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Browning v. Pszczolkowski

United States District Court, N.D. West Virginia

March 26, 2018

KAREN PSZCZOLKOWSKI, Warden; JIM RUBENSTEIN, Commissioner; WILLIAM YURCINA, Deputy Warden; RYAN ADANS, Unit Manager/Director of Classification; BRANDY MILLER, A.W.P.; JOANIE HILL, A.W.O.; MIKE TAYLOR, Chaplain; C.J. RIDER, Religious Services; DALE GRIFFITH, Unit Manager; DAVE ELLIOTT, Job Coordinator, Defendants.




         On June 30, 2016, Jason Browning, the pro se Plaintiff, initiated this civil action by filing a complaint pursuant to 42 U.S.C. § 1983. The Plaintiff is a state prisoner who has had extensive disputes with the West Virginia Division of Corrections stemming from his religious beliefs as an Orthodox Jew.

         The Plaintiff first filed suit on February 11, 2013, in Civil Action No. 1:13-cv-23 (“Browning I”). In that complaint, the Plaintiff alleged that various state correctional officials had violated his First Amendment right of free exercise of religion and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by: (1) denying him a kosher diet; (2) denying his religious apparel; and (3) denying him the right to worship weekly or on special holidays. On March 20, 2015, the Court entered an Order which granted in part and denied in part a Motion for Summary Judgment filed on behalf of the individuals named as the Defendants. On February 6, 2016, after three rounds of mediation, a Settlement and Release of All Claims Agreement (“Settlement Agreement”) was executed by the Plaintiff and the West Virginia Division of Corrections (“WVDOC”). This Settlement Agreement fully resolved any and all claims asserted by the Plaintiff, and accordingly, on February 12, 2016, the Honorable John Preston Bailey, United States District Judge, entered an order dismissing the case and retiring it from the active docket of the Court, subject to reopening on the motion of any party, and for good cause shown, within 90 days.

         On June 30, 2016, the Plaintiff filed two separate motions in Browning I. First, he filed a Motion to Vacate Agreement. Second, he filed a Motion for an Injunction to enforce the Settlement Agreement. On December 14, 2016, the undersigned entered a Report and Recommendation that recommended that the motions be denied without prejudice. No objections were filed, and on January 17, 2017, the Court adopted the Report and Recommendations and denied both motions without prejudice.

         As previously noted, the Plaintiff's instant complaint (“Browning II) was filed on June 30, 2016, the same date that he filed the above noted motions in Browning I. Although the complaint in Browning II is sparse at best, a review of the attachments suggested that the Plaintiff again alleged various violations of his Constitutional rights and RLUIPA. However, those claims appeared to be secondary to his main contention, that being that the WVDOC, who was not named as a Defendant, had breached the Settlement Agreement.

         On December 23, 2016, an Order to Answer was entered, and summonses were issued for the Defendants. On January 25, 2017, the Defendants filed a Motion to Dismiss with a Memorandum in Support. On January 26, 2017, a Notice of Magistrate availability to exercise Jurisdiction (AO85) pursuant to LR PL P 28 was sent to the Plaintiff and Kenneth Hopper, counsel for the Defendants. On February 1, 2017, a Roseboro Notice was issued. On February 2, 2017, a Motion for referral based upon all parties consent to exercise of jurisdiction by a Magistrate Judge was filed. On February 7, 2017, an Order of Referral was entered granting the Motion to Refer the Case to the undersigned for all further proceedings. On February 25, 2017, the Plaintiff filed a response to the Motion to Dismiss, and on February 21, 2017, the Defendants filed a Reply.

         On May 1, 2017, the Plaintiff filed a Motion to Amend. Although the Defendants filed an objection, the undersigned granted the Motion to Amend on May 12, 2017. On May 16, 2017, an Amended Order was entered. In the Amended Order, the Plaintiff was specifically advised that he must include in his Amended Complaint all of his claims and further advised him that the Amended Complaint would supersede his previous complaint and would be the only complaint given review.

         On May 24, 2017, the Plaintiff filed his amended complaint. On June 13, 2017, the Defendants filed a Motion to Dismiss and/or Motion for Summary Judgment. A Roseboro Notice was issued on June 19, 2017. Following the grant of an extension of time, the Plaintiff filed an “answer.” On September 5, 2017, the Defendants filed a Reply.



         Like his original complaint, the Plaintiff's Amended Complaint is sparse. The Plaintiff raises four claims:

1. The DOC and Defendants denied him the right to celebrate Passover two years in a row after agreement that he could have time and space for all Jewish holidays.
2. All Defendants and WVDOC are denying him a religious diet cooked separately from mainline with all foods cooked with the same stoves, pots and utensils.
3. Despite the WVDOC and the Defendants' agreement to allow him to take religious correspondence courses from the Aleph Institute, they refused to allow him access to the internet.
4. The Defendants and the WVDOC are stopping him from ordering bread and dairy products and most of the other items they agreed to in the agreement.
5. The Defendants and the WVDOC are refusing to allow Aleph to send him grape juice and matoza[1] every Sabbath and [tefillin][2] so that he can “don tefillin” each morning.

         For relief, the Plaintiff seeks an order that: (1) the WVDOC change their policy so he can observe his holidays like Orthodox Jews; (2) the WVDOC provide a “kosher diet, ” (3) the WVDOC allow Aleph to send matzo, grape juice and tefillin to him; (4) the WVDOC provide a microwave to stay kosher; and (5) the WVDOC allow him to order monthly food packages; and (6) the WVDOC allow the Plaintiff to order four bowls, two cups and a 48 oz. container for grape juice and a king size cooler to keep food.


         In support of their alternation motions, the Defendants contend that:

1. The WVDOC has complied with the terms of the Settlement Agreement, and therefore, the Plaintiff's breach of contract fails as a matter of law;
2. The Eleventh Amendment precludes suit against the state and its agencies in federal court;
3. The legal doctrine of res judicata precludes the Plaintiff's claims against the Defendants; and
4. The Plaintiff has failed to exhaust administrative grievances.


         In his response, the Plaintiff does little to rebut the Defendants' Motion. In particular, he fails to address the Defendants assertion that he has not exhausted his administrative remedies. Instead, he emphasizes that he has to pay for the Passover feast for all the inmates who sign up for that feast. He reiterates this allegation by noting that he has to share his feast in order to have his Passover, and he is the only one who has to pay. He also appears to allege that he never celebrates Passover in the chapel and must always use another room. In addition, he mentions for the first time, that the exam discussed by ...

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