Opinion
Civil Action 2:12-cv-1167
07-18-2013
JOSHUA COPENHAVER NELSON, Plaintiff, v. WANZA JACKSON, et al., Defendants.
Judge Graham
Magistrate Judge King
ORDER and
REPORT AND RECOMMENDATION
Plaintiff, an inmate at London Correctional Institution ("LoCI"), brings this civil rights action under 42 U.S.C. § 1983 claiming a denial of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution in connection with the alleged denial of Kosher meals, service of non-Kosher food products and other alleged service problems with his meals at LoCI. Plaintiff also asserts violations under 42 U.S.C. §§ 1985, 1988, 2000d and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc ("RLUIPA"). This matter is before the Court on several pending motions.
I. ALLEGATIONS AND CLAIMS
Plaintiff alleges that he "is an observant practitioner of Judaism" and was deemed "sincerely Jewish" for participation in the Kosher meal program of the Ohio Department of Rehabilitation and Corrections ("ODRC") since February 25, 2010. Amended Complaint, Doc. No. 32, ¶¶ 18-20. Plaintiff, currently incarcerated at LoCI, was transferred from the Marion Correctional Institution to LoCI on August 17, 2012 and began participating in LoCI's "Kosher Meal Program" the next day. Id. at ¶¶ 8, 22-23.
Plaintiff alleges that, from about August 18, 2012 to August 28, 2012, defendant William Gallaer, LoCI's Food Service Manager, and defendant Gallaer's "subordinates" knowingly violated plaintiff's religious rights in the following ways: (1) served plaintiff meat and dairy products at the same meal, and (2) required plaintiff to cook or reheat his meal on plaintiff's "Sabbath, in order to receive his required amount of calories[.]" Id. at ¶¶ 13, 24-25.
Plaintiff also alleges that, from about August 28, 2012 to March 1, 2013, defendant Gallaer and his subordinates, "upon directive or order given by" defendant Wanza Jackson, ODRC's Religious Services Administrator, and "vicariously promulgated through" defendant Steven Cahill, LoCI's Chaplain, violated plaintiff's religious rights in the following ways: (1) served plaintiff meat and dairy products at the same meal, and (2) required plaintiff to cook or reheat his meal on plaintiff's "Sabbath, in order to receive his required amount of calories[.]" Id. at ¶¶ 10, 15, 26-27.
Plaintiff further alleges that, from about August 18, 2012 to the present, defendant Gallaer, "upon order or directive issued by Defendant Jackson and vicariously implemented through Defendant Cahill[,]" continued to serve plaintiff non-Kosher dairy products. Id. at ¶ 28. According to plaintiff, the dairy products are produced at ODRC's Pickaway Correctional Institution ("PCI"), which "is not a Kosher certified facility, and consumption of products manufactured at this facility" violate plaintiff's Jewish faith. Id. at ¶ 29. Plaintiff also alleges that he "is unable to ingest the non-Kosher dairy products, and defendants do not provide vitamin or other supplements to fulfill the missing vitamins, absent from the diet of Plaintiff." Id. at ¶ 30.
Plaintiff goes on to allege that, between August 18, 2012 and March 1, 2013, defendant Gallaer and his subordinates violated plaintiff's religious beliefs by knowingly denying plaintiff "fresh fruit other than apples[.]" Id. at ¶ 31.
Plaintiff filed this action on November 29, 2012. Complaint, Doc. No. 5. Plaintiff thereafter filed a motion for a preliminary injunction. Motion for Preliminary Injunction, Doc. No. 12. After defendants filed a memorandum in opposition to this motion, Doc. No. 21, plaintiff filed a motion to strike the affidavit(s) of Vickey Justus attached to that memorandum. Motion to Strike Affidavit(s) of Vickey Justus, Doc. No. 24 ("Plaintiff's Motion to Strike").
On March 18, 2013, plaintiff filed the Amended Complaint, asserting claims under 42 U.S.C. § 1983 and alleging a denial of his rights under the First, Eighth and Fourteenth Amendments to the United States Constitution in connection with the alleged food service incidents described supra. Plaintiff also asserts violations of 42 U.S.C. § 1983, 1985, 1988, 1997(e), 2000d and 2000-cc. Plaintiff names as defendants Jackson, Gallaer and Cahill in their official and individual capacities. Amended Complaint, ¶¶ 10-16. Plaintiff seeks monetary and injunctive relief. Id. at ¶¶ 45-49.
Defendants have moved to dismiss plaintiff's claims, Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Motion to Dismiss with Prejudice Plaintiff's Amended Complaint, Doc. No. 36 ("Motion to Dismiss"), which plaintiff opposes, Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiff's Amended Complaint, Doc. No. 37 ("Memo. in Opp."). After defendants filed a reply memorandum, Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Reply in Support of Motion to Dismiss with Prejudice Plaintiff's Amended Complaint, Doc. No. 39 ("Defendants' Reply"), plaintiff filed yet another responsive brief, Plaintiff's Opposition to Defendants' Reply in Support of Motion to Dismiss Amended Complaint, Doc. No. 40 ("Plaintiff's Sur-Reply"). Defendants have moved to strike Plaintiff's Sur-Reply. Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Motion to Strike Plaintiff's Sur-Reply (Doc. 40), Doc. No. 41 ("Defendants' Motion to Strike").
The Court shall address each motion in turn.
Plaintiff has also filed a motion for summary judgment. Doc. No. 42. On May 21, 2013, the Court granted defendants 30-days from the resolution of the Motion to Dismiss to respond to plaintiff's motion for summary judgment. Order, Doc. No. 44.
II. DEFENDANTS' MOTION TO STRIKE
Plaintiff has filed a sur-reply responding to Defendants' Reply in support of the Motion to Dismiss. Defendants move to strike Plaintiff's Sur-Reply because plaintiff filed it without leave of the Court and without establishing good cause, in violation of the Court's local rules. Defendants' Motion to Strike, p. 2.
Ordinarily, the Court's local rules do not permit the filing of memoranda other than a response and reply memorandum. See S.D. Ohio Civ. R. 7.2 (providing for a response to a motion as well as a reply memorandum and stating that "[n]o additional memoranda beyond those enumerated will be permitted except upon leave of court for good cause shown"). However, in light of the fact that plaintiff is proceeding without the assistance of counsel, the Court will nevertheless consider Plaintiff's Sur-Reply. See, e.g., Mettke v. Hewlett Packard Co., No. 2:11-CV-00410, 2012 U.S. Dist. LEXIS 49164, at *1-2 (S.D. Ohio April 6, 2012) (considering pro se plaintiff's sur-reply filed without leave of court). Accordingly, Defendants' Motion to Strike, Doc. No. 41, is DENIED.
III. MOTION TO DISMISS
Defendants move to dismiss plaintiff's claims, arguing that the Eleventh Amendment to the United States Constitution bars plaintiff's claims against them in their official capacity, that defendants are entitled to qualified immunity, and that defendants have failed to state a claim upon which relief can be granted; and that plaintiff is not entitled to monetary damages under the Prison Litigation Reform Act, 42 U.S.C. § 1997(e) ("PLRA"). The Court shall address each argument in turn.
