Barnett v . Corrections CV-98-305-JD 04/26/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Harry D. Barnett
v. Civil N o . 98-305-JD
Opinion N o . 2000 DNH 101
Commissioner, New Hampshire
Department of Corrections, et a l .
O R D E R
The plaintiff, Harry D. Barnett, is an inmate at the New
Hampshire State Prison in Concord, New Hampshire. Barnett
brought suit against numerous prison officials for violations of
his constitutional rights under 42 U.S.C.A. § 1983. He moves for
partial summary judgment on count one of his complaint (document
n o . 5 8 ) , and the defendants object. Also before the court are
Barnett’s four motions to strike (document nos. 6 4 , 6 5 , 7 4 , 7 5 ) .
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
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). The record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v . Suarez-Cruz, 172
F.3d 122, 125 (1st Cir. 1999). All reasonable inferences are
drawn, and all credibility issues are resolved, in favor of the
nonmoving party. See Barreto-Rivera v . Medina-Vargas,
168 F.3d
4 2 , 45 (1st Cir. 1999).
If the moving party will bear the burden of proof at trial,
summary judgment is appropriate only if “(1) the moving party
initially produces enough supportive evidence to entitle the
movant to judgment as a matter of law (i.e., no reasonable jury
could find otherwise even when construing the evidence in the
light most favorable to the non-movant), and (2) the non-movant
fails to produce sufficient responsive evidence to raise a
genuine dispute as to any material fact.” Murphy v . Franklin
Pierce Law Ctr., 882 F. Supp. 1176, 1180 (D.N.H. 1994) (citing
Fitzpatrick v . City of Atlanta,
2 F.3d 1112, 1115-17 (11th Cir.
1993)). “[A]n issue is ‘genuine’ if the evidence presented is
such that a reasonable jury could resolve the issue in favor of
the nonmoving party and a ‘material’ fact is one that might
affect the outcome of the suit under governing law.” Fajardo
Shopping Ctr. v . Sun Alliance Ins. Co.,
167 F.3d 1 , 7 (1st Cir.
1999). Summary judgment will not be granted as long as a
reasonable jury could return a verdict in favor of the nonmoving
party. Anderson v . Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986).
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Background1
Barnett has been an inmate at the New Hampshire State Prison
(“NHSP”) since July of 1997. After some negotiations with NHSP
officials, Barnett was placed on a kosher diet in November of
1997. Barnett observes the religion of Orthodox Judaism.2
In February of 1998, Barnett purchased non-kosher food from
the NHSP canteen. This purchase violated prison rules, which
preclude inmates on religious diets from purchasing inappropriate
food at the prison canteen. The consequence of such an
infraction is to remove the inmate from the religious diet,
regardless of whether or not the inmate consumed the non-kosher
food.3
1
As required by the standard for evaluating a motion for
summary judgment, the court considers the facts presented in the
light most favorable to the defendants, and draws all reasonable
inferences in their favor. See Barreto-Rivera, 168 F.3d at 4 5 .
With regard to Barnett’s motions to strike and the
defendants’ objections, the court is mindful of the requirements
of Fed. R. Civ. P. 56(e) and considers only that evidence in the
record which has been presented in conformity with the rule.
Therefore, it is unnecessary to grant Barnett’s motions to
strike.
2
NHSP does not contest that Barnett currently observes
Orthodox Judaism. However, NHSP maintains that it did question
the sincerity of Barnett’s faith during the time frame relevant
to this lawsuit.
3
The defendants have failed to provide the court with a
complete copy of the prison directive that contains this policy.
3
NHSP policy requires an inmate to consult with the prison
chaplain before being placed on a religious diet. The chaplain
generally informs the inmate of the rules pertaining to
restricted diets. The chaplain also provides the inmate with a
written form which explains that the inmate may not purchase
inappropriate food. The parties dispute whether this procedure
was followed with Barnett when he was first put on a kosher diet.
For the purpose of deciding this motion, the court infers that
Barnett was aware of the prohibition against buying non-kosher
food when he broke the rule.
NHSP reinstated Barnett’s kosher diet in October of 1999.
Discussion
By arguing that NHSP wrongfully removed him from a kosher
diet when he purchased non-kosher food, Barnett has stated a
claim that NHSP violated his constitutional right to freely
exercise his religion. See U.S. Const. amend. I . “In a claim
arising under the First Amendment’s Free Exercise Clause, an
inmate must first establish that a challenged policy restricts
the inmate’s free exercise of a sincerely held religious belief.”
Brown-El v . Harris, 26 F.3d 6 8 , 69 (8th Cir. 1994). The court
finds Brown-El persuasive. In that case, the Eighth Circuit held
However, the affidavit of Warden Michael Cunningham presents
evidence of this policy’s existence.
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that a Muslim inmate’s right to exercise his religion was not
restricted when he was removed from the list of inmates fasting
during Ramadan after he broke the fast. The court reasoned that
by voluntarily breaking the fast, the inmate “placed himself
outside the group of worshippers accommodated” by the procedures
for fasting. Id. at 7 0 . Therefore, the inmate curtailed his own
exercise of religious freedom by demonstrating a lack of
sincerity in his beliefs. See also McElyea v . Babbitt,
833 F.2d
196 (9th Cir. 1987) (“It is appropriate to deny a special diet if
an inmate is not sincere in his religious beliefs.”)
Similarly, Barnett voluntarily purchased non-kosher food in
violation of NHSP policy. By doing s o , Barnett removed himself
from the class of inmates entitled to exercise Orthodox Judaism
because he did not exhibit a sincerely held religious belief.
While Barnett claims that he violated no rule of Orthodox Judaism
by purchasing non-kosher food without consuming i t , he has not
pointed to evidence supporting this claim. See Brown-El, 26 F.3d
at 69-70 (noting inmate did not provide evidence showing
religious exception excused his breaking fast). Therefore,
Barnett has failed to meet his burden for summary judgment,
because a reasonable jury could find that by his actions, Barnett
put himself outside the class of inmates who merited
constitutional protection, i.e., the inmates who held sincere
religious beliefs. See
id. at 7 0 . Furthermore, NHSP has raised
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a genuine issue as to whether it reasonably doubted the sincerity
of Barnett’s religious beliefs.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
partial summary judgment is denied (document n o . 5 8 ) . The
plaintiff’s motion for hearing (document no. 59) is denied. The
plaintiff’s four motions to strike (document nos. 6 4 , 6 5 , 7 4 , 75)
are denied. The plaintiff’s motion to clarify status of his
motion for partial summary judgment (document n o . 104) is denied.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
April 2 6 , 2000
cc: Harry D. Barnett, pro se
Mary E . Schwarzer, Esquire
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