Ulmann v. Merrimack HOC CV-02-405-JD 04/26/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peter Ulmann

v. Civil No. 02-405-JD Opinion No.

Carole A. Anderson, Superintendent, Merrimack County House of Corrections, et al.

O R D E R

While incarcerated at the Merrimack County House of

Corrections (the "MCHC") awaiting trial, Peter Ulmann filed a pro

se complaint against Carole Anderson, the superintendent of the

facility, and Jeffrey Croft, its chief of security.1 The

defendants have moved for summary judgment on Ulmann's claims on

a number of grounds. Ulmann objects.

Background

The following relevant undisputed facts appear in Anderson's

affidavit and the documents submitted with the parties' summary

judgment motions.2 Ulmann was first booked into the MCHC on

1Ulmann's complaint identified Croft as "Captain Craft" and named Henry Simons, a physician's assistant who treated Ulmann at the MCHC, as an additional defendant. Simons was dismissed from the case as recommended by the magistrate. See infra.

2Neither party's summary judgment brief complies with L.R. 7.2(b)'s mandate that it "incorporate a short and concise statement of material facts." Instead, both Ulmann's and the December 14, 2001, after being arrested on charges arising out of

his alleged theft of diamonds from a jewelry store in Concord,

New Hampshire, and a charge of being a fugitive from justice in

Nevada. A report of Ulmann's medical condition prepared the next

day indicates that he had previously been prescribed a number of

medications to treat his Type II diabetes and hypotension. On

December 19, 2001, Ulmann underwent a physical examination and

medical history survey where he mentioned that he had only one

kidney. He also related that he had been treated and released

for complaints of chest pain at Concord Hospital on the day he

was arrested. In response to similar complaints by Ulmann

throughout January, 2002, Simons recommended on January 31, 2002,

defendants' briefs go directly to arguing their positions, referring to certain facts as they pertain to each section of argument, rather than following the more customary (and helpful) format of prefacing argument with an organized statement of all the underlying facts of the case. Anderson's affidavit is not an effective substitute for a Rule 7.2(b) statement, as it consists of fifty-eight numbered paragraphs taking up twenty-five single­ spaced pages replete with parenthetical phrases and sentences of Joycean length, as well as two whole pages which pertain to a different inmate altogether. Nevertheless, because the facts on which each brief relies are supported by record citations, if only minimally, the court has taken upon itself the task of organizing the largely undisputed facts into one coherent statement. Furthermore, the defendants' motion to submit its exhibits on a CD-ROM (document no. 46) is allowed without objection. The court notes, however, that submitting only relevant documents, rather than every single scrap of paper produced to Ulmann in discovery, would have been more helpful.

2 that Ulmann receive a stress test.3 The results of the test,

performed on February 5, 2002, by a cardiologist outside the

prison, were "unremarkable."

Ulmann claims in his amended complaint that he "suffered

what he believed to be a heart attack" in February 2002, three

days before receiving an electrocardiogram test ("EKG") and chest

x-ray. His medical records, however, show that Ulmann actually

underwent the EKG and x-ray on January 24, 2002, the same day on

which prison medical staff saw him twice for complaints of pain

and numbness in his left side and arm and difficulty breathing.

The results of the x-ray and the EKG were negative. Ulmann

neither sought nor received medical attention three days before

receiving the EKG and x-ray and, at that point, had not reguested

medical care since January 3, 2002.4

Shortly after arriving at the MCHC, Ulmann received

permission to make a five-minute call to his family in Singapore

on a weekly basis from a staff telephone. Although this

privilege was briefly suspended in late March 2002, due to a

3Ulmann was seen by prison medical staff for reports of chest pain or dizziness on ten occasions between January 4, 2002, and February 4, 2002. He was prescribed a number of medications during that period.

4Although Ulmann was not seen until the next day, January 4, 2002, the defendants explain that the delay resulted from their initial unawareness of Ulmann's reguest, which he made through a note left among shaving materials returned to a guard.

