Opinion
Civil Action 2:12-cv-1209
06-18-2013
HENRY L. STEPLER, Plaintiff, v. WARDEN, HOCKING CORRECTIONAL FACILITY, et al., Defendants.
Judge Sargus
Magistrate Judge King
ORDER and
REPORT AND RECOMMENDATION
Plaintiff, an inmate at the Hocking Correctional Facility ("HCF"), brings this civil rights action claiming a denial of his rights in connection with the alleged denial of kosher meals and the opportunity to observe his Jewish faith. This matter is before the Court on several pending motions.
I. BACKGROUND
Plaintiff alleges that he is a "Jewish inmate trying to practice his Religion" and that various individuals at HCF have "hinder[e]d, violated and or disrupted" his ability to practice his faith. Complaint, Doc. No. 4, at PAGEID#: 101. More specifically, plaintiff alleges, inter alia, that certain individuals at HCF, including Tracy Grimm, HCF's kitchen supervisor, Lucas Curry, HCF kitchen staff member, and Victor Marshall, chaplain at HCF, hindered, violated and/or disrupted plaintiff's ability to practice his Jewish faith because of the following: (1) plaintiff was subjected to anti-Semitic verbal abuse; (2) plaintiff has not received pre-sealed kosher meals; (3) the kosher entrées at HCF do not contain sufficient calories; (4) plaintiff was not allowed to establish a kosher kitchen; (5) plaintiff was served a frozen uncooked kosher meal when plaintiff had no way to heat the meal; (6) plaintiff is not provided a room in which to pray each week; (7) plaintiff is provided a room in which to pray only on Passover and Chanukah; (8) free religious materials were not requested on plaintiff's behalf. Id. at PAGEID#: 100-102; Affidavit signed by plaintiff, PAGEID#: 109, attached to Complaint.
Although plaintiff named Victor Marshull and Tracy Grims as defendants, see, e.g., Complaint, PAGEID#: 97, defendants represent that their proper names are Victor Marshall and Tacy Grimms. Motion to Dismiss With Prejudice of Defendants Lucas Curry, Victor Marshall, and Tracy Grimm, Doc. No. 27, p. 1.n. 2 ("Motion to Dismiss").
On January 2, 2013, plaintiff filed the instant action naming as defendants Grimm, Curry, Marshall, Samuel Tambi (HCF's warden) and Carole Upchurch (HCF's deputy warden). Plaintiff sued defendants in their individual and official capacities, seeking monetary damages and prospective injunctive relief. Complaint, PAGEID#: 99, 102. Defendants Curry, Marshall and Grimm ("the moving defendants") have moved to dismiss the claims against them, see Motion to Dismiss, which plaintiff opposes. Plaintiffs, [sic] Motion in Opposition to Defendants [sic] Motion to Dismiss, Doc. No. 31 ("Memo. in Opp.").After the moving defendants filed a reply memorandum, Reply in Support of Motion to Dismiss with Prejudice (Doc. 27) of Defendants Lucas Curry, Victor Marshall, and Tracy Grimm, Doc. No. 34 ("Defendants' Reply"), plaintiff filed a response or sur-reply to Defendants' Reply. Memorandum in Contra to Defendant's [sic] Reply in Support of Motion to Dismiss with Prejudice (Doc. 27) of Defendant's [sic] Lucus Curry, Victor Marshall, and Tracy Grimm, Doc. No. 35 ("Plaintiff's Sur-Reply").Thereafter, an individual who is not a party to this litigation also filed a document labeled "Amicus Curiae." Doc. No. 36. The moving defendants have moved to strike Plaintiff's Sur-Reply as well as the non-party's filing. Doc. Nos. 37, 38. In response, the non-party has moved to withdraw his "amicus curiae" brief. Doc. No. 41. The Court shall address these motions and issues in turn. II. MOTIONS RELATED TO BRIEFING OF MOTION TO DISMISS
The Court previously dismissed plaintiff's claims against defendant Alice Bartlett, institutional inspector. See Order, Doc. No. 18. It does not appear that defendants Tambi and Upchurch have been served with process. See Doc. Nos. 6, 14, 21, 22.
A non-party, Peter William Mayes, filed, without leave of the Court, a brief that he labels an "amicus curiae" brief. Doc. No. 36. In this filing, the non-party asks the Court to "consider and add this brief . . . in support of [plaintiff] Henry L. Stepler's arguments." Id. at 1. The moving defendants have moved to strike this filing, arguing that an amicus brief is not permitted by the Federal Rules of Civil Procedure. Doc. No. 38, p. 2 (citing Fed. R. Civ. P. 7; McNeil v. United States, 508 U.S. 106, 113 (1993)). Plaintiff apparently agrees that the Court should disregard the amicus brief. See Doc. Nos. 39, 40.
