Heard #252329 et al v. Finco et al

Filing 104

OPINION REGARDING (1) PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION CONCERNING RAMADAN 2014 AND (2) DEFENDANTS' MOTION FOR RELIEF FROM AN ORDER PURSUANT TO FED. R. CIV. P. 60(b)(5); signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

LAMONT HEARD, et al.,
Plaintiffs,
v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants.
________________________/

OPINION REGARDING (1) PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION CONCERNING RAMADAN 2014
AND (2) DEFENDANTS’ MOTION FOR RELIEF FROM AN ORDER
PURSUANT TO FED. R. CIV. P. 60(b)(5)
Background
Plaintiffs are prisoners incarcerated with the Michigan Department of Corrections (MDOC) at
various facilities and are also practicing Muslims. Plaintiffs have sued Defendants, MDOC Deputy
Director Thomas Finco, MDOC special Activity Director Michael Martin, and MDOC Food Service
Manager Brad Purves, alleging that they violated Plaintiffs’ rights under the First Amendment and the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., by failing
to provide them adequate nutrition during the Islamic month of Ramadan, which lasts for 29 to 30 days.1
(Dkt. # 1 at Page ID ## 2, 5.) “Observant Muslims fast between dawn and sunset during the thirty days
of Ramadan.” Lovelace v. Lee, 472 F.3d 174, 182 (4th Cir. 2006). They may resume eating and
drinking after sunset until dawn the following day. (Dkt. # 1 at Page ID # 3.) Plaintiffs’ claims concern
the 2011 and 2012 Ramadan observances.

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Plaintiffs also alleged an Eighth Amendment claim, which the Court dismissed on March 31, 2014. (Dkt. #
59 at Page ID ## 708–09.) Plaintiffs have moved for reconsideration of the dismissal of their Eighth Amendment claim,
which the Court will address in a separate order.