A. Eleventh Amendment Immunity
Plaintiff has sued defendants in their official capacities. Amended Complaint, ¶¶ 10-16. "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). See also Wolfel v. Morris, 972 F.2d 712, 718-719 (6th Cir. 1992). A plaintiff seeking to prevail in a § 1983 suit against a governmental entity must first prove, of course, that a constitutional violation actually occurred, and then prove that it was a policy or custom of the governmental entity that was the "moving force" behind the constitutional violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Such a policy or custom may consist of: "(1) the [governmental entity's] legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance of or acquiescence in federal rights violations." Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
Here, plaintiff specifically alleges that defendants violated his rights
through promulgation of a maliciously-based policy predicated upon attacking the Plaintiff since he is Jewish, and other observants of the Kosher diet at the London facility, to attempt to cause the Plaintiff and others observing the Kosher diet to cease taking part within the religious observance due imposition of conditions of which a reasonable person would have known was obstructive to the practice of the Plaintiff's and other parties' religions.Amended Complaint, ¶ 41. See also id. ¶¶ 42-43 (alleging that defendants imposed and promulgated policies that "caused Plaintiff to become physically weak, and forced Plaintiff to defile himself by violating kosher law"). Plaintiff seeks monetary damages and prospective injunctive relief, including, inter alia, "amending the current 72-REG-07, which addresses Jewish religious practice to include a provision for Kosher meals" and "drafted in conjunction with standing Orthodox Jewish Rabbinical Authorities" as well as "enjoining the defendants from violating the tenets of Kosher observance of the Ohio Department of Rehabilitation and Correction[.]" Id. at ¶¶ 46-49.
Defendants argue that the Eleventh Amendment bars plaintiff's claims against them in their official capacities. Motion to Dismiss, pp. 3-5. The Eleventh Amendment bars a suit for money damages against a state agency and state employees named in their official capacity unless the State has waived its immunity or Congress has overridden immunity under § 5 of the Fourteenth Amendment. Will, 491 U.S. at 65. The Eleventh Amendment does not, however, preclude official capacity claims for prospective injunctive relief. Ex parte Young, 209 U.S. 123 (1908).
Here, the State of Ohio has not waived its immunity to suit in this Court, nor has Congress abrogated the state's immunity. Accordingly, plaintiff's claims under 42 U.S.C. § 1983 for money damages against the defendants in their official capacities are barred by the Eleventh Amendment. See, e.g., Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011) (holding that, to the extent the plaintiff sought monetary damages from state prison employees in their official capacity, Eleventh Amendment immunity operated as a bar). However, plaintiff's claims for prospective injunctive relief against the named defendants in their official capacity are not subject to dismissal under the Eleventh Amendment. Ex parte Young, 209 U.S. 123.
B. Qualified Immunity
Defendants argue that they are entitled to qualified immunity on plaintiff's claims. Motion to Dismiss, pp. 5-16. The doctrine of qualified immunity provides that, in civil suits for monetary damages, government officials performing discretionary functions are generally shielded from liability for monetary damages "unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (citing Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)).
The United States Court of Appeals for the Sixth Circuit applies a two-step inquiry when reviewing claims for qualified immunity: "(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established." Hoover v. Walsh, 682 F.3d 481, 492 (6th Cir. 2012) (quoting Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (internal quotation marks omitted)). A right is "clearly established" when the "contours of the right are sufficiently clear that a reasonable [government official] would understand that what he is doing violates that right." Harris v. City of Circleville, 583 F.3d 356, 366-67 (6th Cir. 2009). A court may address these steps in any order and either step may be dispositive. Id. See also Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In some cases, the Sixth Circuit uses a third step when analyzing claims for qualified immunity. Id. at 492 n.35. This step evaluates "whether the plaintiff has introduced sufficient evidence to support the inference that the official's contested action 'was objectively unreasonable in light of the clearly established constitutional rights.'" Id. (quoting Hills v. Kentucky, 457 F.3d 583, 587 (6th Cir. 2006)). The Sixth Circuit collapses the second and third prongs in order to avoid duplicative analysis where the case at issue "is one of the many cases where, if the right is clearly established, the conduct at issue would also be objectively unreasonable." Id. (citations and internal quotation marks omitted).
Construing plaintiff's pleading liberally, see Haines v. Kerner, 404 U.S. 519 (1972), the Court concludes that the Amended Complaint asserts claims under 42 U.S.C. §§ 1983, 1985, 1988, 1997e(e), 2000d, 2000-cc as well as under the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Amended Complaint, ¶¶ 2-3. Although the Motion to Dismiss acknowledges these claims, see id. at 2, defendants do not address plaintiff's Equal Protection claims and claims, nor do they address claims under §§ 1985 (conspiracy to interfere with civil rights), 1988 (proceedings in vindication of civil rights, which authorizes the award of attorney's fees and expert fees under certain circumstances) and 2000d (Title VI of the Civil Rights Act of 1964, which prohibits exclusion from federally assisted programs on the basis of race, color, or national origin). Accordingly, the Court has not considered the Motion to Dismiss in connection with those claims.
1. Claims against defendant Gallaer
Plaintiff alleges that defendant Gallaer, LoCI's Food Service Manager, violated plaintiff's rights from about August 18, 2012 and continuing through approximately March 1, 2013 by the following: (1) serving plaintiff meat and dairy products at the same meal, Amended Complaint, ¶¶ 24, 26; (2) requiring plaintiff to cook or reheat meals on plaintiff's Sabbath, id. at ¶¶ 25, 27; (3) serving plaintiff non-Kosher dairy products, id. at ¶¶ 28-30; and (4) denying plaintiff fresh fruit other than apples, id. at ¶ 31. The Court shall address each allegation in turn.
a. Meat and dairy served at same meal
(1) First Amendment
Plaintiff alleges that defendant Gallaer violated plaintiff's rights under the First Amendment when defendant Gallaer served plaintiff meat and dairy products together at the same meal. Amended Complaint, ¶¶ 3, 24, 26, 35, 44. The First Amendment, which is applicable to the states through the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S. Const., Amend. 1. "Prisoners retain the First Amendment right to the free exercise of their religion." Hayes v. Tennessee, No. 09-5529, 424 Fed.Appx. 546, 549 (6th Cir. June 1, 2011) (citing Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985)). Under § 1983, "[a] prisoner alleging that the actions of prison officials violate his religious beliefs must [first] show that the belief or practice asserted is religious in the person's own scheme of things and is sincerely held." Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (citation and internal quotation marks omitted).
