Heard #252329 v. Caruso et al

Filing 427

OPINION AND JUDGMENT; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LAMONT HEARD,
Plaintiff,

Case No. 2:05-cv-231

v.
PATRICIA CARUSO, et al,

HONORABLE PAUL L. MALONEY
Chief United States District Judge

Defendants.
___________________________________/

OPINION AND JUDGMENT
Plaintiff Lamont Heard, an inmate currently confined in the MDOC, filed a pro se civil rights
action pursuant to 42 U.S.C. § 1983 on September 23, 2005. In his original complaint, Plaintiff
named Defendants Patricia L. Caruso, Dennis Straub, Dave J. Burnett, Robert Mulvaney, Jeri-Ann
Sherry, Greg McQuiggin, Michael Brown, Steven Therrian, Sandy Shaw, Daniel Ezrow, Unknown
Masker, and Unknown Huhta. On February 6, 2007, the court granted defendants’ motion for
summary judgment and dismissed all of plaintiff’s claims, except for his claim against Defendant
Masker. On May 20, 2008, plaintiff received a trial on his claims against Defendant Masker and,
on May 28, 2008, judgment was entered for Defendant Masker. Plaintiff filed an appeal on June 11,
2008, and on August 27, 2009, the Sixth Circuit vacated the district court’s grant of summary
judgment for defendants on plaintiff’s procedural due process, equal protection, and statutory claims
under the Religious Land Use and Institutionalized Prisoners Act “ RLUIPA”, and remanded those
claims for further proceedings. Heard v. Caruso, 351 F App'x 1 (6th Cir. 2009) However, the Sixth
Circuit affirmed the district court in all other respects. Plaintiff was appointed counsel on July 7,
2010 (docket #370).