On June 14, 2013, Plaintiffs filed a Motion for Preliminary Injunction in which Plaintiffs
requested that the Court order Defendants to provide Plaintiffs adequate nutrition during the 2013
Ramadan observance. Plaintiffs argued that because MDOC policy requires that inmates be provided
2,900 calories per day, Defendants should be required to provide Plaintiffs 2,900 calories per day during
Ramadan. On July 8, 2013, the Court denied Plaintiffs’ motion on the basis that Defendants had shown
that the 2013 Ramadan menu would provide adequate nutrition to prisoners participating in the
Ramadan fast. The Court also found that, contrary to Plaintiffs’ assertions, current MDOC policy does
not specify a 2,900 daily calorie requirement for prisoners. In particular, the Court noted:
In their Response, Defendants note that, contrary to Plaintiff’s assertion, MDOC
Policy Directive 04.07.100, titled “Offender Meals,” does not specify a minimum caloric
meal value. Defendant Purves explains in his affidavit that the MDOC’s Statewide
Standard Menu provides prisoners 2,600 calories per day. (Purves Aff. ¶ 4, Defs.’ Resp.
to Pls.’ Mot. Ex. 2.) According to Purves, the MDOC sets its caloric intake level based
on Dietary Reference intake values approved by the National Research Council (NRC).
(Id. ¶ 3.) The NRC recommends a daily caloric intake of 2,600 to 2,800 for moderately
active men in their 20s; a daily caloric intake of 2,400 to 2,600 for moderately active
men in their 30s and 40s; and a daily caloric intake of 2,200 to 2,400 for moderately
active men after 50. (Id.) The MDOC specifies 2,600 calories per day because that
number meets the needs of 95% of male prisoners in the general population. (Id. ¶ 4.)
Purves states that all Plaintiffs are between 36 and 46 years of age. (Id.) Thus, when
Plaintiffs are moderately active, a daily caloric intake of between 2,400 to 2,600 calories
meets their recommended caloric intake.
Purves also states that the Ramadan meal plan Plaintiffs attach to their Motion
is not the meal plan that will be used for the 2013 Ramadan observance. Instead, the
2013 meal plan offers four different meal options to prisoners who choose to fast, and
provides a daily caloric content ranging from 2,350 to 2,594 calories. (Id. ¶ 6.) Purves
also confirms that a registered dietician with the MDOC has determined that a daily
caloric intake of 2,350 to 2,594 calories will not pose a health risk to healthy, moderately
active males. (Id. ¶ 7.)
In light of the information set forth in Purves’s affidavit, Plaintiffs have failed
to demonstrate that they are likely to suffer irreparable harm absent injunctive relief.
First, Plaintiffs’ motion is based on an out-of-date meal plan that will not apply to the
2013 Ramadan observance. Second, Defendants have shown that the meal plan for the
2013 Ramadan observance provides between 2,350 and 2,594 calories per day, which
substantially meets the recommended calorie requirements for most moderately active
prisoners—defined as “‘a lifestyle that includes physical activity equivalent to walking
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about 1.5 to 3 miles per day at 3 to 4 miles per hour, in addition to the light physical
activity associated with typical day-to-day life.’” (Purves Aff. ¶ 3 (quoting 2010 Dietary
Guidelines for Americans).) Third, Plaintiffs wholly fail to show that they will suffer
any harm from a slight reduction in their daily caloric intake during the 30-day Ramadan
observance. . . .
(Dkt. # 21 at Page ID ## 178–79.)
On July 10, 2013, the Court issued an Order of Clarification Regarding Memorandum Opinion
and Order Denying Plaintiffs’ Motion for Preliminary Injunction, which noted that, since the entry of
the July 8, 2013 Memorandum Opinion and Order, Plaintiffs had submitted information that “appear[ed]
to be reasonably accurate” and suggested that the facility in which Plaintiffs were incarcerated had or
would be providing Ramadan meals averaging only approximately 1,149.2 calories per day. (Dkt. # 22
at Page ID # 182.) Because Plaintiffs’ evidence was contrary to Purves’ representations and, if true,
would have sufficed to show irreparable harm, the Court ordered Defendants to provide Plaintiffs at
least 2,350 calories per day during the 2013 Ramadan observance. (Id. at Page ID ## 182–83.)
Subsequently, Plaintiffs moved to hold Defendants in contempt on the ground that the actual
2013 Ramadan meals provided approximately 600 fewer calories than Defendants had represented.
(Dkt. # 23.) After reviewing the parties’ evidence pertaining to the contempt motion, the Court
concluded that Defendants’ calorie figures were likely more accurate than Plaintiffs’ figures.
Nonetheless, the Court noted that Defendants’ own evidence showed that, on several days, the meals
Plaintiffs received provided less than the 2,350 calories specified in the July 10, 2013 Order. The Court
rejected Defendants’ explanation that the 2013 Ramadan menu complied with the July 10, 2013 Order
because it provided a daily average of 2,361.246 calories per day, on the basis that Purves had
represented that the 2013 Ramadan meal plan would provide a minimum of 2,350 per day rather than
a daily average of 2,350 calories. (Dkt. # 58 at Page ID # 698.) Accordingly, the Court found
Defendants in contempt and awarded Plaintiffs compensation. (Dkt. # 70.)
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Motions Before the Court
The Court addresses two pending motions in this Opinion. First, Plaintiffs have filed a Motion
for Preliminary Injunction, in which they request that the Court order Defendants to provide 2,900
calories per day during the 2014 Ramadan observance, as specified by MDOC policy. Citing
Defendants’ failure to comply with the July 10, 2013 Order for the 2013 Ramadan observance, Plaintiffs
also request that the Court appoint a monitor to ensure that Defendants comply with their legal
obligation to provide Plaintiffs adequate nutrition during Ramadan. Plaintiffs state that a monitor is
particularly appropriate for the current Ramadan observance because the MDOC has contracted with
a private company, Aramark, to perform its food service operations.
Defendants have filed a Motion for Relief from the July 10, 2013 Order, in which they request
that the Court relieve them of any obligation to provide at least 2,350 calories per day and instead permit
them to provide Plaintiffs an average of 2,350 calories, based on a two-week menu period. Defendants
argue that such request is reasonable because the MDOC formulates its menus based on average calorie
counts over a two-week cycle, and this practice is healthy and well-accepted.
Finally, pursuant to 28 U.S.C. § 517, the United States has filed a Statement of Interest in
furtherance of its enforcement authority under RLUIPA. See 42 U.S.C. § 2000cc-2(f). The United
States advises that, through its Statement of Interest, it seeks to assist the Court in determining whether
the Defendants have violated RLUIPA by failing to provide adequate nutrition to Muslim prisoners
observing Ramadan. The United States recommends the appointment of a monitor in the event that the
Court finds a RLUIPA violation and issues an injunction, to ensure that the injunctive relief is properly
implemented.
Discussion