3 clarification of jail policy, Anderson nevertheless allowed

Ulmann to make nine overseas calls between April 16, 2002, and

July 7, 2002. She later discovered, however, that Ulmann had not

charged a number of calls he made during that period to his

calling card, but had dialed them direct, causing the MCHC to

incur $273.68 in long distance charges. In a July 23, 2002,

letter to Anderson, Ulmann admitted to making some of these

calls, explaining that his "prepaid calling card did not function

and the c.o. assisting dialed the number direct."5 He also asked

to charge another call to his wife to the MCHC so he could obtain

a number where he could call her collect. Anderson responded

that Ulmann would be allowed to make calling-card calls to

Singapore again after receiving funds from his family to pay the

long distance charges, which he had promised to do in his July

23, 2002, letter. Ulmann never did so, however.

Ulmann, who asserts that he is an Israeli citizen,6 was

permitted to visit at the MCHC with two members of the Israeli

consulate on August 18, 2002. He claims in his objection to

5This document belies Ulmann's unsupported statement in his objection that the corrections officers "stated that they did not want to go [sic] Plaintiff's property to get the card and they would direct dial and let the county pay for it."

6Ulmann's MCHC intake survey lists his nationality as American, while his book-in summary lists it as "other." For purposes of this motion, the court will assume that Ulmann is an Israeli citizen.

4 summary judgment that this visit "was obstructed" because it

occurred "in a Visiting Room with everyone else and there was no

privacy." Anderson later advised the MCHC staff in writing that

consulate members would be meeting with Ulmann on November 6 ,

2002, and that "[t]hey can visit in the law library and they may

close the door if they want to." The delegation, however, failed

to appear for either this visit or another one which had been

scheduled, with the same privileges, for December 1, 2002.

Ulmann, an observant Jew, wrote to David Hassett, the MCHC

program director, on November 5, 2002, asking him to contact a

local rabbi to provide Ulmann and his fellow Jewish inmates with

"the candelbraw [sic] and the candles and the other condiments"

reguired to celebrate the upcoming Chanukah holiday. Hassett

responded in writing that candles were not allowed inside the

facility but that he had nevertheless contacted the rabbi "to

possibly provide other condiments" for the holiday, to be

celebrated from November 29, 2002, through December 7, 2002. In

a November 21, 2002, letter to Hassett, who had explained to

Ulmann that candles were prohibited for safety reasons, Ulmann

wrote, "I cannot see that lighting candles in the kitchen for 20

minutes for eight nights, under a Correctional Officer [sic]

supervision is construed to be a 'security or safety problem.'"

Hassett spoke to the rabbi on December 2, 2002, telling him

that inmates were permitted neither candles nor lightbulbs but

5 suggesting that he "come in to oversee [a] glass candle lighting"

for Ulmann. Hassett directed that a room be set aside for this

purpose after the rabbi indicated that he would visit Ulmann the

next day, but the rabbi ultimately canceled his visit. On

December 5, 2002, however, he delivered an electric menorah to

the MCHC on Ulmann's behalf. Hassett withheld the object from

Ulmann, explaining in a memorandum to him the next day that the

glass lightbulbs presented a safety and security issue and that

the menorah would be placed with Ulmann's secured property.

In a December 6, 2002, letter to Anderson, which she

received three days later, Ulmann charged that he had not been

"allowed to celebrate the Chanukah . . . under the Rabbi [sic]

supervision." He also wrote that during his incarceration at the

MCHC for nearly all of the preceding year, he "was not given even

once 'kosher food' as a practicing orthodox jew should be

allowed, nor was I allowed to put on the 'Teffilin'. . . that as

orthodox jews we pray with six times a week." Anderson states in

her affidavit that Ulmann had never raised these issues

previously. Ulmann responds in his objection that he made

"written reguests/grievances, etc." with respect to reguiring a

kosher diet but that these documents have been lost by the

defendants. In a letter of March 12, 2002, submitted by the

defendants, Ulmann reguested a vegetarian diet both for health

reasons and because "[elating ham and pork is offensive to me and

6 my religion" but did not reference a kosher diet.

Ulmann's objection also refers to a series of letters to him

from a rabbi in Brooklyn, New York. One of those, dated May 23,

2002, encourages Ulmann "not [to] give up on kosher food. It is

the right of every Jewish prisoner . . . ." Another, dated

September 12, 2002, recounts that its writer spoke to the

Manchester rabbi, "ask[ing] him about Tefillin, and he told me

that this is not allowed," presumably in the MCHC.

