Martinko v. NH Department of Corrections et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David M. Martinko
v. 	Case No. 22-cv-238-LM-AJ
N.H. Department of Corrections et al.
REPORT AND RECOMMENDATION
Before the court in this prisoner civil rights case is
plaintiff David M. Martinko’s (second) motion for a preliminary
injunction (“Second PI Motion”) (Doc. No. 48), seeking a
religious diet, free of pork and pork product cross-
contamination, which he proposes should be comprised of New
Hampshire State Prison (“NHSP”) canteen food. 	The defendant New
Hampshire Department of Corrections (“NHDOC”) officials and
employees object, maintaining that the kosher diet presently
served to Martinko in the NHSP chow hall does not violate his
religious rights. 	Doc. No. 50.
The Second PI Motion focuses on the NHSP kitchen’s serving-
line practices, which, Martinko argues, result in the pork
cross-contamination of his kosher meals, in violation of his
rights under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”).1 	The Second PI Motion is fully briefed,
1 Martinko has asserted claims under both the First
Amendment and RLUIPA. 	For reasons stated in the March 10, 2023
R&R (Doc. No. 34), this court may focus on the RLUIPA claims at
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and neither party has requested a hearing. 	This court has
before it sufficient documentary evidence to make an informed,
albeit preliminary, determination regarding the prospect of
irreparable harm and whether the plaintiff is likely to succeed
on the merits of his claims for injunctive relief. 	For reasons
explained more fully below, Martinko has not made the requisite
strong showing of a likelihood of success on the merits of his
RLUIPA claim, or any showing of irreparable harm, necessitating
a mandatory injunction altering defendants’ practices with
respect to the preparation and service of his kosher meals.
Background
I. 	Factual Background
The following facts are undisputed, except as otherwise
noted. 	Plaintiff practices the Messianic Jewish faith. 	His
religious practices include dietary restrictions. 	He avoids
eating pork, ham, and pork products, as well as any food that
pork, ham, or pork products have “cross-contaminated.” 	See Aff.
of David Martinko (June 15, 2022) (“Martinko Aff.”) ¶¶ 2-3, 15
(Doc. No. 1-1).
Some but not all meals served in the NHSP chow hall contain
pork. 	See Doc. No. 33; Compl. (Doc. No. 1) ¶ 31. 	Pork cross-
contamination that would violate Martinko’s religious diet can
this stage of the case. 	See id., 2023 U.S. Dist. LEXIS 55125,
at *5 (RLUIPA is more protective than First Amendment as to
prisoner’s religious rights (citing cases)).
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occur when pork products come into contact with his food. 	See
id. ¶ 15; see also July 17, 2023 Response of NHDOC Chaplain
Pelletier (“I agree that no part of your meal should have
contact with pork.”) (Doc. No. 53-1). 	Cross-contamination that
violates his religious diet can also occur when pork comes into
contact with a “surface” that touches his food (e.g., a utensil,
a server’s gloves, or his own hand after it has touched pork
products). 	See Martinko Aff. ¶ 15(a).
In March 2023, the plaintiff switched from the NHSP’s
religious “no-pork” diet to the NHSP’s kosher diet. 	See Second
PI Motion ¶ 4. 	The NHDOC defines its “kosher/halal” diet as
consisting of “food prepared to meet the dietary restrictions of
those following a Jewish or Islamic religion.” 	Doc. No. 29, at
17 (NHDOC Policy and Procedure Directive (“PPD”) 672, Att. 6,
“Religious Diet Request Application: Religious Services”).
Although the NHSP kitchen is not a kosher kitchen, kitchen
workers store and prepare kosher foods served to prisoners on
the kosher diet (such as vegetables and kosher bread) using
kosher-compliant surfaces and utensils. 	Dir. Jonathan K.
Hanson’s Decl. in Resp. to ECF 27 (“Hanson Decl. I”) ¶¶ 7(2)(i),
7(4)(i) (Doc. No. 29). 	Other items served on kosher meal trays
are prepackaged kosher foods. 	Depending on the time of day, the
kosher meal tray served to prisoners on the kosher diet may
contain a sealed prepackaged kosher entrée, prepackaged kosher
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snacks, a paper bag containing a piece of fruit or plastic-
wrapped vegetable slices; a Styrofoam cup containing salad,
vegetables, or cold cereal; single-serving drink cartons or
juice; and a disposable cup, all served on a cafeteria tray.
