Welch v. Spalding et al

Filing 37

OPINION AND ORDER Adopting in Part and Rejecting in Part 25 REPORT AND RECOMMENDATION and Granting in Part and Rejecting in Part 11 MOTION for Summary Judgment filed by Steward G Kusey, Brad Purves, Spalding. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM AUGUSTUS WELCH,
Plaintiff,

Case No. 12-cv-13172
Paul D. Borman
United States District Judge

v.
Paul J. Komives
United States Magistrate Judge
GLENN KUSEY,
BRAD PURVES and
DON SPAULDING,
Defendants.
______________________________/
OPINION AND ORDER (1) ADOPTING IN PART AND REJECTING IN PART
MAGISTRATE JUDGE PAUL J. KOMIVES JULY 3, 2013 REPORT AND
RECOMMENDATION (ECF NO. 25) and (2) GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 11)
On July 3, 2013, Magistrate Judge Paul J. Komives issued a Report and Recommendation
to grant in part and deny in part Defendants’ Motion for Summary Judgment. (ECF No. 25, Report
and Recommendation.) Both Plaintiff (ECF No. 29) and Defendants (ECF No. 28) filed Objections
to the Report and Recommendation. This Court reviews de novo the portions of a report and
recommendation to which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
A district “court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. Having conducted a de novo review of the parts of the
Magistrate Judge’s Reports and Recommendations to which valid objections have been filed
pursuant to 28 U.S.C. § 636(b)(1), the Court ADOPTS IN PART AND REJECTS IN PART the
Report and Recommendation and GRANTS IN PART AND DENIES IN PART Defendants’ Motion
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for Summary Judgment.
I.

BACKGROUND
The background facts of this matter are adequately set forth in the Magistrate Judge’s Report

and Recommendation and the Court adopts them here. (Report and Recommendation 1-5.) In
summary, Plaintiff’s pro se civil rights complaint alleges that Defendants violated his First
Amendment right to freely exercise his religion by providing him with meals at the Saginaw
Regional Correctional Facility (“SRF”) during the fasting month of Ramadan in 2011 that contained
only half the number of calories (1300) required by Michigan Department of Corrections (“MDOC”)
Policy for adequate daily nutrition (2600). Plaintiff alleges that MDOC employee Defendant Purves
(director of food service operations for the MDOC) provided the allegedly nutritionally insufficient
Ramadan menu and that Defendants Spaulding (food service director at SRF) and Kusey (food
service supervisor at SRF) adhered to that menu. Plaintiff sued the Defendants in their individual
and official capacities, seeking (1) an injunction requiring Defendants to provide meals during the
2013 Ramadan (July 9, 2013 until August 7, 2013) containing the same daily calories and nutrition
as contained in the meals provided to the rest of the inmate population during that time and (2)
money damages of $500 for each of the thirty (30) days of the 2011 Ramadan against each
Defendant and punitive damages in the amount of $5,000 against each Defendant.
Plaintiff Welch was not the only prisoner in the MDOC system complaining about the caloric
content of the Ramadan meals. In Heard v. Finco, et al., No. 13-cv-00373, (W.D. Mich. 2013)
(Quist, J.) four prisoners filed similar complaints against MDOC food service employees. In an
Order dated July 8, 2013, Judge Gordon Quist denied injunctive relief in light of the MDOC’s
change in policy that increased the requirements for the Ramadan daily meal caloric count to

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between 2,350 and 2,594 calories per day. Heard v. Finco, No. 13-cv-00373, 2014 WL 1347432,
at *1 (W.D. Mich. March 31, 2014). Judge Quist concluded that this provided adequate nutritional
value for the plaintiff’s daily caloric intake during the fasting month of Ramadan and, in an Order
dated July 10, 2013, clarified that his July 8, 2013 Order required the MDOC to “provide to Muslim
prisoners who observe Ramadan . . . at least 2,350 calories per day during the [] Ramadan
observance.” (W.D. Mich. No. 13-cv-00373, ECF No. 22, July 10, 2013 Clarifying Order.)
Thereafter, in an Order dated March 31, 2014, Judge Quist denied defendants’ motion for summary
judgment, finding that a reasonable prison official would have known that a diet consisting of only
1,000 to 1,500 calories per day for the holy month of Ramadan was constitutionally inadequate and
thus denying defendants qualified immunity on plaintiffs’ First Amendment claims. 2014 WL
1347432, at *3-4. A similar action, moving along in a relatively parallel manner, is currently
pending before Judge Linda V. Parker of this District, reassigned to her on May 28, 2014 from Judge
Patrick J. Duggan. See Conway v. Purves, et al., No. 13-cv-10271 (E.D. Mich. 2013).
II.