On December 18, 2002, Ulmann was discharged from the MCHC to

begin serving a sentence at the New Hampshire State Prison. He

commenced this action on September 4, 2003, seeking damages and

eguitable relief in the form of a transfer. Following initial

screening of the complaint pursuant to 28 U.S.C. § 1915A, the

magistrate recommended that Ulmann be allowed to proceed on his

claims that the defendants had violated his rights to (1) free

exercise of religion, (2) adeguate food, (3) consular visitation

under the Vienna Convention on Consular Relations, (4) familial

relations, and (5) adeguate medical care.7

,

(D.N.H. Jan. 21, 2003). The court adopted the

recommendation over Ulmann's objection.

7The magistrate initially dismissed Ulmann's claim arising out of the alleged denial of adeguate medical care without prejudice to his ability to renew it by alleging "additional facts indicating that he has been injured by the MCHC's inadeguate medical care." Ulmann responded by moving to amend his complaint to allege such facts, which was allowed.

7 Standard of Review

The court may grant a motion for summary judgment only if

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 party seeking summary judgment bears

the initial burden of establishing the lack of a genuine issue of

material fact. See Celotex Corp. v. Catrett,

(1986). The court must view the entire record in the light most

favorable to the plaintiff, "'indulging all reasonable inferences

in that party's favor.'" Mesnick v. General Elec. Co.,

(1st Cir. 1991) (guoting Griggs-Ryan v. Smith,

(1st Cir. 1990) ) .

Discussion

"[P]retrial detainees, who have not been convicted of any

crimes, retain at least those constitutional rights that . . .

are enjoyed by convicted prisoners." Bell v. Wolfish,

(1979); see also Riggins v. Nevada,

(1992); Roberts v. Rhode Island,

(1st Cir.

2001). Nevertheless, "[t]he fact of confinement as well as the legitimate goals and policies of the penal institution limits

these retained constitutional rights." Bell,

.

To define these limits, the court must evaluate the challenged

practice in the light of the central objective of prison

administration, safeguarding institutional security.

"This

evaluation is a deferential one, giving due regard to the

professional expertise of corrections officials and the limited

role of the judiciary in operating and overseeing correctional

facilities." Roberts,

(internal guotation marks

and citations to Bell omitted).

Ulmann's complaint charges that the defendants violated a

number of his constitutional rights during his incarceration at

the MCHC. The defendants seek summary judgment against these

claims on a two-tiered theory. Because their motion is subtitled

"Qualified Immunity," however, Ulmann explains that he has

"argue[d] his objection on that theory only," and purportedly

"reserves his right to expand [his] objection based upon the

[c]ourt's determination" that the defendants have sought summary

judgment on additional grounds.

Notwithstanding the title of the defendants' motion, the

body of the document expressly states that they are moving for

summary judgment "based on the principles of gualified immunity

and the plaintiff's inability to further prosecute this action. based on bare allegations" (emphasis added). Indeed, Ulmann

himself quotes this passage on the first page of his objection,

and both he and the defendants devote the vast majority of their

briefing to the argument that Ulmann lacks evidence to support

his claims, rather than to the qualified immunity defense.8 The

defendants' moving papers were therefore sufficient to (and in

fact did) put Ulmann on notice that they were seeking summary

judgment not only on qualified immunity grounds, but also because

Ulmann could not come forward with any affirmative evidence of

his claims. See Berkovitz v. Home Box Office, Inc.,

(1st Cir. 1996) (deciding summary judgment motion requires

opposing party to have "appropriate notice and a chance to

present its evidence on the essential elements of the claim or

defense"); c f . Fed. Refinance Co. v. Klock,

(1st

Cir. 2003). Accordingly, the court will consider both theories

of summary judgment addressed by the parties to the extent

necessary to resolve the summary judgment motion.

8The court notes that the defendants' brief actually contains only nominal discussion of the qualified immunity argument and therefore provides virtually no assistance in resolving that issue. Counsel has an obligation to present sufficiently detailed legal and factual bases for any argument that is urged upon the court.

10 I. Alleged Denial of Adequate Medical Care

The Supreme Court has held that the rights of a pretrial

detainee to adequate medical care under the due process clause

are at least as great as the Eighth Amendment protections

available to a convicted prisoner. City of Revere v. Mass. Gen.