Neither the Federal Rules of Civil Procedure nor the Local Rules of this Court authorize the filing of a non-party's amicus brief. See, e.g. , Fed. R. Civ. P. 7; S.D. Ohio Civ. R. 7.2(a)(2). Accordingly, the moving defendants' motion to strike the non-party's amicus brief, Doc. No. 38, is GRANTED. The Amicus Curiae of Peter William Mayes in Support of Henry L. Stepler, Doc. No. 36, is ORDERED STRICKEN. The non-party's motion to withdraw his amicus brief, Doc. No. 41, is therefore DENIED as moot.
The moving defendants also seek to strike Plaintiff's Sur-Reply, which was filed without leave of Court. Doc. No. 37.
The Court's local rules do not ordinarily 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 the sur-reply, Doc. No. 37, is DENIED.
III. MOTION TO DISMISS
A. Claims Raised in the Complaint
The moving defendants argue that the Court should entertain no claim other than a claim of denial of plaintiff's rights under the First Amendment. The moving defendants specifically contend that the Complaint fails to include a claim under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1,("RLUIPA"), or under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and that the mere reference to such claims in response to a motion to dismiss is insufficient to effectively assert such claims. See Berryman v. Sampson, 110-CV-12169, 2011 U.S. Dist. LEXIS 146888, at *21 (E.D. Mich. Sept. 8, 2011) ("A non-moving party plaintiff may not raise a new legal claim for the first time in response to the opposing party's motion to dismiss.").
Although the Complaint does not expressly refer to RLUIPA by name or citation, the Complaint does refer to "[v]iolation of religious accomendations [sic] that are protected by the Constitution an[d] Statu[t]es . . . ." Complaint, PAGEID#: 98. The Complaint also alleges that plaintiff has been denied "a room per week as other religious groups get . . . ." Id., PAGEID#: 100. See also id., PAGEID #: 101 ("We get no room to pray in per week as other religious groups get . . ."). The Complaint further alleges that defendant Curry issued conduct reports to Jewish inmates, but not to non-Jewish inmates. Id. , PAGEID#: 100; Doc. No. 4-2, PAGEID#: 134-136, 140-141.
Construing plaintiff's pleading liberally, see Haines v. Kerner, 404 U.S. 519 (1972), the Court concludes that the Complaint sufficiently asserts claims under the First Amendment, RLUIPA and the Equal Protection Clause of the Fourteenth Amendment. Where appropriate, the Court will address plaintiff's RLUIPA claims. However, the Motion to Dismiss does not address plaintiff's Equal Protection claims and the Court has not considered the motion in connection with those claims. Because the Complaint fails to include allegations that could reasonably be construed as asserting a Due Process claim, the Court will not consider the Motion to Dismiss by reference to such a claim.
B. Exhaustion
The moving defendants argue that the Court should dismiss the Complaint because plaintiff failed to exhaust his administrative remedies. Motion to Dismiss, pp. 4-6. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), requires that a prisoner filing a § 1983 claim first exhaust available administrative remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002). The PLRA provides, in pertinent part:
No action shall be brought with respect to prison conditions under [section 1983 of this title], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a).
In order to satisfy the exhaustion requirement, an inmate plaintiff must "complete the administrative review process in accordance with the applicable procedural rules ... as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). Therefore, inmates must "tak[e] advantage of each step the prison holds out for resolving the claim internally and . . . follow the 'critical procedural rules' of the prison's grievance process to permit prison officials to review and, if necessary, correct the grievance 'on the merits' in the first instance." Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). Exhaustion is not a jurisdictional predicate but the requirement is nevertheless mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999), even if proceeding through the administrative procedure would appear to the inmate to be "futile." Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999). The United States Court of Appeals for the Sixth Circuit has noted that failure to exhaust "'is an affirmative defense under the PLRA[.] . . . [I]nmates are not required to specially plead or demonstrate exhaustion in their complaints.'" Surles v. Andison, 678 F.3d 452, 456 (6th Cir. 2012) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). Instead, a plaintiff's "failure to exhaust 'must be established by the defendants.'" Id. (quoting Napier v. Laurel County, Ky., 636 F.3d 218, 225 (6th Cir. 2011)).
Ohio has established a procedure for resolving inmate complaints. Ohio Admin. Code § 5120-9-31. The procedure is available to an inmate "regardless of any disciplinary status, or other administrative or legislative decision to which the inmate may be subject," § 5120-9-31(D), and is intended to "address inmate complaints related to any aspect of institutional life that directly and personally affects the grievant," including "complaints regarding policies, procedures, conditions of confinement. . . ." § 5120-9-31(A). This procedure includes three steps. First, an inmate must file an informal complaint. Ohio Admin. Code § 5120-9-31(K)(1). If that complaint does not result in a decision satisfactory to the inmate, the inmate can appeal the decision to the Inspector of Institutional Services. Ohio Admin. Code § 5120-9-31(K)(2). If that appeal is found to be without merit, the inmate can then appeal the decision to the Chief Inspector. Ohio Admin. Code § 5120-9-31(K)(3). However, this "grievance procedure will not serve as an additional or substitute appeal process for . . . those issues or actions which already include an appeal mechanism beyond the institutional level[.]" Ohio Admin. Code § 5120-9-31(B).
