NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 17-1049 ___________

DAMIEN MIKELL, Appellant

v.

LOUIS FOLINO, Former Superintendent 2; ROBERT GILMORE, Former Superintendent 1; JEFFREY R. ROGERS, Corrections Classification and Program Manager; JABULANI SIBANDA, Corrections Facility Chaplaincy Program Director; ABUBAKAR MUHAMMAD, Corrections Chaplain; MICHAEL DECARLO, Corrections Food Service Manager 1; WALLY DITTSWORTH, Corrections Food Service Manager 2 ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civil Action No. 2-14-cv-01112) Magistrate Judge: Honorable Maureen P. Kelly ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 9, 2018

Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges

(Opinion filed February 13, 2018) ___________

OPINION* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ___________ PER CURIAM

Pro se appellant Damien Mikell appeals the District Court’s grant of summary

judgment for defendants on his claim that his First Amendment right to exercise his

religion was violated by a number of prison officials during the course of his

incarceration at the State Correctional Institution at Greene (“SCI-Greene”). For the

reasons that follow, we will affirm the District Court’s judgment.

I.

Because we write primarily for the benefit of the parties, we will only recite the

facts necessary for our discussion; these facts are undisputed unless otherwise noted. On

July 19, 2012, Mikell was transferred to SCI-Greene from another state institution. Upon

his arrival at SCI-Greene, he was housed in the Restricted Housing Unit. The following

day, on July 20, 2012, Mikell refused two meals, stating that he was observing the

Ramadan fast, which had just begun the previous evening. He also submitted requests to

a Food Service Supervisor seeking to receive pre-dawn and post-sunset meals during the

fast and to the Chaplaincy Department to be placed on the Ramadan participation list. On

July 23, Food Service Manager Wally Dittsworth advised Mikell to contact the

Chaplaincy Department to participate in the Ramadan fast. Two days later, he received a

response from the Chaplaincy Department, in which Abubakar Muhammad, a

Corrections Chaplain, attached forms Mikell needed to return to be added to the

participation list. Mikell completed and returned the forms that day; his name was

2 subsequently added to the Ramadan participation list.1 Despite this, Mikell never

received any of the pre-dawn or post-sunset meals that would have allowed him to fast

for Ramadan once he was placed on the participation list.

Mikell maintains that in the days following July 25, he received individual cell

visits from SCI-Greene’s Facility Chaplaincy Program Director, Jabulani Sibanda, and

Corrections Chaplain Muhammad. He claims that Sibanda told him that his name had

been placed on the Ramadan participation list and that he would immediately begin to

receive meals that would allow him to fast.2 Muhammad allegedly told Mikell that if his

name had been added to the Ramadan participation list, he would begin to immediately

receive the appropriate meals.

Mikell does not allege taking any further action until August 13, 2012, when he

submitted an inmate grievance form indicating that he had not received meals that

allowed him to fast despite his completion of the required institutional forms to be added

to the Ramadan participation list. In it, he indicated that Muhammad had visited him at

his cell on August 2 and advised him that he would be placed on the list to participate in

the fast if he met all of the requirements to participate. Mikell only mentioned one other

1 The record conflicts with the parties’ representations of when Mikell was added to the participation list. This date is immaterial to our resolution of his claims. 2 Sibanda disputes Mikell’s account of this cell visit but also claims that he personally provided Mikell with the Ramadan participation paperwork before July 25. 3 institutional employee in the body of his grievance, who is not a party to this case. The

grievance was received on August 15, 2012; Sibanda denied the grievance on August 27.

Ramadan ended on August 18. Mikell represents that he accepted every regularly

scheduled meal that was brought to him throughout the entire month of Ramadan after

July 20. He claims that he did so because he was saving food items to consume as a pre-

dawn and post-sunset meal every day. Defendants represent that Mikell was likely not

provided the meals to participate in the fast because he accepted his regularly scheduled

meals throughout the month of Ramadan. SCI-Greene’s Ramadan participation form

states that inmates who consume regularly scheduled meals may be removed from

participation in the fast. However, defendants have not definitively established why

Mikell failed to receive the meals.

Mikell pursued his administrative appeal through the highest level, but his final

appeal was ultimately dismissed as untimely in January 2013.3 He filed a complaint in

the District Court in August 2014, seeking damages and injunctive relief under

against numerous prison officials in their individual capacities for infringing on

3 It does not appear that Mikell properly exhausted his administrative remedies. See Woodford v. Ngo,

(2006) (explaining that “proper exhaustion of administrative remedies is necessary” to fulfill the Prison Litigation Reform Act’s exhaustion requirement); see also 42 U.S.C. § 1997e(a). However, defendants did not raise the issue of exhaustion in their summary judgment motion or subsequent briefs, although they did mention it in their answer to Mikell’s complaint. As defendants have the “burden of proving the affirmative defense of failure to exhaust remedies,” we will address the merits of Mikell’s claims against them. See Brown v. Croak,

(3d Cir. 2002). 4 his ability to freely exercise his religion by participating in the Ramadan fast, as protected

by the First Amendment. Mikell voluntarily dismissed his claims against three

defendants; his claims against four defendants proceeded to summary judgment. Those

defendants — Sibanda, Muhammad, Dittsworth, and another Food Service Supervisor,

Michael DeCarlo — moved for summary judgment on Mikell’s remaining claims against

them. Mikell also moved for summary judgment. The District Court granted defendants’

motion and denied Mikell’s. Mikell timely appealed.

