United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE
the Court is Defendant Jim Gerlach's Second Motion for
Summary Judgment [Doc. No. 146], filed pursuant to
Fed.R.Civ.P. 56. Plaintiff responded in opposition [Doc. No.
148], and Defendant Jim Gerlach replied [Doc. No. 151]. The
matter is fully briefed and at issue.
AND FACTUAL BACKGROUND
a former federal prisoner appearing pro se, seeks
monetary relief pursuant to 42 U.S.C. §
1983. Alleging a violation of his First
Amendment right to religious exercise, Plaintiff asserts in
his Complaint that during his confinement at the Grady County
he was denied kosher meals, access to religious materials,
and the ability to engage in daily prayer. The only remaining
claim against Defendant Jim Gerlach (“Gerlach”)
is Plaintiff's assertion that he was denied kosher meals.
Plaintiff's other claims against Gerlach were disposed of
on summary judgment on September 27, 2017. [Doc. No. 125].
raises the affirmative defense that Plaintiff failed to
exhaust his administrative remedies under the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). He
also claims § 1997e(e) of the PLRA, limiting a
prisoner's recovery of damages for mental or emotional
injury, bars Plaintiff's claim. Alternatively, Gerlach
moves for summary judgment on the following grounds: (1)
Plaintiff has failed to show that his religious belief in
Judaism is sincere; (2) Plaintiff has failed to show that his
religious exercise rights were substantially burdened; and
(3) Gerlach, in his official capacity, is not subject to
municipal liability. [Doc. No. 146].
judgment is appropriate when “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.”
Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315
(10th Cir. 2017) (quoting Fed. R. Civ. P.
56(a)). A dispute is genuine “if there is sufficient
evidence on each side so that a rational trier of fact could
resolve the issue either way, ” and it is material
“if under the substantive law it is essential to the
proper disposition of the claim.” Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)
(internal quotation marks omitted). At the summary judgment
stage, the Court views the facts and all reasonable
inferences in the light most favorable to the nonmoving
party. Williams v. FedEx Corporate Services, 849
F.3d 889, 896 (10th Cir. 2017).
movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
670-671 (10th Cir. 1998) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). If the movant
meets that burden, the nonmovant must “go beyond the
pleadings and ‘set forth specific facts' that would
be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”
Adler, 144 F.3d at 671; see also Fed. R.
Civ. P. 56(c)(1)(A). To accomplish this, the nonmovant must
identify facts by reference to the pleadings, depositions,
other discovery materials, exhibits or affidavits. See
Id. The Court is not limited to the cited materials, but
rather may consider other materials in the record.
Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the
facts and evidence of record present “a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-252 (1986). Unsupported conclusory allegations
are not sufficient to defeat summary judgment. Matthiesen
v. Banc One Mortgage Corp., 173 F.3d 1242, 1247
(10th Cir. 1999).
court need consider only the cited materials, but it may
consider other materials in the record.” Fed.R.Civ.P.
56(c)(3). Moreover, a pro se litigant's
pleadings are to be liberally construed and held to a less
stringent standard than formal pleadings drafted by lawyers.
Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); Erickson v. Pardus, 551
U.S. 89, 94 (2007).
AND MATERIAL FACTS
Damascus, Syria, Plaintiff's birth name is Ammar
Chichakli. For nine years, Plaintiff lived in Saudi Arabia
and attended the University of Riyadh. He also lived in the
United Arab Emirates on several occasions. While living in
Saudi Arabia and the United Arab Emirates, Plaintiff said he
was Christian because “Jews are not allowed.”
[Doc. No. 146-5 at 107].
Plaintiff has admittedly denied their familial relation in
the past, Plaintiff now states that Adib Bin Hassan
Al-Shishakli, the former president of Syria, was his
uncle. Plaintiff alleges that the Chichakli family was
secretly from a Jewish background.
1996 through 2005, Plaintiff lived in Richardson, Texas, and
worked as an accountant. Plaintiff seriously started
practicing Judaism and keeping kosher in 2005. Until that
time, he had not openly practiced Judaism in the United
States. While living in the United States, Plaintiff and his
second wife traveled to Saudi Arabia, the United Arab
Emirates, Turkey and Syria to visit family.
left the United States in 2005 and lived in Russia and
Australia. While living in Australia, Plaintiff lived under
the false, assumed non-Jewish name, Jehad Al-Mustafa. In
2013, he was arrested in Australia and extradited to the
United States on federal charges of conspiracy, money
laundering and wire fraud in the Southern District of New
York. Plaintiff was convicted by a jury in December 2013 and
sentenced on December 4, 2014, to 60 months'
has been the Grady County Jail Administrator since May 26,
2014. As jail administrator, Gerlach is “authorized and
directed to have charge of the Grady County Jail and of all
persons confined by law therein.” See
Gerlach's Aff. [Doc. No. 146-1 at ¶ 3].
May 2005, the Grady County Jail and the U.S. Department of
Justice United States Marshals Service Prisoner Operations
Division have maintained a Detention Services
Intergovernmental Agreement. Pursuant to the agreement, the
Grady County Jail is responsible for providing secure
custody, safekeeping, housing, subsistence and care of
federal detainees. The level and range of care provided to
federal detainees must be the same as that provided to state
and local detainees.
Forsythe is the liaison between the Grady County Jail and the
federal government regarding the housing of federal
detainees. When a federal detainee is brought to the Grady
County Jail, “they are processed, and asked about their
faith, any medical issues, among numerous other
questions.” Gerlach's Aff. [Doc. No. 146-1 at
¶ 7]; Forsythe's Aff. [Doc. No. 146-3 at ¶ 4].
his transport to the Grady County Jail, Plaintiff was housed
in several different federal facilities. He arrived at the
Grady County Jail at night on February 10, 2015. He was kept
in the gymnasium for about four hours until he could be
processed. This is standard procedure for new arrivals.
Plaintiff did not ask for anything to eat during those four
the book-in process, Plaintiff told jailer Mike Fitzpatrick
that he is Jewish, and Plaintiff's book-in sheet
references “Jewish” under Religion. [Doc. No.
146-4]. Mr. Fitzpatrick also noted on the book-in sheet that
Plaintiff kept “kosher, ” but Mr. Fitzpatrick
inadvertently placed the kosher reference under “Food
Allergies” on the book-in sheet. See Id.
federal detainee has an issue or concern at the Grady County
Jail, they are required to fill out a Federal Detainee's
Request for Services, which is then provided to Forsythe.
Forsythe will generally respond to the request as soon as
practicable. Sometime prior to February 14, 2015, Forsythe
received paperwork ...