Horacek #218347 v. Martin et al

Filing 104

FINDINGS OF FACT AND CONCLUSIONS OF LAW; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DANIEL HORACEK #218347,
Plaintiff,
v.

Case No. 2:15-CV-102

THOMAS PRISK,

HON. GORDON J. QUIST

Defendant.
__________________________/

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jurisdiction
Plaintiff, Daniel Horacek, a prisoner currently incarcerated with the Michigan Department
of Corrections (MDOC), sued Defendant, Thomas Prisk—a Chaplain with the MDOC. Horacek
makes six claims: 1) violation of his First Amendment right to freedom and exercise of religion,
right to petition for redress of grievances, right of access to court; 2) violation of the Religious
Land Use and Institutionalized Persons Act (RLUIPA); 3) violation of the First
Amendment/Retaliation for exercising his right to free exercise, redress of grievances, and access
to the courts; 4) violation of the Fourteenth Amendment Equal Protection Clause; 5) malice; 6)
intentional infliction of emotional distress. His claims can be briefly summarized as follows:
Horacek’s 2012 request to participate in the MDOC’s Kosher Meal Program was not approved
and instituted in a timely fashion, and Prisk contributed to that delay.

Horacek brings his claims under 42 U.S.C. § 1983, and the Court has jurisdiction pursuant
to 28 U.S.C. § 1331. Horacek’s claims were tried to the Court on June 19, 2019. The Court heard
testimony from Horacek and Prisk, and received exhibits.
Findings of Fact
Horacek is a practicing Orthodox Jew, who observes a kosher diet as a religious practice.
During the Jewish holy days of Passover, Horacek practices the particular Passover diet and the
Seder ritual. On October 31, 2012, Horacek re-offended and was returned to MDOC’s Egeler
Reception and Guidance Center. There, he requested to participate in the MDOC’s Kosher Meal
Program. Chaplain Bashir of the Egeler Center interviewed Horacek and submitted a request for
Horacek to receive kosher meals. On November 29, 2012, Horacek was transferred to the
Marquette Branch Prison (MBP), a prison that does not serve kosher meals.
On January 16, 2013, Chaplain Thomas Prisk received Horacek’s grievance, alleging that
Prisk failed to ensure that Horacek was receiving kosher meals at MBP. After receiving the
grievance, Prisk reviewed his files and did not find any “kite” from Horacek. Prisk concluded and
testified that he received no kite from Horacek. 1 Prisk reviewed Horacek’s records and found that
the kosher diet request was still pending.

Prisk contacted the MDOC Special Activities

Coordinator in Lansing, Michael Martin, who told Prisk that there was a backlog of such requests
pending at the MDOC. In light of the facts before him, Prisk requested that Horacek’s request be
bumped up and approved sooner rather than later.

1

Horacek disputes this. In any event, whether Prisk received any kite is not dispositive.

2

On February 13, 2013, Horacek’s kosher meal request was approved. 2 On February 14,
2014, an MDOC email went out, stating, “Please refrain from routine transfers of prisoners with
approved Kosher meals until completion of Passover April 2nd.” On February 15, 2013, Prisk
received a copy of the MDOC email regarding the transfer delay. That same day, Prisk sent a
memo to Horacek informing him that he was approved for kosher meals.
Prisk had no authority to transfer prisoners and was not involved in the transfer process.
Neither is or was Prisk involved in the decision-making process regarding religious diet
applications—he conducts preliminary interviews in the process but passes the interview
information to others in the MDOC. Prisk did what he could in light of his limited authority and
reached out to the transfer coordinator and requested that Horacek’s transfer be expedited
following Horacek’s approval for kosher meals. The MDOC, in accordance with its email
regarding transfers around Passover, transferred Horacek to a facility with kosher meals on April
3, 2013—after Passover had concluded.
Conclusions of Law
Count 1) Violation of First Amendment Rights
“[I]nmates retain First Amendment rights, including the right to free exercise of religion.
A prisoner alleging that the actions of prison officials violate his religious beliefs must show that
the belief or practice asserted is religious in the person’s own scheme of things and is sincerely
held.” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (citations and internal quotation
marks omitted).

2

Prisk’s Exhibit A, a memo dated February 13, 2013, and addressed to Prisk stated that Horacek was approved for a
kosher meal. However, this does not help Horacek claims because when Prisk officially knew of the approval is not
dispositive for the reasons discussed herein.

3

The sincerity of Horacek’s religious beliefs is not in dispute. Horacek asserts that Prisk
violated a number of Horacek’s First Amendment rights by failing to ensure that Horacek was
transferred in a “reasonable” amount of time following his approval for a kosher diet. However,
per MDOC policy directives, Prisk had no authority to approve a kosher diet or initiate a transfer
of a prisoner.