Hosp.,

(1983). Accordingly, "jail officials

violate the due process rights of their detainees if they exhibit

a deliberate indifference to the medical needs of the detainees

that is tantamount to an intent to punish." Elliott v. Cheshire

County,

(1st Cir. 1991) (internal quotation marks

omitted); see also Mahan v. Plymouth County House of Corrs., 64

F .3d 14, 17 (1st Cir. 1995) .

Ulmann argues that the defendants showed a deliberate

indifference to his medical needs primarily by doing "absolutely

nothing" as he suffered a heart attack in February, 2002, despite

his complaints of chest pain.9 He does not allege any instance.

9Ulmann's support for his claim that he actually suffered a heart attack while at the MCHC consists of statements allegedly made to him by two physicians who treated him in 2003, as represented in his brief, and a medical record generated around that time stating that Ulmann reported having been told that he "quite possibly" had a heart attack in February 2002. Such unauthenticated, multiple-hearsay statements do not constitute acceptable evidence for summary judgment purposes. See Fed. R. Civ. P. 56(c). Nevertheless, the court will assume in deciding this motion that Ulmann suffered a heart attack in February 2002, as he says.

11 however, when the defendants failed to respond to either his

requests for medical attention or other indications that he was

having heart trouble. To the contrary, around the time at which

Ulmann claims to have had a heart attack, he had repeatedly

received treatment for chest pains from staff at both the MCHC

and Concord Hospital, including tests which showed no signs of

abnormal cardiac activity.

"In order to be found 'deliberately indifferent,' prison

officials must be shown to have been subjectively aware of a

condition requiring their intervention." Mahan, 64 F.3d at 18

(citing Farmer v. Brennan,

(1994)). The record

contains no evidence that the defendants knew Ulmann had suffered

a heart attack in or around February 2002, or that they even

could have known that he did, given that repeated medical

examinations during that period failed to demonstrate such a

condition. Accordingly, Ulmann has not provided any support for

his theory that the defendants manifested a deliberate

indifference to his medical needs by failing to prevent or

respond to his alleged heart attack. See Mahan, 64 F.3d at 18

(affirming summary judgment for prison on inadequate medical care

claim arising out of anxiety attacks in absence of evidence that

prison "personnel were informed, or otherwise learned, of the

serious symptoms [plaintiff] actually experienced while detained.

12 such as would have made them subjectively aware of a condition

requiring their intervention"); Bean v. Cunningham,

(D.N.H. 1986) (denying prisoner's claim of inadequate

medical care because "[w]hen defendants received notice of

plaintiff's complaint, they acted appropriately and expeditiously

by having plaintiff examined by competent medical personnel").

In his amended complaint, Ulmann also alleges that the

defendants "refused to give [him] any type of dietary

consideration" for both his kidney condition and his diabetes.

Although his objection fails to expand upon these allegations,

the court has nevertheless reviewed the medical records submitted

with Anderson's affidavit and concludes that the MCHC's handling

of his diabetes and prostate and kidney problems was

appropriate.10 The defendants are therefore entitled to summary

judgment on Ulmann's claim for allegedly inadequate medical care.

10The records show that after Ulmann complained of difficulty urinating on May 3, 2002, and November 20, 2002, he was promptly seen for these complaints by MCHC medical staff and urine specimens were taken. He also submitted a grievance on August 12, 2002, "speculating" that he might have prostate problems and other infirmities but was seen by Simons that same night. According to Anderson's unrebutted affidavit, Ulmann was placed on a diabetic diet on January 1, 2002, less than two weeks after his incarceration at the MCHC began. His blood sugar was tested three times each week.

13 II. Alleged Denial of Telephone Contact With Family

A pretrial detainee's use of the telephone may be subjected

to limitations which "reasonably reflect[] legitimate

apprehensions about the security and order" of the institution

where he or she is detained. Feeley v. Sampson,

(1st Cir. 1978); accord Martin v. Tyson,

(7th Cir. 1988); Strandberg v. City of Helena,

(9th Cir. 1986). Although Ulmann suggests in his objection that

he "did not have an opportunity" at the MCHC to make collect

calls to his family, he has not submitted any evidence to

controvert the statement in Anderson's affidavit that she has

always allowed inmates to make collect calls from the day rooms

while outside of their cells. Instead, he complains that the

defendants would not allow him to make calling-card calls.

Courts have repeatedly held that the "use of a collect-only

phone system by a prison or county jail is reasonable if it does

not unduly limit access to counsel or the courts." Demits v.

