court should not
determine the case is moot." Id. at 7-8.
Plaintiff submits that his argument for the provision of
healthy meals is not a new claim because his "right to a
healthy meal is part and parcel of and implicit in the right
to a kosher meal." Id. at 7 n.2.
The Amended Complaint
time of the filing of the Amended Complaint Plaintiff was
confined at Florida State Prison West (FSP). Amended Complaint
at 1. He practices the Jewish faith, and keeping kosher in
his dietary needs is a key component of the practice of his
faith. Id. Plaintiff alleges that despite numerous
attempts to obtain kosher meals, he has been unable to do so
over the years. Id. Plaintiff recognizes, however,
that since the filing of his original Complaint, the United
States District Court for the Southern District of Florida
(S.D. Fla.), in United States v. Sec'y, Fla.
Dep't of Corr., et al., Case No. 1:12-cv-22958-PAS,
entered a Final Judgment and Permanent Injunction (Judgment)
(Doc. 548) regarding an institution-wide kosher meal
program. Amended Complaint at 1-2.
states that he was provisionally approved for kosher meals
back in April 2013, but he was required to complete a 90-day
sincerity test (now discontinued). Id. at 2. Before
he could complete the 90-day test, he was transferred to a
different institution within the Florida Department of
Corrections (FDOC). Id. Plaintiff states that
frequent transfers and changing rules impeded his ability to
obtain kosher meals since 2013. Id.
alleges that despite his sincere religious basis for keeping
kosher, the FDOC forced Plaintiff to violate his beliefs in
violation of RLUIPA. Id. He contends that the
FDOC's refusal to accommodate this central tenet of
Judaism substantially burdens the exercise of Plaintiff's
religious right to practice his faith. Id. Plaintiff
claims that the FDOC's refusal to provide kosher meals
and/or practice of constantly moving Plaintiff and changing
program requirements was done with the intent to violate
RLUIPA or in reckless disregard to Plaintiff's religious
practice. Id. Plaintiff asserts that the FDOC
continues to deny him a kosher diet, and the frequently
changing rules make it practically impossible for him to
comply with the new application procedures. Id.
upon these allegations, Plaintiff raises a First Amendment
claim and also a claim for violation of RLUIPA. Id.
at 4. In support, he states that the FDOC's dietary
policies are not necessary to achieve any compelling state
interest. Id. Plaintiff contends that he has a
sincere religious basis for keeping kosher. Id. at
5. He notes that the S.D. Fla. has ordered FDOC to provide a
system-wide kosher diet. Id. Plaintiff states that
despite this order, the FDOC continues to deny a kosher diet
to Plaintiff "under the pretext that he has not applied
for one, or for other, unknown but improper reasons."
Id. at 7. In conclusion, Plaintiff says he
"just needs to be placed on a kosher food plan."
Claims for Relief
first claim for relief, Plaintiff claims Defendant's
refusal to provide kosher meals to Plaintiff violates RLUIPA.
Amended Compliant at 8. In support of this claim, he states
that he has been denied kosher meals from 2013 to present.
Id. He explains that the FDOC currently denies
Plaintiff a kosher diet despite his sincere religious beliefs
requiring he keep kosher. Id. Plaintiff asserts that
Defendant's failure to provide a kosher diet
substantially burdens Plaintiff's free exercise of
religion without a compelling reason to do so. Id.
He contends that this failure does not further a compelling
governmental interest, and is not the least restrictive means
to do so. Id.
second claim for relief, Plaintiff claims the Defendant's
policy of refusing to provide Plaintiff with kosher meals
violates Plaintiff's First Amendment right to practice
relief, Plaintiff seeks declaratory relief that the Defendant
violated RLUIPA "by failing to offer kosher meals to
inmates in their custody who desire a kosher diet to exercise
their religious beliefs[, ]" and the Defendant violated
section 1983 "by violating Frazier's right to
practice his religion by denying him kosher meals[.]"
Id. at 9. Plaintiff also seeks injunctive relief
ordering Defendant "to provide nutritionally sufficient
kosher meals to Frazier[.]" Id. Finally,
Plaintiff asks for "such other relief as the interests
of justice may require." Id.
Exhaustion of Administrative Remedies
42 U.S.C. § 1997e(a) provides: "No action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison or other correctional facility
until such administrative remedies as are available are
exhausted." Thus, the Prison Litigation Reform Act
(PLRA) requires exhaustion of available administrative
remedies before an action with respect to prison conditions
by a prisoner may be initiated in this Court. Defendant moves
to dismiss the Amended Complaint pursuant to 42 U.S.C. §
1997e(a). The Defendant asserts that Plaintiff failed to
properly avail himself of the grievance process with regard
to his claim that the kosher meals being served are not
nutritionally adequate or a problematic. Motion at 8 n.4.
instance, Defendant bears the burden of proving a failure to
exhaust available administrative remedies. Turner v.
Burnside, 541 F.3d 1077, 1082-83 (11th Cir. 2008),
relying on Jones v. Bock, 549 U.S. 199
(2007). Guidelines are provided for reviewing a prisoner
civil rights action for exhaustion compliance:
Before a prisoner may bring a prison-conditions suit under
§ 1983, the Prison Litigation Reform Act of 1995
requires that he exhaust all available administrative
remedies. 42 U.S.C. § 1997e(a); see also Booth v.
Churner, 532 U.S. 731, 736, 121 S.Ct. 1819, 1822, 149
L.Ed.2d 958 (2001). The purpose of the PLRA's exhaustion
requirement is to "afford corrections officials time and
opportunity to address complaints internally before allowing
the initiation of a federal case." Woodford v.
Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387, 165 L.Ed.2d
368 (2006) (quotation omitted). To properly exhaust, a
prisoner must "[c]ompl[y] with prison grievance
procedures." Jones v. Bock, 549 U.S. 199, 218,
127 S.Ct. 910, 922-23, 166 L.Ed.2d 798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205,
1208 (11th Cir. 2015).
number of factors guide the Court. Initially, the Court
recognizes that exhaustion of available administrative
remedies is "a precondition to an adjudication on the
merits" and is mandatory under the PLRA. Bryant v.
Rich, 530 F.3d 1368, 1374 (11th Cir.), cert.
denied, 555 U.S. 1074 (2008); Jones, 549
U.S. at 211; Woodford v. Ngo, 548 U.S. 81, 85 (2006)
("Exhaustion is no longer left to the discretion of the
district court, but is mandatory.") (citation omitted).
The Supreme Court has stated that "failure to exhaust is
an affirmative defense under the PLRA[.]"
Jones, 549 U.S. at 216. Although, "the PLRA
exhaustion requirement is not jurisdictional[, ]"
Woodford, 548 U.S. at 101, "exhaustion is
mandatory under the PLRA[;]" ...