Arnold et al v. Heyns et al

Filing 159

OPINION and ORDER Granting Plaintiffs' 125 Rule 54(b) Motion. 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 GRANTING PLAINTIFFS’ RULE 54(b) MOTION
This matter presently is before the Court on Plaintiffs’ motion seeking
reinstatement of their claim that Defendant’s provision of a vegan diet in lieu of a
kosher diet imposes a substantial burden on Plaintiff’s sincere religious beliefs that
they must eat meat on the Sabbath and Jewish holidays and dairy on Shavuot.
Background
Plaintiffs are Orthodox Jewish prisoners, currently incarcerated at MDOC’s
Macomb Correctional facility. (ECF No. 143.) Based on their religious beliefs,
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 only specified facilities.
In their initial complaint, filed pro se, Plaintiffs alleged inter alia that the
vegan diet violated their First Amendment rights and their rights under the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc-1, because their sincere religious beliefs require them to consume meat
and dairy products. (See, e.g., ECF No. 1 at Pg ID 10, 13.) Plaintiffs further
alleged that even if the vegan meals could be considered kosher, they are rendered
non-kosher by how MDOC washes its trays and utensils. (Id. at Pg ID 13.)
Defendant filed a motion seeking dismissal of Plaintiffs’ RLUIPA and First
Amendment claims, contending that Plaintiffs failed to allege a “substantial
burden” on religious exercise. (ECF No. 14.)
Magistrate Judge Mona Majzoub, to whom this case initially was assigned
for all pretrial matters, issued a Report and Recommendation with respect to
Defendant’s motion on March 4, 2014. (ECF No. 16.) In the R&R, Magistrate
Judge Majzoub recommended that the Court dismiss Plaintiffs’ claims related to
the manner in which MDOC washes its trays and utensils (referred to as Plaintiffs’
“cross-contamination claims”), finding that Plaintiffs’ complaint contained only
threadbare assertions and no factual allegations regarding how MDOC’s washing
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procedures are improper. (Id. at Pg ID 290.) With respect to Plaintiffs’ meat and
dairy consumption claims, Magistrate Judge Majzoub recommended that the Court
deny Defendant’s motion to dismiss because Plaintiffs adequately alleged in their
verified complaint and in attached affidavits that their religious beliefs required
them to eat meat. (Id. at Pg ID 291-92.) Magistrate Judge Majzoub pointed out
that the question of whether a religious belief is entitled to protection under the
First Amendment or RLUIPA is not an objective inquiry. (Id. at 291, citing Colvin
v. Caruso, 505 F.3d 282, 298 (6th Cir. 2010).)
In an opinion and order filed June 24, 2014, this Court adopted in part and
rejected in part the recommendations in Magistrate Judge Majzoub’s R&R. (ECF
No. 28.) Based on Plaintiffs’ objections to the R&R, which included additional
facts they could allege in support of their cross-contamination claims, the Court
denied Defendant’s motion to dismiss those claims. (Id. at 509.) The Court agreed
with Magistrate Judge Majzoub that Plaintiffs’ meat and dairy consumptions
claims should not be dismissed.
On March 18, 2015, Defendant filed a motion for summary judgment with
respect to Plaintiffs’ meat and dairy consumption claims, arguing that Plaintiffs’
assertion that their religious beliefs required them to eat meat and dairy was not
sincere. (ECF No. 65.) In support of her motion, Defendant attached an affidavit
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from David Leach, MDOC’s Special Activities Coordinator. (ECF No. 65-6.)
Defendant also relied on several cases where courts refused to order corrections
officials to provide prisoners with a particular religious diet, including McKenzie v.
Michigan Department of Corrections, No. 2:13-cv-291, 2013 WL 5963115 (W.D.
Mich. Nov. 8, 2013) (unpublished).
In McKenzie, the district court concluded that the plaintiffs “fail[ed] to show
that the consumption of meat and dairy is sufficiently significant to an adherent of
the Jewish faith” and thus that their rights were violated by MDOC’s vegan diet .
Id. at *4. In their complaint, the McKenzie plaintiffs cited passages from the Bible
in support of their claim, but the court found that those passages only spoke to
which animals and dairy may be consumed. Id. The court found nothing in the
passages requiring the consumption of meat or dairy. Id.
In his affidavit submitted in support of Defendant’s summary judgment
motion, Mr. Leach indicated that one of his responsibilities is to evaluate prisoner
requests for religious diets and to chair the Chaplains’ Advisory Council, which is
comprised of representatives of various faiths and denominations and serves in an
advisory capacity to the MDOC regarding religious policies and programming.
