Arnold et al v. Heyns et al

Filing 295

OPINION and ORDER Denying Defendant's 267 Motion for Stay Pending Appeal; and Denying as Moot Plaintiffs' 269 Motion to Strike. 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 STAY
PENDING APPEAL [ECF NO. 267] AND DENYING AS MOOT
PLAINTIFFS’ MOTION TO STRIKE [ECF NO. 269]
Plaintiffs filed this class action lawsuit on September 27, 2013, asserting that
the vegan diet they receive as Michigan Department of Corrections (“MDOC”)
prisoners approved for a religious (kosher) diet violates their First Amendment
rights and their rights under the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”). Plaintiffs claim that their sincere religious beliefs require them
to consume kosher meat and dairy on the Sabbath and four Jewish holidays (“meat
and dairy claim”) and that the vegan diet is not kosher due to cross-contamination
(“cross contamination claim”).
The parties settled Plaintiffs’ “cross-contamination claim” (Settlement
Agreement, ECF No. 213) and the Court entered a final order approving the

settlement on January 29, 2020. (Op. & Order, ECF No. 241.) Plaintiffs’ “meat
and dairy claim” proceeded to a trial before the Court. On January 30, 2020, the
Court entered a decision finding in favor of Plaintiffs and against Defendant on
that claim. (Bench Op., ECF No. 243.) A Judgment was entered February 27,
2020. (ECF No. 251.)
Defendant thereafter filed a notice of appeal (No. 264) and now seeks an
order staying the Court’s decision on the meat and dairy claim pending appeal.
(ECF No. 267.) If the Court declines to issue a stay pending appeal, Defendant
alternatively requests a sixty-day stay in light of the global novel coronavirus
(COVID-19) pandemic. In support of this latter request, Defendant offers the
affidavit of the director of MDOC’s Food Service Management and Support Team,
Kevin J. Weissenborn. (Aff., ECF No. 267-1.) Plaintiffs have filed an opposition
to Defendant’s motion (Resp., ECF No. 274), as well as a motion to strike Mr.
Weissenborn’s affidavit. (Mot., ECF No. 269.) Defendant subsequently filed a
notice withdrawing its request for a sixty-day stay (ECF No. 281), rendering Mr.
Weissenborn’s affidavit immaterial and therefore mooting Plaintiffs’ motion to
strike it.
Applicable Standard
The Sixth Circuit Court of Appeals has identified four factors that should be
considered when deciding whether a stay pending appeal should issue:
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1) the likelihood that the party seeking the stay will
prevail on the merits of the appeal; 2) the likelihood that
the moving party will be irreparably harmed absent a
stay; 3) the prospect that others will be harmed if the
court grants the stay; and 4) the public interest in
granting the stay.
Mich. Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150,
153 (6th Cir. 191). “These factors are not prerequisites that must be met, but are
interrelated considerations that must be balanced together.” Id. at 153.
Defendant’s Likelihood of Succeeding on the Merits on Appeal
With respect to this first factor, “ ‘[t]he probability of success that must be
demonstrated is inversely proportional to the amount of irreparable injury [the
movant] will suffer absent the stay.’ ” A. Philip Randolph Inst. v. Husted, 907 F.3d
913, 918 (6th Cir. 2018) (quoting Mich. Coalition, 945 F.2d at 153). Nevertheless,
the movant must always show “ ‘more than the mere ‘possibility’ of success on the
merits.’ ” Id. (quoting Mich. Coalition, 945 F.2d at 153) (quoting Mason Cty.
Med. Ass’n v. Knebel, 563 F.2d 256, 261 n.4 (6th Cir. 1977)). The movant always
is required to show, at the least, “ ‘serious questions going to the merits.’ ” Id.
(quoting Mich. Coalition, 945 F.2d at 154) (additional quotation marks and
citations omitted).
Defendant maintains that she is likely to prevail on appeal because the Court
failed to articulate the proper “substantial burden” standard, erred in finding that
Plaintiffs’ religious beliefs are substantially burdened, and failed to give due
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consideration to MDOC’s compelling interests “in the orderly administration of
inmate meals and the potential cost and logistical concerns associated with
modifications to its ‘universal’ vegan diet to accommodate all 28 of MDOC’s
recognized religions.” (Def.’s Br. in Supp. of Mot. at 5-6, ECF No. 267 at Pg ID
2761-62.)
First, Defendant faults the Court for relying solely upon the Supreme
Court’s decision in Holt v. Hobbs, 574 U.S. 352, 361 (2015), when defining a
substantial burden. Defendant argues that “[t]his is a very broad definition” and
that the Court failed to consider Sixth Circuit precedent. Defendant further
argues—as it did in its proposed conclusions of law following the bench trial—that
the Court should have utilized the substantial burden standard the Sixth Circuit
employs in RLUIPA land use cases.
Defendant will not likely convince the Sixth Circuit Court of Appeals that