Tuso,

, at *2 (N.D. Cal. Jan. 17, 1996); see also

Clark v. Plummer,

, at *1 (N.D. Cal. May 18, 1995);

Allen v. Josephine County,

, at *6 (D. Or. Jan. 13,

1993); Lane v. Hutcheson,

(E.D. Mo. 1992).

The defendants therefore did not violate Ulmann's rights by

limiting him to collect calls. Indeed, the uncontradicted

14 evidence demonstrates that they extended him the privilege of

charging calls to his calling card until they discovered that he

had cost them $273 in long-distance charges by dialing directly

instead, and even then offered to reinstate the privilege once

Ulmann reimbursed them. The defendants are entitled to summary

judgment on Ulmann's claim that they denied him access to his

family over the telephone.

III. Alleged Denial of Consular Visitation

Ulmann alleges that the defendants "denied him proper

[c]onsular visitation from the Israeli consulate" in that he was

"allowed [only] one visit in . . . nine months and even that was

not conducted in the manner that is allowed by law." The

magistrate recommended that this claim be allowed on the basis of

the Vienna Convention on Consular Relations, Apr. 24, 1963, 21

U.S.T. 77, 595 U.N.T.S. 261 (the "VCCR"). In relevant part, the

VCCR provides that "consular officers shall have the right to

visit a national of the sending State who is in prison, custody,

or detention, to converse and correspond with him and to arrange

for his legal representation." I d . art. 36(1) (c) .

The defendants argue at the outset that because "violations

of the VCCR have no effect on due process rights, . . . there is

no support for further extending it to civil damages sought in a

suit brought under [s]ection 1983 . . . ." In United States v.

15 Li,

(1st Cir. 2000) (en banc), the First Circuit

considered whether the failure of American authorities to comply

with Article 36 of the VCCR following the detention of Chinese

nationals warranted the dismissal of indictments or the

suppression of evidence against them. I d . at 59-60. Although

the panel had convened to decide whether the VCCR "create[s]

individual rights as to consular notification and access, that

are enforceable by such individuals in court proceedings," the

court declined to answer that guestion, deciding instead that

neither the dismissal of an indictment nor the suppression of

evidence would be the appropriate remedy for the violation of any

such individually enforceable rights. I d . at 60.

Li, therefore, did not expressly foreclose the possibility

that a foreign national can invoke the VCCR as a basis for

judicial relief in this circuit. Nevertheless, its reasoning

strongly suggests that the treaty cannot serve such a purpose.

In fact. Judges Selya and Boudin concurred in a separate opinion

in Li to point out that "essentially by drawing logical

conclusions from many of the same considerations that are noted

in the court's opinion," it follows that the VCCR does not confer

any individual rights upon foreign nationals. I d . at 66. Other

circuits have joined in this view. See United States v. Jimenez-

Nava,

(5th Cir. 2001); United States v.

Emuegbunam,

(6th Cir. 2001), cert, denied, 531

(2002) .

On the other hand, only one court has concluded that the

VCCR furnishes a basis for judicial relief in a civil action.

See Standt v. City of New York,

(S.D.N.Y. 2001). The reasoning employed by the district court in

Standt, however, conflicts with the First Circuit's analysis of

the VCCR as set forth in Li. At the outset, Standt gave little

weight to the presumption that international treaties do not

create judicially enforceable rights in private parties, which

factored heavily into the First Circuit's analysis. Compare

with 206 F.3d at 61 & 66-67 (concurring

opinion). The court in Standt also disagreed with the

observation of the Li majority that the VCCR is "facially

ambiguous on the subject of whether [it] create[s] individual

rights," 206 F.3d at 62, relying instead on Judge Torruella's

partially dissenting opinion in Li for the proposition that "it

is difficult to imagine 'how it is possible to frame language

that more uneguivocally establishes that the protections of

Article 36(1) (b) belong to the individual national . . . .'"

(guoting 206 F.3d at 72). Finally, Standt

concluded that even if the VCCR were ambiguous on the issue of

individually actionable rights, "outside interpretive sources"

suggested that the treaty was intended to confer such rights.