The moving defendants first contend that the inmate plaintiff bears the burden of establishing exhaustion and that he must attach "'to his § 1983 complaint the administrative decision, if it is available, showing the administrative disposition of his complaint.'" Motion to Dismiss, pp. 4-5 (quoting Wallace v. Burbury, 305 F. Supp.2d. 801, 804 (N.D. Ohio 2003) (holding that inmate plaintiff failed to exhaust his administrative remedies because he pursued the general grievance procedure rather than a specific ODRC procedure applicable to requests for religious accommodations)). The moving defendants argue that plaintiff failed to exhaust his administrative remedies because plaintiff followed the general grievance procedure outlined above rather than a different administrative procedure required for grievances involving requests for religious accommodation. Id. at 4-6 (citing Wallace, 305 F. Supp.2d at 804). More specifically, the moving defendants contend that the ODRC has created a special policy for addressing inmates' requests for religious accommodations, ODRC Policy 309-01, which requires a different ODRC form and administrative procedure. Id. at 5 (quoting Wallace, 305 F. Supp.2d at 804-05). According to the moving defendants, plaintiff's attachments to the Complaint establish that he did not follow the procedure contained in ODRC Policy 309-01. Id. at 5-6 ("Plaintiff failed to submit a request for religious accommodation."). Because the general grievance procedure was an inadequate substitute, the moving defendants contend, plaintiff failed to properly exhaust his administrative remedies.
The moving defendants' arguments are not well-taken. First, the plaintiff does not bear the burden of establishing exhaustion. As noted supra, defendants bear the burden of proof on this issue. See, e.g., Jones, 549 U.S. at 216; Surles, 678 F.3d at 456. To the extent that the moving defendants complain that certain information was attached to (or omitted from) the Complaint, they are attempting to improperly shift that burden to plaintiff.
Second, in arguing that ODRC Policy 309-01 requires that inmates follow a certain administrative procedure distinct from the general administrative grievance procedure described above, the moving defendants rely on a single district court decision. See Motion to Dismiss (citing Wallace v. Burbury, 305 F. Supp.2d 801 (N.D. Ohio 2003)). However, there is evidence in the record suggesting that ODRC Policy 309-01 is not applicable to claims such as plaintiff's. See, e.g., Doc. No. 4-3, attached to Complaint, PAGEID#: 140 ("Decision of the Chief Inspector on a Grievance Appeal," dated November 8, 2012, stating that the institutional inspector, when investigating plaintiff's grievance, reviewed, inter alia, "DRC policy 72-REG-01 (Institutional Religious Services), DRC policy 72-REG-02 (Religious Accommodations) . . . 72-REG-07 (Jewish Religious Services)"); 141 ("Disposition of Grievance," dated October 17, 2012, stating that "DRC Policy 72-REG-01, 72-REG-02, 60-FSM-02, 72-REG-07" were reviewed in connection with plaintiff's grievance). For example, the Office of Chief Inspector advised plaintiff that his "claim of being denied religious accommodations will need to be pursued through existing processes in place as outlined in 72-REG-02." Doc. No. 4-3, attached to Complaint, PAGEID#: 140.
In opposing the Motion to Dismiss, plaintiff provides a copy of this regulation. Memo. in Opp., PAGEID#: 288-293. Cf. Bassett v. National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) ("[A court] may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein."); Robins v. Global Fitness Holdings, LLC, 838 F. Supp. 2d 631, 642 (N.D. Ohio 2012) (stating that the lack of authentication of an exhibit does not preclude consideration of the exhibit where the opposing party does not challenge the validity of the document). This regulation, 72-REG-02, requires "inmates who have established their Religious Affiliation and wish to request an accommodation not addressed in policy" to follow certain specified steps. Memo. in Opp., PAGEID#: 289 (72-REG-02(VI)(G)). Although plaintiff may have been required to follow the procedure contained in 72-REG-02 rather than the general grievance procedure outlined in Ohio Admin. Code § 5120-9-31, the moving defendants do not address this issue. Under these circumstances, the Court cannot conclude that defendants have carried their burden of establishing non-exhaustion.
C. Eleventh Amendment Immunity
The moving defendants also argue that the Eleventh Amendment precludes plaintiff's claims for monetary and injunctive relief against these individuals in their official capacities. Motion to Dismiss, pp. 7-8.
"[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). 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. See also Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009)(Eleventh Amendment bars claims for monetary relief under the RLUIPA). The Eleventh Amendment does not, however, preclude official capacity claims for prospective injunctive relief. Ex parte Young, 209 U.S. 123 (1908).
Here, plaintiff seeks monetary damages and prospective injunctive relief. See Complaint, PAGEID#: 102 (seeking, inter alia, an order directing defendants to provide plaintiff with certain religious accommodations in the future). The State of Ohio has not waived its immunity to suit in this Court, nor has Congress abrogated the state's immunity in connection with plaintiff's claims. Accordingly, plaintiff's claims for money damages under 42 U.S.C. § 1983 and RLUIPA against the moving 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.