this Court erred in its substantial burden analysis. The Court did quote Holt’s
substantial burden “definition” as one example of how a governmental action or
policy substantially burdens a plaintiff’s sincerely held religious beliefs. But the
Court also concluded that MDOC’s policy of serving a vegan diet “completely
precludes [Plaintiffs] from consuming kosher meat and dairy on the occasions
when their religion commands it[,]” and that the availability of kosher meat and
dairy items at the commissary store did not alleviate the burden. (Op. and Order at
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23, ECF No. 243 at Pg ID 2531.) This was consistent with Sixth Circuit precedent
cited elsewhere in the bench opinion. See, e.g., Haight v. Thompson, 763 F.3d 554,
565 (6th Cir. 2014) (explaining that prison officials place a substantial burden on a
prisoner’s sincerely held religious beliefs when they “place substantial burden on
an adherent to modify his behavior and to violate his beliefs” or “ ‘effectively bar’
his sincere faith-based conduct”) (internal citations omitted).
The Court maintains, for the reasons set forth in its bench opinion, that the
availability of kosher meat and dairy items through the commissary does not
alleviate the substantial burden on Class members. Even if Jones v. Carter, 915
F.3d 1147 (7th Cir. 2019), is distinguishable because the cost of purchasing
commissary items was higher there than for the Class here, Defendant has never
addressed Plaintiffs’ additional reasons for why commissary purchases do not
satisfy the dictates of their religious beliefs. For example, the uncontroverted
evidence is that prison policies prohibit inmates from bringing items purchased
from the commissary into the chow hall, yet Jewish law requires Plaintiffs to
consume meat and dairy items as part of their Sabbath or holiday meal. (10/4/19
Trial Tr. at 101, ECF No. 233 at Pg ID 2396.) Moreover, as the Seventh Circuit
reasoned in Jones, Supreme Court precedent suggests that courts should not
inquire deeply into a plaintiff’s ability to pay when conducting the substantial
burden analysis. 915 F.3d at 1151.
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Next, at trial, the only compelling interests Defendant identified were
MDOC’s “compelling governmental interests in the costly and orderly
administration of prisoner meals.” (Def.’s Closing Br. at 3, ECF No. 210 at Pg ID
2232.) Yet, the only evidence Defendant presented in support of those interests
was Mr. Weissenborn’s estimations of the additional cost of providing the Class
kosher meat products at dinner on the Sabbath and four holidays. The Court does
not find it likely that its analysis of that evidence will be disturbed on appeal.
Defendant presented no evidence at trial to support additional administrative
burdens (e.g. the costs of rolling out new guidelines for implementing meals,
training staff on how to serve the foods), nor does she do so now. See Lovelace v.
Lee, 472 F.3d 174, 190 (4th Cir. 2006) (“Given the superficial nature of the
defendant’s explanation, we cannot at this stage conclude that the asserted interest
is compelling as a matter of law.”). But even so, many of those administrative
burdens can be alleviated if Defendant chooses to purchase pre-packaged kosher
meat items through an outside vendor rather than preparing the meals within
MDOC facilities. Notably, the cost figures Defendant presented at trial were for
purchasing pre-packaged meals from an outside vendor.
In light of Sixth Circuit precedent, see, e.g., Haight, 763 F.3d at 562, the
Court finds little need to address Defendant’s repeated argument that the decision
on Plaintiffs’ meat and dairy claim opens the door for requests from inmates of
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other religious faiths. The Court is not persuaded by the decisions from outside
this Circuit that Defendant cites when arguing that “the denial of religious meals is
consistent with the compelling governmental interest in expending limited
resources prudently.” (Def.’s Br. at 13-14, ECF No. 267 at Pg ID 2769-2771.)
Such a blanket statement is inconsistent with the Supreme Court’s and Sixth
Circuit’s case-by-case analysis of RLUIPA claims, weighing the specific burden
on the plaintiff(s) against the demonstrated impact on the government’s interest(s).
For the above reasons, Defendant fails to show “ ‘more than the mere
‘possibility’ of success on the merits [on appeal].’ ”
Irreparable Harm to Defendant Absent a Stay
Three factors are relevant when evaluating the harm absent a stay: “(1) the
substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the
adequacy of the proof provided.” Mich. Coalition, 945 F.2d at 154 (citing Ohio ex
rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987)).
“Mere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough.” Id. The alleged
harm “must be both certain and immediate, rather than speculative or theoretical.”
Id. (citing Wis. Gas Co. v. Fed. Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir.
1985)).

