Watson v. Christo et al

REPLY BRIEF re MOTION for Summary Judgment

D. Del.February 8, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID M. WATSON, ) ) Plaintiff, ) v. ) C.A. No. 16-433-RGA ) GUS CHRISTO, et al., ) ) ) Defendants. ) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Stuart B. Drowos Stuart B. Drowos (#427) Michael F. McTaggart (#2682) Wilson B. Davis (#5154) Deputy Attorneys General Carvel State Building 820 French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorneys for the Defendants DATED: February 8, 2019 Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 1 of 14 PageID #: 1025 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................. ii INTRODUCTION ................................................................................................................. 1 ARGUMENT ......................................................................................................................... 1 I. THE COURT SHOULD GRANT SUMMARY JUDGMENT BECAUSE PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE THAT DEFENDANTS’ DENYING PLAINTIFF ACCESS TO TEFILLIN VIOLATED RLUIPA .................................................................................................. 1 II. SUMMARY JUDGMENT SHOULD BE GRANTED AS PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE ESTABLISHING THAT DEFENDANTS DENIED HIM A KOSHER DIET UNDER THE FIRST AMENDMENT OR RLUIPA ..........................................................................8 III. SUMMARY JUDGMENT IS APPROPRIATE AS PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE TO SUPPORT HIS RETALIATION CLAIM .............................................................................................10 CONCLUSION ......................................................................................................................10 Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 2 of 14 PageID #: 1026 ii TABLE OF AUTHORITIES CASES PAGE Love v. New Jersey Dep’t of Corr., 2011 WL 345964, (D. N.J. Jan. 31, 2011) ...........................................................................2 Parkell v. Senato, 704 Fed. App’x (3d Cir. 2017)...........................................................................................10 Searles v. Bruce, 2003 WL 23573643, (D. Kan. Oct. 20, 2003) .....................................................................5 Spigelman v. Samuels, 2015 WL 1411942 (E.D. Ky. Mar. 26, 2015) .....................................................................5 State v. Watson, 2010 WL 8250802 (Del. Super. Apr. 13, 2010) ..................................................................1 Watson v. State, 2013 WL 5969065 (Del. Nov. 6, 2013) ...............................................................................1 Other Authority 42 U.S.C. §2000cc ...............................................................................................................4 Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 3 of 14 PageID #: 1027 1 INTRODUCTION This is the reply brief on behalf of Defendants Gus Christo, Joseph Simmons, Michael Knight, Katrina Burley, David Pierce, John Brennan, James Scarborough, and Christopher Senato, in support of summary judgment on the three consolidated claims as defined in Defendants’ Opening Brief (D.I. 63 and hereafter, “DOB”).1 ARGUMENT I. THE COURT SHOULD GRANT SUMMARY JUDGMENT BECAUSE PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE THAT DEFENDANTS’ DENYING PLAINTIFF ACCESS TO TEFILLIN VIOLATED RLUIPA. Plaintiff’s RLUIPA claim presents no genuine issue of material issue of fact requiring a jury’s determination. Plaintiff is severely mentally ill, suffering from bipolar disorder and schizophrenia. (A-2 at p. 6). He is serving a 101-year prison sentence in Delaware for shooting into homes of Delaware law enforcement officers. Watson v. State, 2013 WL 5969065 (Del. Nov. 6, 2013) (TABLE); State v. Watson, 2010 WL (Del. 8250802 Super. Apr. 13, 2010). Plaintiff was declared mentally incompetent to stand trial for the Maryland shootings. (A-5 at pp. 15-18). Other examples of abnormal violent behavior exhibited by Plaintiff, including an escape from custody in 2017, are recited in Defendants’ Opening Brief (DOB at 3-5). Plaintiff disputes none of these facts, but instead implausibly suggests that Defendants merely “rattle sabres” and “grasp at straws” when describing Plaintiff’s violent and suicidal history. (AB at 10; AB at 13). Equally implausible is Plaintiff’s suggestion that designating two officers in the already-taxed Residential Treatment Unit (“RTU”) to oversee Plaintiff’s use of 6-foot long leather straps, every weekday, presents in his case “a rather minor expenditure of 1 Capitalized terms not otherwise defined herein shall have the meanings given to those terms in the DOB. Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 4 of 14 PageID #: 1028 2 the prison’s human resources.” (AB at 10-11, quoting Love v. New Jersey Dept. of Correction, 2011 WL 345964, at *29 (D.N.J. Jan. 31, 2011)). Indeed, although Plaintiff argues that his RLUIPA claim is fact-intensive, he summarily disregards facts unfavorable to him, and assigns a strawman argument to Defendants—that they argue for a “per se rule” that institutional security concerns trump prisoners’ rights to practice their religion. (AB at 8). To the contrary, Defendants argue that the undisputed facts in this particular case and context demonstrate that no reasonable jury could return a verdict favorable to Plaintiff on his RLUIPA claim, and that therefore Defendants are entitled to summary judgment as a matter of law. For example, Plaintiff initially characterizes himself as a “devout practitioner” of Reform Judaism, born into the faith by a Jewish mother.2 But in the course of his responses to discovery requests and sworn testimony provided during his subsequent deposition, Plaintiff admitted that he was, in actuality: (1) raised by his Christian father and his stepmother; (2) only encountered his birth mother intermittently over a nearly two decade period following his birth; (3) went to a synagogue but once at the age of seven; (4) attended Salisbury (MD) Baptist Academy for one year (2000), identifying himself as Christian at that time; and (5) only identified as being Jewish at the age of eighteen (18) after purportedly reconnecting with his alleged Jewish birth mother in 2006 (DOB at 3). Moreover, Plaintiff’s sworn deposition testimony indicates his year (2000) at the Salisbury Baptist Academy was the last time he “identified as Christian.” Yet he did not identify as Jewish then and in fact, did not until near his sentencing for several felony charges to which he pled guilty in 2006 when he “reconnected” with his birth mother. (DOB at 3). However, Plaintiff even contradicts this last admission by stating in a written discovery response 2 Judaism is based upon matrilineal descent (i.e., one is normally considered Jewish at birth if the biological/birth mother is recognized as also being of Jewish descent. However, Defendants note that aside from Plaintiff’s own self-serving statement, no other evidence to corroborate this claim has been adduced by Plaintiff. Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 5 of 14 PageID #: 1029 3 that he started identifying as Jewish in 2011, at or about the time he was released from his first prison sentence. (DOB at 3). Though he claims to have kept Kosher while living with his father from approximately 2011 until his arrest and subsequent incarceration starting in January, 2013, the record is devoid of any credible evidence to corroborate this claim. Additionally, Plaintiff’s deposition testimony fails to establish his attendance, regular or intermittent, at any synagogue at any point in his life, with only one exception noted above. Lastly, his self-proclaimed sincerely held religious belief that as a Jew he was mandated to pray with Tefillin (and maintain a Kosher diet) was not fulfilled when he was first incarcerated from approximately 2006 to August, 2011. Plaintiff lamely contends he did not know he could make such requests while incarcerated but upon his release, purportedly began his Kosher diet while also initiating a short daily morning prayer session with Tefillin. Admittedly, Plaintiff has sought to bolster his Tefillin and Kosher diet claims, and his alleged sincerely held religious beliefs as to both, by enlisting the aid of Rabbi Yair Robinson and his Expert’s Report (AB, App’x, Exh. 3). Rabbi Robinson opines that after one interview with Plaintiff of an unspecified length and a review of written discovery responses and Plaintiff’s deposition transcript, Plaintiff’s espoused religious beliefs are sincere. In further support thereof, Rabbi Robinson cites to several written Jewish sources, most of them merely reciting the Biblical dictates regarding the parameters of a Kosher diet and a smaller section devoted to the use of Tefillin. Defendants do not necessarily contest the religious authorities cited by Rabbi Robinson in his report or their application in the instant matter. But the Rabbi’s report and resulting opinion fall short and fail to take into account the full purpose of RLUIPA and the countervailing issues of safety and security within a prison facility that even sincerely held religious beliefs such as Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 6 of 14 PageID #: 1030 4 those alleged by Plaintiff (i.e., use of Tefillin during weekday morning prayers and maintaining a Kosher diet) may need to take a back seat. As the Court is well aware, RLUIPA prohibits the government from imposing “a substantial burden on the religious exercise” of an inmate even if that burden results from a rule of general applicability unless the State demonstrates that the burden is in furtherance of a compelling interest and is the least restrictive means for furthering that interest. 