Arnold et al v. Heyns et al

Filing 158

OPINION and ORDER Denying Defendant's 127 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GERALD ACKERMAN and
MARK SHAYKIN,
Plaintiffs,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON,
Defendant.
________________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
This lawsuit involves Jewish Michigan Department of Corrections
(“MDOC”) inmates who are approved to receive a kosher diet. At issue at this
juncture is whether those individuals are provided food not prepared or served in a
kosher manner.1 Plaintiffs allege that this conduct violates putative class members’
First Amendment rights and their rights under the Religious Land Use and

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Initially, the lawsuit also challenged the failure of MDOC to provide meat and dairy
products to inmates requiring a kosher diet when it switched to a vegan diet for all
inmates approved for religious meals. That claim previously was dismissed (see ECF
Nos. 96, 99), although Plaintiffs have filed a motion asking the Court to reverse its
previous ruling and reinstate their claim that meat consumption on Jewish religious
holidays and Shavuot is part of their sincere religious beliefs. (See ECF No. 125.) The
Court has not ruled on the motion and will do so in a separate decision.

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. They seek
declaratory and injunctive relief. The matter is presently before the Court on
Defendant’s summary judgment motion. The motion has been fully briefed.
Finding the facts and legal arguments sufficiently presented in the parties’ briefs,
the Court is dispensing with oral argument pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2).
I.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby,
477 U.S. at 255.
II.

Factual Background
Plaintiffs are Orthodox Jewish prisoners, currently incarcerated at MDOC’s

Macomb Correctional facility. (ECF No. 143.) Based on their religious beliefs,
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Plaintiffs maintain a kosher diet. MDOC has approved Plaintiffs to receive a
kosher diet.
In 2013, MDOC decided to substitute vegan meals for the various religious
diets (e.g., kosher, Halal) provided to inmates. Vegan meals contain no meat or
dairy items. MDOC offers a vegan menu to meet the religious dietary needs of its
prisoners at specified facilities.
An “MDOC Vegan Religious Meal Manual”, dated April 21, 2017, sets
forth the requirements for MDOC food service employees to prepare and service
vegan meals. (Def.’s Mot., Ex. B, ECF No. 127-3.) According to the manual,
food service employees providing vegan means must be trained in vegan meal
procedures and must sign and date a form acknowledging their training. (Id. at 2,
Pg ID 1511.) The manual describes such things as how vegan food should be
stored, the trays, utensils, appliances, and cookware to be used only for vegan
meals, how the trays, utensils, and cookware should be cleaned and stored, and
how vegan meals should be served. (Id. at 3-6, Pg ID 1512-1515.) The manual
explains that food and items used for vegan meals may not come in contact with
those used for non-vegan meals. (Id.)

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In the facilities where vegan meals are served, MDOC maintains separate
kitchens, sinks, hot boxes, and utensils for vegan and non-vegan meals. Defendant
attaches photographs to her motion purportedly showing the vegan areas and items,
including locked cabinets for vegan knives and utensils. (Def.’s Mot., Exs. E-J.)
Plaintiffs allege that vegan meals are not, in practice, prepared in a kosher
manner and that there is cross-contamination between kosher and non-kosher food
products, cooking, and serving utensils. Plaintiffs point out that Defendant
presents no forms signed by food service employees verifying completion of vegan
meal training. According to Rabbi Elisha Rubin, who visited the Macomb
Correctional Facility on September 17, 2014, there are “a number of kosher issues”
at the facility, which he believes “do[] not meet kosher requirements.” (ECF No.
113-2.) In an email to Melody Wallace at MDOC, dated October 1, 2014, Rabbi
Rubin outlines several issues rendering the meals not kosher, including the fact that
not all ingredients used are certified kosher, proper washing methods are not used
to make sure vegetables are insect free, and certain food items (e.g. potatoes and
rice) are not being cooked in accordance with Jewish law. (Id.) In the email,
Rabbi Rubin makes suggestions to fix these deficiencies. (Id.) However,
Defendant indicates in her November 15, 2017 response to Plaintiffs’ discovery
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requests that MDOC has not implemented any of those recommendations. (Pls.’
Resp., Ex. 2, ECF No. 132-3.)
Rabbi Doniel Neustadt, Chairman of the Council of Orthodox Rabbis,
visited the Macomb Correctional facility to observe the kosher food program on
November 20, 2017. (Id., Ex. 1, ECF No. 132-2.) Although finding “a sincere
effort on the part of the prison authorities to do the best they can to serve kosher
food[]”, Rabbi Neustadt indicates that “from the perspective of Jewish law, the
food cooked or baked in the facility cannot be certified as kosher, and given a
choice, no observant Jew would eat the food prepared from that kitchen.” (Id. at 1,
Pg ID 1601.) Rabbi Neustadt lists four specific issues with the program that
prevent the food from being certified as kosher: (1) the lack of a process to verify
that only kosher items are used, where kosher and non-kosher items are stored in
the same area); (2) the lack of a process to verify that only kosher kitchen
equipment is used; (3) not using a rigorous washing and checking procedure to
render leafy vegetables insect free; and (4) not having an observant Jew involved
in the cooking process for those foods (e.g. potatoes and rice) requiring it. (Id. at
1-3, Pg ID 1601-03.)

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III.

Discussion
A.