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Defendant acknowledges that costs alone cannot constitute irreparable harm.
(Def.’s Br. at 16, ECF No. 267 at Pg ID 2772 (citing Mich. Coalition, 945 F.2d at
154).) Defendant therefore argues that MDOC “will also have to roll out new
guidelines for implementing the meals, allocate separate spaces for storing kosher
meat, and new training on how to serve the foods.” (Id.) These simply describe
injuries in terms of money, time and energy, however. In any event, while the
appeal is pending, MDOC can avoid these injuries by obtaining prepackaged
kosher meat entrees from an outside vendor.
Defendant also relies again on the flood gates that will open if it provides
specific meal requests here. As already indicated, however, this asserted harm is
unpersuasive.
Irreparable Harm to Plaintiffs and the Class
Defendant maintains that Plaintiffs will not be substantially injured by a stay
as they are receiving kosher vegan meals “that comply with their religious and
nutritional requirements on a daily basis.” (Def.’s Br. at 17, ECF No. 267 at Pg ID
2773.) Defendant also argues that “Plaintiffs clearly have the financial ability to
purchase their own meat and dairy items” and requiring them to do so causes “only
the slightest harm.” (Id.)
First, this Court already has found that MDOC’s kosher vegan meals do not
satisfy Plaintiffs’ religious requirements, as they do not allow Plaintiffs to consume
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meat and dairy on the Sabbath and four religious holidays. Second, this Court also
has already found that even if Class members could afford the kosher meat and
dairy items from the commissary, this would not satisfy their religious beliefs
because the items do not constitute a “meal” and cannot be consumed in the chow
hall. Thus, the harm a stay poses to Plaintiffs and the Class is that they will
continue to be precluded from exercising their sincerely held religious beliefs. The
Court cannot find this harm to be “slight.”
The Public Interest
Defendant maintains that “[a]ny time taxpayer’s dollars are allocated, the
public interest favors avoiding unnecessary expenditures.” (Def.’s Br. at 18, ECF
No. 267 at Pg ID 2774.) Defendant also argues:
The public interest has an additional interest in a stay
because of the current pandemic … Any unnecessary
expenditure of government resources or manhours,
especially that result in unnecessary human contact
weighs heavily against public interest and may do so for
the foreseeable future.
(Id.) Defendant’s argument is too vague, however, to evaluate whether the injury
is substantial, likely, or avoidable.
In any event, there is the opposing argument that “ ‘it is always in the public
interest to prevent the violation of a party’s constitutional rights.’ ” Connection
Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (quoting G&V Lounge, Inc.
v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). The Sixth
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Circuit has repeatedly found that “ ‘the public as a whole has a significant interest
in … protection of First Amendment liberties’ ”. Libertarian Party of Ohio v.
Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quoting Dayton Area Visually Impaired
Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995)); see also Jones v.
Caruso, 569 F.3d 258, 278 (6th Cir. 2009) (quoting Dayton Area, 70 F.3d at 1490).
Conclusion
In short, the Court finds that the relevant factors weigh in favor of denying
Defendant’s request for a stay pending appeal.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Stay Pending Appeal or, in
the Alternative, for a Sixty-Day Stay (ECF No. 267) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike (ECF No.
269) is DENIED AS MOOT.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 16, 2020

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