(Id. ¶¶ 4, 5.) Mr. Leach stated:

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I am personally familiar with Kosher dietary restrictions of the
Orthodox Jewish faith and have also discussed this issue with the
Rabbi sitting on the CAC. Based on my personal knowledge and
information provided by the CAC Rabbi, meat is not required to be
consumed to meet Kosher dietary restrictions of the Orthodox faith
and it is entirely consistent with Kosher dietary restrictions to
consume a vegan diet.
(Id. ¶ 6.)
On December 21, 2016, Magistrate Judge Majzoub issued an R&R
recommending that this Court grant summary judgment to Defendant on Plaintiffs’
meat and dairy consumption claims. (ECF No. 96.) Magistrate Judge Majzoub
substantially relied on the Sixth Circuit’s affirmance of the district court’s decision
in McKenzie, which was issued after Defendant filed her summary judgment
motion. (Id. at Pg ID 1262-64, citing McKenzie v. Mich. Dep’t of Corr., No. 141112, 2015 U.S. App. LEXIS 23209 (6th Cir. July 15, 2015) (unpublished).) The
Sixth Circuit upheld the dismissal of the plaintiffs’ complaint in McKenzie,
agreeing with the district court that the plaintiffs failed to sufficiently allege that
their sincerely held religious beliefs required them to consume meat and dairy.
McKenzie, 2015 U.S. App. LEXIS 23209, at *4-5. Although Plaintiffs in the
current matter relied on a different Bible passage than the McKenzie plaintiffs,
Magistrate Judge Majzoub found nothing in the passage to compel the eating of
meat. (ECF No. 96 at Pg ID 1263.) Magistrate Judge Majzoub also relied on Mr.
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Leach’s assertion that meat consumption is not required to comply with kosher
dietary restrictions of the Orthodox Jewish faith. (Id.)
This Court adopted Magistrate Judge Majzoub’s R&R on January 20, 2017,
and granted summary judgment to Defendant on Plaintiff’s meat and dairy
consumption claim. (ECF No. 99.)
Plaintiffs filed a motion pursuant to Federal Rule of Civil Procedure 54(b)
on December 18, 2017, asking the Court to reinstate their meat and dairy
consumption claims. (ECF No. 125.) Defendant filed a response to the motion on
January 17, 2018 (ECF No. 137),1 and Plaintiffs filed a reply brief on January 20,
2018. (ECF No. 138.) With the resolution of other issues in the interim—
including Defendant’s request to dismiss the action on mootness grounds—the
Court is now ready to rule on Plaintiffs’ motion.
Rule 54(b) Standard
Rule 54(b) of the Federal Rules of Civil Procedure provides in relevant part:
[A]ny order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may be revised

Although untimely filed, the Court is considering Defendant’s response.
Defendant provides good cause for the late filing, in that she initially construed
Plaintiffs’ motion as one for reconsideration to which no response is allowed
unless requested by the Court. See E.D. Mich. LR 7.1(h)(2).
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at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.
Under Sixth Circuit precedent, Rule 54(b) is the proper vehicle for seeking
reconsideration of interlocutory orders and reopening any part of a case before
entry of final judgment. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89
F. App’x 949, 959 (6th Cir. 2004). The Sixth Circuit has stated that “‘courts will
find justification for reconsidering interlocutory orders where there is (1) an
intervening change of controlling law; (2) new evidence available; or (3) a need to
correct a clear error or prevent manifest injustice.’” Louisville/Jefferson Cty.
Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009) (quoting
Rodriguez, 89 F. App’x at 959); see also Luna v. Bell, 887 F.3d 290, 297 (6th Cir.
2018).
Applicable Law & Analysis
“RLUIPA … applies to prisons that receive federal funds and prohibits state
and local governments from placing a ‘substantial burden’ on the ‘religious
exercise’ of any inmate unless they establish that the burden furthers a ‘compelling
governmental interest’ and does so in the ‘least restrictive’ way.” Haight v.
Thompson, 763 F.3d 554, 559-60 (6th Cir. 2014) (quoting 42 U.S.C. § 2000cc1(a)). As the Sixth Circuit has pointed out, “[t]he Act defines ‘religious exercise’
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broadly as ‘any exercise of religion, whether or not compelled by, or central to, a
system of religious beliefs.’” Id. at 564 (quoting 42 U.S.C. § 2000cc-5(7)(A))
(emphasis added in Haight).
When deciding whether a plaintiff has alleged a protected religious exercise,
“the court’s function is to ensure that the claim is based on a sincere religious
belief.” New Doe Child #1 v. Congress of the United States, 891 F.3d 578, 586
(6th Cir. 2018) (citing Burwell v. Hobby Lobby, -- U.S. --, 134 S. Ct. 2751, 2779
(2014));2 see also Haight, 763 F.3d at 565 (“Just as a ‘substantial burden’ on a
religious practice is a threshold requirement under RLUIPA, so a sincerely held
religious belief is a threshold requirement under the law.”). As the Sixth Circuit
stated in Haight, “nothing in RLUIPA bars a prison from ‘questioning whether a
prisoner’s religiosity, asserted as the basis for a requested accommodation, is
authentic.’” 763 F.3d at 565 (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n.13
(2005)) (brackets omitted).