D. Qualified Immunity
The moving defendants argue that they are entitled to qualified immunity on plaintiff's claims. Motion to Dismiss, pp. 8-16. 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, 179 L. Ed. 2d 1149 (2011)).
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 [is] 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).
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).
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) ("[W]hile the sequence set forth there [in the qualified immunity inquiry] is often appropriate, it should no longer be regarded as mandatory."). The Court shall address the allegations against each of the moving defendants in turn.
E. Claims Against Defendant Curry
As the claims relate to defendant Curry, plaintiff alleges that this defendant violated plaintiff's right to practice his Jewish faith in three respects: (1) by using anti-Semitic language against plaintiff, Complaint, PAGEID#: 100; Doc. No. 4-3, PAGEID#: 140; (2) by serving plaintiff frozen, uncooked food on April 15, 2012 that plaintiff could not heat, Complaint, PAGEID#: 100; Doc. No. 4-2, PAGEID#: 134-136; Doc. No. 4-3, PAGEID#: 142; and (3) by issuing conduct reports to Jewish inmates, but not to non-Jewish inmates, Complaint, PAGEID#: 100; Doc. No. 4-2, PAGEID#: 134-136, 140-141. As discussed supra, the Complaint, when liberally construed, asserts, inter alia, claims under the Free Exercise Clause of the First Amendment and RLUIPA.
1. Anti-Semitic Language
a. First Amendment
Turning first to plaintiff's allegation that defendant Curry's use of anti-Semitic language violates his right to exercise his religion, the Court notes that 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 burden's 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 h[is] 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." Turner v. Safley, 482 U.S. 78, 89 (1987). Therefore, even if a restriction imposes a substantial burden on an inmate's right to the free exercise of religion, the restriction is "valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987).
As an initial matter, it does not appear that the moving defendants challenge plaintiff's assertion of Judaism as his sincerely held belief or that his practice of the Jewish faith requires that plaintiff eat kosher foods. Instead, although the moving defendants argue that plaintiff has failed to allege that "he has been approved to participate in the kosher meal program by ODRC[,]" Motion to Dismiss, p. 3, they also concede that plaintiff has alleged that he is a "'Jewish inmate trying to practice his Religion.'" Id. (quoting Complaint, PAGEID#: 101. Moreover, the moving defendants point to no document in the various attachments to the Complaint that reflects a prison official's challenge to plaintiff's right to participate in the kosher meal program at HCF or otherwise establishes that plaintiff's Jewish faith is not sincerely held. Under these circumstances, the Court accepts that plaintiff's religious belief is sincerely held and that his practice of Judaism requires that plaintiff eat kosher foods.
As to plaintiff's first claim against defendant Curry, "[v]erbal harassment in the form of . . . epithets is reprehensible, to say the least. Nonetheless, such harassment does not state a cognizable constitutional violation." Mabon v. Campbell, Nos. 98-5468; 98-5513, 2000 U.S. App. LEXIS 1476, at *7 (6th Cir. Feb. 1, 2000) (citing Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam)). See also Siggers v. Renner, No. 01-4067, 37 Fed. Appx. 138, at *141 (6th Cir. Apr. 30, 2002) ("[M]ere insults are generally not actionable under 42 U.S.C. § 1983."); Williams v. Gobles, No. 99-1701, 2000 U.S. App. LEXIS 8893, at *4 (6th Cir. May 1, 2000) ("Even the occasional or sporadic use of racial slurs, although unprofessional and reprehensible, does not rise to a level of constitutional magnitude."). Under these circumstances, the Court cannot conclude that defendant Curry, however offensive his language is alleged to be, violated plaintiff's right to the free exercise of religion even if he verbalized anti-Semitic slurs.
b. RLUIPA
Plaintiff also argues that defendant Curry's language violates plaintiff's rights under RLUIPA, which prohibits 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[.]").
In addition, 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).
Turning to the instant case, absent an allegation that defendant Curry's language imposes a substantial burden on plaintiff's religious exercise, this Court concludes that complaints of verbal abuse likewise fail to state a claim for relief under RLUIPA. See Mabon, 2000 U.S. App. LEXIS 1476, at *7; Siggers, 37 Fed. Appx. 138, at *141; Rouse v. Caruso, No. 06-CV-10961-DT, 2007 U.S. Dist. LEXIS 4941, at *19 (E.D. Mich. Jan. 24, 2007) ("Mere verbal harassment does not embody the type of coercive pressure which amounts to a substantial burden on religious exercise."). Accord Jordan v. Caruso, No. 06-CV- 10979, 2008 WL 907376, *12 (E.D. Mich. Mar. 5, 2008). The Court therefore concludes that the Complaint fails to state a claim against defendant Curry for relief under RLUIPA in this regard.
2. Serving frozen, uncooked food
Plaintiff next alleges that he was served a frozen, uncooked kosher meal on April 15, 2012, which was a day during which the dining hall microwave was accidentally unavailable.