"Only after a prison inmate shows a sincere belief that his or her religion requires the practice at issue does the court move on to determining whether the prison's actions restricting the practice are valid." Barhite v. Caruso, No. 09-1312, 377 Fed. Appx. 508, at *510 (6th Cir. May 14, 2010) (citing Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007)). The inmate must show that the regulation or practice substantially burdens the inmate's exercise of religion. See, e.g., Living Water Church of God v. Charter Twp. Meridian, 258 Fed. Appx. 729, at *733-734 (6th Cir. Dec. 10, 2007) (citing 42 U.S.C. § 2000cc-2(b)), cert. denied, 553 U.S. 1093 (2008). However, "[i]t is well-settled that prisoners' rights under the Free Exercise Clause [of the First Amendment] may be subject to reasonable restrictions." Weinberger v. Grimes, No. 07-6461, 2009 U.S. App. LEXIS 2693, at *9 (6th Cir. Feb. 10, 2009) (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987); Abdur-Rahman v. Mich. Dep't of Corr., 65 F.3d 489, 491 (6th Cir. 1995)). A prison's action constitutes a substantial burden on an individual's free exercise of religion when that action forces an individual to choose between "following the precepts of [his] religion and forfeiting benefits" or when the action in question places "substantial pressure on an adherent to modify his behavior and to violate his beliefs." Marsh v. Granholm, 2008 U.S. App. LEXIS 28078, at *6 (6th Cir. July 31, 2008) (quoting Living Water, 258 Fed. Appx. 729, at *734) (internal quotation marks omitted).
Courts accord prison administrators "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002). Therefore, even if a restriction imposes a substantial burden on an inmate's right to freely exercise his religion, the restriction will be deemed "valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).
As an initial matter, the Court notes that plaintiff alleges that he is "an observant practitioner of Judaism" and that, following an ODRC investigation, plaintiff was deemed to be "sincerely Jewish." Amended Complaint, ¶¶ 18-19. Plaintiff avers that his faith requires that he eat meals that are kosher, which, inter alia, prohibits the consumption of certain foods together at the same meal and the preparation of foods on the Sabbath. Cf. Affidavit of Joshua A. Copenhaver Nelson, ¶¶ 2, 4-10, attached as Exhibit H to Amended Complaint ("Plaintiff's First Affidavit"); Affidavit of Joshua A. Copenhaver Nelson, ¶ 5, attached as Exhibit I to Amended Complaint ("Plaintiff's Second Affidavit"). See also Ward v. Hatcher, No. 97-16390, 1999 U.S. App. LEXIS 3410, at *3 (9th Cir. Mar. 9, 1999) ("A kosher diet is defined by the laws of kashruth. . . . Dairy and meat products cannot mix and may not be consumed at the same meal. Kosher foods must be prepared in a kosher manner and may not come into contact with nonkosher foods or dishes or utensils which may have absorbed nonkosher food."); Goss v. United States, 293 F. Supp. 2d 816, 816 n.1 (N.D. Ohio 2003) (considering affidavit attached to the complaint and declining to convert motion to dismiss into a motion for summary judgment). It does not appear that the defendants challenge plaintiff's invocation of Judaism as his sincerely held belief or that his practice of the Jewish faith requires that plaintiff keep kosher. Under these circumstances, the Court accepts that plaintiff's religious belief is sincerely held and that his practice of Judaism requires the observance of certain dietary restrictions.
Turning to plaintiff's first claim against defendant Gallaer, defendants deny that plaintiff was served milk and meat together at the same meal, contending that the Amended Complaint and supporting exhibits establish that plaintiff is in fact served food that is consistent with kosher requirements. Motion to Dismiss, p. 8. Specifically, defendants argue that "Plaintiff admits that he is served kosher meals when he complains that he is forced to cook or reheat his pre-packaged meals on the Sabbath." Id. (citing Amended Complaint, ¶ 25; Exhibits C and J, attached thereto). The defendants therefore conclude that "[a]s Plaintiff is being served kosher food, no constitutional violation has occurred." Id.
Defendants' conclusory argument in this regard is not persuasive. First, defendants overstate the support that their argument enjoys in the record. Stated differently, the portions of the record cited by defendants do not establish that defendant Gallaer refrained from serving plaintiff meat and dairy together at the same meal from August 18, 2012 to approximately March 1, 2013. See Amended Complaint, ¶ 25 ("Plaintiff was required to cook or 'reheat' his required amount of calories, in violation of Plaintiff's Jewish religious beliefs."); Exhibit C (Appeal to Chief Inspector, dated October 9, 2012, complaining that the inspector was unresponsive and that "no contact was made to independently verify the needs of an observant Jew. Moreover, the grieved parties are not experts within Jewish law and custom, and are denying me prayer observance of my faith") and Exhibit J (Affidavit of Monroe Williams, ¶¶ 1-5, which avers that Mr. Williams is an LoCI inmate participating in the kosher meal plan who has been served meat and dairy at the same meal and who has been forced to cook or reheat his "packaged meals on the Sabbath" ("Williams Affidavit")),attached thereto.
Second, the Amended Complaint and supporting exhibits expressly allege that defendant Gallaer served plaintiff meat and dairy products at the same meal between August 18, 2012 and approximately March 1, 2013. See Amended Complaint, ¶¶ 24, 26; Plaintiff's First Affidavit, ¶ 5; Exhibit M (Letter from plaintiff to defendant Jackson dated September 19, 2012, complaining that, inter alia, "Meat and Dairy [were served] together during brunch on the weekend"), attached to Amended Complaint. This evidence suggests that plaintiff was not routinely served kosher meals. The defendants have not shown that the alleged failure to provide kosher meals (i.e., the pairing of meat and dairy together at the same meal) is a reasonable restriction or that defendant Gallaer's alleged actions in this regard are reasonably related to a legitimate penological interest. Accordingly, plaintiff's allegations that defendant Gallaer served dairy and meat together between August 18, 2012 and approximately March 1, 2013 is sufficient to state a claim under the First Amendment.
In continuing its consideration of defendant Gallaer's claim to qualified immunity, the Court must consider whether plaintiff had a clearly established right to kosher meals at the time the events are alleged to have occurred. See, e.g., Harris v. City of Circleville, 583 F.3d 356, 366-67 (6th Cir. 2009). The Court concludes that he did.
It has long been established that, in order to invoke the protection of the First Amendment, an inmate must show only that "the belief or practice asserted is religious in the person's own scheme of things and is sincerely held." Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (citation and internal quotation marks omitted). As discussed supra, plaintiff has sufficiently alleged that his Judaism, which requires that he observe kosher, is sincerely held. Under these circumstances, the Court concludes that defendants are not entitled to qualified immunity at the present time with regard to plaintiff's First Amendment claim against defendant Gallaer.
(2) RLUIPA
Plaintiff also argues that defendant Gallaer's action of serving meat and dairy together at the same meal violated plaintiff's rights under RLUIPA. See Amended Complaint, ¶¶ 2, 24, 26, 35. RLUIPA prohibits the governmental imposition of a "substantial burden on the religious exercise" of an inmate unless the government establishes that the burden furthers a "compelling governmental interest" through the "least restrictive means[.]" 42 U.S.C. § 2000cc-1(a). See also Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding constitutionality of RLUIPA). "RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter, 544 U.S. at 721. Under RLUIPA, a stricter standard is imposed on prison officials than that under the First Amendment. See, e.g., Colvin v. Caruso, 605 F.3d 282, 296 (6th Cir. 2010) (noting that the constitutional protection afforded under the First Amendment is less strong than that under RLUIPA); Hall v. Martin, No. 1:10-cv-1221 2012 U.S. Dist. LEXIS 63300, at *36 (W.D. Mich. Mar. 29, 2012) ("The test under the First Amendment for justifying an impingement on constitutional rights is more favorable to prison officials than the RLUIPA test."); Kretchmar v. Beard, No. 05-6108, 2006 U.S. Dist. LEXIS 49530, at *17 (E.D. Pa. July 18, 2006) ("RLUIPA applies a stricter standard on prison officials than that which applies to § 1983 claims for First Amendment Free Exercise violations[.]").