Initial Matters

The Court makes two observations before analyzing whether Defendant is
entitled to summary judgment on the claims before the Court. First, Plaintiffs
contend that Defendant waived any argument concerning their First Amendment
claim. The Court does not agree. The first issue stated in Defendant’s statement of
the issues presented is whether the Court should grant Plaintiffs’ request for
injunctive relief under RLUIPA and the First Amendment. (Def.’s Mot. at i, ECF
No. 127 at Pg ID 1482; see also id. at 3, Pg ID 1485.) Moreover, Defendant relies
on cases addressing First Amendment claims. (Id. at 7, 9, Pg ID 1489, 1491.)
Second, Defendant includes in her summary judgment motion a section
addressing Plaintiffs’ entitlement to a diet that includes dairy and meat. (See
Def.’s Br. in Supp. of Mot. at 10-13, Pg ID 127 at Pg ID 1492-94.) Defendant
indicates that she addresses the issue because Plaintiffs, in their amended
complaint, continue to assert that their religious beliefs require them to consume
meat and dairy, even though the Court previously dismissed their claim with
respect to the content of religious meals. The Court will not address the arguments

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raised by Defendant regarding the meat/dairy consumption issue here because, as
Defendant correctly asserts, that claim previously was dismissed.
B.

Applicable Law

Section 3 of RLUIPA provides in part: “No government shall impose a
substantial burden on the religious exercise of a person residing in or confined to
an institution,” unless the burden furthers “a compelling governmental interest,”
and does so by “the least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2).
“Religious exercise” is defined to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7)(A).
An action “will be classified as a substantial burden when that action forced an
individual to choose between ‘following the precepts of her religion and forfeiting
benefits’ or when the action in question placed ‘substantial pressure on an adherent
to modify his behavior and to violate his beliefs.’” Barhite v. Caruso, 377 F.
App’x 508, 511 (6th Cir. 2010) (quoting Living Water Church of God v. Charter
Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007)).
The First Amendment Free Exercise Clause, made applicable to the states
through the Fourteenth Amendment, provides that “Congress shall make no law …
prohibiting the free exercise [of religion].” U.S. Const. amend. I. The Supreme
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Court has held that prisoners retain their First Amendment rights, see Pell v.
Procunier, 417 U.S. 817, 822 (1974), including the right to free exercise of
religion. See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). To demonstrate a
violation of their religious beliefs, Plaintiffs “must 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) (quoting Kent v. Johnson,
821 F.2d 1220, 1224 (6th Cir. 1987)).
As indicated, Plaintiffs seek declaratory and injunctive relief. To obtain a
permanent injunction, Plaintiffs must show:
that [they] have suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of
hardships between [ P]laintiff[s] and [D]efendant, a remedy in equity
is warranted; and (4) that the public interest would not be disserved by
a permanent injunction.
ebay, Inc. v. MercExchange, LLC, 547 U.S. 488, 391 (2006) (citations omitted).
C.

Analysis

Defendant does not dispute that Plaintiffs’ religious beliefs require them to
consume kosher foods. Defendant argues, however, that MDOC is providing
Plaintiffs with kosher meals and has measures in place to avoid cross9

contamination that would render the food non-kosher. According to Defendant,
requiring MDOC to do more would cause substantial harm to others. Specifically,
Defendant maintains that additional measures would be costly and over-burden
Michigan taxpayers. Defendant also cautions that courts must avoid involving
themselves in MDOC’s day-to-day operations.
Plaintiffs present evidence to create a genuine issue of material fact with
respect to whether MDOC is providing Plaintiffs with kosher meals. Despite
MDOC’s procedural safeguards to protect religious meals from cross
contamination, Rabbis Rubin and Neustadt identify several deficiencies in those
procedures that render the vegan diet non-kosher or that fail to guarantee that the
foods served are kosher. These deficiencies include the lack of proper washing
techniques for leafy vegetables, satisfaction of kosher cooking requirements for
certain foods (e.g., rice and potatoes), and safeguards to assure that all ingredients
used for vegan meals are certified kosher. A food preparation process that results
in the vegan meals being non-kosher places a substantial burden on Plaintiffs
because they are forbidden by their religious beliefs from consuming non-kosher
food. Thus, they are left with the choice of violating their religious beliefs or not
eating. See Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (“We have held
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that a prisoner’s religious dietary practice is substantially burdened when the
prison forces him to choose between his religious practice and adequate nutrition);
Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) (finding prison’s failure to
accommodate prisoner’s religious diet substantially burdensome and rejecting
prison’s suggestion that the prisoner could fast as an alternative to the prison’s
accommodation of the desired diet); McElyea v. Babbitt, 833 F.2d 196, 198 (9th
Cir. 1987) (“Inmates ... have the right to be provided with food sufficient to sustain
them in good health that satisfies the dietary laws of their religion.”); see also
Alexander v. Carrick, 31 F. App’x 176, 179 (6th Cir. 2002) (“prison administrators
must provide an adequate diet without violating the inmate’s religious dietary
restrictions.”).
Defendant asserts that forcing MDOC to go beyond what it already does to
prevent cross contamination will cause substantial harm to others, specifically
Michigan’s taxpayers. Defendant asserts that MDOC would be required “to
expend incredibly scarce resources to protect against cross contamination.” (Def.’s
Mot. at 8, ECF No. 128 at Pg ID 1490.) Defendant’s assertions are merely
conclusory, however. Defendant offers no specifics as to what additional
safeguards it might need to employ or how much those mechanisms would cost.
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Some of the changes suggested by Rabbis Rubin and Neustadt certainly do not
seem costly to adopt.
Finally, requiring MDOC to enact additional protections to avoid cross
contamination and to make sure inmates approved to receive kosher meals in fact
are provided such meals does not involve the Court in the day-to-day operations of
the prison system beyond what RUILPA and the First Amendment allow.
IV.

Conclusion
For the reasons set forth above, the Court finds genuine issues of material

fact precluding summary judgment in Defendant’s favor on Plaintiffs’ RUILPA
and First Amendment cross contamination claim.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment (ECF
No. 127) is DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 5, 2018
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 5, 2018, by electronic and/or
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U.S. First Class mail.
s/ R. Loury
Case Manager

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