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Denial of Muslim meal prompts First Amendment claim

Plaintiff, a Muslim inmate, alleged prison officials violated his rights under the Religious Land Use and Institutionalized Persons Act and the First Amendment’s Free Exercise Clause by denying him a Muslim meal. Although the court dismissed several claims, it held plaintiff stated a viable claim for violation of his First Amendment rights, and that prison officials were not entitled to qualified immunity for this claim.


In his verified complaint, Terrence A. Harvey, a Muslim inmate at Red Onion State Prison, alleges that his Muslim faith compelled him to consume a diet that adheres to his religious beliefs, which includes abstention from consuming pork. Harvey is assigned to special housing in “Administrative Segregation,” where he is not offered the opportunity to choose a different meal if pork is served on the trays, as opposed to inmates housed in general population who are offered prior notice. On the occasions that Harvey received pork in his meal, he notified the prison guards that he could not eat it. Harvey alleges the guards instructed him to not eat the pork, which resulted in Harvey “not getting fed at all.”

Beginning on March 18, 2015, Harvey attempted to save certain foods from his meals so that he would be able to have food to eat when pork was served. Harvey alleges “countless occurrences” when the prison guards confiscated and discarded this stored food, threatening Harvey with contraband infractions or forfeiture of recreation and shower time. As a result, Harvey was forced to eat pork at least five times in contravention of his religious beliefs.

On July 31, 2015, the Institutional Classification Authority conducted a hearing to review Harvey’s application to receive the Virginia Department of Corrections’  Common Fare Diet. The Common Fare menu is designed to meet inmates’ religious dietary restrictions, including restrictions of the Muslim faith. Despite the ICA’s recommendation, defendant G.G. Baker, who is ROSP’s Institutional Programs Manager, reviewed and denied Harvey’s Common Fare application on August 6, 2015.

Harvey alleges defendants violated his rights under the Religious Land Use and Institutionalized Persons Act and the First Amendment’s Free Exercise Clause. Defendants collectively filed a motion for summary judgment, arguing that Harvey’s claims are meritless, and that defendants are nonetheless entitled to qualified immunity on Harvey’s claims for monetary damages.

Certain claims are not cognizable

To the extent Harvey brings this action against defendants in their official capacities for monetary damages, such claims are not cognizable under § 1983. Because the prison official defendants in their official capacity are not “persons” who can be sued under § 1983, the court must grant defendants’ motion for summary judgment as to these claims.

Likewise, while Harvey may seek monetary damages against defendants in their individual capacity under the First Amendment, he may not under RLUIPA. Congress has not authorized damages against state officials in either their official or individual capacities under RLUIPA.


I must next determine whether Harvey’s RLUIPA claim is moot. Harvey seeks declaratory and injunctive relief with respect to defendants’ disapproval of Harvey’s Common Fare application. Defendants assert that Harvey’s RLUIPA claim is moot because only equitable relief is available under RLUIPA and Harvey was approved for participation in Common Fare on June 21, 2016. Harvey corroborates that he was approved and began participation in Common Fare on that date. However, Harvey contends that defendants arbitrarily approved him, as he never reapplied.

Presently, Harvey would not benefit from any injunctive relief ordering defendants to provide Harvey with Common Fare meals because he has already received such relief as of June 21, 2016. Because nothing in the record indicates that Harvey’s Common Fare assignment is at risk of termination, or that defendants or ROSP are willing to subject themselves to potential liability by doing so, Harvey’s claims for injunctive relief requiring Harvey to receive Common Fare meals are moot.

For these reasons, I find that defendants have accorded Harvey his original request for injunctive relief by approving his Common Fare request, rendering Harvey’s RLUIPA claim moot in full and his First Amendment claim moot to the extent is seeks declaratory and injunctive relief.

Qualified immunity

Defendants next argue that Harvey’s First Amendment claim is meritless, and that they are nonetheless entitled to qualified immunity.

Taking the facts in his favor, as the court must do at this stage, Harvey sufficiently establishes a violation of his Free Exercise rights. Turning to qualified immunity, Harvey had a clearly established constitutional right to receive meals in conformity with his religious beliefs. Because Harvey states a cognizable claim for violation of his clearly established rights under the First Amendment, defendants are not entitled to summary judgment on the First Amendment damages claim.

Summary judgment granted in part, denied in part.

Harvey v. Baker, Case No. 16-cv-00153, Sept. 10, 2018. WDVA at Roanoke (Moon). VLW No. 018-3-378, 13 pp.

VLW 018-3-378

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