Conway v. Purves et al

Filing 85

OPINION and ORDER (1) Denying as Moot Plaintiff's Second 74 Emergency Motion for Temporary Restraining Order, Preliminary Injunction, and/or Permanent Injunction for the 2014 Ramadan Observance; and (2) Denying Request for an Order to Show Cause Whether Defendants Violated the Heard Order of Clarification During the 2013 Ramadan Observance. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES CONWAY, ANTONIO
HUDSON, JOSE RODRIGUEZ, and
JEFFREY BROWN,
Plaintiffs,
v.

Case No. 13-cv-10271
Honorable Linda V. Parker1

BRAD PURVES, DON SPAULDING,
GLEN KUSEY, LLOYD RAPELJE,
DANIEL H. HEYNS, DENNIS STRAUB,
MITCH PERRY, JEFFREY LARSON,
TOM BURKETT, CATHERINE S. BAUMAN,
RICC RICCIARDI, and UNIDENTIFIED
DEFENDANTS NOS. 1-3,
Defendants.
___________________________________/
OPINION AND ORDER (1) DENYING AS MOOT PLAINTIFFS’ SECOND
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND/OR PERMANENT INJUNCTION
FOR THE 2014 RAMADAN OBSERVANCE; AND (2) DENYING
REQUEST FOR AN ORDER TO SHOW CAUSE WHETHER
DEFENDANTS VIOLATED THE HEARD ORDER OF CLARIFICATION
DURING THE 2013 RAMADAN OBSERVANCE
This lawsuit challenges the nutritional adequacy of the meals provided to
Michigan Department of Corrections’ prisoners during the Islamic month of
Ramadan. Presently before the Court is Plaintiffs’ motion seeking injunctive relief

1

On May 28, 2013, the Honorable Patrick J. Duggan reassigned this matter
to the undersigned pursuant to Administrative Order 14-AO-030. (ECF No. 73.)