On November 4, 2010, plaintiff filed an amended complaint (docket #382), which names
Defendants Dennis Straub, Dave J. Burnett, Robert Mulvaney, Jeri-Ann Sherry, Michael Brown, and
Sandy Shaw. Plaintiff alleges without contradiction from defendants, that in 2004 and all times
pertinent thereafter, he was confined in the prison facilities of the Michigan Department of
Corrections (MDOC) and that he is a member of the Nation of Islam (NOI).
Plaintiff asserts that members of the NOI are required to eat in accordance with certain
dietary restrictions and that he has repeatedly requested that Defendants Straub, Burnett, Sherry, and
Shaw accommodate his request for an NOI diet. Plaintiff Heard further alleges that Defendants
Straub, Burnett, Sherry and Shaw have refused to comply, stating that such a diet cannot meet the
MDOC required nutritional standards. Plaintiff contends that this denial has placed a substantial
burden on his ability to freely exercise his religious beliefs.
Plaintiff claims that defendants’ actions violated his equal protection rights given the
accommodation of religious diets for Jewish and Buddhist prisoners, as well as his rights under the
RLUIPA. Plaintiff is seeking compensatory and punitive damages, as well as declaratory relief and
injunctive relief.
Defendants assert a defense of qualified immunity on plaintiff’s claim that he was denied
a Nation of Islam (NOI) diet. With regard to plaintiff’s equal protection claim regarding his diet,
the Sixth Circuit stated:
“[When a prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner v. Safely, 482 U.S. 78, 89 (1987). We
have explained that in the prison context “policies infringing on
religious rights may be found unreasonable where accommodations
are made for others.” Turner v. Bolden, 8 F. App’x 453, 456 (6th Cir.
(unpublished order). If the defendants can show that the Nation of-Islam diet requested by Heard fails to meet nutritional standards,
we believe that the refusal to provide this diet would be “reasonably
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related to legitimate penological interests.” Turner, 482 U.S. at 89.
The defendants have come forward with some evidence that the
Nation-of-Islam diet is nutritionally inadequate—the affidavit of
defendant Burnett, who evidently consulted the MDOC documents
in which it was determined that the Nation-of-Islam diet was
inadequate. However, it appears that Heard has been denied
discovery of the MDOC documents and, therefore, denied the
opportunity to dispute defendants’ evidence.
Heard 351 F App'x, at 12.
Defendants assert that the decision to refuse plaintiff’s request for a NOI diet satisfies the
rational basis test set forth in Turner v. Safely, so that they are entitled to judgment on this claim.
To determine whether a prison official’s actions are reasonably related to a legitimate penological
interest, the Court must assess the official’s actions by reference to the following factors:
1. does there exist a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to
justify it;
2. are there alternative means of exercising the right that remain open
to prison inmates;
3. the impact that accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison
resources generally; and
4. whether there are ready alternatives available that fully
accommodate the prisoner’s rights at de minimis cost to valid
penological interests.
Flagner, 241 F.3d at 484 (Flagner v Wilkinson, 241 F.3d 475, 484 (6th Cir. 2001) quoting
Turner, 482 U.S. at 89-91).
Failure to satisfy the first factor renders the regulation or action infirm, without regard to the
remaining three factors. Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-90) (“A
regulation cannot be sustained where the logical connection between the regulation and the asserted
goal is so remote as to render the policy arbitrary or irrational”). If the first factor is satisfied, the
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remaining three factors are considered and balanced together; however, they are “not necessarily
weighed evenly,” but instead represent “guidelines” by which the court can assess whether the
policy or action at issue is reasonably related to a legitimate penological interest. Id. (citations
omitted). It should further be noted that the Turner standard is not a “least restrictive alternative”
test requiring prison officials “to set up and then shoot down every conceivable alternative method
of accommodating the claimant’s constitutional complaint.” Id. Instead, the issue is simply whether
the policy or action at issue is reasonably related to a legitimate penological interest.
The Court conducted a bench trial on plaintiff’s claims on September 13, 2011. Plaintiff
relied on his own testimony and exhibits entered into the record. Defendants called several witnesses
including Gatha McClellan, Dave Burnett, Dennis Straub, Jeri Ann Sherry, and Sandy Shaw. After
proofs closed, the court heard closing argument and took the matter under advisement to render a
written opinion.
Findings of Fact
Plaintiff submitted zero evidence that Defendants Straub, Sherry, and Shaw had any
substantive role either in the denial of plaintiff’s diet requests or in the formulation of MDOC policy
which caused the alleged infringement of plaintiff’s Constitutional or statutory rights. Accordingly,
a judgment of no cause for action will be entered as those individuals.
Plaintiff is a member of the Nation of Islam. From time to time before commencement of this
action, he requested of MDOC officials the availability of a diet consistent with his religion as
outlined in How To Eat To Live by the prophet of his religion, Elijah Mohammed. Plaintiff’s
testimony outlined the nature of his religious belief which the defendants do not question as
sincerely held for purposes of this record. He testified that eating well is vital to his spiritual life
and if not permitted to do so consistent with his faith, he does not receive the full benefit of his
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religion. The NOI diet essentially contains two aspects, food consumption restrictions and sanitation
in the preparation of the permissible foods, on the latter point, specifically segregation from food
which is banned by the NOI diet. MDOC officials had denied plaintiff’s requests during the
administrative process on nutritional, cost, and security of institution grounds.
One aspect of the NOI diet as contained in the exhibits (i.e. the material forwarded to MDOC
officials for its consideration of defendant's request) concerned the mandate that NOI diet adherents
consume only one meal a day. At trial, however, the plaintiff posited the notion that it was
acceptable that more than one meal may be taken in a prison setting as an exception to the one meal
directive. During the administrative proceedings and prior to trial, the defendants had taken the
position that the requirement of one meal per day and the concomitant need for prisoners to ingest
2900 calories per day to meet national nutrition standards were hopelessly in conflict. Accordingly,
the MDOC had refused to offer the NOI for this reason, among others. Ms McClellan conceded
during her trial testimony that if the dietary restrictions of the NOI regime were broken up into three
meals, the nutritional standards of 2900 calories could be achieved. She was careful however to
opine that other nutritional goals/factors such as food variety, cost, especially relating to the
restrictive rotation of food items and the cost related to sanitation requirements could be prohibitive.
In addition, she testified that security concerns, that is grouping of NOI prisoners in a limited
number of institutions, would countenance against the offering of the diet.
It is apparent to the court, upon review of the materials supporting plaintiff’s administrative
requests, including the referenced How To Eat To Live, that a so called “three meal option” was not
within the fair interpretation of plaintiff’s administrative request and the MDOC denial did not
contemplate a three meal “option.” See Exhibits 5, 6, 7, 8, 9.
Ms. McClellan is a highly qualified expert in the field of nutrition and food service in a
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prison institution setting. Her last position with the MDOC was Food Service Administrator for all
corrections facilities in the state of Michigan. She testified without contradiction that she was
familiar with the books of Elijah Mohammed including How To Eat To Live. Her recommendation
after review of Mr. Heard’s NOI diet request was to deny based upon her professional opinion that
consumption of 2900 calories at one meal was violative of nutritional norms and therefore in
violation of MDOC policy to provide adequate sustenance for prisoners. The Court accepts this
opinion. It is unrebutted in this case.
Ms. McClellan’ generally conclusory testimony regarding significantly increased cost to
offer the NOI diet is less strong, but nonetheless ultimately persuasive, as to the large number of
items that would have to be excluded from an NOI diet. Exhibit 10 lists the prohibited foods of an
NOI diet. In great contrast to the available Kosher diet which excludes only pork, the exclusion list