After Prisk received Horacek’s grievance—the first undisputed form of

communication between Horacek and Prisk—Prisk took the initiative, researched the status of
Horacek’s kosher meal request, and contacted MDOC offices in Lansing regarding the matter,
ultimately requesting that Horacek be approved sooner rather than later. Horacek was approved
sooner. Prisk’s acts led to the earlier approval.
In short, Prisk did not violate Horacek’s First Amendment rights. Instead, Prisk attempted
to cure potential violations of Horacek’s rights—Prisk’s actions likely resulted in a swifter remedy
for Horacek than he would have had otherwise.
Count 2) Violation of RLUIPA
The RLUIPA protects “any exercise of religion, whether or not compelled by, or central
to, a system of religious belief,” 42 U.S.C. § 2000 et seq., and any request for an accommodation
must be “sincerely based on a religious belief and not some other motivation.” Holt v. Hobbs, 135
S. Ct. 854, 862 (2015).
As discussed under Count 1, Horacek has not shown that Prisk prevented Horacek from
exercising his religion by consuming a kosher diet, a Passover diet, or performing a Passover
Seder. Accordingly, his second claim fails.

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Count 3) First Amendment Retaliation
First Amendment retaliation claims have three elements: 1) the plaintiff engaged in
protected conduct; 2) an adverse action was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct; and 3) there is a causal connection
between elements one and two—that is, the adverse action was motivated at least in part by the
plaintiff's protected conduct. Kennedy v. City of Villa Hills, 635 F.3d 210, 217–18 (6th Cir. 2011)
(footnote omitted) (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
Horacek fails to establish the second and third elements. There is no evidence that Prisk
committed an adverse action against Horacek—in fact, Prisk attempted to expedite the MDOC
processes in favor of Horacek on two occasions. There is no evidence that Prisk’s actions
contributed to the delay in Horacek receiving kosher meals. Accordingly, Horacek’s third claim
fails.
Count 4) Violation of the Equal Protection Clause
To establish a violation of the Fourteenth Amendment’s Equal Protection Clause, a plaintiff
must prove that a defendant prison official had a discriminatory intent or purpose behind his or her
actions. Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995). In addition, the discrimination
must be based on membership in a protected class. Henry v. Metropolitan Sewer Dist., 922 F.2d
332, 341 (6th Cir. 1990) (abrogated on other grounds, as recognized in King v. Harwood, 852
F.3d 568, 580 n.4 (6th Cir. 2017)). Claiming that he was treated one way and everyone else
another, by itself, is not sufficient for a plaintiff to state an equal protection claim. Newell v.
Brown, 981 F.2d 880, 887 (6th Cir. 1992). Instead, the plaintiff must show that he was victimized
due to a suspect classification. Id.

5

Horacek has not presented any evidence that Prisk treated him differently because of his
membership in a protected class or that Prisk intentionally discriminated against him.
Accordingly, Horacek’s fourth claim fails.
Count 5) Malice
“[N]o common law or statutory tort of ‘malice’ exists.” French v. Am. Airlines, No. 2:08CV-638 T5, 2009 WL 1578288, at *4 n.32 (D. Utah June 2, 2009); see also Livingston v. Kehagias,
No. 5:16-CV-906-BO, 2017 WL 4126979, at *3 (E.D.N.C. Sept. 18, 2017); Hashempour v. Ace
Am. Ins. Co., No. CIV.A. H-12-0181, 2012 WL 3948426, at *8 (S.D. Tex. Sept. 10, 2012).
Accordingly, Horacek’s fifth claim fails for failure to state a claim.
Count 6) Intentional Infliction of Emotional Distress
Under Michigan law, an intentional infliction of emotional distress claim requires a
plaintiff to show: “(1) the defendant's extreme and outrageous conduct, (2) the defendant's intent
or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff.” Walsh v.
Taylor, 263 Mich. App. 618, 634, 689 N.W.2d 506, 517 (2004). The defendant’s conduct must be
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Id. (citation
omitted). “The test to determine whether a person’s conduct was extreme and outrageous is
whether recitation of the facts of the case to an average member of the community would arouse
his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Lewis v. LeGrow, 258
Mich. App. 175, 196, 760 N.W.2d 675, 689 (2003) (internal quotation marks and citations
omitted).

6

For the reasons discussed above, Horacek has not shown that Prisk committed any extreme
and outrageous conduct, that Prisk intended to do so or was reckless, or that Horacek suffered
severe and emotional distress. Accordingly, Horacek’s sixth claim fails.
Conclusion
In sum, Horacek failed to prove any of his claims against Prisk.
A separate judgment in favor of Prisk will enter.

Dated: June 21, 2018

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

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