IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

DEVERICK SCOTT ADC #131042 PLAINTIFF

V. No. 5:19-cv-63-DPM

JAMES GIBSON, Warden, Varner Unit; VIRGINIA ALLEN, Mailroom Supervisor, Varner Supermax Unit; TRENT SMITH, Officer, Varner Supermax Unit; JOHN POLLETT, Chaplain, Varner Supermax Unit; SEAM TREAS, Chaplain, Varner Supermax Unit; DEXTER MCDONNELL, Chaplain, Varner Supermax Unit; DOES, Publication Review Committee Members, Varner Unit; and BRIANA BOATNER DEFENDANTS

ORDER On de novo review, the Court adopts the recommendation, Doc. 58, as modified and overrules Scott’s objections, Doc. 60 & 61. FED. R. CIv. P. 72(b)(3). The modifications: First, the recommendation says Scott didn’t show how the lack of a feast tray prevented his celebration, in part because specific food wasn’t required or typical for the feast. Doc. 58 10. In his objections, Scott says the withholding of the feast tray prevented him from “achieving the peace and focus that is part of the

Ramadan observance.” Doc. 60 at 2. Viewing the record in the light most favorable to Scott, the Court does not adopt the recommendation on this point. Smith-Bunge v. Wisconsin Central, Ltd.,

(8th Cir. 2019). But, the Court agrees with the Magistrate Judge’s ultimate conclusion: The feast tray incident, even combined with the Ramadan meal incident, does not rise to the level of a substantial burden, under either RLUIPA or the First Amendment. Mbonyunkiza v. Beasley,

(8th Cir. 2020); Patel v. U.S. Bureau of Prisons,

, 813 n.7 (8th Cir. 2008). Second, the Court declines the recommendation’s last paragraph, which deals with qualified immunity on Scott’s retaliation claim. Doc. 58 at 15 & n.8. Prisoners have a clearly established right to be free from retaliation for using the grievance process. Santiago v. Blair,

(8th Cir. 2013). And the adverse action “itself need not be a constitutional violation; the violation is acting in retaliation for the exercise of a constitutionally protected right.” Spencer v. Jackson County, Missouri,

(8th Cir. 2013). The Court agrees with the Magistrate Judge, though, that Scott’s retaliation claim fails on the merits. Motion for summary judgment, Doc. 47, granted. Scott’s claims will be dismissed with prejudice.

So Ordered. nell $-. D.P. Marshall Jr. United States District Judge

(8 aust 2020