with respect to the meals provided to them during the 2014 Ramadan observance
and an order to show cause as to whether Defendants violated an order entered by
the Honorable Gordon J. Quist in Heard v. Finco, No. 1:13-cv-373 (W.D. Mich.
July 10, 2013). Plaintiffs filed the pending motion on June 24, 2014. (ECF No.
74.) The matter has been referred to Magistrate Judge Paul J. Komives for all
pretrial proceedings, including a hearing and determination of all non-dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation
(“R&R”) on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF
No. 11.) Defendants filed a response to the motion on July 15, 2014. (ECF No.
76.)
Prior to the filing of Defendants’ response, Magistrate Judge Komives issued
a R&R on July 3, 2014, in which he recommends that this Court grant Plaintiffs’
request for injunctive relief. (ECF No. 75 at 1, 8.) Magistrate Judge Komives
further recommends that the Court enter an order similar to that entered by Judge
Quist preceding his April 29, 2014 order in Heard finding the defendants in that
case in contempt. (Id. at 9-10.) At the conclusion of his R&R, Magistrate Judge
Komives advises the parties that they may object to and seek review of the R&R
within fourteen days of service upon them. (Id. at 10-11.) He further specifically
advises the parties that “[f]ailure to file specific objections constitutes a waiver of
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any further right to appeal.” (Id. at 10) Defendants filed objections to the R&R on
July 17, 2014. (ECF No. 79.)
Standard of Review
The parts of the R&R to which objections are made will be reviewed by the
Court de novo. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). The
Court must examine the relevant evidence previously reviewed by the magistrate
judge and decide whether the recommendation should be accepted, rejected, or
modified in whole or in part. 28 U.S.C. § 636(b)(1). The Court, however, “is not
required to articulate all of the reasons it rejects a party’s objections.” Thomas v.
Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) (citations omitted).
Procedural Background
Charles Conway (“Conway”), a Michigan Department of Corrections
(“MDOC”) prisoner, initiated this lawsuit, pro se, on January 22, 2013. Conway
named the following individuals as defendants in his Complaint: MDOC Central
Office Food Service Program Manager Brad Purves; MDOC Food Service Director
Don Spaulding; MDOC Food Service Worker Glenn Kusey; and Lloyd Rapelje,
Warden of the Saginaw Correctional Facility (“SRF”) where Conway was then
incarcerated. Along with his Complaint, Conway filed an application to proceed
without prepayment of fees which was granted on January 30, 2013. The initial
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partial filing fee paid was $3.11. (ECF No. 5.)
On April 3, 2013, Defendants Kusey, Purves, and Rapelje filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On April 5, 2013,
Defendant Spaulding filed a motion to dismiss adopting the arguments raised in the
earlier filed motion. In response to the motions to dismiss, and now with the
assistance of counsel, Conway and three additional MDOC inmates filed an
Amended Complaint on April 24, 2013.
The three plaintiffs added to the Amended Complaint are: Antonio Hudson
(subsequently paroled on May 6, 2014), Jose Rodriguez (subsequently paroled on
May 28, 2014), and Jeffrey Brown (previously an inmate at MDOC’s Alger
Correctional Facility, but subsequently transferred to its Chippewa Correctional
Facility) (hereafter collectively referred to, with Conway, as “Plaintiffs”).
Plaintiffs’ Amended Complaint named ten additional defendants: MDOC Director
Daniel H. Heyns; MDOC Correctional Facilities Administration Deputy Director
Dennis Straub; Tom Burkett, former Warden of MDOC’s Central Michigan
Correctional Facility (“STF”) (where Rodriguez was then housed); Mitch Perry,
Warden of MDOC’s Newberry Correctional Facility (where Hudson was then
housed); Jeffrey Larson, then the current STF Warden; Catherine S. Bauman,
Warden of MDOC’s Alger Correctional Facility (“LMF”) (where Brown was then
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housed); LMF Food Service Director Ricc Ricciardi; and three unidentified
defendants. The initially named defendants (i.e. Purves, Spaulding, Kusey, and
Rapelje) moved to strike the Amended Complaint on April 30, 2013.
On June 7, 2013, Magistrate Judge Komives granted in part the motion to
strike the amended complaint. (ECF No. 31.) Magistrate Judge Komives
concluded that the additionally named plaintiffs are proportionally liable for the
filing fee and thus must submit a proportional share of the fee or file applications
to proceed in forma pauperis. (Id. at 7.) Magistrate Judge Komives also concluded
that the Plaintiffs’ claim for monetary damages under the Religious Land Use and
Institutionalized Persons Act are not cognizable and must be dismissed. (Id. at 11.)
Accordingly, Magistrate Judge Komives struck the Amended Complaint, quashed
the summonses issued pursuant to that complaint, and directed Plaintiffs to file an
amended complaint consistent with his decision within fourteen days of the
decision or, if objections were filed, any order affirming the decision. (Id. at 13.)
Plaintiffs paid the full filing fee and subsequently filed a Second Amended
Complaint on June 20, 2013. (ECF Nos. 32, 34.) Before summonses issued for the
newly named defendants, Plaintiffs filed an emergency motion for injunctive relief.
In their motion, Plaintiffs sought a temporary, preliminary, and/or permanent
injunction “enjoining Defendants and all statewide facilities, prisons and
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institutions that Defendants have supervisory and/or operational controls over,
from denying Plaintiffs, and other Muslim inmates, participating in the [2013]
Ramadan fast, a balanced nutritional diet containing between 2600 and 2900
calories on any given day during Ramadan.” (See ECF No. 35 Ex. 1.)
Within days of Plaintiffs’ motion being fully briefed, Judge Quist entered his
decision on a motion for preliminary injunction in Heard– a similar action filed by
other MDOC inmates which is pending in the District Court for the Western
District of Michigan. Judge Quist initially entered an opinion and order on July 8,
2013, denying the plaintiffs’ request for injunctive relief. Op. and Order, Heard v.
Finco, No. 1:13-cv-373 (W.D. Mich.), ECF No. 21. Relying on an affidavit filed
by Purves (who is also named as a defendant in that case), Judge Quist found that
MDOC’s meal plan for Ramadan 2013 would provide observing inmates a daily
caloric content ranging from 2,350 to 2,594 calories. Id. at 4. Judge Quist also
found, based on Purves’ affidavit, “that a daily caloric intake of 2,350 to 2,594
calories will not pose a health risk to healthy, moderately active males.” Id. He
therefore concluded that the plaintiffs failed to show that they would likely suffer
irreparable harm absent injunctive relief. Id. at 5.
On July 10, 2013, however, Judge Quist entered an order “clarifying” his