Decl. of Jonathan Hanson (June 28, 2023) ¶ 8 (Doc. No. 49-1)
(“Hanson Decl. II”); Decl. of Heather Cornock, Food Serv. Mgr.
(Feb. 20, 2024) ¶¶ 6-9 (Doc. No. 64-2) (“Cornock Decl.”); Photos
(Doc. No. 64-6); Decl. of David Martinko (Feb. 22, 2024) ¶ 14
(Doc. No. 65-1) (“Martinko Decl.”). 	The sealed entrée and
prepackaged items remain sealed through the entire process until
the prisoner receiving the tray opens the package. 	Martinko
Decl. ¶ 12. 	In general, “all [kosher] foods handled by the
serving line are in a package,” whether it be the paper bag, the
vendor’s prepackaging, or the plastic wrap used by the chefs or
kitchen workers to separate out slices of kosher food before the
tray ends up on the serving line. 	Id.
Each kosher meal tray comes with a napkin. 	See id. ¶ 8.
Prisoners bring their own spork to the chow hall. 	Id. ¶ 9;
Decl. of Matthew Stefanczak (Feb. 21, 2024) ¶ 7 (Doc. No. 64-1).
II. 	Procedural History
Martinko filed this lawsuit asserting claims under RLUIPA
and the First Amendment, challenging the religious “no-pork”
diet he was then receiving as violating his religious rights,
before he switched to the kosher diet. 	This court denied
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Martinko’s (first) motion for a preliminary injunction without
prejudice, based on the availability of a kosher diet. 	See
Martinko v. N.H. Dep’t of Corr., No. 22-cv-238-LM, 2023 U.S.
Dist. LEXIS 55125, at *12 (D.N.H. Mar. 10, 2023) (Doc. No. 34)
(kosher diet served in NHSP chow hall satisfied all requirements
of Martinko’s religious “no-pork” diet and addressed his
concerns about pork cross-contamination), R&R adopted, 2023 U.S.
Dist. LEXIS 53459 (D.N.H. Mar. 29, 2023) (Doc. No. 36).
In June 2023, three months after he switched to the kosher
diet, Martinko filed his Second PI Motion (Doc. No. 48). 	In
that motion, Martinko claims that on May 6, 2023, he “noticed a
cross-contamination issue” relating to the kosher meal trays,
involving “inmate workers and chefs . . . contaminating his
Kosher meals by handling pork foods and then handling his Kosher
meals, trays, and cups without changing their gloves.” 	Id. ¶ 5.
He further asserts that he “witnessed additional
[contaminations]” on May 10, May 13, May 17, June 3, and June 6,
2023. 	Id.
Defendants in objecting to the Second PI Motion have argued
that the physical lay-out of the NHSP kitchen and chow hall make
it unlikely that Martinko had a clear view of what happened on
those specific dates, with respect to his own meal trays, a
contention disputed by Martinko. 	Moreover, defendants have
offered the declaration of NHDOC Director of Administration John
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Hanson, whose responsibilities include the implementation of
food service and hygiene policies, who asserts that workers in
the NHSP kitchen “will” use utensils, not their gloved hands, to
place food onto kosher meal trays. 	Hanson Decl. II ¶ 5.
An exhibit filed by Martinko offers a different picture of
how food is actually handled and served in the NHSP kitchen.
The sworn statement of Edgar Clifford Avery, a serving line
worker assigned to the NHSP dinner shift, avers that
“regularly,” or on “a daily” basis, prisoners and staff in the
kitchen’s serving line handle chicken, hamburgers, “hot dogs,
grilled bologna, fish, sausage patties, sausage links,” bread,
cake, brownies, cookies, and other unspecified “unpackaged” food
items directly, with their gloved hands, almost never using
utensils. 	Decl. of Edgar Clifford Avery (July 8, 2023) ¶¶ 3-4
(Doc. No. 51, at 5-7). 	Avery has seen (unnamed) serving line
workers handle such food and then touch “packaged food items,
trays, and cups without changing gloves”; and he offers as an
example an occasion when he saw a person touch a no-fish tray
after handling fish without changing gloves. 	Id. ¶¶ 5-6. 	With
respect to kosher meals in particular, he has “regularly”
witnessed kitchen workers in the serving line touch food without
utensils and then handle “special diet trays (including Kosher
trays) and cups without changing gloves.” 	Id. ¶ 9.