However, some courts have found that negligence is not actionable under RLUIPA. See, e.g., Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006) (finding that simple negligence is not actionable under RLUIPA because that statute contains no state-of-mind standard); Garrison v. Dutcher, No. 1:07-CV-642, 2008 U.S. Dist. LEXIS 90504, at *18-21 (W.D. Mich. Sept. 30, 2008) (citing, inter alia, Lovelace, 472 F.3d at 194).
Here, having concluded that plaintiff's First Amendment claim may proceed, the Court also finds that, at this stage, plaintiff's allegations relating to the failure to serve kosher meals, i.e., serving dairy and meat together at the same meal, are sufficient to state a claim under RLUIPA. Cf. Heard v. Caruso, Nos. 08-1710/08- 1779/08-1820, 351 Fed. Appx. 1, at *13 (6th Cir. Aug. 27, 2009) (finding the refusal to accommodate a diet required by religious beliefs imposes a substantial burden). See also Colvin, 605 F.3d at 296 ("The constitutional protection afforded under § 1983 is less strong, however [than under RLUIPA]."); Lovelace v. Lee, 472 F.3d 174, 199-200 (4th Cir. 2006) ("[T]he First Amendment affords less protection to inmates' free exercise rights than does RLUIPA"); Treesh v. Bobb-Itt, No. 2:10-cv-211, 2011 U.S. Dist. LEXIS 97090, at *6 (N.D. Ohio Aug. 29, 2011) ("RLUIPA affords more protection to an inmate's right to the free exercise of religion than does the First Amendment[.]"). Similarly, the Court concludes that defendant Gallaer is not at this juncture entitled to qualified immunity on this RLUIPA claim.
(3) Eighth Amendment
Although not a model of clarity, the Court understands the Amended Complaint to also assert an Eighth Amendment claim against defendant Gallaer for serving meat and dairy together at the same meal. See Amended Complaint, ¶¶ 3, 24, 26, 35, 42-44. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The United States Court of Appeals for the Sixth Circuit has previously held that "the deliberate and unnecessary withholding of food that is essential to normal health can constitute the deliberate indifference to medical needs that violates the Eighth Amendment." Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009) (citing Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977)). Deliberate indifference in violation of the Eighth Amendment contains both a subjective and an objective component. Farmer v. Brennan, 511 U.S. 825, 835-57 (1994). A deprivation satisfies the objective component if it is "sufficiently serious." Id. at 834. "To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk." Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Farmer, 511 U.S. at 838.
Here, the Amended Complaint alleges that plaintiff suffered a physical injury as a result of defendant Gallaer's actions. Amended Complaint, ¶¶ 35, 42-43. Plaintiff specifically alleges that he has become "physically weak" and has lost approximately 62 pounds in seven months, weighing approximately 254 pounds on August 17, 2012 and weighing approximately 192 pounds on March 9, 2013. Id. at ¶ 42. Defendants argue that this alleged weight loss is (1) untrue; (2) de minimis; and (3) insufficient to state an Eighth Amendment claim. See, e.g., Motion to Dismiss, p. 12. Defendants' arguments are not well-taken. Turning to the objective component, and construing plaintiff's allegations in a light more favorable to plaintiff, the record reflects that plaintiff has lost more than 60 pounds in seven months. The Court therefore concludes that plaintiff has alleged a sufficiently serious deprivation to satisfy the objective component of his claim. Cf. Colvin, 605 F.3d at 290 ("'[P]rison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions.'") (quoting Alexander v. Carrick, No. 00-1261, 31 F. App'x 176, at *179 (6th Cir. Mar. 19, 2002)); Alexander, 31 Fed. Appx. 176, at *179 ("For the inmate, this is essentially a constitutional right not to eat the offending food item. If the prisoner's diet, as modified, is sufficient to sustain the prisoner in good health, no constitutional right has been violated."); Ward v. Gooch, 5:07-CV-389, 2010 U.S. Dist. LEXIS 118566 (E.D. Ky. Nov. 5, 2010) (finding that evidence that inmate lost 68 pounds over 10 month period and received 200-700 calories a day for almost a year was sufficient to raise genuine issue of material fact on the plaintiff's Eighth Amendment claim).
Although plaintiff has not explicitly alleged that defendant Gallaer knowingly served dairy and meat together at the same meal in conscious disregard that doing so would result in plaintiff's weight loss, the Court, construing the allegations liberally in the light most favorable to plaintiff, cannot say that these allegations are insufficient to satisfy the subjective component of his claim. Similarly, the Court likewise concludes that defendant Gallaer is not entitled to qualified immunity on this Eighth Amendment claim at this juncture.
b. Cooking or reheating meal on the Sabbath
Plaintiff next complains that he was required to cook or reheat his meal on the Sabbath from about August 28, 2012 through March 1, 2013, thereby violating his Jewish beliefs and his rights under the First Amendment. Id. at ¶¶ 25, 27; Affidavit of Joshua A. Copenhaver Nelson, Doc. No. 32-1, ¶¶ 6, 8 ("Plaintiff's First Affidavit"),attached as Exhibit H thereto.
(1) First Amendment
Defendants disagree that plaintiff's free exercise rights were violated, arguing that the weekend meals are pre-cooked and that plaintiff has no constitutional right to hot food. Motion to Dismiss, pp. 9-10. Defendants specifically contend that plaintiff has not stated a constitutional violation because "[t]he weekend meals provided to Plaintiff are pre-cooked, are edible, do not pose a danger to Plaintiff's health, and do not interfere with the free exercise of Plaintiff's religion." Id. at 10. Defendants go on to argue that providing a "Sabbath bag" meal is not required or used in all institutions, suggesting that LoCI does not have the resources to provide this meal program. Id. at 13 (citing, inter alia, Exhibit F ("Kosher Meal Accommodation Procedure," stating, inter alia, "[t]he role of [ODRC] is to support your decision within cost guidelines as presented during the Food Service Manager meetings"), attached to the Amended Complaint).