April 7-14, 2012 was Passover and the kosher microwave was in Classroom A to allow all parties participating in Passover to have access to the microwave. Someone when cleaning up on the last night of Passover secured the microwave in the Chaplain office believing that he would be in on Sunday but he was off on Vacation. So on Sunday, April 15th, Captain Walker and Food Service Cord Curry did not know where it had been taken. I know that you stated that you were not offered a way to heat your meal but both Ms. Grimm and Capt Walker states you were offered to have your meal heated up in the kitchen microwave but you refused wanted to take it back to the dorm to be heated and you were told no. When you were seen on 4/15/12 by Nurse Porter-Bailey she noted that you had told her that you had eaten cereal and a banana that day. She also noted that you were encouraged to eat in the dining hall. On Monday morning when Ms. Grimm came in and was told that the microwave was missing she started looking for it and it was found secured in the Chaplain's office and was immediately returned to the dining hall.Disposition of Grievance, Doc. No. 4-2, PAGEID#: 135, attached to Complaint. See also Decision of the Chief Inspector on Grievance Appeal, Doc. No. 4-2, PAGEID#: 136 ("From the information obtained, the Inspector determined that the microwave was misplaced and granted your Grievance; the Inspector did not find evidence that it was done on purpose. The microwave has since been returned to the dining hall for use."), 138 ("Your appeal of this [the Inspector's] decision based upon your position of anti-Semitic behavior is unfounded; this single specific act does not qualify as a violation of rule or policy yet is attributed to the misplacement of a microwave which has since been remedied.").
It is unfortunate that the microwave was misplaced and that you chose not to allow them to heat your meal in the other microwave. But I do not believe that it was done on purpose. The microwave has been returned to the dining hall for use. If you have any other issues regarding your kosher meals please let Ms. Grimm or myself know.
a. First Amendment
Based on the present record, the Court cannot conclude that the unavailability of a microwave on April 15, 2012 in which plaintiff could heat his kosher meal violates plaintiff's free exercise rights under the First Amendment. Random, isolated failures to provide kosher food do not rise to the level of a constitutional violation. See, e.g., Colvin v. Caruso, 605 F.3d at 293 (finding no error in trial court's holding that isolated, mistaken instances of serving non-kosher food do not amount to a constitutional violation). Cf. Mubashshir v. Moore, No. 3:10 CV 2802, 2011 U.S. Dist. LEXIS 42130, at *17-18 (E.D. Mich. April 19, 2011) ("Isolated acts or omissions, however, do not constitute a substantial burden on religious freedom.") (collecting cases). Plaintiff's contention that he should have been allowed to take his frozen kosher meal to the dorm and use the microwave there, see, e.g., Complaint, PAGEID#: 100; Affidavit of James Nichols, Doc. No. 4-1, PAGEID#: 104, attached to Complaint, does not save his claims in this regard. "Courts afford prison administrators wide ranging deference in their judgments needed to preserve internal order and discipline and to maintain institutional security." Smith v. Campbell, 250 F.3d 1032, 1039 (6th Cir. 2001).
b. RLUIPA
Plaintiff also apparently claims that serving him frozen food on April 15, 2012 with no way to heat it violates his rights under RLUIPA. Because, again, this allegation does not impose a substantial burden on plaintiff's exercise of his religion, this claim cannot proceed under RLUIPA. See, e.g. , Mubashshir, 2011 U.S. Dist. LEXIS 42130, at *17-18.
3. Conduct reports
Finally, the unverified Complaint alleges that defendant Curry issued conduct reports directed to plaintiff, but that defendant Curry did not issue such reports to non-Jewish inmates. Complaint, PAGEID#: 100; Conduct Report, Doc. No. 4-3, PAGEID#: 146.
a. Equal protection
To the extent that this allegation asserts an equal protection claim, the Court concludes that the Motion to Dismiss has not addressed such claim. Accordingly, as previously stated, the Court will not address plaintiff's equal protection claims against this defendant.
b. Retaliation
To the extent that plaintiff's allegations against defendant Curry in this regard are intended to assert a retaliation claim, see Complaint, PAGEID#: 100 (stating that after plaintiff submitted complaints about defendant Curry, defendant Curry began issuing conduct reports against plaintiff), that claim must fail. A retaliation claim consists of three elements:
(1) the plaintiff engaged in protected conduct; (2) defendant took an adverse action against plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) a causal connection between the first two elements, that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.Clark v. Corr. Corp. of Am., No. 03-6377, 113 Fed. Appx. 65, at *68 (6th Cir. Sept. 16, 2004) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). Evidence attached by plaintiff himself to the unverified Complaint suggests that defendant Curry issued a conduct report to plaintiff because plaintiff was stealing food:
[I]n review of rules infraction information, it was discovered that you were not the only inmate that has been issued a Conduct Report by Mr. Curry. When speaking with Ms. Stalling she confirmed that you were stealing from the food line. . . .Decision of the Chief Inspector on a Grievance Appeal, Doc. No. 4-3, PAGEID#: 140. Theft of food from a prison dining hall is not protected conduct. "A finding of guilt on a misconduct charge based on some evidence of a violation of prison rules 'essentially checkmates [a] retaliation claim.'" Jackson v Madery, 158 Fed. Appx. 656, 662 (6th Cir. 2005) (citing Henderson v. Baird, 23 F.3d 464, 469 (8th Cir. 1994)). Accordingly, plaintiff's claim for retaliation based on these facts must fail.