New Doe Child #1 and Hobby Lobby involved claims under the Religious
Freedom Restoration Act (“RFRA”), rather than RLUIPA. However, they are
“sister statutes,” which mirror one another, “and the same standards apply to each.”
New Doe Child #1, 891 F.3d at 587 n.2.
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The court’s function is “‘to determine whether the line drawn’ by the
plaintiff between conduct consistent and inconsistent with her or his religious
beliefs ‘reflects an honest conviction.’” New Doe Child #1, 891 F.3d at 586
(quoting Hobby Lobby, 134 S. Ct. at 2779) (additional citations omitted). As the
Sixth Circuit further advised:
Sincerity is distinct from reasonableness. Hobby Lobby teaches
that once plaintiffs allege that certain conduct violates their sincerely
held religious beliefs as they understand them, it is not within the
court’s purview to question the reasonableness of those allegations.
Id. at 2777-78. Nor is it the court’s role “to say that their religious
beliefs are mistaken or insubstantial.” Id. at 2779. Accordingly, even
if they must evaluate the substantiality of the burden, courts do not
ask whether the particular exercise of religion is a substantial part of
the plaintiff’s faith. See Haight v. Thompson, 763 F.3d 554, 566 (6th
Cir. 2014) (courts are not “to inquire into the centrality to a faith of
certain religious practices—dignifying some, disapproving others”).
But the first RFRA element is not unlimited. In addition to
being sincere, plaintiffs must allege that the conduct at issue is based
on a religious belief, not merely a personal, non-religious belief. See
Holt v. Hobbs, -- U.S. --, 135 S. Ct. 853, 862, 190 L.Ed.2d 747 (2015)
(a challenge “must be sincerely based on a religious belief and not
some other motivation”); Gen. Conference Corp. of Seventh-Day
Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010) (a RFRA
claim must be based on “a religious belief rather than a philosophy or
way of life” (citation omitted)).
New Doe Child #1, 891 F.3d at 586-87 (footnote omitted).
A court evaluating the sincerity of a plaintiff’s asserted religious beliefs also
must bear in mind the Supreme Court’s statement that “the protection of RLUIPA,
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no less than the guarantee of the Free Exercise Clause, is ‘not limited to beliefs
which are shared by all of the members of a religious sect.’” Holt, 135 S. Ct. at
862-63 (quoting Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707,
715-16 (1981)). As the Sixth Circuit similarly advised: “The substantial-burden
question turns on the impact of a government regulation on the individual inmate,
not the centrality of those beliefs to canonical texts as interpreted by judges or
prison officials.” Haight, 763 F.3d at 567 (emphasis in original) (citing Cutter,
544 U.S. at 725 n.13; Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004)).
The above guidance leads this Court to conclude that it clearly erred in
dismissing Plaintiffs’ meat and dairy consumption claims. Alternatively, new
evidence supports the reinstatement of those claims. The record now shows that
Plaintiffs’ sincerely held religious beliefs require them to consume kosher meat on
the Sabbath and other Jewish holidays and dairy products on Shavuot. It does not
matter that Mr. Leach understands or interprets kosher dietary restrictions
differently. See Holt, 135 S. Ct. at 862-63. Substituting a kosher diet with a vegan
meal plan effectively bars Plaintiffs from their sincere faith-based conduct. See
Haight, 763 F.3d at 565 (concluding that the prison’s refusal to provide certain
traditional foods (corn pemmican and buffalo meat) “effectively bars” Native
American inmates from engaging in religious practice and “forces them to modify
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their behavior by performing less-than-complete powwows with less-thancomplete meals.”) (internal quotation marks and brackets omitted). Defendant
nevertheless argues that there is ample support for the Court’s prior decision to
dismiss Plaintiffs’ meat and dairy consumption claim and that the claim, therefore,
should not be reinstated.
The cases Defendant cites, however, are distinguishable from the present
matter. Unlike the inmates in McKenzie, Plaintiffs present evidence to support the
sincerity of their asserted religious belief that meat and dairy products must be
consumed on specified occasions. The plaintiff in Spight v. Davidson, No. 3:14mc-0793, 2014 WL 2811829 (M.D. Tenn. June 23, 2014) (unpublished), was a
Seventh Day Adventist who claimed that he followed a kosher diet as a matter of
religious conviction. Id. at *1. Yet, there is no indication in the district court’s
decision that the plaintiff alleged his religious beliefs required him to also consume
meat or dairy. As such, the court in Spight found no reason to conclude that the
vegetarian diet provided to the plaintiff violated his religious convictions. Id. at
*2.
