McDaniel v. Fizer et al

Filing 45

ORDER that the reference to the Magistrate Judge is withdrawn as to McDaniel's 30 Motion for Preliminary Injunction and the Motion is denied without prejudice. Signed by Judge G Murray Snow on 10/29/2013.(LFIG)

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WO

JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tyson McDaniel,

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No. CV 12-1697-PHX-GMS (LOA)
Plaintiff,

vs.

ORDER

Greg Fizer, et al.,

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Defendants.

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Plaintiff Tyson McDaniel brought this pro se civil rights Complaint under 42

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U.S.C. § 1983 against multiple Arizona Department of Corrections (ADC) officials (Doc.

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7). Before the Court is McDaniel’s Motion for Preliminary Injunction (Doc. 30).

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The Court will deny the motion without prejudice.
I.

Background

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McDaniel’s claim arose during his confinement at the Arizona State Prison

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Complex-Florence (Doc. 7). He is a practicing Orthodox Muslim who fasts throughout

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the year to condition himself for fasting during Ramadan (id.). In Count I of his First

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Amended Complaint, McDaniel alleged that Chaplains Miser, Becker, and Mason

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refused to approve a kosher diet—which met McDaniel’s religious and dietary needs—on

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the ground that he was not sincere enough in his religious beliefs. McDaniel averred that

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the ADC Central Office ultimately granted his request for a kosher diet after finding no

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religious reason to deny the request.

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McDaniel alleged that the three Chaplain

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Defendants violated his First Amendment free-exercise rights because their denial of a

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kosher diet was not reasonably related to any legitimate penological interest.

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In Count II, McDaniel reasserted the facts in Count I and stated he began receiving

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a kosher diet; however, it was discontinued after just a few days because Miser said he

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had to go through the Chaplaincy Department for a religious diet, even though McDaniel

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provided the approval paperwork from Central Office to Miser, Deputy Warden Fizer,

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and Correctional Officer (CO) IV Zaborsky. McDaniel stated that these three Defendants

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refused to provide him a kosher diet although they knew that their actions burdened his

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religious exercise and was not reasonably related to a legitimate penological interest.

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McDaniel claimed that Miser, Mason, and Becker, along with CO IV Bohuszewicz,

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Fizer, and Zaborsky violated his rights under the Religious Land Use and

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Institutionalized Persons Act (RLUIPA) (id.).

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In his pending motion, McDaniel requests an injunction directing Defendants to

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substitute the raw cabbage that is provided to him in his present kosher diet with an

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alternative, such as hot cereal, rice, tuna, or peanut butter and jelly, which he states are

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items already provided through the kosher diet (Doc. 30). McDaniel avers that the raw

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cabbage causes him gastrointestinal problems, which, in turn, interfere with his daily

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obligatory prayers (id. at 3).

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Mason, Miser, Bohuszewicz, and Zaborsky respond to the motion and assert that

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McDaniel’s request should not be granted because he has not shown that any of the

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factors governing injunctive relief weigh in his favor, the named Defendants are not the

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officials who approve religious diets, and McDaniel’s claim that cabbage may affect his

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digestive system in the future is merely speculation (Doc. 32).1 Defendants contend that

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A footnote in Defendants’ response states that “Defendants served are Mason,
Miser, Bohuszewicz, and Zaborsky” (Doc. 32 at 1 n. 1). The docket reflects that service
was executed on Fizer on April 12, 2013 (Doc. 20), and service was executed on Becker
on April 25, 2013 (Doc. 24) (sealed summons returned executed). On August 29, 2013,
Fizer and Becker filed a Notice of Joinder to Defendants’ Amended Answer (Doc. 36).
Thus, all named Defendants have appeared in this action.
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McDaniel seeks substituted meal items for personal reasons and not for religious or

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medical needs.

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II.

Preliminary Injunction

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“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

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Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong,

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520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary

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remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must

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show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable

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harm without an injunction, (3) the balance of equities tips in his favor, and (4) an

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injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only

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show that there are ‘serious questions going to the merits’—a lesser showing than

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likelihood of success on the merits—then a preliminary injunction may still issue if the

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‘balance of hardships tips sharply in the plaintiff's favor,’ and the other two Winter

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factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th

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Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

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Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . .

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must be balanced, so that a stronger showing of one element may offset a weaker

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showing of another.” Lopez, 680 F.3d at 1072.