42 U.S.C. §2000 cc 1(a). Thus, Plaintiff must persuade the Court that the imposition of a rule of general applicability substantially burdens his free exercise of religion (see 42 U.S.C. §2000 cc – 2b.) In the case at bar, Plaintiff continually denigrates and minimizes the Defendants’ rationale for denying Plaintiff’s request for Tefillin on two different occasions. Rather than consider that rationale and whether it represents a compelling and legitimate penological interest (i.e., safety and security) as applied equally to staff, other inmates and even Plaintiff himself, Plaintiff takes great pains (i.e., Rabbi Robinson’s report) to reinforce his purported sincerely held religious belief and his avowed necessity of having Tefillin available during his weekday morning prayers sessions. In response, Defendants ask the Court to consider how sincerely this particular religious belief is actually held by Plaintiff. As the record shows, despite reconnecting with his birth mother in 2006 and purportedly identifying as Jewish as far back as then (though other written discovery responses suggest such “self-identification” occurred in late 2011), Plaintiff did not even allegedly use Tefillin until his release from incarceration (his first) in August, 2011. Aside from that self-serving statement, no other evidence has been adduced to corroborate this claim (which by Plaintiff’s own admission lasted only until January 2013 when he was arrested and convicted by a jury of several serious and violent felony charges leading to his current 100 year plus sentence of incarceration). There is no mention of using Tefillin or Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 7 of 14 PageID #: 1031 5 keeping Kosher during that initial period of incarceration despite a self-professed sincerely held religious belief for doing so. Admittedly, Defendants’ explanation for the initial denial of the Tefillin request in early 2016 focused primarily upon the nature of the Tefillin (i.e., its components and construction) rather than Plaintiff’s purported sincere religious beliefs. In his Answering Brief, Plaintiff suggests that the failure to take those purported beliefs into account when initially denying his request somehow constitutes a concession that they existed. On the contrary, the Court’s attention is respectfully directed to previous statements both here and in their Opening Brief refuting such concession (DOB at 17). Plaintiff further suggests in his Answering Brief that the record (including cited caselaw referenced by both Plaintiff and Defendants) failed to even show consideration of “less restrictive means” that could possibly accommodate Plaintiff’s religious needs without adversely impacting on Defendants’ security and safety concerns. For example, Plaintiff cites to the protocol used in Spiegelman v. Samuels, 2015 W.L. 1411942 (E.D. Ky. Mar. 26, 2015); see also Searles v. Bruce, 2003 WL 23573643 (D. Kan. Oct. 26, 2003).3 In the former involving a Federal Prison in Kentucky, Plaintiff touts their use of an established four part protocol that could accommodate the use of Tefillin by inmates in a Special Housing Unit (“SHU”), remarking that it is similar to a proposal purportedly suggested by Scarborough during his deposition. (AB at 10-12). Defendants respectfully submit that said Defendant’s remarks have been taken out of context and as such, misrepresent what Scarborough actually said. Moreover, Plaintiff acknowledges, in citing Spigelman, that using Tefillin in secured housing “presents 3 Though Plaintiff disparaged these cases, inter alia, as used in Defendants’ Opening Brief (DOB at 7, 16) for being either “old law” or not controlling in this jurisdiction, he freely selects portions therefrom that seemingly support his position. Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 8 of 14 PageID #: 1032 6 uniquely challenging safety and security risks.” (AB at 12 and DOB at 16). In Searles, that Court considered whether or not an accommodation was possible for inmates held in segregation. But that Court also expressed concerns with the length of the leather straps for the Tefillin. (DOB at 7, fn.14). Notwithstanding these allusions to forms of accommodation for the use of Tefillin by an inmate, Defendants respectfully direct this Court’s attention to the relevant portions of their Opening Brief where the unique facts of this particular case distinguish it from the above cited caselaw. First is the consideration given to Plaintiff’s security status (maximum security) in addition to his violent past criminal history, threats of serious harm made to different staff members during his current term of incarceration, attempts at self-harm, mental health issues (schizophrenia and bipolar