I d . at 425-27. The First Circuit, in contrast, relied on similar

17 "nontextual sources" to reach the opposite conclusion. See Li,

206 F .3d at 63-66.

This court's interpretation of the VCCR as a source of

private rights is necessarily constrained by the meaning ascribed

to it by the First Circuit in Li. Although Li purported to leave

that issue undecided, in this court's view the panel's reasoning

leaves no room for a determination that a foreign national may

seek monetary relief in a civil proceeding for a violation of his

rights under the VCCR. See Bieregu v. Ashcroft,

(D.N.J. 2003) (holding that VCCR does not create duty

enforceable in tort); c f . Sorensen v. City of New York,

, at *6 (S.D.N.Y. Oct. 16, 2000) (assuming without

deciding that VCCR confers private rights, but holding that

treaty does not provide for money damages). Because Article 36

of the VCCR does not bestow any rights upon Ulmann as an

individual, it follows that the defendants did not violate any of

his rights by allegedly denying him consular visitation. The

defendants are entitled to summary judgment on that claim.

IV. Alleged Denial of Free Exercise of Religion

In 2000, Congress enacted the Religious Land Use and

Institutionalized Persons Act (the "RLUPIA"), which provides in

relevant part that

18 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . , even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc-l(a). The RLUIPA defines "religious exercise"

to include "any exercise of religion, whether or not compelled

by, or central to, a system of religious belief." Id.

§ 2000cc-5(7)(a). Furthermore, if the plaintiff produces prima

facie evidence to support a claim alleging a violation of the

Free Exercise Clause, the government shall "bear the burden of

persuasion on any element of the claim, except that the plaintiff

shall bear the burden of persuasion on whether the . . . practice

that is challenged by the claim substantially burdens the

plaintiff's exercise of religion."11 I d . § 2000cc-2(b).

Ulmann asserts that the defendants violated the RLUIPA by

preventing him from lighting a menorah during Chanukah, using a

teffilin, and adhering to a kosher diet while in custody. To

survive summary judgment on this claim, Ulmann must adduce

11The defendants have filed a motion to dismiss Ulmann's RLUIPA claim on the ground that the statute is unconstitutional. The government has intervened to defend the constitutionality of the RLUIPA, filing an objection to the motion to dismiss in which Ulmann has joined. For reasons which will appear, the court need not reach the issue of the constitutionality of the RLUIPA.

19 evidence that these derelictions "substantially burden[ed] the

exercise of religion." I d .; see also Dunlap v. Losev,

,

, at *2 (6th Cir. May 15, 2002)

(unpublished disposition). In giving meaning to the "substantial

burden" test set forth by the RLUIPA, this court and others have

looked to decisions interpreting the identical standard formerly

imposed by the Religious Freedom Restoration Act (the "RFRA") .12

Farrow v. Stanley,

,

, at *9 (D.N.H.

Feb. 5. 2004); accord Borzych v. Frank,

, at *4-*5

(W.D. Wise. Jan. 5, 2004); Marria v. Broadus,

,

at *12 (S.D.N.Y. July 31, 2003).

This court has therefore defined "substantial burden on

. . . religious exercise" under the RLUIPA as

one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs.

Farrow,

, at *9 (guoting Charles v. Verhagen,

(W.D. Wise. 2002) (guoting Mack v. O'Leary,

(7th Cir. 1996) (interpreting RFRA), vacated,

(1997)), aff'd,

(7th Cir. 2003)).

Anderson's affidavit and its appended documentation show

12The Supreme Court has declared the RFRA unconstitutional, at least insofar as it regulates non-federal activity. City of Boerne v. Flores,

(1997).

20 that Ulmann did not request either a kosher diet or use of a

tefillin until December 6 , 2002, just twelve days before his

discharge from the MCHC.13 Ulmann attempts to dispute this fact

by representing in his objection that he did ask for these

accommodations in writing at some unspecified earlier time but

that the defendants have since lost the documents.14 These bald

accusations are insufficient to defeat a properly supported

motion for summary judgment. See, e.g., LeBlanc v. Salem (In re

Mailman Steam Cleaning Corp.),

(1st Cir. 1999)

(cautioning that, in evaluating summary judgment motion, court

does "not give credence to empty rhetoric, . . . but credit[s]

only those assertions that are supported by materials of

evidentiary quality"). Similarly, the exhortation to Ulmann from

the Brooklyn rabbi in one of his letters "not [to] give up on

kosher food" and the rabbi's third-hand understanding that the

MCHC did not allow use of a tefillin do not constitute proof that

Ulmann actually requested either of these accommodations from the

13Although Ulmann noted in his letter of March 12, 2002, that he objected to eating pork on religious grounds, the letter did not refer to kosher meals as such and Ulmann does not argue that the defendants continued to serve him pork after that date.

