Debardelaben #240689 v. McKeon et al

Filing 61

MEMORANDUM AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 55 granting motion 47 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
WILLIE DEBARDELABEN,
Plaintiff,

Case No. 2:11-cv-439

v.

Honorable R. Allan Edgar

RICHARD M. MCKEON, et al.,
Defendants.
___________________________________/
MEMORANDUM AND ORDER
U.S. Magistrate Judge Timothy P. Greeley has entered a Report and Recommendation
(“R&R”) in this case, in which he recommended that Plaintiff’s First Amendment free exercise
claim be dismissed. Doc. No. 55. Magistrate Judge Greeley found that remaining defendants
Swajanen and Konrad were entitled to qualified immunity on that claim. Plaintiff’s complaint
alleges a violation of his religious rights based on the application of a “zero-tolerance” policy that
caused him to be removed from the Kosher diet in October, 2010.
Plaintiff has filed objections to the R&R. Doc. No. 60. This Court is required to make a
de novo determination of those portions of the R&R to which objections have been filed, and
may accept, reject, or modify any or all of the Magistrate Judge’s findings or recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a). In his objections, Plaintiff asserts Defendants are
not entitled to qualified immunity because the Sixth Circuit had issued its opinion in Colvin v.
Caruso, 605 F.3d 282 (May 2010) when he was removed from the Kosher diet. As Magistrate
Judge Greeley noted in his R&R, the Sixth Circuit’s opinion questioned the constitutional validity

of the policy. At the time of Plaintiff’s removal, the policy was not considered to be definitively
in violation of the Constitution. Plaintiff’s objections are without merit.
Defendants’ motion for judgment on the pleadings [Doc. No. 47] is GRANTED.
Magistrate Judge Greeley’s R&R [Doc. No. 55] is APPROVED and ADOPTED as the opinion
of the Court pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. L. Civ. R. 72.3(b). Plaintiff’s First
Amendment claims are DISMISSED WITH PREJUDICE. This case remains pending as to
Plaintiff’s retaliation claims against Defendants Swajanen and Konrad.
SO ORDERED.

Dated:

3/27/2014

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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