Orum #417988 v. Michigan Department of Corrections et al

Filing 168

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 155 re 149 , 147 , 126 , 133 : Defendants' Motion for Summary Judgment 126 is GRANTED IN PART AND DENIED IN PART; Plaintiff's Motions 133 , 147 , 149 are DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

JOHNNY D. ORUM,
Plaintiff,
v.

Case No. 2:16-CV-109

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,

HON. GORDON J. QUIST

Defendants.
_____________________/
ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
Plaintiff, Johnny D. Orum, a state prisoner at a Michigan Department of Corrections
(MDOC) facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his rights under the Religious Land Use and Institutionalized Persons Act
(RLUIPA), the First Amendment (free exercise and retaliation claims), the Eighth Amendment,
and the Fourteenth Amendment (equal protection and due process claims). Plaintiff’s claims
center around his allegations that he is Jewish but was denied a diet that conformed to his religious
beliefs and was retaliated against for writing grievances related to the denial of a religious diet.
On initial screening, the Court dismissed Plaintiff’s Eighth Amendment claim, as well as
all claims against five Defendants. The Court determined that Plaintiff’s First Amendment free
exercise and retaliation claims, Fourteenth Amendment equal protection and due process claims,
and RLUIPA claims could proceed against Defendants Leach, Woods, Rink, Derry, Metro,
Osborn, and Bergeron relating to Plaintiff’s right to a religious diet. The Court also allowed

Plaintiff’s retaliation claims against Defendants Osborn and Perry to proceed regarding the loss of
his prison job. (ECF No. 18.)
The remaining Defendants have moved for summary judgment on Plaintiff’s claims. (ECF
No. 126.) Plaintiff has requested a preliminary injunction and a temporary restraining order. (ECF
Nos. 133, 147.) Plaintiff has also moved to strike portions of Defendants’ summary judgment
brief.

(ECF No. 149.)

Magistrate Judge Timothy Greeley submitted a Report and

Recommendation (R & R) recommending that Defendants’ motion for summary judgment be
granted in part—dismissing Plaintiff’s due process claims—but otherwise denied. Judge Greeley
further recommends that the Court deny Plaintiff’s requests for injunctive relief and his motion to
strike. (ECF No. 155.)
Plaintiff has filed objections to the R & R. (ECF No. 156.) Upon receiving objections to
the R & R, the district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). This Court 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(b).
After conducting a de novo review of the R & R, the objections, and the pertinent portions
of the record, the Court concludes that the R & R should be adopted in part and rejected in part.
The Court will grant Defendants’ motion for summary judgment with respect to Plaintiff’s due
process, free exercise, and equal protection claims. The Court will dismiss Plaintiff’s retaliation
claims against Defendants Leach, Woods, Rink, Derry, and Metro. Plaintiff’s RLUIPA claims
against all Defendants except Defendant Perry will proceed past summary judgment. Plaintiff’s
retaliation claims against Defendants Osborn, Bergeron, and Perry will likewise proceed past
summary judgment. The Court will deny Plaintiff’s requests for injunctive relief and motion to

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strike. The R & R provides detailed factual background, which the Court will not repeat here,
other than to explain its rulings on the individual claims.
I. RLUIPA
The RLUIPA statute states in relevant part:
No 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
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc-1(a). The term “‘religious exercise’ includes any exercise of religion, whether
or not compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7). “While this
definition of religious exercise is broad, it does require that Plaintiff’s religious beliefs be
‘sincerely held.’” Porter v. Caruso, 479 F. Supp. 2d 687, 697 (W.D. Mich. 2007).
Plaintiff claims that it is part of his Jewish faith that he must eat fish or meat on the Sabbath
and must eat meat for Jewish holidays. In support of his claim, Plaintiff submits a text on Jewish
law which states that it is mitzvah (a commandment) to eat fish for each of the Sabbath meals.
(ECF No. 150-4.) While in the same text it says that it is “not necessary” to eat fish with each
Sabbath meal (id.), Plaintiff also submits a declaration professing that it is his sincerely held belief
that he must eat meat and the declaration of a fellow Jewish prisoner who professes to hold the
same belief. 1 (ECF Nos. 150-1, 150-6.) Thus, Plaintiff has submitted the direct evidence

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Defendants maintain that the Jewish faith allows the consumption of Kosher meat and dairy but does not mandate it.
While that may be true, at this stage of litigation, the Court must accept Plaintiff’s statements in his declaration
regarding his sincerely held beliefs. Defendants, however, are free to refer to Jewish tenets at trial because “although
sincerity rather than orthodoxy is the touchstone, a prison still is entitled to give some consideration to an
organization’s tenets. For the more a person’s professed beliefs differ from the orthodox beliefs of his faith, the less
likely they are to be sincerely held.” Haight v. Thompson, 763 F.3d 554, 567 (6th Cir. 2014) (internal quotation marks
omitted).

