Arnold et al v. Heyns et al

Filing 59

ORDER denying 46 Motion to Appoint Counsel; denying 49 Motion Opposing Defendant's Motion to Take Depositions of the Plaintiffs or, in the a alternative, Plaintiff's Motion to Delay such Depositions until after a Case Management Order has been Entered and the Plaintiff's' Motion Including a Motion for the Appointment of Counsel and Discovery have been Ruled upon by this Court and denying 55 Motion to Stay - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ARNOLD,
Plaintiff,
vs.

CIVIL ACTION NO. 13-14137
DISTRICT JUDGE LINDA V. PARKER
MAGISTRATE JUDGE MONA K. MAJZOUB

DANIEL H. HEYNS, et al.,
Defendants.
___________________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR THE
APPOINTMENT OF COUNSEL [46]; PLAINTIFF’S MOTION OPPOSING
DEFENDANT’S MOTION TO TAKE DEPOSITIONS OF THE PLAINTIFFS; OR, IN
THE ALTERNATIVE, PLAINTIFFS’ MOTION TO DELAY SUCH DEPOSITIONS
UNTIL AFTER A CASE MANAGEMENT ORDER HAS BEEN ENTERED AND THE
PLAINTIFFS’ MOTIONS, INCLUDING A MOTION FOR THE APPOINTMENT OF
COUNSEL AND DISCOVERY, HAE BEEN RULED UPON BY THIS COURT [49]; AND
MOTION TO STAY DEPOSITION [55]
Plaintiff Michael Arnold,1 then a prisoner at the Central Michigan Correctional Facility
(STF) in St. Louis, Michigan,2 filed this action under 42 U.S.C. § 1983 against Daniel Heyns
(Director of the Michigan Department of Corrections (MDOC)), Michael Martin (Special
Activities Coordinator for MDOC), and Brad Purves (Food Service Director for MDOC), in their
official capacities, alleging that Defendants have violated Plaintiff’s rights under the First
Amendment, the Fourteenth Amendment, and the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc-1 (RLUIPA), by implementing MDOC Policy Directive (P.D.)
1

Plaintiffs Daniel Corralez and Eric Lahti withdrew from this action on March 11, 2015.
(See Docket no. 52.)
2
Plaintiff has since been transferred to the Macomb Correctional Facility.
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05.03.150, under which MDOC replaced all previously offered religious menus with a Vegan
menu. (Docket no. 1.) Plaintiff, an Orthodox Jew, seeks a declaratory judgment finding that
Defendants have violated the First Amendment and RLUIPA by “forcing the Plaintiff[] to eat a
religious diet that does not comport with [his] beliefs.3 (Id. at 14-15.) Plaintiff does not seek
monetary damages.
Before the Court are Plaintiff’s Motion to Appoint Counsel (docket no. 46), Motion
Opposing Defendant’s Motion to take Plaintiff’s Deposition or to Delay His Deposition (docket
no. 49), and Motion to Stay Deposition (docket no. 55). 4 Defendants filed a Response to
Plaintiff’s Motion to Stay Deposition. (Docket no. 56.) All pretrial matters have been referred
to the undersigned for consideration. (Docket no. 40.) The Court dispenses with oral argument
pursuant to E.D. Mich. LR 7.1(e). The Motions are now ready for ruling.
I.

Background
MDOC Policy Directive 05.03.150, which took effect on July 26, 2013, states in relevant

part as follows:
The Department offers a religious menu to meet the religious dietary needs of
prisoners. The Department will begin offering a Vegan menu which will replace all
currently approved religious menus on the following dates for the listed facilities:
1.

The week of September 15, 2013: . . . Central Michigan Correctional
Facility.
.

.

.

3

The Court has previously dismissed Plaintiff’s claims for alleged violations of the
Fourteenth Amendment. (See docket no. 28.)
4
Also pending before the Court are Plaintiff’s Motion for Temporary Restraining Order
(docket no. 53) and Defendant’s Motion to Dismiss or Sanction Plaintiff (docket no. 58). Under
28 U.S.C. § 636(b), the undersigned must address these motions through a Report and
Recommendation, which will be entered concurrently with this Opinion and Order.
2