Defendants' arguments are not well-taken. Although defendants contend that the meals are pre-cooked, plaintiff has alleged that defendant Gallaer required plaintiff to "cook 'or reheat'" plaintiff's meals on his Sabbath despite knowing that doing so would violate plaintiff's religion. Amended Complaint, ¶¶ 25, 27. See also Plaintiff's First Affidavit, ¶ 6 ("I was directly and proximately required to cook or 'reheat' my meals and entrée(s) utilizing a microwave on the Sabbath in violation of Jewish law."); Exhibit B (containing copy of email string containing two messages (1) an email dated August 28, 2012 from defendant Cahill to defendants Jackson and Gallaer and other individuals stating, inter alia, a "few of our Jewish and Sabbatarian inmates" "say they are not allowed to eat food prepared on the Sabbath or microwaved on the Sabbath. To correct the Sabbath problem they are requesting a sack meal on Friday evening. Is there a problem with providing this sack meal in place of Saturday meals?" and (2) an email dated August 28, 2012 from defendant Jackson to defendant Cahill with copy to defendant Gallaer responding that "Chaplain, Vivian Hawkins provided guidelines to the food service manager. Do not change your meal schedule for the Sabbath issue. It is not a recommended practice department-wide. Marion started this practice - but I do not recommend it!"), attached to Amended Complaint. To the extent that plaintiff alleges that the meal requires cooking, as opposed to re-heating, the Court concludes that plaintiff has sufficiently alleged a violation of the First Amendment because there is nothing in the record to establish that providing a Sabbath sack meal is cost-prohibitive or otherwise unavailable to prison officials. See, e.g., Memo. in Opp., pp. 7, 9 (representing that, as of the date of that filing, April 10, 2013, LoCI was providing a "Sabbath" meal, where the Plaintiff and other participants are not required to cook on the Sabbath).
Plaintiff also avers that, "by observance of my religious beliefs, I was forced to go without direct sufficient amounts of calories, due to the absence of eating the entrée and potato portions provided due to the requirement to reheat the same." Plaintiff's First Affidavit, ¶ 6. Construing the record in a light most favorable to plaintiff, this evidence suggests that plaintiff was not routinely served pre-cooked kosher meals on the Sabbath during the relevant time. In other words, the present record does not establish that defendant Gallaer served plaintiff meals on the Sabbath that were cold but edible. Accordingly, plaintiff's allegation that defendant Gallaer's failure to serve pre-cooked kosher meals on the Sabbath between August 18, 2012 and approximately March 1, 2013 is sufficient to state a violation of plaintiff's rights under the First Amendment. Because, as discussed supra, the Court concludes that plaintiff had a clearly establish right to kosher meals, defendant Gallaer's request for qualified immunity is not well-taken at this juncture.
(2) RLUIPA
Having found that plaintiff's First Amendment claim against defendant Gallaer in this regard may proceed, the Court also concludes that, at this stage, plaintiff's allegations relating to the claimed failure to serve pre-cooked kosher meals on the Sabbath are sufficient to state a claim under RLUIPA. Cf. Heard v. Caruso, Nos. 08-1710/08- 1779/08-1820, 351 Fed. Appx. 1, at *13 (6th Cir. Aug. 27, 2009) (finding the refusal to accommodate a diet required by religious beliefs imposes a substantial burden). See also Colvin, 605 F.3d at 296 ("The constitutional protection afforded under § 1983 is less, strong, however [than under RLUIPA]."); Lovelace v. Lee, 472 F.3d 174, 199-200 (4th Cir. 2006) ("[T]he First Amendment affords less protection to inmates' free exercise rights than does RLUIPA"); Treesh v. Bobb-Itt, No. 2:10-cv-211, 2011 U.S. Dist. LEXIS 97090, at *6 (N.D. Ohio Aug. 29, 2011) ("RLUIPA affords more protection to an inmate's right to the free exercise of religion than does the First Amendment[.]"). Similarly, the Court concludes that defendant Gallaer is not at this juncture entitled to qualified immunity on this RLUIPA claim.
(3) Eighth Amendment
The Amended Complaint also appears to assert an Eighth Amendment claim against defendant Gallaer for serving frozen, uncooked meals on the Sabbath. See Amended Complaint, ¶¶ 3, 25, 27, 35, 42-44. Defendants argue that the weekend meals are pre-cooked and that plaintiff has no constitutional right to hot food. See Motion to Dismiss, pp. 9-10. Defendants go on to argue that plaintiff's alleged weight loss is untrue and that, even if true, such loss is de minimis and insufficient to state a claim under the Eighth Amendment. Id. at 12. However, as discussed supra, plaintiff alleges that his frozen meals on the Sabbath were uncooked and that he lost more than 60 pounds during the 7-month period that he was served such meals. Construing these allegations in a light most favorable to plaintiff, the Court, for the reasons stated previously, concludes that plaintiff's allegations are sufficient to survive the Motion to Dismiss.
c. Serving non-Kosher dairy products
Plaintiff also alleges that defendant Gallaer served plaintiff non-kosher dairy products in violation of plaintiff's Jewish faith. Amended Complaint, ¶¶ 28-29; Plaintiff's First Affidavit, ¶ 7. Plaintiff further alleges that he "is unable to ingest the non-Kosher diary [sic] products, and defendants do not provide vitamin or other supplements to fulfill the missing vitamins, absent from the diet of the Plaintiff." Amended Complaint, ¶ 30.
(1) First Amendment
Defendants argue that plaintiff "has no right to choose the items on his menu, including kosher milk" and that he "can freely exercise his religion without drinking milk; he has not contended that his religion requires the drinking of milk." Motion to Dismiss, p. 8. Defendants also argue that plaintiff "has no constitutional right to kosher milk." Id. at 9. In response, plaintiff alleges that he is entitled to a balanced diet, which includes milk or the equivalent in vitamins. Memo. in Opp., p. 9. See also Plaintiff's Sur-Reply, pp. 2 ("The provision of milk, is factored into the provision of a diet by the Dietary Manager for The Department of Rehabilitation and Correction[.]"), 4 ("Plaintiff avers that he seeks a balanced diet, in-line with the Department of Rehabilitation adopted mandate to provide equal diets to all prisoners.") (citing "ODRC Policy Directive 60-FSM-02, at (III)"). Defendants reply that "Plaintiff admits that he likes to drink milk not as a sincerely held religious belief, but for the nutrients." Defendants' Reply, p. 2.
Defendants' arguments are well-taken. Plaintiff must first show that the consumption of dairy products, particularly kosher milk, is religious in plaintiff's own scheme of things and is sincerely held. Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001); Spies v. Voinovich, 173 F.3d 398, 405 (6th Cir. 1999) (concluding, inter alia, that inmate could "still freely exercise his religion without these items, for he has not contended that his religion requires the use of these articles during worship") (emphasis in original). After making this showing, the inmate must then demonstrate that the failure to provide kosher dairy products substantially burdens his exercise of religion. See Living Water Church of God v. Charter Twp. Meridian, 258 Fed. Appx. 729, at *733-734 (6th Cir. Dec. 10, 2007) (citing 42 U.S.C. § 2000cc-2(b)), cert. denied, 553 U.S. 1093 (2008).
Plaintiff has failed to make the necessary showing. As defendants point out, plaintiff does not allege that the consumption of kosher milk is religious in nature and is plaintiff's sincerely held religious practice. Instead, plaintiff admits that he wants the milk only for its nutritional value. See, e.g., Amended Complaint, ¶ 30; Memo. in Opp., p. 9; Plaintiff's Sur-Reply, pp. 2, 4. Moreover, even if the Court concluded that plaintiff satisfied this first hurdle, he has made no showing that the alleged failure to provide kosher dairy products substantially burdens his ability to practice the Jewish faith. In other words, nothing in the record reflects that this failure places substantial pressure on plaintiff to modify his behavior and to violate his beliefs. See, e.g., Marsh v. Granholm, 2008 U.S. App. LEXIS 28078, at *6 (6th Cir. July 31, 2008) (quoting Living Water, 258 Fed. Appx. 729, at *734). Accordingly, the Court concludes that plaintiff has failed to state a free exercise claim based on the alleged failure to provide kosher dairy products.