c. First Amendment and RLUIPA
It does not appear that plaintiff intends to assert claims under the First Amendment or RLUIPA based on his allegation that defendant Curry issued conduct reports directed at only plaintiff and not to other non-Jewish inmates. Complaint, PAGEID#: 100; Conduct Report, Doc. No. 4-3, PAGEID#: 146. Indeed, plaintiff has not alleged how the issuance of conduct reports arising from plaintiff's theft infringes on his right to exercise his religion or otherwise substantially burdens his ability to practice Judaism. Therefore, to the extent that any such claims are based on the issuance of conduct reports, those claims are without merit.
F. Defendant Marshall
Plaintiff alleges that defendant Marshall violated plaintiff's right to practice his Jewish faith in three ways: (1)by not providing a room in which to pray each week "as other religious groups get[,]" and instead providing a room on only two holidays, i.e., Passover and Chanukah, Complaint, PAGEID#: 100-101; (2) by delaying the lighting of the Menorah on Chanukah in 2012 because a Christian group was using the room, Informal Complaint Resolution, Doc. No. 4-1, PAGEID# 113-114, attached to Complaint; and (3) by failing to request religious materials from the Aleph Institute, Complaint, PAGEID#: 101.
The Aleph Institute is a Jewish organization that apparently offers a "Spark of Light Prison Program." Complaint, PAGEID#: 101; Doc. No. 4-1, PAGEID#: 115-116, attached thereto.
1. Failure to provide room each week
a. Equal Protection
To the extent that plaintiff intends to assert an equal protection claim based on the allegation that plaintiff is denied a room for prayer while other religious groups are provided such facilities, the Court declines to address plaintiff's equal protection claim in this regard because the Motion to Dismiss fails to address this claim.
b. First Amendment
In addressing plaintiff's First Amendment claim based on these allegations, the moving defendants argue that there are too few Jewish inmates interested in praying in a separate room to justify such an accommodation. See, e.g., Informal Complaint Resolution, Doc. No. 4-1, PAGEID#: 113, attached to Complaint; Doc. No. 4-1, PAGEID#: 117 (letter dated September 11, 2012 from Inmate Carr to Rabbi Raitman, apparently of the Aleph Institution, stating that "[a]s far as our religious services go we are to [sic] small for a rabbi to come but we have requested a room so we could worship together like they gave us during [P]assover"). As the moving defendants point out, the Sixth Circuit "has consistently permitted prisons to take into account the level of inmate interest in a particular religion when determining whether to hold services." Colvin, 605 F.3d at 291 (citing Spies v. Voinovich, 173 F.3d 398, 404 (6th Cir. 1999)). Plaintiff has identified "no restrictions on his ability to practice Judaism privately, read Jewish literature, or correspond with other practitioners of the Jewish faith." Id. at 291-92. Indeed, plaintiff's own pleadings establish that he communicates with the Aleph Institute, see Doc. No. 4-1, PAGEID#: 115-116, attached to the Complaint, and prays with Inmate Carr. Doc. No. 4-1, PAGEID#: 117, attached to the Complaint.
However, the Complaint also expressly alleges that a private room is made available to Jewish inmates at HCF on certain occasions and it is unclear, on the present record, that a private room could not reasonably be made available to Jewish inmates more frequently. Accordingly, as it relates to defendant Marshall's alleged failure to provide a separate room in which to pray on a weekly basis, the Court concludes that plaintiff's First Amendment claims may proceed.
c. RLUIPA
Having concluded that plaintiff's First Amendment claim may proceed, the Court also finds that, at this stage, plaintiff's allegations in this regard are sufficient to state a claim under RLUIPA. Cf. 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[.]").