for the NOI diet is extensive. The Court credits Ms. McClellan’s testimony that increased costs
would be incurred by the MDOC to accommodate the diet and the fulfillment of sanitation
requirements and that those costs, although not described specifically in the record, would not be
merely de minimis. The Court further finds that no readily available alternative on this score at de
minimis cost to, fully accommodates the plaintiff.
As indicated previously, the defendants interposed a defense of security as additional
justification for denial of the NOI diet. Defendants evidentiary proofs on this record, however, are
woefully lacking. The MDOC witnesses provided no convincing evidence of security concerns
regarding the implementation of an NOI diet. Based on a pre-trial review of the pleadings, the court
anticipated some testimony regarding security dangers surrounding the grouping of a large number
of NOI prisoners in a limited number of prisons that would offer the NOI diet. No such testimony
was elicited because such a problem would not exist. In response to the Court’s questions, Mr
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Burnett estimated that the gross number of NOI prisoners did not exceed the number of Jewish
prisoners for whom a Kosher diet has been provided pursuant to policy for some years. The Court
concludes on this record that security concerns cannot justify denial of the NOI diet. The Court
recognizes that Mr. Burnett’s prisoner count was an estimate which may or may not be ultimately
accurate in the future, but that is the only proof in the record in this case.
Conclusions of Law
In his post-trial brief, plaintiff argues strongly Ms. McClellan’s concession that nutritional
standards could be met if plaintiff was afforded the NOI diet in three separate meals and that
therefore, he should prevail in this action on his equal protection claim. First, plaintiff stretches Ms.
McClellan’s testimony. While it is accurate to state that she conceded that the 2900 calorie standard
could be accomplished with the NOI diet over three meals a day, rather than one, Ms. McClellan
clearly had other reservations about the diet, even if offered over three meals daily. Accordingly,
plaintiff cannot prevail based upon this concession during her testimony. In addition, there is a
significant legal hurdle which the plaintiff cannot scale on his new-found theory that providing the
NOI diet over three meals a day is acceptable to his faith and was part of his original request to the
Department. That is, he failed to exhaust his administrative remedies on this alternate means of
accommodating his religion.
Having reviewed the documentary evidence, it is clear that the MDOC properly analyzed
plaintiff’s administrative request and his theory of the case (until the taking of testimony) as a one
meal per day request with a menu conforming to the restrictions as to food items and sanitation. The
How to Eat to Live excerpts in this record reflect one meal per day. Chaplain Burnett, as Special
Activities Coordinator for 15 years, was familiar with the NOI diet and the Holy Quran and How to
Eat to Live. He fairly interpreted the request as one meal per day. The MDOC denied on that basis
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for nutritional reasons and others as outlined. Plaintiff’s post-trial submission seeks to walk away
from the documentation he submitted in support of his request. The MDOC cannot be placed in the
position of speculating what portions of the Holy Quran or How to Eat to Live were somehow
optional portions of the plaintiff’s administrative request. The references to one meal a day are
explicit. Plaintiff’s Exhibit 5 does not speak to the issue of multiple meals. Exhibit 10 (D/E#1-85, pp.
6-7, and 9-9 and D/E#408-5, pp. 24-26 of 55) do not speak to the issue of multiple meals. As to what
amounts to an amended request for three meals a day of the NOI diet, plaintiff has not exhausted his
administrative remedies. See Jones v. Bock, 549 U.S. 199, 205 (2007).
Under the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e (a),
prisoners are required to first “properly”exhaust any administrative remedies before filing suit.
Siggers v. Campbell, 652 F3d, 681, 691 (6th Cir. 2011) Defendants have not had the opportunity
to vet a three meals per day request from the plaintiff. They responded fairly within the four squares
of his administrative request and indeed his claims prior to trial. Accordingly, to the extent that
plaintiff seeks relief from this court on the basis that three meals per day of the NOI diet will satisfy
his Constitutional and statutory claims, he has not exhausted his administrative remedies. So that
claim is not properly before the court. Accordingly, those claims are dismissed.
Plaintiff’s exhausted claim concerning denial of a NOI diet ultimately fails. A prison
regulation legally impinges on an inmate’s constitutional rights if it is reasonably related to a
legitimate penological interest. Turner v Safely, 482 U.S. 78, 79 (1987). In its remand order, the Sixth
Circuit held that if the MDOC could show that the NOI diet as requested by plaintiff failed to meet
nutritional standards, that would be a restriction “reasonably related to legitimate penological
interest”. Heard, 361 F.App'x at 10 (6th Cir. Aug. 27, 2009) (docket #273). Defendants have met
their burden.
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Ms. McClellan testified without effective contradiction that the NOI diet utilizing one meal
per day did not meet nationally recognized nutritional standards which by policy were required by
the MDOC. It is beyond peradventure that prison authorities are duty bound to provide meals that
meet appropriate nutritional standards for those incarcerated. Such standards contribute to the health
and well-being of all prisoners. Failure to do so would more than likely constitute a violation of the
Eighth Amendment. See Youngblood v. Romeo, 457 U.S 307, 315-16 (1987). Clearly, there is a
rational connection between the prison regulation and the legitimate governmental interest put
forward by the MDOC to justify its denial of a NOI diet.
Concerning the second Turner factor, plaintiff’s request concerned an NOI diet in conformity
with How to Eat to Live. Within the confines of that request (one meal per day), there is no alternative
open to plaintiff given the denial of his request. If he insists on one meal per day consistent with his
religious beliefs, he must violate this tenet of his belief to nourish himself.
Concerning the third Turner factor, the MDOC asserted that implementation of the sanitation
requirements requested would impact costs of operations. The proofs were hardly robust in this
regard, but from the circumstantial evidence concerning segregation of the extensive list of prohibited
foods in How to Eat to Live (in contrast to the limited number of prohibitive foods for the offered
Kosher meals), the court accepts the defendant's testimony that significant additional resources to
segregate storage and preparation of food pursuant to the NOI diet would be attendant to the granting
of his request. The Court does not accept plaintiff’s assertion that because the MDOC has accepted
the costs associated with Kosher meals (sanitation and pork restrictions), accommodation of the costs
associated with the NOI diet should be borne. Additionally given the length of the prohibited list of
foods, the court accepts the testimony of Ms. McClellan that significant additional food costs would
be attendant to an attempt to provide nutritious food consistent with the NOI diet and also provide
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for the dietary needs of all the other prisoners in the system. As aforesaid, elimination of pork from
the menu is but a small percentage of actions necessary to conform the menu to the NOI diet,
according to Ms. McClellan's expert testimony. Based on the evidence, costs to the resource-strapped
penal institutions of Michigan to implement the NOI diet are of significantly different magnitude than
the Kosher diet program. Of note, plaintiff argues that cost has been rejected as a justification
satisfying strict scrutiny, citing Mem'l Hosp. V. Maricopa Cnty, 415 U. S. 250, 263 (1974) and other
cases. But such citations are inapposite here. Justice O’Connor’s opinion in Turner clearly states that
strict scrutiny is not the test in the context of prison operations, see Turner, Y82 U.S. at 89, because
it would seriously hamper prison officials ability to anticipate security problems and “to adopt
innovative solutions to the intractable problems of prison administration.” Id.
As to the fourth Turner factor, the court finds that there is no ready alternative that 1) fully
accommodates plaintiff at 2) de minimis cost to valid penological interests.
Accordingly, having balanced together the final three Turner factors, Flagner, 241 F. App'x
at 484, the court concludes that the greater weight falls in favor of defendants. Therefore, on
plaintiff’s equal protection claim, a judgment of no cause of action will be entered in favor of the
remaining defendants.
RLUIPA Claim
RLUIPA provides:
[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . .
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