disorder), and his present housing location (RTU or Residential Treatment Unit) where only eleven officers supervise fifty or so resident inmates with varying degrees of mental illness who are provided appropriate treatment. When taking all of these factors into account with a potentially dangerous object such as Tefillin added to the mix, a person of common sensibilities can readily ascertain the potential for harm to either Plaintiff himself or others. Albeit Defendants may not have taken into account Plaintiff’s alleged sincere religious beliefs at the time they initially denied his Tefillin request in 2016, their focus was on the impact such an object could have if provided to Plaintiff to possess. Those concerns are enumerated by Pierce in the Opening Brief (DOB at 8). Further, Defendants did re-visit the Tefillin request in 2018 (though admittedly post- litigation). But then, unlike in 2016, the request was considered in light of all the above factors with one important addition. That additional factor was the amount of human resources Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 9 of 14 PageID #: 1033 7 available to accommodate Plaintiff’s use of Tefillin. Brennan’s relevant deposition testimony as to the second deliberation over this issue (DOB at 9-11) clearly and unequivocally illustrates that an accommodation even remotely similar to that enunciated in Spigelman is simply not feasible with existing circumstances, primarily a staff (human resources) shortage. Plaintiff seeks to minimize this crucial factor, citing to, inter alia, Love v. New Jersey Dept. of Correction, 2011 WL 345964 at *29 (D. N.J. Jan. 31, 2011). Therein that Court noted that supervision of an inmate using Tefillin during morning prayers “might be a rather minor expenditure of the prison’s human resources.” That is far from the publicly known situation at JTVCC and, as explained by Brennan, even more so in RTU where Plaintiff is housed. Finally, Defendants believe that any comparison of the Tefillin to other religious items available for sale at the JTVCC commissary is specious and misleading and without merit. More specifically the two-foot “chain” referenced by Plaintiff is, in actuality, a thin (1/16” diameter) necklace on which religious medallions such as the Christian cross (34 millimeters by 45 millimeters) may be hung. The “apples to oranges” comparison to the lengthy (nearly 6 foot) leather straps on the Tefillin should be discounted by the Court. Samples of said objects have been attached hereto as Exhibits. Defendants urge this Court to consider all of the record evidence before it in considering whether summary judgment is appropriate as to Plaintiff’s RLUIPA claim concerning the use of Tefillin at the present time. As noted in their Opening Brief (and contrary to Plaintiff’s unsupported conclusions), the existing record shows that no less restrictive means are currently available to accommodate Plaintiff’s professed need for Tefillin. Nor has Plaintiff adduced any additional evidence to refute the staffing shortages at JTVCC that absent same, might otherwise permit accommodation to Plaintiff in his present setting. The denial is not an absolute bar or Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 10 of 14 PageID #: 1034 8 “full ban” as otherwise suggested by Plaintiff (DOB at 15) and should Plaintiff eventually obtain a lower security classification with corresponding housing, the issue can be revisited. This is a legal issue ripe for a decision at the summary judgment stage of the proceedings. As such, Defendants respectfully request that summary judgment be granted on Plaintiff’s RLUIPA claim concerning the Tefillin. II. SUMMARY JUDGEMENT SHOULD BE GRANTED AS PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE ESTABLISHING THAT DEFENDANTS DENIED HIM A KOSHER DIET UNDER THE FIRST AMENDMENT OR RLUIPA. Turning to Plaintiff’s second claim regarding the delay in receiving a Kosher diet, it is noted at the outset that this claim is only to be considered as a possible First Amendment violation. Indeed, Plaintiff himself unequivocally states in his Answering Brief that RLUIPA is not appropriate as a basis for relief given that Plaintiff is currently receiving a kosher diet. Thus, injunctive relief under RLUIPA is inapplicable. An examination of Plaintiff’s claim shows that the initial denial and subsequent delay actually resulted not from wrongdoing on the part of the Defendants; rather, it was due in large part to Plaintiff’s own failure to comply with the appropriate procedures for obtaining such a diet. A review of the chronology clearly establishes this fact. There is no dispute that Plaintiff initially sent a written request for the diet only to Chaplin Tim on or about February 24, 2016. (AB App’x, Exh. 7). After no response, Plaintiff filed a grievance on February 26, 2016. (AB App’x, Exh. 8). At this