2. Delay in lighting Menorah on Chanukah 2012
The Complaint also refers to an incident during Chanukah 2012 in which the lighting of the Menorah was delayed because another religious group was still using the room reserved for Jewish inmates. See Informal Complaint Resolution, Doc. No. 4-1, PAGEID#: 113-114, attached to Complaint. As discussed supra, isolated incidents do not amount to a constitutional violation, cf. Colvin, 605 F.3d at 293, nor does the alleged delay impose a substantial burden on an inmate's right to practice his religion. Cf. Heleva v. Kramer, No. 08-3408, 330 Fed. Appx. 406, at *409 (3d Cir. May 22, 2009) (finding no substantial burden where inmate alleged that prison officials intentionally deprived him of two religious books because "[a]t no point did [inmate] Heleva have to abandon one of the precepts of his Christian religion, nor did the government put pressure on him to substantially modify his behavior or violate his beliefs"); Dunlap v. Losey, No. 01-2586, 40 Fed. Appx. 41, at *43 (6th Cir. May 15, 2002) (concluding that "temporary deprivation of [inmate plaintiff's] hardcover Bibles, which [defendant] Dunlap might have remedied more quickly, while making the practice of his religion somewhat more difficult, did not coerce him into action contrary to his beliefs, and did not state a claim under the RLUIPA"); Talbert v. Jabe, No. 7:07-cv-00450, 2007 U.S. Dist. LEXIS 82962, at *60 (W.D. Va. Nov. 8, 2007) ("Because plaintiff has not demonstrated that the isolated incidents above placed a substantial burden on his exercise of religion, the RLUIPA claims will be dismissed[.]"); Thompson v. Quarterman, No. V-01-01, 2007 U.S. Dist. LEXIS 73207, at *6 (S.D. Tex. Sept. 30, 2007) ("An isolated denial, such as having to miss a single religious service, does not constitute a substantial burden on a prisoner's right to practice his religion.").
3. Religious materials from the Aleph Institute
Finally, plaintiff complains that defendant Marshall failed to request free religious material provided by the Aleph Institute. However, plaintiff does not allege that those materials were thereby denied him or that he has been prohibited from personally communicating with the organization. See Doc. No. 4-1, PAGEID#: 115-116. Under these circumstances, the Court cannot conclude that defendant Marshall violated plaintiff's constitutional or statutory rights in failing to request free religious material provided by the Aleph Institute.
G. Defendant Grimm
Plaintiff alleges that defendant Grimm violated plaintiff's right to practice his Jewish faith in three ways: (1) by failing to serve plaintiff pre-sealed kosher meals; (2) by failing to provide a kosher kitchen; and (3) by failing to provide meals containing sufficient daily calories. Complaint, PAGEID#: 100. The Court receives these allegations as intertwined: according to plaintiff, unless meals are pre-sealed or prepared in a kosher kitchen, they cannot be reliably regarded as kosher and the other food that plaintiff can eat under these circumstances, consistent with his religious beliefs, does not afford him sufficient calories.
1. First Amendment
The moving defendants first argue that these allegations do not give rise to a First Amendment violation because defendants are not required to provide plaintiff with pre-sealed kosher meals or to construct a kosher kitchen. Motion to Dismiss, pp. 15-16; Reply, p. 2. As discussed supra, an inmate's right to exercise his or her religion 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)). Therefore, plaintiff had a right to a kosher diet while in prison, subject to reasonable restrictions. See, e.g., Weinberger v. Grimes, No. 07-6461, 2009 U.S. App. LEXIS 2693, at *15 (6th Cir. Feb. 10, 2009). Stated differently, "'prison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions.'" Colvin, 605 F.3d at 290 (quoting Alexander v. Carrick, No. 00-1261, 31 F. App'x 176, at *179 (6th Cir. Mar. 19, 2002)). "For the inmate, this is essentially a constitutional right not to eat the offending food item." Alexander, 31 Fed. Appx. 176, at *179 ("If the prisoner's diet, as modified, is sufficient to sustain the prisoner in good health, no constitutional right has been violated."). However, a "prison policy of not providing [plaintiff] kosher meals may be permissible if it is reasonably related to a legitimate penological interest." Russell v. Wilkinson, No. 03-3427, 79 Fed. Appx. 175, at *177 (6th Cir. Oct. 4, 2003) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
Here, the record establishes that plaintiff has, on occasion, received pre-sealed kosher food at HCF. See, e.g. , Letter dated August 2, 2012 from Wanza Jackson, ODRC Religious Service Director, to plaintiff, Doc. No. 4-2, PAGEID#: 120 ("All food service managers have been advised to provide pre-packaged kosher entrée items."), attached to the Complaint; Memo. in Opp., PAGEID#: 277 ("The plaintiff[] had tried to get staff/defendant's . . . to get pre-sealed kosher full meals, as was done at Passover[,]" but these attempts "have met negative results"); 281 ("[F]or Months, the plaintiff[] has ate [sic] sealed kosher entrée's [sic], which are only 360 calories"). However, this evidence also suggests that plaintiff was not routinely served with kosher meals. Id. The moving defendants have not shown that the alleged failure to regularly provide kosher meals is a reasonable restriction or that defendant Grimm's failure in this regard is reasonably related to a penological interest. See also Memo. in Opp. , PAGEID#: 277 (representing, under oath that, the "Warden conceded that kosher meals could be supplemented with kosher food at modest cost").