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(2) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc-l(a).
Plaintiff must exhaust his administrative remedies before filing a RLUIPA claim. Risher v.
Lappin, 639 F.3d. 236-240 (6th Cir. 2011); Watler v. Campbell, 33 F. App'x 764, 765 (6th Cir.
2002). As noted above, plaintiff has failed to do so as to his trial testimony that a NOI diet with three
meals a day would satisfy his religious tenets. However, during the administrative process, plaintiff
did request access to the Kosher diet which was denied. Exhibit 1, Memo of Defendant Burnett of
March 6, 2003.
As to this request/claim under RLUIPA, the court finds that the refusal to provide the Kosher
diet constitutes a substantial burden on his religious exercise. See Hoevenaar v. Lazaroff, 422 F.3d
366, 368 (6th Cir. 2006). The outright denial must therefore be “the least restrictive means” towards
furthering a “compelling governmental interest [strict scrutiny].” Cutter v Wilkinson, 544 U.S. 709,
712 (2005) (quoting 42 U.S.C. 2000cc-1(a)-(2)(2000)).
First, defendant has proffered prison security as one valid reason for denying the diet. See
Id. at 723, explicitly states that prison security is a compelling state interest. However, defendant’s
proofs in this regard are unpersuasive for the reasons stated earlier. Other than mere assertion, the
state defendants did not develop evidence of security ramifications in a manner that satisfy this court.
Concerns about numbers of NOI prisoners requesting dietary accommodations and its alleged
negative impact on security because of grouping of prisoners in a limited number of prison facilities,
was fatally undermined by Chaplain Burnett’s testimony concerning the gross number of NOI
inmates. Accordingly, the court does not accept prison security as a compelling state interest,
justifying denial of the Kosher diet accommodation.