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necessary to survive summary judgment on his RLUIPA claims. Fed. R. Civ. P. 56(a), (c);
Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (stating that “any direct evidence offered
by the plaintiff in response to a summary judgment motion must be accepted as true”).
II. First Amendment Free Exercise Clause
Plaintiff alleges that Defendants violated the Free Exercise Clause of the First Amendment
by denying him meat or fish on the Sabbath and meat on Jewish holidays. However, “government
officials performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
Ct. 2727, 2738 (1982).
In assessing qualified immunity, the Court must determine (1) whether a constitutional
right was violated if Plaintiff’s allegations are established; (2) whether the right was clearly
established; and (3) whether the evidence Plaintiff offers indicates that what the official allegedly
did was objectively unreasonable in light of clearly established constitutional rights. Drogosch v.
Metcalf, 557 F.3d 372, 377–78 (6th Cir. 2009). “A right is ‘clearly established’ for qualified
immunity purposes if ‘it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.’” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (quoting
Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001)). The inquiry whether the right
was clearly established “must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156; see also Plumhoff v.
Rickard, 572 U.S. 765, 779, 134 S. Ct. 2012, 2023 (2014) (directing courts “not to define clearly
established law at a high level of generality, since doing so avoids the crucial question whether the
official acted reasonably in the particular circumstances that he or she faced”) (internal quotation

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marks and citations omitted). Thus, the doctrine of qualified immunity “protects all but the plainly
incompetent or those who knowingly violate the law.” Humphrey, 482 F.3d at 847 (internal
quotation marks omitted).
Here, Plaintiff’s right to a religious meal that included meat or fish on the Sabbath and
meat on Jewish holidays was far from clearly established. The Sixth Circuit has repeatedly held
“that ‘prison administrators must provide an adequate diet without violating the inmate’s religious
dietary restrictions.’” Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010) (quoting Alexander v.
Carrick, 31 F. App’x 176, 179 (6th Cir. 2002)). “‘If the prisoner’s diet . . . is sufficient to sustain
the prisoner in good health, no constitutional right has been violated.’” Id. Moreover, plaintiffs
in a case before this Court in 2013 similarly challenged the constitutionality of the vegan diet for
Jewish prisoners, quoting religious text to support their claim that they were required to eat meat
and dairy in accordance with their religious beliefs. McKenzie v. Michigan Dep’t of Corr., No.
2:13-CV-291, 2013 WL 5963115, at *1 (W.D. Mich. Nov. 8, 2013). Yet, this Court found that the
plaintiffs failed to show that a Kosher vegan diet placed a substantial burden on their ability to
practice their religion because the passages they quoted merely specified which animals and dairy
could be consumed but did not require the consumption of meat and dairy. Id. at *4. Consequently,
at the level of specificity required of a qualified immunity analysis, it would not have been clear
to a reasonable officer in 2013-2016, the time period encompassing Plaintiff’s complaint, that a
Kosher vegan diet violated Plaintiff’s rights. Defendants are therefore entitled to qualified
immunity.
III. Fourteenth Amendment Equal Protection Clause
Plaintiff’s claims under the Fourteenth Amendment are similarly based on Plaintiff’s
allegation that he was denied a religious menu that conformed with his religious beliefs. For the

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same reasons that Defendants are entitled to qualified immunity on Plaintiff’s First Amendment
Free Exercise Clause claims, Defendants are likewise entitled to qualified immunity on Plaintiff’s
Fourteenth Amendment Equal Protection Clause claims.
IV. Fourteenth Amendment Due Process Clause
Plaintiff has alleged due process violations against all Defendants except Perry. To the
extent Plaintiff alleges substantive due process violations based on Defendants’ denial of an
alternative meal program, the magistrate judge was correct in concluding that Plaintiff cannot
maintain such a claim because a particular amendment—the First Amendment—already applies
to Plaintiff’s claims.
Plaintiff also alleges a procedural due process claim based on his allegation that Defendants
failed to follow proper procedures in adjudicating his NOIs and removing him from the religious
meal program. To maintain a procedural due process claim, Plaintiff would have to show that he
had a liberty or property interest and that he suffered an “atypical and significant hardship . . . in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct.
2293, 2300 (1995). First, Plaintiff has not established that he has a liberty or property interest in
a specific kind of food. Second, as the magistrate judge correctly concluded, Plaintiff’s removal
from the religious meal program does not constitute an atypical or significant hardship, particularly
in light of Plaintiff admitting to the behavior for which he received the NOIs (eating from the
regular diet line and possessing non-Kosher food in his cell). Thus, Plaintiff’s due process claims
will be dismissed.
V. First Amendment Retaliation
Plaintiff alleges that Defendants denied him the religious menu he requested and
terminated his employment in retaliation for filing grievances. The magistrate judge correctly