“A preliminary injunction is an extraordinary remedy which should be granted only if the
movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v.
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Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Moreover, because Plaintiffs
seek injunctive relief against prison officials concerning a matter of prison administration, this Court
is required to proceed with the utmost care and must recognize the unique nature of the prison setting.
Kendrick v. Bland, 740 F.2d 432, 438 n.3 (6th Cir. 1984).
In ruling on a motion for a preliminary injunction, a court considers four factors: “(1) whether
the plaintiffs are likely to succeed on the merits; (2) whether the plaintiffs will suffer irreparable harm
in the absence of an injunction; (3) whether granting the injunction will cause substantial harm to others;
and (4) whether the issuance of the injunction is in the public interest.” Mich. State AFL-CIO v. Miller,
103 F.3d 1240, 1249 (6th Cir. 1997). These are factors to be balanced, not prerequisites that must be
met. See Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). A district court need not make
specific findings on each of the four factors if fewer factors are dispositive of the issue. See In re
DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
Section 3 of RLUIPA, which addresses prisoners’ religious beliefs, provides:
No government shall impose a substantial burden on the religious exercise of a person
residing in or confined to an institution, as defined in section 1997 of this title, even if
the burden results from a rule of general applicability, unless the government
demonstrates that imposition of the burden on that person–
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a). “Courts entertaining complaints under § 3 should apply ‘due deference to the
experience and expertise of prison and jail administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline, consistent with consideration of costs and
limited resources.’” Coleman v. Governor of Mich., 413 F. App’x 866, 875 (6th Cir. 2011) (quoting
Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 2123 (2005)). The Sixth Circuit has held that
an action is a substantial burden if it “force[s] an individual to choose between ‘following the precepts
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of [his] religion and forfeiting benefits,’ or when the action in question place[s] ‘substantial pressure
on an adherent to modify his behavior and to violate his beliefs.’” Living Water Church of God v.
Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007) (quoting Sherbert v. Verner, 374 U.S.
398, 404, 83 S. Ct. 1790, 1794 (1963), and Thomas v. Review Bd. of In. Emp’t Sec. Div., 450 U.S. 707,
718, 101 S. Ct. 1425, 1432 (1981)). “[A]t a minimum the substantial burden test requires that a
RLUIPA plaintiff demonstrate that the government’s denial of a particular religious item or observance
was more than an inconvenience to one’s religious practice.” Smith v. Allen, 502 F.3d 1255, 1278 (11th
Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 536 U.S. __, 131 S. Ct. 1651 (2011).
Inadequate nutrition may impose a substantial burden on a prisoner’s religious practices. See Heard v.
Caruso, 351 F. App’x 1, 13 (6th Cir. 2009).
Initially, the Court considers Plaintiffs’ assertion that MDOC policy provides that they are
entitled to 2,900 calories per day. The Court previously addressed this issue in its July 8, 2013 Order
denying Plaintiff s’ Motion for Preliminary Injunction, noting that MDOC Policy Directive 04.07.100
does not specify a particular number of calories, but instead relies on the Dietary Reference intake
values approved by the National Research Council. (Dkt. # 21 at Page ID # 178.) The Court found that
the MDOC has determined that based on those values, 2,600 calories per day is appropriate because that
level of nutrition meets the dietary requirements of 95% of the male prisoner general population based
on a moderately active lifestyle. (Id. at Page ID ## 178–79.) Thus, even if Plaintiffs were not
participating in the Ramadan observance, MDOC policy would provide them only 2,600 calories, not
2,900 calories.
The Court previously concluded that a Ramadan menu that provided at least 2,350 calories per
day—which Defendants state will be provided again for the 2014 Ramadan observance—substantially
meets the calorie requirements set by the MDOC and appears to provided a nutritionally-adequate diet.
While the Court did not expressly consider whether that level of nutrition substantially burdened
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Plaintiffs’ exercise of their religion in the context of RLUIPA, it now concludes that this level of
calories does not substantially burden Plaintiffs’ participation in the Ramadan fast. At 2,350 calories,
a prisoner participating in the Ramadan fast will receive 90% of the calories he would otherwise receive
when not participating in the fast. While receiving 250 fewer calories—the approximate equivalent of
an energy bar or two pieces of fruit—per day for 30 days might make Plaintiffs’ participation in the
Ramadan fast more difficult or less enjoyable, there is no indication that a diet of 2,350 calories would
force Plaintiffs to refrain from participating in, or abandon, the Ramadan fast. In fact, this daily number
of calories is 150 more than the 2,200 calories the court ordered in Couch v. Jabe, No. 7:05-cv-642
(W.D. Va. Sept. 22, 2006) (dkt. # 6 at Page ID #513) (ordering “that the defendants, between sunset and
dawn during the 2006 Ramadan period beginning September 23, shall daily provide Couch with food
items containing approximately 2,200 calories”), which Plaintiffs cite in their brief.2 Moreover,
although Plaintiffs complain about the ill effects they suffer during Ramadan—anger, headaches,
decreased energy, dizziness, etc.—as a result of lack of proper food, it is questionable whether
additional calories would alleviate them. After all, a Ramadan observant foregoes food and drink for
substantial periods of time each day—as long as fifteen hours at a time when Ramadan occurs during
the summer months. Thus, regardless of the amount of calories consumed between sunset and sunrise,
it is unsurprising that Plaintiffs experience abnormal physical symptoms during the fast. See J. B.
Leiper et al., Effects on Health of Fluid Restriction During Fasting in Ramadan, 57 European J. of
Clinical Nutrition (2003), available at http://www.nature.com/ejcn/journal/v57/n2s/full/1601899a.html
(noting that “[a] frequently cited problem of Ramadan fasting is an increased incidence of headaches”);
French v. Md. Div. of Corr., CCB-11-2142, CCB-11-3301, 2013 WL 1104995, at *7 (D. Md. Mar. 15,
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The MDOC does not explain why it does not simply provide prisoners observing Ramadan the same 2,600
calories per day that it normally provides other prisoners. See Garnica v. Wash. Dep’t of Corr., 965 F. Supp. 2d 1250,
1262 (W .D. Wash. 2013) (“According to Mr. Carney, the calorie level for Ramadan was set at 2700 calories per day to
stay within DOC guidelines of 2700 to 3000 calories per day, a range which is well above USDA Dietary Reference
Intake recommendations.”).