14Ulmann also contends that both the Manchester and Brooklyn rabbis interacted with the MCHC on his behalf to secure kosher meals. In the absence of any affidavit from either of the rabbis or other evidence supporting this contention, however, it fails to create a factual issue.

21 defendants prior to his letter of December 6 , 2002.15

It is undisputed, then, that Ulmann spent nearly a year at

the MCHC without alerting the staff that his religion demanded

kosher meals and a tefillin for prayer. Under these

circumstances, the defendants' failure to respond to Ulmann's

needs during the final twelve days of his detention at their

facility did not impose a "substantial burden" on his religious

exercise within the meaning of the RLUIPA. See Dunlap,

, at *2 (holding that confiscation of prisoner's hardcover

Bibles for one month, "while making the practice of his religion

somewhat more difficult, did not coerce him into action contrary

to his beliefs, and did not state a claim under the RLUIPA,"

where he failed to follow up on his initial reguest for softcover

Bible until "a few days before his transfer"); Malik v. Kindt,

107 F .3d 21,

(10th Cir. Feb. 3, 1997)

(table) (preventing inmate from attending service for six weeks

did not substantially burden religious practice under RFRA).

The defendants do not dispute that their refusal to allow

Ulmann to possess a menorah due to the MCHC's prohibition on

candles and glass substantially burdened his religious exercise.

15The other portions of the rabbi's letters on which Ulmann relies in his objection are irrelevant. They either refer to the rabbi's efforts to locate a tefillin among the belongings which Ulmann had apparently left with him or make no specific reference to the item whatsoever.

22 Accordingly, the court will assume without deciding that

depriving Ulmann of a menorah amounts to a "substantial burden"

within the meaning of the RLUIPA. The defendants do argue,

however, that banning candles and glass advances a compelling

governmental interest in safety and security at the MCHC and

poses the least restrictive means of doing so.

As the Supreme Court recognized in Bell, "maintaining

institutional security" represents one of the "essential goals

that may reguire limitation or retraction of the retained

constitutional rights of . . . pretrial detainees."

(footnote omitted). Lower courts have specifically

determined that keeping inmates from lighting candles, despite

their use in various religious rites, is a permissible means of

reducing the threat of fire. See Brower v. Nuckles,

,

, at *2 (6th Cir. June 18, 1999) (table); Ward

v. Walsh,

(9th Cir. 1993); Emel v. Mensinger,

, at *3 (E.D. Pa. Aug. 15, 1996). Bans on allowing

prisoners to possess glass because of its potential use as an

instrument of violence or suicide have also been upheld. See

Munir v. Scott,

,

(6th Cir. Nov.

10, 1993) (table); Lane,

.

These cases largely had analyzed prison policies forbidding

the items under the standard set forth in Turner v. Safley,

8 (1987). There, the Supreme Court held that "when a

23 prison regulation impinges on an inmate's constitutional rights,

[it] is valid if it is reasonably related to legitimate

penological interests." I d . at 89; see also Savard v. Rhode

Island,

(1st Cir. 2003) (en banc), cert.

denied, 124 S. C t . 1074 (2004). Under the RLUIPA, however, any

substantial burden imposed on an inmate's religious exercise

cannot stand unless that burden represents the least restrictive

means of furthering a compelling governmental interest. 42

U.S.C. § 2000cc-l(a) ; see also Charles,

.

Thus, cases decided pursuant to the standard in place prior to

the RLUIPA provide limited guidance in determining the validity

of keeping religious articles from inmates under the new

statutory regime. See Marria,

, at *18 n.37 (not

following cases which upheld restriction on religious practice

under Turner standard in applying RLUIPA analysis).

Nevertheless, based on the summary judgment record, the

court concludes that there is no dispute that preventing

detainees from lighting candles or possessing glass represents

the least restrictive means of furthering the MCHC's compelling

interest in maintaining institutional safety and security.16

16Ulmann's promise in his objection "to bring in state prison personnel or others [as trial witnesses] to show that glass bulbs and candles are not a legitimate safety concern" does not create an issue of fact for summary judgment purposes.