The Vegan menu shall comply with Kosher and Halal religious tenets. A prisoner
who believes the Vegan menu does not meet his/her religious dietary needs may
request an alternative menu. An alternative menu will be developed and provided
only with approval of the Deputy Director and only if it is determined that the
Vegan menu does not meet the religious dietary needs of the prisoner. All
religious menus shall meet the minimum nutritional standards set forth in PD
04.07.100 “Offender Meals”. The Deputy Director or designee shall determine at
which facilities religious meals will be offered.
MDOC PD 05.03.150 (PP). When this vegan menu took effect, Prisoners who ate from the “main
line” would continue to have a variety of foods available to them, including meat and dairy.
In their Complaint, Plaintiffs allege that “[they] are Orthodox Jews” and that “[t]heir
religious beliefs do not command them to practice vegetarianism or to be a Vegan.” (Docket no.
1 at 8.) Specifically, they allege that they are required to follow “the mitzvah (commandment) to
eat meat and keep kosher;” that a Vegan diet is not a Kosher diet; that even if a Vegan diet could be
Kosher, it “will not actually be kosher . . . because of how the MDOC washes its trays and
utensils;” and that “MDOC could make Kosher meat products (and dairy products such as cheese)
products (sic) available to Jewish prisoners for purchase, but is has chosen not to.” (Id. at 10, 13.)
Plaintiffs also filed a Motion for Temporary Restraining Order or for Preliminary Injunction.
(Docket no. 3.)
On December 4, 2013, Defendants filed a Motion to Dismiss. (Docket no. 14.) Plaintiffs
filed a Response (docket no. 15), and on March 3, 2014, the undersigned recommended that the
Court dismiss Plaintiffs’ claims with regard to the MDOC’s washing of trays and utensils and
Plaintiff’s Fourteenth Amendment Claims; the undersigned further recommended that the Court
deny Plaintiffs’ Motion for TRO or Preliminary Injunction. (Docket no. 16.)
On June 24, 2014, the Court denied Plaintiffs’ Motion for Preliminary Injunction and
dismissed Plaintiff’s Fourteenth Amendment claims but allowed all of Plaintiff’s RLUIPA claims
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to survive. (Docket no. 28.) Plaintiffs also filed a Motion for Appointment of an Expert Witness
(docket no. 22), Motion for Discovery (docket no. 24), and Motion for Sanctions (docket no. 25).
And Defendants filed a Motion for Summary Judgment. (Docket no. 18.)
On July 30, 2014, the undersigned recommended that Defendants’ Motion for Summary
Judgment be granted because Plaintiffs failed to exhaust their administrative remedies. (Docket
no. 31.) Plaintiffs objected to the Report and Recommendation and also filed a Second Motion
for Temporary Restraining Order or Preliminary Injunction. (Docket no. 33.) Plaintiff Michael
Arnold then filed a Motion to Sever Co-Plaintiffs.

(Docket no. 38.)

The Court denied

Defendants’ Motion for Summary Judgment based on Plaintiffs’ objections and re-referred the
outstanding Motions to the undersigned for consideration. (Docket nos. 39 and 40.) Defendants
then filed their Motion to take Plaintiffs’ Depositions. (Docket no. 43.)
On December 16, 2014, the Court denied Plaintiffs’ outstanding motions and granted
Defendants’ Motion to take Plaintiffs’ depositions. (Docket no. 45.) Plaintiffs then filed their
Motion to withdraw (with regard to Plaintiffs Corralez and Lahti), a Motion for TRO, and their
instant Motions for Appointment of Counsel (docket no. 46) and Opposing Defendants’ Motion
(docket no. 49). On March 11, 2015, the Court, in relevant part, granted Plaintiff Corralez and
Lahti’s Motion to withdraw and denied Plaintiffs’ Motion for TRO on procedural grounds, which
prompted Plaintiff to file his currently pending Motion for TRO (docket no. 53).
In light of the Court’s December 16, 2014 Order, Defendants scheduled Plaintiff’s
deposition for April 17, 2015. When Plaintiff received notice of his deposition, he filed his
instant Motion to Stay, arguing that the deposition would conflict with his ability to prepare for the
Jewish Sabbath. The Court did not enter Plaintiff’s Motion until the day of his deposition. And

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although Defendants attempted to proceed with the deposition, Plaintiff refused. (See docket no.
55.)

In their pending Motion to Dismiss or for Sanctions, Defendants note that they attempted to

reschedule Plaintiff’s deposition for May 18, 2015, but he again refused to participate. (See
docket no. 58.)
II.

Analysis
A.