earlier decision. Order of Clarification, Heard v. Finco, No. 1:13-cv-373 (W.D.
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Mich.), ECF No. 22. Judge Quist indicated in his clarifying order that after issuing
his previous decision, he received plaintiffs’ reply brief in which the plaintiffs state
that the MDOC facility where they are located has elected a meal option that in fact
provides only approximately 1,149.2 calories per day. Id. at 2. Judge Quist found
support for the plaintiffs’ assertion in the 2013 Ramadan Bagged Meal Menu they
submitted, and ordered that his July 8, 2013 decision is “clarified to provide that
Defendants shall provide Plaintiffs at least 2,350 calories per day during the 2013
Ramadan observance, in accordance with Defendants’ prior representations to this
Court.” Id. at 3.
In a report and recommendation issued on July 18, 2013, Magistrate Judge
Komives concluded that Judge Quist’s decision provided Plaintiffs in this case
with the injunctive relief they sought. To the extent this Court disagreed, he
recommended that Plaintiffs’ request for an injunction be granted. Judge Duggan,
however, rejected Magistrate Judge Komives’ recommendations in an opinion and
order issued August 9, 2013, because Ramadan 2013 had ended before the matter
was ripe for Judge Duggan’s review. (ECF No. 52.) Therefore, Judge Duggan
denied Plaintiffs’ motion for injunctive relief as moot. (Id.) Judge Duggan noted in
his decision that Plaintiffs had waited too long before filing their motion to allow
sufficient time for the Court to rule on their request. (Id. at 9 n.2.)
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Nevertheless, four days before Ramadan 2014 was set to begin, Plaintiffs
filed a second motion for injunctive relief, seeking an order requiring Defendants
to comply with MDOC “rules, regulations, and past representations” and provide a
daily Ramadan diet containing between 2,350 and 2,594 calories. (ECF No. 74 at
Pg ID 762.) In their motion, filed June 24, 2014, Plaintiffs also ask the Court to
hold Defendants in contempt for failing to provide an adequate diet during
Ramadan 2013 in accordance with the order entered by Judge Quist in Heard on
July 10, 2013. (Id.)
As set forth previously, before the deadline for Defendants to respond to
Plaintiffs’ motion expired, Magistrate Judge Komives issued his R&R
recommending that this Court grant Plaintiffs’ request for injunctive relief and
enter an order requiring Defendants to show cause why they should not be held in
contempt for providing meals to Plaintiffs during Ramadan 2013 which provided
less than 2,350 calories per day. Defendants filed objections to the R&R on July
15, 2014.
Defendants’ Objections
Defendants raise several objections to Magistrate Judge Komives’ July 3,
2014 R&R. First, they argue that Plaintiffs’ request for permanent injunctive relief
is premature as there has been no final judgment entered after a full adjudication of
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the merits of Plaintiffs’ claims. Second, they argue that Plaintiffs’ motion for
injunctive relief was rendered moot by the following: (1) MDOC’s 2014 Ramadan
meal plan provided for sufficient calories; (2) two plaintiffs were paroled before
Ramadan 2014; (3) two defendants are retired; (4) three defendants are sued only
in their “individual” capacities; (5) the two remaining Plaintiffs have been
transferred to a new prison; and (6) retrospective injunctive relief for Ramadan
2013 is precluded. Next, Defendants contend that any evidentiary hearing must be
conducted before a district judge. Defendants also argue that Plaintiffs’ motion is
not supported by evidence, noting that Plaintiffs’ complaint is unverified. Finally,
Defendants contend that the magistrate judge has violated their constitutional
rights by adjudicating Plaintiffs’ motion without allowing them the opportunity to
respond and by relying on facts from a different case involving different plaintiffs,
prisons, prison staff, defendants, and claims.
Analysis
At this time, the Court finds it unnecessary to address most of Defendants’
objections to the R&R and Plaintiffs’ lawsuit. This is because, for the reasons set
forth in Judge Duggan’s August 9, 2013 decision denying Plaintiffs’ first motion
for injunctive relief, Plaintiffs’ pending motion also must be denied as moot.
Plaintiffs knew when Ramadan 2014 began. Yet they waited until four days before
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its beginning to file their current motion. Defendants, by rule, had twenty-one
days to respond to the motion. Once the magistrate judge issued a report and
recommendation, the parties had fourteen days to file objections. With Ramadan
lasting one month, a considered final decision could not be made before the issue
presented in Plaintiffs’ motion became moot.2 And thus Plaintiffs’ motion became
moot when Ramadan 2014 ended on July 27, 2014.
There was never an order entered in this case requiring Defendants to
provide Plaintiffs a nutritional diet containing prescribed calories during Ramadan
2013. In other words, no order has been entered in the present matter requiring
Defendants to comply with Judge Quist’s July 10, 2013 Order of Clarification or
otherwise provide a 2013 Ramadan menu containing prescribed calories. As such,
Defendants cannot be held in contempt for their conduct as it related to last year’s
Ramadan, as Plaintiffs now request. The Court sees no reason at this juncture to
analyze whether Defendants provided Plaintiffs insufficient calories during

2

Magistrate Judge Komives certainly could have issued an expedited briefing
schedule, as he did in response to Plaintiff’s first motion seeking injunctive relief.
However, as the adjudication of Plaintiffs’ first motion demonstrated, even an
abbreviated schedule did not allow for a consideration of the issue before it became
moot. Furthermore, judges do not welcome the filing of an “emergency” motion
which demands a shortened briefing schedule and opportunity for careful
consideration where the movant was aware of the issue and need for the motion
well before it eventually was filed.
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Ramadan 2013. Therefore, this Court rejects Magistrate Judge Komives’
recommendation that it require Defendants to respond to Plaintiffs’ request that
they show cause in a manner similar to that which preceded Judge Quist’s April
29, 2014 order in Heard finding the defendants in that case in contempt.
Accordingly,
IT IS ORDERED that Plaintiffs’ Second Emergency Motion for a
Temporary Restraining Order, Preliminary Injunction and/or Permanent Injunction
for the 2014 Ramadan Observance is DENIED AS MOOT and for an Order to
Show Cause Whether Defendants Violated the Heard Order of Clarification
During the 2013 Ramadan Observance (ECF No. 35) is DENIED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 30, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 30, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager

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