point, the grievance was received by Burley in her role as IGC or gatekeeper for processing and docketing grievances. In turn, the grievance was referred to Simmons who then interviewed Plaintiff and, based upon that interview and Simmons’ then (albeit mistaken) belief, indicated to Plaintiff that Simmons would recommend the request be denied as Plaintiff needed to first identify and be certified as a Jew by Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 11 of 14 PageID #: 1035 9 an Orthodox Rabbi. The recommendation was noted and the grievance proceeded to the next appellate level. During the pendency of the grievance on appeal, Plaintiff wrote a second letter on April 14, 2016, this time only to Christo who, in turn, referred it to Captain Senato (not named as a Defendant as to this claim). (AB App’x., Exh. 9). At or about the same time of this referral, Captain Senato received the grievance appeal. Based upon the existing written policy (AB, App’x., Exh. 20) and Captain Senato’s rejection of the alleged prior unwritten policy regarding verification under which Simmons was mistakenly laboring, Captain Senato reversed the grievance denial and placed Plaintiff on the Kosher diet recipient list effective in the first week of May, 2016. Thus, it is apparent from the above that the alleged ten week delay was not precipitated by the initial mistaken recommendation by Simmons in late February. Rather, it occurred largely as a result of Plaintiff’s grievance working its way through the system to a successful conclusion. Moreover, Defendants refute Plaintiff’s contention that he complied with DOC Policy 14.3. As Plaintiff himself states, the aforesaid policy requires a prisoner to both self-report a religious affiliation and submit his written request on the designated DOC Religious Diet Participation Agreement form. (AB at 16). The record shows that neither the letter of February 24, 2016 nor that of April 14, 2016 complied with either of these requirements. In fact, Plaintiff did not self-report as identifying or affiliating with Judaism until April 4, 2016. Additionally, Plaintiff never signed the Religious Diet Participation Agreement form at that time; instead, he became a recipient by virtue of Captain Senato’s acceptance of his grievance. Accordingly, the purported ten week delay was, in reality, no more than four weeks in duration. Whatever damages Plaintiff alleges he incurred are, at best, de minimis. And based on the existing facts, it appears that no named Defendant bears any liability for same, most Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 12 of 14 PageID #: 1036 10 particularly Simmons. In his defense, it is submitted that he, as all others cited, is entitled to the defense of qualified immunity as previously set forth more fully in Defendants’ Opening Brief (DOB, at 18). Defendants further submit that the decision in Parkell v. Senato, 704 F. App’x 122, (3d. Cir. 2017) is distinguishable in that Parkell was allegedly denied a Kosher diet for at least two years and Simmons’ qualified immunity defense rests on a reasonable mistaken fact. Therefore, Defendants are entitled to summary judgment on the Kosher diet claim. III. SUMMARY JUDGMENT IS APPROPRIATE AS PLAINTIFF HAS FAILED TO SHOW SUFFICIENT EVIDENCE TO SUPPORT HIS RETALIATION CLAIM. Finally, Defendants respectfully submit that they should also prevail on the retaliation claim. The existing record unequivocally establishes that the sole reason for the reduction in the number of Kosher meals was a grievance filed by prisoner Parkell sometime in June, 2016 relating to alleged caloric deficiencies. The subsequent investigation and resolution of that grievance led to the reduction in variety. For the sake of judicial economy, Defendants respectfully direct the Court’s attention to that portion of their Opening Brief where this matter is more fully set forth. (AB, at 19). As previously indicated, the record is devoid of any evidence to support either this claim or the contention that the factual background provided is mere “pretext.” In the absence of same, Defendants respectfully submit that Plaintiff’s third and final claim is wholly without merit and Defendants should be granted summary judgment on it as well. CONCLUSION For the reasons set forth both here and in their Opening Brief, Defendants respectfully request that the Court grant them summary judgment as to all three claims. Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 13 of 14 PageID #: 1037 11 STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Stuart B. Drowos Stuart B. Drowos (#427) Michael F. McTaggart (#2682) Wilson B. Davis (#5154) Deputy Attorneys General Carvel State Building 820 French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Dated: February 8, 2019 Attorneys for Defendants Case 1:16-cv-00433-RGA Document 74 Filed 02/08/19 Page 14 of 14 PageID #: 1038