(2) RLUIPA
To the extent that plaintiff's allegations assert a RLUIPA claim, see, e.g., Amended Complaint, ¶¶ 28-30, 35, that claim must fail. As discussed, the record does not support a finding that the alleged failure to provide kosher dairy products places a substantial burden on plaintiff's ability to practice his Jewish faith. See, e.g., Living Water Church of God, 258 Fed. Appx. 729, at *733-734; Barhite v. Caruso, No. 09-1312, 377 Fed. Appx. 508, at *511 (6th Cir. May 14, 2010). Based on these allegations, plaintiff has therefore failed to state a RLUIPA claim against defendant Gallaer.
d. Serving apples instead of other fruit
Plaintiff also alleges that defendant Gallaer denied plaintiff "fresh fruit other than apples, for the period of August 18, 2012 through March 1, 2013 . . . despite being made aware this was a violation of Plaintiff's religion, by the Plaintiff." Amended Complaint, ¶ 31.
(1) First Amendment
Defendants contend that this allegation, which amounts to nothing more than complaints about the variety of his diet, fails to state a constitutional violation. Motion to Dismiss, p. 8 (citing Strope v. Cummings, No. 09-3306, 381 Fed. Appx. 878, at *882 (10th Cir. June 9, 2010)). Plaintiff, however, contends that defendants knew that he has an allergy to apples. Memo. in Opp., pp. 9-10. Defendants complain that plaintiff raised his alleged allergy to apples for the first time when opposing the Motion to Dismiss. Defendants' Reply, p. 3. Plaintiff clarifies that he "does not assert his allergy to apples as a claim. He merely references the continued service of the same fruit, as an issue that again obviates the ability to have a balanced diet." Plaintiff's Sur-Reply, p. 5.
Plaintiff's arguments are not well-taken. As an initial matter, the Court agrees with defendants that plaintiff raised the allegation that he is allergic to apples for the first time in his opposition to the Motion to Dismiss. Under these circumstances, the Court cannot consider this new allegation. See, e.g., United States v. Medquest Assocs., Inc., 702 F. Supp. 2d 909, 918 n.2 (M.D Tenn. 2010) ("'It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.'") (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Absent an alleged allergy to apples, the record reflects that plaintiff is simply unhappy about the alleged lack of variety in the fresh fruits offered. However, complaints about the variety of a prison menu do not establish that prison officials placed a substantial burden on an inmate's ability to exercise his religion. See, e.g., Strope, 381 Fed. Appx. 878, at *882. Accordingly, the Court cannot conclude that defendant Gallaer's alleged failure to provide fresh fruit other than apples rises to the level of a constitutional violation.
(2) RLUIPA
Similarly, the Court is not persuaded that serving fresh apples instead of other fruit places a substantial burden on plaintiff in violation of his rights under RLUIPA. Cf. Kretchmar v. Beard, No. 06-4039, 241 Fed. Appx. 863, at *865 (8th Cir. July 18, 2007) ("While he may prefer a wider variety of hot meals, the diet he currently receives is not the type of burden that puts substantial pressure on him to modify his behavior and violate his beliefs.").
2. Claims against defendant Jackson
Although difficult to follow, it appears that plaintiff alleges that defendant Jackson, ODRC's Religious Services Administrator, violated plaintiff's rights through the following actions beginning on about August 18, 2012 and continuing through approximately March 1, 2013: (1) ordering defendant Gallaer to serve plaintiff meat and dairy products together at the same meal, Amended Complaint, ¶¶ 26, 35; (2) ordering defendant Gallaer to serve on the Sabbath a meal that required cooking or reheating in a microwave, id. at ¶¶ 27, 35; (3) ordering defendant Gallaer to serve plaintiff non-kosher dairy products, id. at ¶¶ 28, 35; (4) ordering defendants Gallaer and Cahill "to knowingly violate the tenets of Plaintiff's religion," id. at ¶¶ 34-36; and (5) refusing to accommodate plaintiff's request that he (a) not be served meat and dairy products at the same meal; (b) not be served non-kosher milk; and (c) be provided with a sack meal on Friday so that he is not required to cook on the Sabbath, id. at ¶ 32; Exhibit B, attached thereto.
To succeed on a claim under 42 U.S.C. § 1983, a plaintiff must show the personal involvement of each defendant with respect to the alleged constitutional violation. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th Cir. 2005)). Liability based on a theory of respondeat superior is not cognizable under § 1983. See Turner v. City of Taylor, 412 F.3d 629, 649 (6th Cir. 2005); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) ("[Section] 1983 liability must be based on more than respondeat superior, or the right to control employees.") (citing Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982)). Before a defendant with supervisory authority can be held liable under § 1983, it must be established that the supervisor either "encouraged the specific incident of misconduct or in some other way directly participated in it." Hays, 668 F.2d at 874. "At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Id.; see also Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002) ("Supervisory liability under § 1983 cannot be based upon a mere failure to act but must be based upon active unconstitutional behavior.").
Therefore, in assessing whether the Complaint states a colorable claim against defendant Jackson, the Court must determine whether defendant Jackson encouraged or participated in the alleged misconduct. The crux of the parties' dispute in this regard focuses on the meaning of an email sent by defendant Jackson in response to an inquiry from defendant Cahill. See Exhibit B, attached to Amended Complaint. See also Motion to Dismiss, pp. 11, 13; Memo. in Opp., p. 10; Defendants' Reply, pp. 2-3; Plaintiff's Sur-Reply, pp. 3-4. On August 28, 2012, defendant Cahill sent the following email to defendant Jackson (and copying on this email defendant Gallaer and another individual):
Hello Dr[.] Jackson,Exhibit B, attached to Amended Complaint ("defendant Cahill's email inquiry").
Some issues have come up with regard to Kosher meals here at LOCI. Is there a guideline available for food service personnel?
A few of our Jewish and Sabbatarian inmates have said that meals are being served with both meat and dairy products which makes the meal non-kosher.
They have also said that our milk is not certified kosher.
Finally, they say they are not allowed to eat food prepared on the Sabbath or microwaved on the Sabbath. To correct the Sabbath problem they are requesting a sack meal on Friday evening. Is there a problem with providing this sack meal in place of Saturday meals?
On the same day, defendant Jackson responded to that email, copying the same individuals, including defendant Gallaer:
Chaplain, Vivian Hawkins provided guidelines to the food service manager. Do not change your meal schedule for theId. ("defendant Jackson's email").
Sabbath issue. It is not a recommended practice department-wide. Marion started this practice...but I do not recommend it!
Defendants argue that defendant Jackson's email did not address the service of meat and dairy products together, the service of non-kosher milk or the use of a microwave on the Sabbath. Motion to Dismiss, pp. 11, 13; Defendants' Reply, pp. 2-3. Defendants take the position that defendant Jackson therefore did not order any other defendant to take actions that allegedly violated plaintiff's rights. See, e.g., Motion to Dismiss, p. 13. Plaintiff, however, contends that defendant Jackson ordered the continuation of those practices that violate his religion and which impose a substantial burden on him. Memo. in Opp., pp. 5-7, 10; Plaintiff's Sur-Reply, pp. 3-5.