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Martinko claims in his unsworn pleading Second PI Motion
that “contaminates” on his meal’s packaging, cups, and tray end
up on his hands and are ingested. 	Second PI Motion ¶¶ 7-8. 	He
moves for a preliminary injunction directing the defendants to
provide him with a no-pork religious diet (comprised of NHSP
canteen food) that he wants to be comparable in quality,
nutrition, and variety to the regular meals and holiday meals
served to the general prison population. 	See Doc. No. 48-2.
Discussion
I. 	Preliminary Injunction Standard
Preliminary injunctive relief is an “extraordinary and
drastic remedy that is never awarded as of right.” 	Peoples Fed.
Sav. Bank v. People’s United Bank, 672 F.3d 1, 8 (1st Cir. 2012)
(internal quotation marks and citations omitted). 	The four-
factor test for granting a preliminary injunction applies to
plaintiff’s Second PI Motion. 	See generally March 10, 2023 R&R
(Doc. No. 34), 2023 U.S. Dist. LEXIS 55125, at *3-4 (movant must
show likelihood of success on merits, irreparable harm absent an
injunction, the balance of equities tipping in movant’s favor,
and the public interest favoring such relief (citing cases)).
The two factors in that test that weigh most heavily in the
analysis are the likelihood of success on the merits and the
need for an injunction to prevent irreparable harm, see id.
(citing cases). 	“[P]roving likelihood of success on the merits
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is the ‘sine qua non’ of a preliminary injunction. 	If the
moving party cannot demonstrate that he is likely to succeed on
his quest, the remaining factors become matters of idle
curiosity.” 	Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 173 (1st Cir. 2016)
(citations, quotation marks, and original brackets omitted).
“[T]o demonstrate likelihood of success on the merits,” the
plaintiff “must show ‘more than mere possibility’ of success”;
rather, he must establish a “‘strong likelihood’ that [he] will
ultimately prevail.” 	Sindicato Puertorriqueno de Trabajadores
v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012) (citation omitted).
The loss of religious freedoms guaranteed by RLUIPA or the First
Amendment, standing alone, can be an irreparable harm.
Franciscan All., Inc. v. Becerra, 47 F.4th 368, 380 (5th Cir.
2022); Harris v. Wall, 217 F. Supp. 3d 541, 560 (D.R.I. 2016);
see also Ramirez v. Collier, 142 S. Ct. 1264, 1278 (2022)
(capital defendant who could not engage in religious practice in
execution chamber demonstrated irreparable harm).
II. 	RLUIPA
RLUIPA provides that “[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 the burden is “in furtherance of a
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compelling governmental interest” and is “the least restrictive
means of furthering that . . . interest.” 	42 U.S.C. § 2000cc-
1(a). 	To obtain relief on his RLUIPA claims, this prisoner must
show, at a minimum, that the prison has substantially burdened
his ability to follow his religious diet. 	See March 10, 2023
R&R, 2023 U.S. Dist. LEXIS 55125, at *5 (citing cases).
A substantial burden on one’s exercise of religion exists:
“[w]here the state conditions receipt of an important
benefit upon conduct proscribed by a religious faith,
or where it denies such a benefit because of conduct
mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his
behavior and to violate his beliefs.”
Perrier-Bilbo v. United States, 954 F.3d 413, 431 (1st Cir.
2020) (citation omitted). 	A policy “substantially burdens
religious exercise under RLUIPA if it coerces the inmate to
modify his religious behavior significantly or to violate his
religious beliefs.” 	Farrow v. Stanley, No. 02-567-PB, 2005 DNH
146, 2005 U.S. Dist. LEXIS 24374, at *14, 2005 WL 2671541, at *4
(D.N.H. Oct. 20, 2005).
The only potentially direct evidence of cross-contamination
of Martinko’s own “kosher meal” at any point in time consists of
his own unsworn statements, describing events in May and June
2023. 	On May 6, 2023, Martinko says (in an unsworn pleading)
that he saw NHSP chefs and kitchen workers handle pork products
and then handle his own “kosher meal.” 	He adds that he
witnessed “additional [contaminations]” on five other occasions
over the next four weeks.