II.

We have jurisdiction over this appeal pursuant to

. We exercise

plenary review over a district court’s grant of summary judgment; thus, we apply the

same standard as the district court. Blunt v. Lower Merion Sch. Dist.,

(3d Cir. 2014). Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is

sufficient for a reasonable factfinder to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc.,

(1986).

In evaluating a motion for summary judgment, “all justifiable inferences are to be

drawn in . . . favor” of the non-moving party.

. However, “the non-movant

may not rest on speculation and conjecture in opposing a motion for summary judgment.”

Ramara, Inc. v. Westfield Ins. Co.,

(3d Cir. 2016). A mere “scintilla

5 of evidence” in support of the non-moving party does not create a genuine issue of

material fact. Anderson,

.

III.

Individuals who are incarcerated “retain protections afforded by the First

Amendment . . . including its directive that no law shall prohibit the free exercise of

religion.” O’Lone v. Estate of Shabazz,

(1987) (internal citation

omitted). “[A] prison inmate retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate penological objectives of

the corrections system.” Pell v. Procunier,

(1974). When an inmate

challenges a prison regulation that infringes upon his constitutional rights, courts apply a

four-factor analysis set out in Turner v. Safley,

(1987).

Although Mikell cited several prison policies in his summary judgment motion

relating to food services and religious activities at SCI-Greene, he does not argue that any

policy or practice infringed on his right to freely exercise his religion. Rather, he claims

that defendants individually and personally infringed upon his free exercise rights when

they failed to provide meals compatible with his participation in the Ramadan fast despite

the procedures that he had followed. On the record before us, Mikell has failed to

sufficiently link any defendant to his failure to receive meals to participate in the 2012

Ramadan fast.

“A defendant in a civil rights action must have personal involvement in the alleged

6 wrongs.” Rode v. Dellarciprete,

(3d Cir. 1988). A plaintiff may

establish personal involvement by demonstrating “personal direction or . . . actual

knowledge and acquiescence,” which must be shown “with appropriate particularity.”

First, regarding Food Service Supervisors DeCarlo and Dittsworth, Mikell has not

shown that they interfered with his Ramadan fast participation. He makes no specific

allegations regarding any interaction he may have had with DeCarlo. Mikell’s only

interaction with Dittsworth occurred immediately after he was transferred to SCI-Greene

and submitted a request form to a Food Services Supervisor indicating his intent to

participate in the Ramadan fast. After Dittsworth informed Mikell that he needed to

contact the Chaplaincy Department in order to participate in the fast, Mikell did not

communicate with Dittsworth further to inform him that he was not receiving meals

despite his placement on the participation list. Because there is no evidence that either

DeCarlo or Dittsworth ever knew that Mikell had not received meals to observe the fast

or that either defendant was personally involved in his meal delivery, summary judgment

was properly granted in their favor.

Next, Mikell’s claim against Muhammad lacks merit. At most, Mikell alleges that

he informed Muhammad that he had not received meals to observe the fast soon after his

transfer and that Muhammad responded that if he were on the list, he should begin

receiving meals to participate. There is no evidence that Mikell followed up with

Muhammad to inform him that he had not begun receiving the meals despite his

7 placement on the participation list. As Mikell does not indicate how Muhammad

specifically interfered with the free exercise of his religion, Muhammad was also entitled

to summary judgment.

Finally, Mikell’s claim against Sibanda cannot survive summary judgment.

Mikell claims that Sibanda personally confirmed that he was on the participation list and

informed him that he would immediately begin to receive meals to observe the fast. It is

undisputed that Mikell was on the list and that he nonetheless never received the

requested meals. However, there is no evidence that Mikell communicated with Sibanda

after the alleged cell visit for the rest of Ramadan or otherwise informed Sibanda of the

problem. Sibanda did respond to the grievance that Mikell submitted in August 2012, but

the grievance was not directed at Sibanda and made no mention of him. Further, it was

only received by the prison three days before Ramadan ended; there is no evidence that

Sibanda knew of the grievance before the end of Ramadan. Although Mikell expected

Sibanda to take some unidentified additional action to ensure that he could fast, he waited

weeks until Ramadan was nearly over before bringing the discrepancy to anyone’s

attention, while accepting his regularly scheduled meals three times a day.

By some still-unknown occurrence, Mikell continued to receive his regularly

scheduled meals despite his placement on the Ramadan participation list, but there is no

evidence that Sibanda was involved beyond overseeing Mikell’s undisputed placement on

the list. Mikell has not shown that Sibanda knowingly or intentionally interfered with his

8 free exercise of his religion. Cf. Lovelace v. Lee,

(4th Cir. 2006)

(holding that “negligent acts by officials causing unintended denials of religious rights do

not violate the Free Exercise Clause” because a plaintiff “must assert conscious or

intentional interference with his free exercise rights to state a valid claim under § 1983”).

Thus, the District Court properly granted summary judgment to Sibanda.

9