STANDARD OF REVIEW
A district court judge reviews de novo the portions of the report and recommendation to

which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district “court
may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” Id. Objections must be timely to be considered. A party who receives notice
of the need to timely object yet fails to do so is deemed to waive review of the district court's order
adopting the magistrate judge's recommendations. Mattox v. City of Forest Park, 183 F.3d 515,
519-20 (6th Cir. 1999). “[A] party must file timely objections with the district court to avoid
waiving appellate review.” Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373

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(6th Cir. 1987) (emphasis in original).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate's report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. An “objection” that does nothing more than disagree with a magistrate judge's
determination, “without explaining the source of the error,” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Specific objections enable the Court to focus on the particular issues in contention. Howard,
932 F.2d at 509. Without specific objections, “[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court perform identical tasks. This duplication of
time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes
of the Magistrate's Act.” Id.

“‘[O]bjections disput[ing] the correctness of the magistrate's

recommendation but fail[ing] to specify the findings [the objector] believed were in error” are too
summary in nature. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
III.

ANALYSIS
In his July 3, 2013 Report and Recommendation, Magistrate Judge Komives recommended

that the Court grant Defendant Kusey’s motion for summary judgment because his involvement was
limited to grievance review and grant Defendants Spaulding and Purves’s motion for summary
judgment on Plaintiff’s individual capacity claims against them based upon qualified immunity. The
Magistrate Judge also recommended that the Court deny summary judgment on Plaintiff’s official

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capacity claims for declaratory and/or injunctive relief.
Plaintiff does not object to that portion of the Report and Recommendation that recommends
dismissing the claims for injunctive and/or declaratory relief. The Court concludes that these claims
are, in any event, addressed both by Judge Quist’s rulings in Heard and by the fact that the 2013
Ramadan holy month has concluded, rendering these claims moot. It is clear from Judge Quist’s
ruling that going forward the MDOC must provide observant Muslims with a minimum of 2,350
calories per day during their observance of the holy month of Ramadan.1
Plaintiff’s sole objection is to the Magistrate Judge’s conclusion that the Defendants are
entitled to qualified immunity on Plaintiff’s claims against them in their individual capacities for
monetary damages. The Court, having reviewed the Objections and considered the matter de novo,
concludes that Magistrate Judge Komives correctly concluded that providing Plaintiff with 1,200
to 1,300 calories per day during the month of Ramadan substantially infringed Plaintiff’s First
Amendment right to freely exercise his religion. Further, the Magistrate Judge correctly concluded
that it was not clearly established prior to the 2011 Ramadan holy month that a prisoner fasting for
Ramadan was entitled to the exact same number of calories per day as prisoners in the general
population. In deciding whether the right asserted was “clearly established” at the time of the
alleged constitutional violation, the court must focus on whether then existing published decisions
of the Supreme Court or the Sixth Circuit made the unlawfulness of the conduct apparent to a
reasonable officer in the position of the defendants. In conducting the clearly established inquiry,

