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Cosby v. Erfe

United States District Court, D. Connecticut

May 19, 2016

HOWARD COSBY, Plaintiff,
SCOTT ERFE, ET AL., Defendants.



         Plaintiff, Howard Cosby, commenced this action pursuant to 42 U.S.C. § 1983 against defendants Warden Scott Erfe and Deputy Warden Guiliana Mudano. He alleges that the defendants violated his right to free exercise of the Buddhist religion by denying his request for a vegetarian diet. He alleges further that there were occasions when his food was tampered with, i.e., a bite was taken out of a sandwich, a sandwich was completely burned, and a piece of wax paper was present in a sandwich. The parties have filed cross-motions for summary judgment. For the reasons that follow, the defendants’ motion is granted and the plaintiff’s motion is denied.

         I. Standard of Review

         A motion for summary judgment may be granted only where “there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks omitted). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence as would allow a jury to find in his favor in order to defeat the motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). The nonmoving party “must offer some hard evidence showing that its version of the events is not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

         II. Facts[1]

         The Connecticut Department of Correction (“DOC”) does not offer individualized menus for inmates. Instead, it offers two menu options, the Master menu and the Common Fare menu. Both menus were designed by registered dietitians and comply with all recommended dietary requirements. The Common Fare menu was designed to reasonably accommodate recognized religious dietary requirements by substituting fish, cheese or another meatless protein for meat items. All inmates receive the Master menu unless they register to receive the Common Fare menu.

         The DOC provides nearly 50, 000 meals each day to nearly 16, 000 inmates. Offering individualized menus based on inmate preferences would be cost prohibitive and greatly increase administrative burdens and opportunities for confusion. Increasing the number of food items offered each day would result in increased costs because the DOC would no longer be able to purchase items in the quantities required to achieve cost savings and result in increased waste from unused food items. Every menu offered must be evaluated by a registered dietitian to determine the nutritional adequacy of the meal.

         During the time relevant to this action, defendant Erfe was the warden at the Corrigan-Radgowski Correctional Center (“Corrigan”). He now is the warden at Cheshire Correctional Institution. As warden, defendant Erfe is responsible for generally overseeing the correctional facility including supervising staff. He also responds to inmate grievances by reviewing and deciding whether to approve the response prepared by the grievance coordinator. As warden, he is not personally involved in planning inmate menus or altering them to conform to religious or medical needs.

         In January 2013, the plaintiff submitted an “Inmate Request Form, ” in which he stated that “in Buddhism, we do not believe in killing any living thing [and] do not eat any living thing that has been killed . . . includ[ing] fish. So the common fare diet is not sufficient for me because it contains fish. Again I am requesting a strictly vegetarian diet.” (Doc. # 60-3, at 29). The Corrigan kitchen supervisor responded to his request as follows: “The DOC offers inmates a choice between a Master Menu and a Common Fare menu. The Common Fare menu is a meatless menu that meets all the nutritional requirements as determined by a DOC licensed dietician, without the presence of food items forbidden by religious dogma (A.D. 10.8, paragraph 30)[2]. You may select between either menu.” (Id.).

         In May 2013, the plaintiff filed a grievance regarding his diet. On June 3, 2013, defendant Erfe received the plaintiff’s grievance and a recommendation from the grievance coordinator that the grievance be denied because the plaintiff was already receiving the Common Fare menu. On June 6, 2013, defendant Erfe denied the grievance because the plaintiff was already receiving the menu that was designed to accommodate religious practices and did not contain meat and there was nothing more that he could do. As warden, defendant Erfe was not authorized to make substitutions to an inmate’s menu. His understanding is that such changes may be made only by a dietitian or nutrition expert in Food Services or by the medical unit. At the time he denied the grievance, defendant Erfe was aware of only one instance where the Department of Correction had developed an individual menu for an inmate based upon religious preferences and that instance occurred as the result of a settlement agreement between another inmate and the Attorney General’s Office.

         In September 2013, defendant Erfe received a letter from the PETA[3] Foundation stating that the plaintiff was not receiving vegetarian meals. Defendant Deputy Warden Mudano, the deputy warden of operations at Corrigan during the relevant time period, was responsible for overseeing the kitchen. Therefore, defendant Erfe forwarded the letter to her. Erfe did not receive any further communications or complaints from the plaintiff about his diet at Corrigan.

         At a meeting of the Corrigan religious review committee on September 11, 2013, shortly after the PETA letter was received, the committee members, including defendant Mudano, discussed the plaintiff’s menu and whether DOC Food Services could substitute another food item for fish. It was determined that Food Services could replace fish with a nutritionally adequate substitute whenever fish appeared in the Common Fare menu The day after the committee meeting, defendant Mudano met with the plaintiff and told him that the fish would be replaced with a nutritionally adequate substitute, most likely a grilled cheese sandwich, a peanut butter and jelly sandwich or an egg option. The plaintiff expressed his thanks and appreciation. The plaintiff did not tell defendant Mudano that he could not eat eggs. Defendant Mudano informed the kitchen staff that the plaintiff was satisfied with the indicated changes. The revised menu was then implemented. Defendant Mudano did not communicate with the plaintiff about his menu after September 12, 2013.

         Defendants Erfe and Mudano did not work in the kitchen. Defendant Mudano was responsible for kitchen oversight. This, like many of her oversight duties, was delegated to a subordinate. For example, kitchen oversight would be delegated to the kitchen supervisors. If an inmate had a problem with his meals, he would follow the chain of command and notify a correctional officer or member of the kitchen staff. Defendant Mudano had no involvement with planning inmate menus or altering menus to conform to religious or medical requirements.

         After defendant Mudano addressed the plaintiff’s dietary concerns, defendant Erfe received no written communications or complaints from the plaintiff about his meals. Neither defendant tampered with the plaintiff’s food. The plaintiff testified at his deposition that he did not inform defendant Mudano that he was receiving incorrect meals ...

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