The same reasoning supported the courts’ decisions in most of the other
cases cited by Defendant that a vegan diet did not infringe upon Muslim prisoners’
religious beliefs: Robinson v. Jackson, 615 F. App’x 310 (6th Cir. 2015)
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(unpublished); Watkins v. Shabazz, 180 F. App’x 773 (9th Cir. 2006)
(unpublished); Hudson v. Caruso, 748 F. Supp. 2d 721, 729 (W.D. Mich. 2010).
In each of these cases, the plaintiffs were Muslims who, in accordance with their
religious beliefs, restricted their diets to Halal foods. Robinson, 615 F. App’x 311;
Watkins, 180 F. App’x at 775; Hudson, 748 F. Supp. 2d at 723-24. While the
plaintiffs in Robinson and Hudson established that Halal rules prohibited them
from eating meat not slaughtered in accordance with Islamic law, pork, food
containing alcohol, and any food contaminated with pork or alcohol, they did not
allege that their religious beliefs required them to consume meat. Robinson, 615 F.
Appx’ at 311; Hudson, 748 F. Supp. 2d at 729-30. Although not explicitly set
forth in Watkins, the district court decision in the case reflects that the plaintiff also
was not claiming that his religious beliefs required him to eat meat. Instead, the
plaintiff only sought an order requiring the defendants to provide Halal meat or a
nutritionally adequate substitute. See Order, Watkins v. Shabazz, No. 02cv1499
(S.D. Cal. Dec. 1, 2004) (unpublished), ECF No. 63 at Pg ID 715.
Finding that the prison’s vegetarian or vegan meals contained no meat or
alcohol, the courts in Robinson and Hudson concluded that those meals did not
place a substantial burden on the plaintiffs’ religious beliefs. Robinson, 615 F.
App’x at 313-14; Hudson, 748 F. Supp. 2d at 729-30; see also Abdullah v. Fard,
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No. 97-3935, 1999 WL 98529, at * (6th Cir. Jan. 28, 1999) (unpublished) (same).
The Ninth Circuit affirmed the dismissal of the inmate’s meat consumption claims
in Watkins, finding no substantial burden on his religious rights, because prison
officials gave inmates the option of finding an outside religious organization to
provide Halal meat at a de minimis cost to the prison and at no cost to the inmate
or to eat the nutritionally equivalent meat substitute provided by the prison.
Watkins, 180 F. App’x at 775. Patel v United States Bureau of Prisons, 515 F.3d
807 (2008), another case cited by Defendant, also is distinguishable from the
present matter.
The inmate-plaintiff in Patel, a Muslim who followed a Halal diet, was
provided the choice of eating from the main line or a menu that offered a kosher
diet. Id. at 810. Kosher meat was served in the kosher line ten of the fourteen
dinner meals in a two-week schedule, and the plaintiff claimed he was precluded
from consuming this meat because his religious beliefs required him to only
consume meat slaughtered during a prayer to Allah. Id. 810-11. Inmates,
however, were also allowed to purchase halal entrees at the commissary. Id. at
811. Lacking evidence that it was cost prohibitive for the plaintiff to purchase
halal entrees when kosher meat was on the menu or that he had sought other
alternatives (e.g., self-selecting a vegetarian diet from the hot bar when kosher
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meat is served), the Ninth Circuit found no substantial burden on the inmate’s
exercise of his religious beliefs. Id. at 813-14. MDOC, in comparison, does not
offer Plaintiffs the option to purchase kosher meat or dairy and there are no other
apparent options for them to conform to their religious beliefs during the Sabbath,
Jewish holidays, or Shavuot.
Defendant is correct that under Sixth Circuit precedent, “if an inmate is
provided with food that does not violate his religious convictions and the diet
keeps the prisoner in good health then there cannot be a constitutional violation.”
(ECF No. 137 at Pg ID 1690, citing Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.
2010).) Nevertheless, the Sixth Circuit also has held that a prison imposes a
substantial burden on the religious exercise of inmates by denying them access to
food necessary to adhere to their religious beliefs. Haight, 763 F.3d at 564-65.
Just as the denial of buffalo meat and corn pemmican substantially burdened the
inmates’ religious exercise in Haight, Plaintiffs demonstrate that the denial of
kosher meat on the Sabbath and Jewish holidays and dairy on Shavuot infringes
their religious rights. Their meat and dairy consumption claims therefore should
be reinstated.
Accordingly,

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IT IS ORDERED that Plaintiffs’ Rule 54(b) motion is GRANTED and the
Court reinstates Plaintiffs’ meat and dairy consumption claims under RLUIPA and
the First Amendment.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 6, 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 6, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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