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noted in the R & R that Defendants did not fully develop their arguments rebutting Plaintiff’s
retaliation claims. That being said, though, the Court is required to dismiss prisoner actions
brought under federal law if “at any time” the Court determines that the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The
Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520,
920 S. Ct. 594, 596 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728, 1733
(1992). Applying these standards, the Court will dismiss Plaintiff’s retaliation claims against
Defendants Leach, Woods, Rink, Derry, and Metro for failure to state a claim upon which relief
can be granted.
First, Plaintiff explicitly stated in his declaration submitted in response to Defendants’
motion for summary judgment: “I never made a First Amendment retaliation claim against Leach
or Woods in my complaint.” (ECF No. 150-1 at PageID.1039.) Thus, the Court finds (and Plaintiff
appears to agree) that Plaintiff’s retaliation claims against Leach and Woods should be dismissed.
Next, Plaintiff has failed to allege active unconstitutional behavior committed by
Defendants Rink, Derry, and Metro. The Sixth Circuit is clear that “liability under § 1983 must
be based on active unconstitutional behavior and cannot be based upon a mere failure to act.”
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal quotation marks omitted). More
specifically, when a plaintiff’s “only allegations against [defendants] involve their denial of his
administrative grievances or their failure to remedy the alleged retaliatory behavior,” defendants
cannot be held liable under § 1983. Id.

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Defendants Derry and Metro simply adjudicated Plaintiff guilty at administrative hearings
when other officers had issued Plaintiff notices of intent (NOIs) for possession and consumption
of non-Kosher foods in violation of policy. (ECF No. 150-1 at PageID.1041.) In fact, Plaintiff
states that when Defendant Metro asked Plaintiff if the food items confiscated from his cell were
non-Kosher and if he, in fact, possessed them, Plaintiff replied “yes.” (ECF No. 1 at PageID.14.)
In this Court’s opinion, merely presiding over an administrative hearing is passive behavior similar
to the denial of a grievance and cannot support liability under § 1983.
Similarly, Plaintiff’s allegation of retaliation with respect to Defendant Rink is that “Rink
[did] not plac[e] me back on the religious meal program and den[ied] me Kosher-for-Passover
meals in 2016.” (ECF No. 150-1 at PageID.1041-42.) The alleged retaliatory behavior in this case
was that Defendants wrote NOIs against Plaintiff that led to him being removed from the religious
meal program. The allegation against Rink is that he failed to reinstate Plaintiff to the religious
meal program, i.e. failed to remedy the alleged retaliatory behavior. Therefore, Defendant Rink
cannot be held liable under § 1983. See Shehee, 199 F.3d at 300.
VI. Injunctive Relief
Plaintiff filed a motion for a preliminary injunction requesting that the Court order
Defendant Leach to provide him with religious meals for the Jewish holiday of “Shovous” in May
2018. (ECF No. 133.) The magistrate judge correctly found that Plaintiff’s motion is now moot.
Plaintiff also filed a motion for a temporary restraining order to enjoin Defendant Osborn
and his co-workers from harassing and laughing at Plaintiff because he filed this lawsuit. (ECF
No. 147.) The magistrate judge concluded that Plaintiff failed to set forth an actionable claim and
that the motion was moot because Plaintiff was transferred to a new facility. (ECF No. 155 at
PageID.1140.) While the Court recognizes Plaintiff’s assertion in his objections to the R & R that

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he still comes in contact with Defendant Osborn so his motion is not moot, the Court agrees with
the magistrate judge that Plaintiff’s claim is not actionable. Preliminary injunctive relief is only
“appropriate to grant intermediate relief of the same character as that which may be granted
finally,” but is not appropriate to address “a matter lying wholly outside the issues in the suit.” De
Beers Consol. Mines v. United States, 325 U.S. 212, 220, 65 S. Ct. 1130, 1134 (1945). Here,
Plaintiff seeks final injunctive relief ordering state officials to serve him Kosher meals that include
meat or fish on the Sabbath and meat on Jewish holidays. The temporary injunctive relief Plaintiff
seeks through his motion is of an entirely different character. Moreover, the Constitution prevents
a prison guard from harassing or retaliating against a prisoner, so Plaintiff’s request for a temporary
restraining order is unnecessary.
VII. Motion to Strike
Plaintiff filed a motion to strike his deposition transcript that was attached to Defendants’
motion for summary judgment. However, like the magistrate judge, the Court did not use
Plaintiff’s deposition in issuing this opinion. Thus, Plaintiff’s motion to strike (ECF No. 149) is
denied as moot.
VIII. Conclusion
For the foregoing reasons,
IT IS ORDERED that the December 11, 2018, Report and Recommendation (ECF No.
155) is adopted in part and rejected in part.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
126) is granted in part and denied in part. Plaintiff’s free exercise, equal protection, and due
process claims against all Defendants are dismissed with prejudice. Plaintiff’s retaliation claims

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against Defendants Leach, Woods, Rink, Derry, and Metro are dismissed with prejudice for
failure to state a claim.
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Preliminary Injunction (ECF
No. 133) and Motion for a Temporary Restraining Order (ECF No. 147) are denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike (ECF No. 149) is denied.

Dated: March 12, 2019

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

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