At this initial stage of proceedings, and construing the allegations and evidence in a light most favorable to plaintiff, the Court concludes that plaintiff has sufficiently alleged that defendant Jackson encouraged or participated in actions that may have violated plaintiff's constitutional rights, i.e., that plaintiff has alleged more than simply liability based upon a theory of respondeat superior. More specifically, the Court cannot say that plaintiff has failed to state the following claims against defendant Jackson, as they relate to defendant Gallaer: (1) the service of meat and dairy together at the same meal violated plaintiff's rights under the First and Eighth Amendments and RLUIPA; and (2) requiring plaintiff to cook his meal on the Sabbath in violation of plaintiff's rights under the First and Eighth Amendments and under RLUIPA. Similarly, for the reasons stated supra, the Court concludes that defendant Jackson is not at this juncture entitled to qualified immunity on these claims.
The Court previously concluded that plaintiff has failed to sufficiently allege that the service of non-Kosher dairy products and service of only apples instead of a variety of fresh fruit violated his rights under the First Amendment or RLUIPA.
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3. Claims against defendant Cahill
Plaintiff raises the following allegations against defendant Cahill, LoCI's chaplain: (1) that plaintiff was served meat and dairy products at the same meal by defendant Gallaer "upon directive or order given by Defendant Jackson, vicariously promulgated through Defendant Cahill," Amended Complaint, ¶ 26 (emphasis added) (citing Exhibit B, attached thereto); (2) that plaintiff was required to cook his meal on the Sabbath and "[t]his was completed by defendant Gallaer and his subordinates; upon directive or order given by Defendant Jackson, vicariously promulgated through Defendant Cahill," id. at ¶ 27 (emphasis added) (citing Exhibit B, attached thereto); (3) that plaintiff was served non-kosher dairy products "by Defendants [sic] Gallaer, upon order or directive issued by Defendant Jackson and vicariously implemented through Defendant Cahill," id. at ¶ 28 (emphasis added) (citing Exhibit B, attached thereto); and (4) defendant Cahill denied plaintiff's request for "Special Accommodation" "to not be required to cook on the Sabbath." Id. at ¶ 32 (citing Exhibit D, "Request for Religious Accommodation," directed to "Chaplain's Office" and dated September 1, 2012, and "Response to Request for Religious Accommodation," apparently signed by defendant Cahill and dated September 1, 2012, attached thereto).
Even construing these allegations liberally, it is not immediately clear what claims plaintiff intends to assert against defendant Cahill. However, to the extent that plaintiff's allegations that defendant Cahill's "vicariously promulgated" and "vicariously implemented" certain actions against plaintiff are based on defendant Cahill's supervisory position, claims based on those allegations must fail. As discussed supra, liability under § 1983 must be based on active unconstitutional behavior rather than on simply the right to control employees. See, e.g., Hays, 668 F.2d at 874. Here, plaintiff appears to argue that defendant Cahill personally engaged in unconstitutional behavior merely by virtue of his email inquiry of defendant Jackson. See, e.g., Amended Complaint, ¶¶ 26-27; Exhibit B, attached thereto; Memo. in Opp., p. 11 ("Cahill was a means to implement the actions and orders of Defendant Jackson.") (citing, inter alia, Exhibit B). To the contrary, the Court cannot say that this evidence establishes - or even suggests - that defendant Cahill directed defendant Gallaer to carry out any unconstitutional action. Instead, defendant Cahill simply asked defendant Jackson for guidance on issued related to kosher meals and copied defendant Gallaer on that email inquiry. See Exhibit B. Based on this record, the Court cannot conclude that defendant Cahill engaged in active unconstitutional behavior when he sent his email inquiry to defendant Jackson.
Next, plaintiff alleges that defendant Cahill violated plaintiff's rights by denying plaintiff's request for a "Special Accommodation" that plaintiff not be required to cook on the Sabbath. Amended Complaint, ¶ 32 (citing Exhibit D, PAGEID#: 368 ("Request for Religious Accommodation," directed to "Chaplain's Office" and dated September 1, 2012), and PAGEID#: 367 ("Response to Request for Religious Accommodation," apparently signed by defendant Cahill and dated September 1, 2012). In that request, plaintiff specifically asked that LoCI provide "meals not being cooked by me, or not cooked by other parties for me on my Sabbath, as part of my kosher diet." Request for Religious Accommodation. Defendant Cahill responded:
Dr. Wanza Jackson gave a directive in a recent email (8-28-12) stating "Do not change your meal schedule for the Sabbath issue." She further stated that food service has been given guidelines on kosher foods and they are to follow their present guidelines. Therefore, this accommodation is not recommended at this time.
Response to Request for Religious Accommodation.
Thereafter, the Accommodation Review Committee advised that it "do[es] not recommend accommodation, this has been arranged by Central Office Religious Services. Meal guidelines have been provided." Id. The warden ultimately disapproved plaintiff's request for this accommodation. Id.
Construing this record liberally in a light most favorable to plaintiff, the Court concludes that plaintiff has sufficiently alleged that defendant Cahill implicitly authorized, approved, or knowingly acquiesced in conduct that may have violated plaintiff's constitutional rights, i.e., by requiring plaintiff to cook his meal on the Sabbath. See, e.g., Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982). Therefore, for the reasons discussed supra, the Court cannot say that plaintiff has failed to state claims against defendant Cahill based on a requirement that plaintiff cook his meal on the Sabbath in violation of plaintiff's rights under the First and Eighth Amendments and under RLUIPA. Similarly, for the reasons stated earlier, the Court concludes that defendant Cahill is not at this juncture entitled to qualified immunity on these claims.
C. Monetary Damages
Defendants argue that the PLRA precludes an award of monetary damages on plaintiff's claims because he does not allege that he suffered any physical injury other than weight loss. Motion to Dismiss, p. 18 (citing Amended Complaint, ¶ 42; Yaacov v. Collins, No. 09-4148, Order, p. 6 (6th Cir. Dec. 1, 2010) (stating that the PLRA provision requiring that a prisoner suffer a physical injury in order to recover monetary damages "applies to all federal civil actions - even those alleging violations of the First Amendment or other constitutional provisions") (attached to Motion to Dismiss)). Plaintiff disagrees, arguing that his weight loss satisfies the physical injury requirement. Memo. in Opp., pp. 15-16; Plaintiff's Sur-Reply, pp. 5-6.