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2013) (“The court does not doubt that fasting, which includes the skipping of meals during the day, may
lead to some weight loss or the intake of fewer calories relative to non-fasting inmates, but those are
anticipated effects of the practice of fasting.”).
Defendants’ motion raises the question of whether it is sufficient to provide Plaintiffs with an
average of 2,350 calories per two week cycle during Ramadan 2014, rather than with 2,350 on a daily
basis. As a point of clarification, while the Court’s prior contempt order might suggest that the Court
would answer no, the contempt was imposed because Defendants failed to do what they told the Court
they would do (provide a minimum of 2,350 calories each day), and not because they provided an
average of 2,350 calories.
In support of their motion, Defendants present an affidavit from Norma Killough, RD, a
registered dietician employed by the MDOC. Ms. Killough states that all MDOC menus are designed
to comply with the nutritional and caloric recommendations set forth in the Dietary Reference Intakes:
The Essential Guide to Nutrient Requirements, which are “a common set of reference values for a
healthy population based on the relationships between nutrient intakes and health or the prevention of
disease.” (Dkt. # 95-1 at Page ID # 939.) Ms. Killough also states that the MDOC follows the current
Dietary Guidelines for Americans, issued by the United States Departments of Health and Human
Services and Agriculture, for menu planning. (Id.) Because the Dietary Guidelines recommends an
eating pattern that meets nutrient needs over time at an appropriate calorie level, the MDOC plans its
menus to meet nutrient and caloric needs over a two-week menu cycle rather than individual days.
Thus, ordinarily, “[t]he nutritional and caloric content of the meals planned will fluctuate daily because
the nutrient density of the food items will vary from day to day.” (Id. at Page ID ## 939–40.)
Based on the foregoing, the Court concludes that providing prisoners participating in the
Ramadan fast an average of 2,350 calories over a two-week period is consistent with sound nutritional
practices and will not adversely affect prisoners’ health. In fact, it is reasonable to assume that most
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people do not consume a set number of calories per day, but vary the amount of calories each day.
Thus, the Court will grant Defendants’ motion.
Based on the foregoing, the Court concludes that Plaintiffs have not shown irreparable harm, and
therefore, are not entitled to a preliminary injunction. For the same reasons, the Court will not appoint
a monitor. The Court does have some concerns, however, about Defendants’ follow-through on their
representations, in light of the fact that the MDOC is using a private food service company to furnish
prisoner meals. Accordingly, the Court will order Defendants to provide the Court a copy of the 2014
Ramadan menu and, on a weekly basis, a sworn statement from a representative at Plaintiffs’ facilities
confirming that Plaintiffs were served the food items listed on the 2014 Ramadan menu and identifying
any actual variations and the calorie content of such.
Conclusion
For the foregoing reasons, the Court will deny Plaintiffs’ Motion for Preliminary Injunction and
grant Defendants’ Motion for Relief From an Order.
An Order consistent with this Opinion will enter.

Dated: June 27, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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