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Second, defendants assert the compelling governmental interest to provide proper nutrition
for prisoners. Defendant has demonstrated that no alternative exists to provide an NOI diet in one
meal sitting as requested by plaintiff for the reasons stated earlier. See Youngblood, 457 U.S. at 32223. Whether an alternative short of outright denial in the context of a future exhausted claim for an
NOI diet utilizing a three meals per day modality is not before this court. Clearly, defendants have
not had the opportunity to apply their expertise and experience as prison administrators to such a
request. 146 Cong. Rec. 16698 (2000).
However, the Court notes that plaintiff, consistent with his earlier administrative request,
testified, without contradiction, that consuming the Kosher diet offered by the MDOC would be an
acceptable alternative in compliance with his religious tenets. The defendants proffered no
contradictory testimony at trial. The Court does not accept the conclusory assertions in Exhibit 1 to
contradict plaintiff's testimony. Accordingly, on this record, the Court finds that the least restrictive
means of furthering the compelling governmental interest in providing nutrition to plaintiff and
avoiding a substantial burden on plaintiff's religious exercise is to permit plaintiff access to the
existing Kosher diet.
To be clear, the scope of the Court's injunction is confined in all aspects of food service to the
parameters of MDOC present practice of the Kosher diet and future amendments deemed appropriate
by the MDOC. The intent of the Court is to order the plaintiff access to the Kosher diet as
administered by the MDOC presently and in the future - nothing more, nothing less.

JUDGMENT
The Court enters the following Judgment:
1. Defendants Straub, Sherry, and Shaw shall have a judgment of no cause for action and
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Plaintiff's claims as to those defendants are dismissed with prejudice.
2. For failure to exhaust his administrative remedies, plaintiff's equal protection claims against
all remaining defendants are dismissed with prejudice.
3. As to plaintiff's statutory claim under RLUIPA for access to the Kosher diet as presently
offered and in the future offered by the MDOC, plaintiff shall have judgment in his favor.
4. Forty-Two (42) days after the entry of this Judgment, Defendant Caruso, the Director of
the Department of Corrections, and all successors thereafter, are enjoined from denying the Kosher
diet to plaintiff under the same terms and conditions that such diet is offered to Jewish prisoners
pursuant to the rules and regulations of the Department.
IT IS SO ORDERED.

DATED: March 20, 2012

/s/ Paul L. Maloney
Honorable Paul L. Maloney
Chief United States District Judge

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