Plaintiff’s Motion to Appoint Counsel [46]

Plaintiffs’ previous motions to appoint counsel have all been denied. In this Motion,
Plaintiff asserts that counsel should be appointed because he cannot afford to hire an attorney, the
issues in this matter are complex and may require extensive discovery, Plaintiff cannot request
information under FOIA, and because “[b]oth major rulings in this case are positive toward the
Plaintiff[],” and he believes he will prevail at a jury trial.5 (Docket no. 46.)
As the Court has previously discussed, appointment of counsel for prisoners proceeding in
forma pauperis is governed by 28 U.S.C. § 1915, which states that “[t]he court may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Sixth
Circuit has stated:
Appointment of counsel in a civil case is not a constitutional right. It is a privilege
that is justified only by exceptional circumstances. In determining whether
‘exceptional circumstances’ exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This generally involves a
determination of the complexity of the factual and legal issues involved.
Lavado v. Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993) (internal quotations and citations
omitted). See also Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996) (citing Charles R. Richey,
5

Plaintiff’s Motion was initially filed on behalf of all three Plaintiffs, and their primary
argument with regard to the appointment of counsel was their incarceration at different MDOC
facilities and their inability to communicate with each other. Because Plaintiffs Corralez and
Lahti are no longer parties to this matter, Plaintiff’s primary argument is moot.
5

Prisoner Litigation in the United States Courts 75 (1995) (“‘Prisoners have no statutory right to
counsel in civil rights cases. Instead, the appointment of counsel is within the court's discretion.’”).
At this time, the Court declines to exercise its discretion to appoint counsel to represent Plaintiff.
As Plaintiff himself has acknowledged, he has adequately alleged the claims forming the
basis of this § 1983 lawsuit, and he has effectively litigated this matter through multiple dispositive
motions filed by Defendants. And while Plaintiff contends that his claims’ survival of summary
judgment shows the necessity of counsel, it also indicates that Plaintiff has a basic understanding
of the legal process and an ability to represent himself effectively. Moreover, while Plaintiff
alleges that this matter is complicated due to the possibility of the matter proceeding to trial and the
possible need for expert witnesses in the area of religion, neither of these concerns weighs in favor
of appointing counsel at this time. While Plaintiff has survived Defendant’s initial dispositive
motions, the matter has not been set for trial; indeed, discovery is just beginning. And while
Plaintiff’s claims may require the opinions of expert witnesses, Plaintiff does not require counsel
to secure such witnesses. Accordingly, Plaintiff’s Motion for Appointment of Counsel will be
denied without prejudice.
B.

Plaintiff’s Motion Opposing Defendants’ Motion and Requesting a Delay of
Depositions [49]

In his Motion, Plaintiff argues that Defendants’ Motion requesting to take Plaintiffs’
deposition is premature because (1) Plaintiff’s outstanding motions had not yet been decided and
(2) discovery has not yet commenced. (Docket no. 49.) The Court has previously granted
Defendants’ Motion. (Docket no. 45.) And for the reasons discussed therein, Defendants are
entitled to depose Plaintiff. Moreover, through this Opinion and Order and the concurrently
entered Report and Recommendation, the Court has addressed all of the outstanding motions in
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this matter. Therefore, Plaintiff’s Motion will be denied as moot.
C.

Plaintiff’s Motion to Stay Deposition [55]

In contrast to his motion opposing Defendants’ taking of his deposition and his request to
delay his deposition, Plaintiff’s Motion to Stay Deposition relates to Defendants’ attempt to
actually take his deposition on April 17, 2015. (See docket no. 55.) In his Motion, Plaintiff
alleges that Defendants attempted to take his deposition on Friday, April 17, at 2:00 p.m. Plaintiff
contends, however, that taking his deposition at this time would interfere with his ability to prepare
for the Jewish Sabbath beginning at 3:30 p.m. every Friday. Plaintiff alleges that Defendants’
selection of this time for his deposition was made with the ill-intent of violating his right to
practice his religion without interference. (Id.)
Defendants note that while Plaintiff drafted the Motion on April 10, 2015, it was not filed
with the Court until April 17, 2015. (See id.) They also allege that they did not receive a copy of
the Motion until that day. Thus, Defendants attempted to go through with Plaintiff’s deposition
as scheduled, but he refused. (Docket no. 56.) Defendants state that they have reached an
agreement with Plaintiff whereby they will reschedule his deposition for a Monday through
Thursday date. Therefore, as Defendants assert, Plaintiff’s current Motion is moot, and will be
denied as such.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Appoint Counsel [46] is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion Opposing Defendant’s Motion and
Requesting a Delay of his Deposition [49] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Deposition [55] is

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DENIED.
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under
28 U.S.C. 636(b)(1).

Dated: June 12, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of
record and on Plaintiff Michael Arnold on this date.
Dated: June 12, 2015

s/ Lisa C. Bartlett
Case Manager

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