24 Although Ulmann suggested that he be permitted to light candles

in the jail cafeteria under a guard's supervision, this

alternative would not have diminished the stated concern that

allowing open flames in the facility presents a safety hazard.

Furthermore, MCHC staff arranged for a rabbi to visit the prison

during Chanukah to oversee the lighting of an electric menorah

for Ulmann, but the rabbi did not show up of his own accord.

Ulmann's objection does not suggest any other way to preserve

safety and security at the MCHC which would have effected a

lesser restriction on his religious practices.

The defendants have therefore carried their burden under the

RLUIPA to show that their policy, i.e., disallowing candles and

glass but nevertheless arranging for a rabbi to oversee the

lighting of an electric menorah at the jail, represented the

least restrictive means of maintaining safety and security at the

MCHC. Ulmann has failed to come forward with any evidence to the

contrary. The defendants' decision to keep Ulmann from

possessing a menorah with either candles or lightbulbs did not

violate the RLUIPA. See Farrow,

, at *9-*10

(ruling that, although refusal to provide sweat lodge

substantially burdened inmate's practice of Native American

religion, RLUIPA not violated because of "need for intensive

monitoring" of proposed use of lodge); c f . Charles,

(ruling that forbidding inmate from having prayer

25 oil violated RLUIPA where prison's stated security concerns were

"not related to any specific difficulties presented by the

possession of prayer oil," but on general problems caused by

letting prisoners keep property of any kind) ; Marria v. Broaddus,

(S.D.N.Y. 2002) (holding that banning

members of particular faith from congregating or having religious

literature violated RLUIPA). The defendants are therefore

entitled to summary judgment on Ulmann's claim that they

illegally interfered with the practice of his religion.17

V. Alleged Denial of Adeguate Food

Although the magistrate construed Ulmann's complaint to

allege a possible claim that the defendants provided him with

constitutionally inadeguate food, Ulmann appears to retreat from

any such claim in his objection, calling the defendants'

contention that they provided him with the vegetarian diet he

reguested "a smokescreen for some defense theory . . . meant to

cloud the kosher diet issue." He has therefore failed to support

17Because the defendants did not violate any of Ulmann's rights under the RLUIPA, they necessarily did not violate any of his rights under the free exercise clause, which provides less protection to his religious practices than the RLUIPA does. See Madison v. Riter,

, 315 n.l (4th Cir. 2003); Mayweathers v. Newland,

(9th Cir. 2002), cert, denied sub nom. Alameida v. Mayweathers, 124 S. C t . 66 (2003) .

26 any claim he might have made that the defendants violated his

constitutional right to adeguate nutrition while incarcerated at

the MCHC.18 C f . Reed v. McBride,

(7th Cir.

1999) (ruling that plaintiff could proceed on constitutional

claim based on allegation that defendants withheld food from him

"on many occasions for three to five days at a time"). The

defendants are entitled to summary judgment on Ulmann's claim, to

the extent he makes one, that they denied him an adeguate diet.

Conclusion

For the foregoing reasons, the defendants are entitled to

summary judgment on all of Ulmann's claims. Accordingly, the

court need not reach the defendants' claim of gualified immunity.

The defendants' motion for summary judgment (document no. 44) is

allowed. The defendants' motion to submit their summary judgment

exhibits by entry of a computer disk (document no. 46) has been

allowed. The defendants' motion to dismiss (document no. 31),

motion for entry of late authority in support (document no. 45),

and motion to extend their deadline for filing pretrial materials

(document no. 58) are denied as moot. Ulmann's motion to compel

(document no. 51) and motion to extend the deadlines for

18Although Ulmann denies that the defendants provided him the vegetarian diet he reguested, he points to nothing in the summary judgment record to support this assertion and offers no authority or argument for the proposition that refusing him a vegetarian diet would have violated his constitutional rights.

27 discovery and for filing pretrial materials (document no. 54) are

also denied as moot.19 The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

April 26, 2004

cc: John A. Curran, Esguire Jeffrey D. Kahn, Esguire Peter Ulmann, pro se

19T o the extent Ulmann's motion for a continuance seeks to compel the staff of the facility where he is currently incarcerated to allow him access to the law library, the motion is denied because the persons in charge of that facility are not before the court in this action.

28