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Such specific events, even if taken as true, do not
manifest that Martinko’s religious diet has been substantially
burdened. 	He has offered no evidence that skipping an
occasional meal, or skipping part of a meal for fear of cross-
contamination, puts any substantial burden on his religious
practices. 	In the context of religious diets, courts have held
that “allegations of isolated incidents or negligence, such as
accidental cross-contamination of beans with pork as a result of
carelessness or negligence by the inmate servers, does not
establish a viable claim under RLUIPA because such incidents do
not impose a ‘substantial burden’ upon an individual’s religious
beliefs.” 	Miles v. Lumpkin, No. 6:20cv334, 2022 WL 3648183, at
*1 (E.D. Tex. Aug. 24, 2022); see also Sprouse v. Ryan, 346 F.
Supp. 3d 1347, 1359 (D. Ariz. 2017) (substantial burden not
established by prisoner who “present[ed] no evidence that actual
contamination has taken place,” and no evidence that his fear of
cross-contamination “affected his kosher dietary practice or
caused him to modify his behavior in any way such that he must
violate his religious beliefs”). 	Cf. Abdulhaseeb v. Calbone,
600 F.3d 1301, 1325 (10th Cir. 2010) (Gorsuch, J. concurring)
(“It’s surely a burden to forgo an occasional meal. 	But it’s
not a substantial burden, and RLUIPA proscribes only government
actions that substantially burden religious exercise.” (emphasis
in original)).
Nor is there sufficient evidence in the record before this
court to allow the court to conclude that routine NHSP kitchen
practices violate Martinko’s religious diet. 	Each kosher entrée
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comes in a sealed package, designed to keep it kosher in a non-
kosher environment until the person receiving it opens it.
There is no evidence that could give rise to any reasonable
conclusion that substances on the serving line workers’ gloves
penetrate the seal and contaminate the entrée itself. 	The same
may be said about the contents of all of the prepackaged or
repackaged food on Martinko’s kosher meal tray, to the extent
that there is no evidence that kitchen workers’ gloves touching
the exterior surfaces of those items have cross-contaminated the
food or liquids inside.
Even accepting as true the (disputed) evidence that people
serving meals to prisoners in the chow hall regularly handle
non-kosher foods without utensils and then touch the packaging
of their kosher foods, cups, and trays with the same gloved
hands, the evidence indicates that Martinko has access to his
own utensil (a spork), a napkin, and wrapped or bagged kosher
food served to him with his meals. 	He has not shown that he
cannot use his own utensils, his napkin, and his food’s
wrappings (his plastic-wrapped sandwich, the bag, the peel of
his banana, and the wrapper of his kosher snacks) to eat the
contents of his meals without ingesting whatever is on the
outside or whatever is on his own fingers.
Martinko states that pork contaminants on his tray, cups,
or packaged food (left by the insufficiently changed gloves of
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food service line workers) unavoidably end up on his hands as he
handles his tray and cups and opens the packages holding his
food. 	But apart from noting that he cannot leave to wash his
hands once he is in the chow hall, he has not explained why he
cannot avoid putting those contaminants into his food or in his
mouth. 	He has presented no evidence as to why and how his
spork’s spoon end or tines, or the other side of a napkin or the
inside of the paper bag, cannot be used to hold the food he eats
to ameliorate the risk of cross-contamination. 	And he has not
shown that he cannot eat prepackaged food by peeling back the
wrapper and eating the exposed part without touching it. 	While
such scrupulous consumptive practices may not be effortless,
they are the same type of hygiene practices many employ when
eating bananas, sandwiches, or snacks with packaging. 	Such
practices, even if motivated by one’s desire to practice kosher
dietary restrictions in an institutional setting, cannot be said
to substantially burden a religious diet in violation of RLUIPA.
Cf. Farrow, 2005 DNH 146, 2005 U.S. Dist. LEXIS 24374, at *14,
2005 WL 2671541, at *4 (prison policy “substantially burdens”
religious exercise under RLUIPA if it coerces inmate to modify
his religious behavior significantly or to violate his religious
belief).
Martinko has not made the requisite showing of a strong
probability of prevailing on the merits of his RLUIPA claim, or
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that he will suffer any other nonspeculative, irreparable harm
in the absence of a preliminary injunction. 	Accordingly, the
district judge should DENY plaintiff’s motion for a preliminary
injunction (Doc. No. 48), without prejudice.
Conclusion
For the foregoing reasons, the district judge should deny
the Second PI Motion (Doc. No. 48) without prejudice. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	The objection
period may be extended upon motion. 	Failure to file any
objection within the specified time waives the right to appeal
the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). 	Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 1, 2024
cc: 	David M. Martinko, pro se
Laura D. Devine, Esq.
Brandon F. Chase, Esq.
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