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Regardless of which standard applies, the movant “has the burden of proof on each

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element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

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1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

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mandatory preliminary injunction, which should not be granted “unless the facts and law

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clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. I.N.S., 795 F.2d 1434, 1441

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(9th Cir. 1986) (citation omitted); see Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399,

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1403 (9th Cir. 1993) (“mandatory preliminary relief is subject to heightened scrutiny”).

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The Prison Litigation Reform Act imposes additional requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials and requires that

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any injunctive relief be narrowly drawn and the least intrusive means necessary to correct

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the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d

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987, 999 (9th Cir. 2000).

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III.

Discussion

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A.

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Before addressing the Winter factors, the Court considers Defendants’ argument

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that the allegations in McDaniel’s pending motion are “wholly outside” the underlying

Injunctive Relief Related to Underlying Claim

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issue in this case (Doc. 32 at 2).

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relationship between the injury claimed in the party’s motion and the conduct asserted in

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the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (affirming denial

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of an injunction request based on alleged retaliatory conduct unrelated to the basis of a

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prisoner’s § 1983 claim). A court should not grant an injunction “when the injunction in

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question is not of the same character, and deals with a matter lying wholly outside the

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issues in the suit.” Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997).

A party seeking injunctive relief must show “a

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In his First Amended Complaint, McDaniel averred that he was originally

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provided a lacto-vegetarian diet, which met both his religious and dietary/health needs

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because he was able to maintain his weight and perform his obligatory prayers (Doc. 7 at

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5, 10). When that diet was discontinued, he was placed on the vegan diet; however,

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because the vegan diet was harmful to his digestive system, he sought medical assistance

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and was placed on the allergy-bland diet (id. at 6). But the allergy-bland diet included

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“unclean meat” not permitted under Muslim dietary laws (id.). It was for this reason that

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McDaniel sought the kosher diet (id. at 6, 11).

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In his pending motion, McDaniel states that although he now receives the kosher

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diet, meals served to him twice a day contain raw cabbage, which causes him

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gastrointestinal problems and stomach pain, which in turn interfere with his ability to

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conduct his daily prayers (Doc. 30 at 3). He avers that he was seen by medical for his
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digestive problems and advised to stop eating the raw cabbage (id. at 4). McDaniel

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indicates that he has since been losing weight; therefore, he seeks an injunction to

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substitute the cabbage for other available kosher foods so that he can maintain his weight

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and health for prayers and fasting (id. at 4, 6).

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Defendants assert that McDaniel now receives the kosher diet he requested in the

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underlying complaint (Doc. 30; see Doc. 7 at 22). But McDaniel alleges that the relief

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provided does not correct the harm; indeed, it has caused him additional harm. He is not

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required to file a separate lawsuit to challenge the adequacy of Defendants’ response to

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his complaint in this action. Moreover, the Court considers McDaniel’s allegations in his

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preliminary injunction motion to the extent that they clarify the claims set forth in his

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amended pleading. See Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (because the

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plaintiff was pro se, the complaint’s factual allegations and legal theories could be refined

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in subsequent filings); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that

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the pro se litigant “bolstered his claim by making more specific allegations . . . in later

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filings”); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (reiterating that

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where a petitioner is pro se, particularly in civil rights cases, courts must “construe the

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pleadings liberally and [ ] afford the petitioner the benefit of any doubt”) (citation

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omitted).

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Accordingly, the Court finds that the allegations in McDaniel’s motion relate to
the issue in this case, and the request for an injunction may be entertained.

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B.

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“Inmates clearly retain protections afforded by the First Amendment . . . including

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its directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of

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Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To succeed on the merits of his

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First Amendment claim, McDaniel must show that Defendants have burdened the

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practice of his religion by preventing him from engaging in conduct—which he sincerely

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believes is consistent with his faith—without a justification reasonably related to

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legitimate penological interest. See Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008).

Likelihood of Success on the Merits and Irreparable Harm

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Whether a regulation is reasonably related to legitimate penological interests is

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determined by applying the four factors set out in Turner v. Safley. Id., citing 482 U.S.

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78, 89 (1987).

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To succeed on the merits of his RLUIPA claim, McDaniel must show that the

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defendants imposed a substantial burden on his religious exercise.

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§ 2000cc-1(a)(1)-(2); Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005). If he

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makes that showing, Defendants must prove that the burden both furthers a compelling

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governmental interest and is the least restrictive means of achieving that interest.

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Warsoldier, 418 F.3d at 995.

See 42 U.S.C.