At this stage of the proceedings, plaintiff's argument is well-taken. Plaintiff has explicitly alleged that he has suffered a physical injury by losing approximately 62 pounds August 17, 2012 to March 9, 2013. Amended Complaint, ¶ 42. Construing this allegation in the light most favorable to plaintiff, the Court concludes that plaintiff has alleged a physical injury sufficient to survive the Motion to Dismiss. Cf. Yaacov, No. 09-4148, Order, pp. 6-7 (6th Cir. Dec. 1, 2010) (remanding case and directing district court to determine whether inmate plaintiff's weight loss satisfies the "physical injury requirement"). Accordingly, defendants' request for dismissal of plaintiff claims for monetary damages is not well-taken. IV. MOTION FOR PRELIMINARY INJUNCTION AND PLAINTIFF'S MOTION TO STRIKE
On January 28, 2013, and prior to the filing of his Amended Complaint, plaintiff filed a Motion for Preliminary Injunction, which defendants oppose. Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction, Doc. No. 21 ("Defendants' Memo. in Opp."). Plaintiff has filed a reply memorandum. Plaintiff's Reply to Defendants' Memorandum in Opposition of Plaintiff's Motion for Preliminary Injunction, Doc. No. 25 ("Plaintiff's Reply").
"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998) (quoting Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978) (internal quotation marks omitted)). The decision whether or not to grant a request for interim injunctive relief falls within the sound discretion of the district court. Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). Interim injunctive relief is an extraordinary remedy that should be granted only after the Court has carefully considered the following four factors:
(1) whether the movant has established a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing McPherson v. Michigan High Sch. Athletic Ass'n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6th Cir. 1995)). These factors are not prerequisites to injunctive relief; rather, they are factors that the Court must balance. Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001) (stating that no single factor is determinative); Monongahela Power Co. v. Schriber, 322 F. Supp. 2d 902, 918 (S.D. Ohio 2004) (same). However, a preliminary injunction should not issue where there is simply no likelihood of success on the merits. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). Cf. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003) ("Moreover, a district court is not required to make specific findings concerning each of the four factors used in determining a motion for preliminary injunction if fewer factors are dispositive of the issue."). Finally, "the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion." Leary, 228 F.3d at 739. See also Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002) (stating that the movant bears the burden of establishing that "the circumstances clearly demand" this extraordinary remedy).
Here, plaintiff seeks four forms of interim injunctive relief:
A. That plaintiff be provided meals that he is not required to cook or "reheat" on the Sabbath;Motion for Preliminary Injunction, p. 7. Plaintiff appears to argue that the first three forms of relief are necessary to avoid undue burden on his right to practice his religion. Id. at 5; Plaintiff's Reply, p. 14. However, in considering a motion for interim injunctive relief, a court must consider whether the alleged irreparable harm is "both certain and immediate, rather than speculative or theoretical." Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. Sept. 24, 1991) (citing Wisconsin Gas Co. v. Federal Energy Regul. Comm'n, 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1985)). "In order to substantiate a claim that irreparable injury is likely to occur, a movant must provide some evidence that the harm has occurred in the past and is likely to occur again." Id. Here, after filing the Motion for Preliminary Injunction, plaintiff admitted that LoCI implemented a kosher food program:
B. That defendants be required to provide kosher dairy products (milk) at breakfast and brunch on weekends;
C. That defendants be enjoined from serving meat and dairy products together at the same meal;
D. That defendants, their agents, or the Department of Rehabilitation and Correction be enjoined from transferring plaintiff to any such other location during the pendency of this action.
Notably, the Defendants have since implemented a Kosher procedure at the London facility, which provides for not cooking on the Sabbath; not serving meat and dairy items together; and providing a "Sabbath" meal, where the Plaintiff and other participants are not required to cook on the Sabbath. The London facility, therefore, has the facilities as all other 33 institutions in the State of Ohio, are equipped to provide Kosher. . . .Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss Plaintiff's Amended Complaint, Doc. No. 37, pp. 7, 9 (filed on April 10, 2013). Based on this record, the Court cannot conclude that plaintiff has shown that he faces certain and immediate harm in the form of an undue burden on his right to practice his religion.
Moreover, the State has since revised its procedure Statewide to reflect the requests of the Plaintiff.
Plaintiff also argues that he faces harm because "Defendants have threatened punitive sanction through a transfer of the Plaintiff to another location;" he therefore asks that defendants be enjoined from transferring plaintiff to another facility. Motion for Preliminary Injunction, pp. 5, 7. However, an inmate has no constitutional right to be incarcerated in a particular institution. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Crosky v. Ohio Dep't of Rehab. & Corr., No. 2:09-cv-400, 2012 U.S. Dist. LEXIS 30660, 2012 WL 748408, at *9 (S.D. Ohio Mar. 8, 2012). Even if the inmate believes that conditions at the transferee institution are more onerous, prison officials have the discretion, under the Constitution, to authorize transfers so long as the conditions at the transferee prison do not impose "atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life." See Sandin v. Conner, 515 U.S. 472, 484 (1995). Cf. Wilkinson v. Austin, 545 U.S. 209 (2005)(recognizing an inmate's liberty interest in not being transferred to Ohio's "supermax" institution without due process of law). Here, plaintiff's speculative fear that defendants may transfer him to another, unspecified location fails to establish the necessary immediate, irreparable harm. Under these circumstances, the Court need not consider whether the remaining factors support plaintiff's request for injunctive relief. See Jones, 341 F.3d at 476.
In short, the Court cannot conclude that plaintiff has met his burden of establishing that "the circumstances clearly demand" the remedies that he seeks. Accordingly, the Court concludes that its discretion is better exercised in denying the Motion for Preliminary Injunction. Finally, in reaching this decision, the Court did not refer or rely on the affidavits of Vickey Justus. Plaintiff's Motion to Strike those affidavits is therefore moot.
WHEREUPON, Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Motion to Strike Plaintiff's Sur-Reply (Doc. 40), Doc. No. 41, is DENIED. Plaintiff's motion to strike the affidavit(s) of Vickey Justus, Doc. No. 24, is DENIED as moot.
It is RECOMMENDED that Defendants Wanza Jackson, Steven Cahill, and William Gallaer's Motion to Dismiss with Prejudice Plaintiff's Amended Complaint, Doc. No. 36, be GRANTED in part and DENIED in part. Specifically, as it relates to the official capacity claims against all of the defendants for monetary damages, it is RECOMMENDED that the Motion to Dismiss be GRANTED, but that claims against defendants in their official capacities for prospective injunctive relief be DENIED. As it relates to plaintiff's claims against all defendants under the Equal Protection Clause of the Fourteenth Amendment and his claims under 42 U.S.C. §§ 1985, 1988 and 2000d, it is also RECOMMENDED that the Motion to Dismiss be DENIED.
In addition, as it relates to plaintiff's claims against defendants Gallaer and Jackson under the First and Eighth Amendment and RLUIPA based on the service of meat and dairy together at the same meal and requiring plaintiff to cook his meal on the Sabbath, it is RECOMMENDED that the Motion to Dismiss be DENIED, but GRANTED as to plaintiff's claims based on the service of non-kosher dairy products and service of only fresh apples. As it relates to plaintiff's claims against defendant Cahill under the First and Eighth Amendment and RLUIPA based on requiring plaintiff to cook his meal on the Sabbath, it is RECOMMENDED that the Motion to Dismiss be DENIED, but GRANTED as to plaintiff's claims based on the service of meat and dairy together at the same meal, the service of non-kosher dairy products, and the service of only fresh apples.
Finally, it is RECOMMENDED that plaintiff's motion for preliminary injunction, Doc. No. 12, be DENIED.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
______________________
Norah McCann King
United States Magistrate Judge