Moreover, plaintiff alleges that the kosher meals that he does receive do not contain sufficient calories. Complaint, PAGEID#: 100; Doc. No. 4-2, PAGEID#: 131, attached to Complaint ("A dietician told me if I[] would eat all the food at all three meals including the non kosher food I am given then I[] would only get a little over 1700[] of the 2500 calories I[] should be getting."); Informal Complaint Resolution, Doc. No. 4-3, PAGEID#: 144, attached to Complaint (describing examples of kosher meals that plaintiff received that were purportedly deficient in calories). The moving defendants argue that this allegation does not establish a First Amendment violation because plaintiff has not alleged that he is in poor health nor does he point to evidence in the record suggesting that he is not in good health. Motion to Dismiss, pp. 15-16 (citing letter dated September 4, 2012 from Rabbi Shmuli Raitman at Aleph Institute addressed to plaintiff, Doc. No. 4-1, PAGEID#: 116, attached to the Complaint ("I have been reassured by the institution that the Kosher meals that the inmates receive are based on 2500 calories on a daily bases [sic].")). However, construing the allegations in favor of plaintiff, plaintiff has sufficiently alleged that the pre-sealed kosher meals intermittently provided to him are insufficient to sustain his good health. See, e.g. , Doc. No. 4-3, PAGEID#: 144. These allegations are sufficient to allege a constitutional violation.
In continuing its consideration of defendant Grimm's claim to qualified immunity, the Court must consider whether plaintiff had a clearly established right to kosher meals that provided sufficient daily calories 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). "[P]rison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions." Alexander v. Carrick, 31 Fed. Appx. 176, 179 (6th Cir. 2002). See also Russell v. Wilkinson, 79 Fed. Appx. 175, **2 (6th Cir. 2003)(revocation of kosher privileges after inmate used non-kosher food not a violation of inmate's First Amendment rights). As discussed supra, plaintiff has sufficiently alleged that his Judaism, which requires plaintiff to 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 Grimm.
2. RLUIPA
Having concluded that plaintiff's First Amendment claim against defendant Grimm may proceed, the Court also concludes that, at this stage, plaintiff's allegations relating to the failure to serve kosher meals containing sufficient calories 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. 2009) (the refusal to accommodate a diet required by religious beliefs imposes a substantial burden). Similarly, the Court concludes that defendant Grimm is not at this juncture entitled to qualified immunity on this RLUIPA claim.
H. Monetary Damages under the First Amendment
The moving defendants also argue that the PLRA precludes and award of monetary damages on plaintiff's First Amendment claims because he does not allege physical injury. Motion to Dismiss, p. 17 (citing to 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)).
Here, plaintiff has alleged that the kosher meals offered to him provide insufficient calories. See Informal Complaint Resolution, Doc. No. 4-3, PAGEID#: 144 (alleging that the kosher meals provide approximately 1700 calories a day, forcing him to eat non-kosher foods in order to consume sufficient calories). Although plaintiff has not explicitly alleged that he has suffered a physical injury, the Court, construing plaintiff's allegations liberally in the light most favorable to plaintiff, cannot say that plaintiff has not alleged a physical injury sufficient to survive the Motion to Dismiss. Cf. Yaacov v. Collins, 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, to the extent that the moving defendants seek the dismissal of plaintiff's claims for monetary damages based on alleged First Amendment violations, that request is not well-taken.
WHEREUPON, defendants' Motion to Strike Plaintiff's Sur-Reply (Doc. 35), Doc. No. 37, is DENIED; defendants' Motion to Strike Amicus Curiae Brief of Peter William Mayes (Doc. 36), Doc. No. 38, is GRANTED; and non-party's Motion for Leave to Withdraw Amicus Curiae of Peter William Mayes in Support of Henry L. Stepler, Doc. No. 41, is DENIED as moot.
It is RECOMMENDED that Motion to Dismiss with Prejudice of Defendants Lucas Curry, Victor Marshall, and Tracy Grimm, Doc. No. 27, be GRANTED in part and DENIED in part. Specifically, as it relates to plaintiff's official capacity claims, it is RECOMMENDED that the Motion to Dismiss be GRANTED to the extent that plaintiff seeks monetary relief. As it relates to the claims under the Equal Protection Clause of the Fourteenth Amendment against defendant Curry based on the alleged issuance of conduct reports and against defendant Marshall based on an alleged failure to provide a weekly prayer room, it is RECOMMENDED that the Motion to Dismiss be DENIED. As it relates to the retaliation claims against defendant Curry based on the alleged issuance of conduct reports, it is RECOMMENDED that the Motion to Dismiss be GRANTED. As it relates to plaintiff's claims under the Free Exercise Clause of the First Amendment and under RLUIPA, it is RECOMMENDED that the Motion to Dismiss be DENIED as to the claims against defendant Marshall based on an alleged failure to provide a weekly prayer room and against defendant Grimm for allegedly failing to regularly provide kosher meals containing sufficient calories, but be GRANTED in all other respects. It is FURTHER RECOMMENDED that, as it relates to the request to dismiss plaintiff's claims for monetary damages based on alleged First Amendment violations, the Motion to Dismiss be DENIED.
As noted supra, defendants Tambi and Upchurch have not been served with process. Plaintiff is ORDERED to show cause, within fourteen (14) days, why the claims against these defendants should not be dismissed for failure to timely effect service of process. See Fed. R. Civ. P. 4(m).
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).
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Norah McCann King
United States Magistrate Judge