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This conclusion also addresses Defendants’ sole objection to the Report and Recommendation,
i.e. that the Court should reject as moot Magistrate Judge Komives’s recommendation that the claim
for injunctive relief should continue against Defendants Purves and Spaulding in their official
capacities. (ECF No. 28, Defs.’ Objs. 1-2.)
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“the district court must find binding precedent by the Supreme Court, [the Sixth Circuit], the highest
court in the
state in which the action arose, or itself, so holding.” Wayne v. Village of Sebring, 36 F.3d 517,
531 (6th Cir. 1994). The burden to prove that a right was clearly established rests squarely on the
plaintiff. Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (“The burden of convincing a court
that the law was clearly established rests squarely with the plaintiff.”)
However, Plaintiff argues in his Objections that it was clearly recognized in 2011 that
inmates are entitled to “adequate nutrition,” relying on Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.
2010) (quoting Alexander v. Carrick, 31 F. App’x 176, 179 (6th Cir. 2002) (“If the prisoner’s diet,
as modified [to accommodate religious beliefs], is sufficient to sustain the prisoner in good health,
no constitutional right has been violated.”)). (ECF No. 29, Pl.’s Objs. 1.) Plaintiff points to no law
in the Sixth Circuit or the Supreme Court clearly establishing that a daily intake of fewer 2,600
calories per day necessarily would adversely affect the health of a Muslim prisoner fasting during
the month of Ramadan. However, in Cunningham v. Jones, 567 F.2d 653, 657 (6th Cir. 1977), it
was established that at a constitutional minimum, prisoners must be provided enough caloric intake
to maintain their health, and that “sedentary men on the average need 2000 calories or more to
maintain continued health.”
Viewing the facts in the light most favorable to the Plaintiff, during the Ramadan month in
2011, Plaintiff was provided approximately 1,200 to 1,300 calories per day for the entire month long
fast. As Judge Quist recently concluded in Heard, “Plaintiffs had a clearly established right to an
adequate diet during Ramadan [in 2011 and 2012], and a reasonable prison official should have
known that a diet consisting of only 1,000 to 1,500 calories per day - 20 to 25 percent less than the

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low end of the range found to be sufficient in Cunningham - is not adequate to sustain normal health,
especially for the thirty-day duration of the Ramadan fast.” Heard, 2014 WL 1347432, at *4.
Thus, while the Court does not disagree with Magistrate Judge Komives’s conclusion that
the law was not clearly established that a prisoner fasting for Ramadan was entitled to the exact
number of calories as the general population, here 2,600 calories, Plaintiff’s claim, liberally
construed, is somewhat different. Plaintiff claims that he was entitled to “nutritionally adequate
food.” (See ECF No. 29, Pl.’s Objs. 1-2; Compl. ¶ 3, asserting that “the ramadan daily meals were
inadequate.”) This Court agrees with Judge Quist that a reasonable prison official should have
known in 2011, that a diet consisting of 1,200 to 1,300 calories per day served for thirty consecutive
days was not sufficient to maintain the health of an average inmate and thus constitutionally
inadequate. Accordingly, Defendants Purves and Spaulding are not entitled to qualified immunity
on Plaintiff’s claim for damages against them in their individual capacities.2

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Plaintiff also objects to Magistrate Judge Komives’s conclusion that Defendant Kusey is entitled
to qualified immunity for his alleged involvement in the denial of an adequately nutritious menu
during the 2012 Ramadan. Plaintiff concedes that Kusey’s role in the alleged 2011 Ramadan
violation involved only the denial of Plaintiff’s grievance and thus that Kusey is entitled to summary
judgment as to the 2011 Ramadan claims. Plaintiff asserts, however, that in 2012 Kusey was
promoted from a food steward to a Food Service Director and therefore occupied a position in regard
to the 2012 Ramadan that differs from his role in 2011. (ECF No. 29, Pl.’s Objs. 2-3.)
Importantly, Plaintiff sought (ECF No. 15, Motion to Supplement Pleading) and was denied
(ECF No. 27, Order Denying Without Prejudice Plaintiff’s Motion to Supplement Pleading)
permission to file an amended complaint in this case to add claims relating to the 2012 Ramadan diet
and to add a party. While the supplemental facts offered by Plaintiff in his Motion to Supplement
do contain allegations regarding “FSD Kusey,” and his refusal to address Plaintiff’s allegations, no
supplemental pleading has been accepted for filing with the Court. The Court thus confines its
ruling to the claims of Plaintiff’s original Complaint, which relate only to the 2011 Ramadan diet,
as to which Plaintiff concedes Kusey is entitled to summary judgment based upon his sole
involvement as a grievance responder. Accordingly the Court ADOPTS the Magistrate Judge’s
recommendation that Kusey be granted summary judgment with respect to Plaintiff’s claims relating
to the 2011 Ramadan diet.
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IV.

CONCLUSION
Having reviewed de novo those portions of the Report and Recommendation to which

objections have been filed, the Court ADOPTS IN PART AND REJECTS IN PART the Report and
Recommendation (ECF No. 25), and GRANTS IN PART AND DENIES IN PART Defendants’
Motion for Summary Judgment (ECF No. 11). Plaintiff’s claims relating to the 2011 Ramadan diet
plan against Defendants Purves and Spaulding in their individual capacities survive summary
judgment.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 17, 2014
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on July 17, 2014.

s/Deborah Tofil
Case Manager

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