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Based on the averments in his pleading and his motion, McDaniel is likely to

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succeed in establishing his sincere belief that eating a diet in accordance with Muslim

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dietary laws and conducting prayers and fasts are consistent with his faith. See Shakur,

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514 F.3d at 885 (to implicate the Free Exercise Clause, a belief must be “sincerely held”

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and “rooted in religious belief”). Thus, the Court turns to the likelihood of establishing

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that Defendants have burdened McDaniel’s religious practice.

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The Ninth Circuit has held that inmates “have the right to be provided with food

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sufficient to sustain them in good health that satisfies the dietary laws of their religion.”

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Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (citation omitted). “[A] prisoner’s

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religious dietary practice is substantially burdened when the prison forces him to choose

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between his religious practice and adequate nutrition.” Nelson v. Miller, 570 F.3d 868,

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869 (7th Cir. 2009); see Warsoldier, 418 F.3d at 996 (a prison policy that “intentionally

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puts significant pressure on inmates . . . to abandon their religious beliefs . . . imposes a

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substantial burden on [the inmate’s] religious practice”). McDaniel alleges that the raw-

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cabbage-filled kosher diet causes him stomach problems which interfere with his prayers;

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thus, eating it would burden his religious practice but not eating it causes weight loss,

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thereby endangering his health (Doc. 30 at 9-10). His position is similar to the plaintiff in

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Shakur, who was faced with a “Hobson’s choice” of “eating the vegetarian diet that is

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Halal but disruptive to his religious activities, eating the regular diet that is Haram and
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forbidden by his religion, or changing his religious designation to Jewish simply to obtain

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the desired kosher meat meals.” 514 F.3d at 889.

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Defendants do not deny that the kosher diet provided to McDaniel includes raw

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cabbage twice a day, nor do they dispute McDaniel’s claims that he has been seen by

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medical personnel for gastrointestinal problems and that he has lost weight. Instead, they

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contend that McDaniel makes unsupported and vague assertions that his constitutional

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rights are violated due to the denial or delay of a religious diet (Doc. 32 at 5). But

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Defendants misconstrue the issue. Although Count I concerns an alleged prior denial of a

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kosher diet, in his motion, McDaniel is not alleging an unconstitutional denial or delay of

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a religious diet. Consistent with his First Amended Complaint, he is alleging denial of a

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diet that meets both his religious and dietary/health needs. McDaniel specifically alleges

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that the religious diet he is being provided is insufficient to sustain his health. As stated,

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if this is established, it would amount to a constitutional violation. Ward, 1 F.3d at 877.

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In failing to address the specific allegations raised in the motion, Defendants also fail to

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present any argument regarding how the Turner factors apply to McDaniel’s requested

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accommodation or whether the burden imposed furthers a compelling governmental

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interest.

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Nonetheless, because McDaniel seeks mandatory relief—compelling Defendants

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to take action rather than precluding them from acting—he is subject to heightened

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scrutiny. McDaniel does not specify what his current medical/physical condition is or

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how his religious practice is being affected; i.e., exactly how much weight he has lost,

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how his health is affected, whether he is able to conduct prayers, whether he is able to

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fast in preparation for Ramadan, etc. More importantly, he does not support his motion

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with a sworn declaration.

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Consequently, McDaniel is also unable to satisfy the heightened showing required

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to establish irreparable harm. See Ariz. Dream Act. Coalition v. Brewer, --- F. Supp.

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2d ----, 2013 WL 2128315, at *20 (D. Ariz. May 16, 2003) (“when seeking a mandatory

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injunction, . . . an even greater showing of injury is required); see also Marlyn
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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)

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(mandatory injunctions generally are not granted unless the harm is extreme or very

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serious); but see Elrod v. Burns, 427 U.S. 347, 373 (1976) (the “loss of First Amendment

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freedoms, for even minimal periods of time, unquestionably constitutes irreparable

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injury”); Luckette v. Lewis, 883 F. Supp. 471, 483 (D. Ariz. 1995) (the “loss of an ability

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to practice a central tenet of one’s religion for any extended amount of time is clearly an

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irreparable injury”).

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likelihood of irreparable harm, the remaining Winter factors need not be addressed.

Because McDaniel cannot satisfy his burden of showing a

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In short, absent specific facts and supporting evidence, the Court cannot determine

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whether the facts and law clearly favor McDaniel, despite Defendants’ failure to argue a

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legitimate or compelling penological interest. See Dahl, 7 F.3d at 1403. A mandatory

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injunction is therefore not warranted, and the Motion for Preliminary Injunction will be

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denied without prejudice to refiling.

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IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to

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McDaniel’s Motion for Preliminary injunction (Doc. 30), and the Motion is denied

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without prejudice.

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Dated this 29th day of October, 2013.

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