Ervin v. Davis

Filing 19

REPORT AND RECOMMENDATIONS re 9 MOTION for Partial Summary Judgment & 16 MOTION for Summary Judgment: The Magistrate Judge RECOMMENDS that Mr. Ervin's motion for partial summary judgment be denied and that Dr. Davis' motion for summ ary judgment be granted and that this case be dismissed. Objections to R&R due by 6/28/2017. Signed by Magistrate Judge Terence P. Kemp on 6/14/2017. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Levert Ervin,

:
Plaintiff,

:
:

v.
Dr. Michael Davis,

Case No. 2:16-cv-186
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

Defendant.

:

REPORT AND RECOMMENDATION
Plaintiff, Levert Ervin, an inmate at the Grafton
Correctional Institution (“GCI”), filed this lawsuit pursuant to
42 U.S.C. §1983 alleging that his constitutional rights were
violated by the defendant, Dr. Michael Davis.

He also alleges

that he is entitled to relief under the Religious Land Use
Institutionalized Persons Act (“RLUIPA”). This matter is now
before the Court on Mr. Ervin’s motion for partial summary
judgment and Dr. Davis’ motion for summary judgment.

For the

following reasons, it will be recommended that Mr. Ervin’s motion
for partial summary judgment (Doc. 9) be denied and Dr. Davis’
motion for summary judgment (Doc. 16) be granted.
I.

BACKGROUND

Mr. Ervin moved for leave to proceed in forma pauperis and
submitted a verified complaint on February 29, 2016 (Doc. 1).
The only named defendant is Dr. Michael Davis, the Religious
Services Administrator for the Ohio Department of Rehabilitation
and Correction (“ODRC”), in his official and individual
capacities.
6).

Dr. Davis filed his answer on April 28, 2016 (Doc.

On September 28, 2016, Mr. Ervin filed a motion for partial

summary judgment on his First Amendment claim only (Doc. 9).
Davis filed a responsive brief and cross-motion for summary

Dr.

judgment (Doc. 16). Mr. Ervin filed a response (Doc. 17) and Dr.
Davis filed a reply (Doc. 18).
The following factual summary is derived from the pleadings,
the summary judgment motions and related briefs filed by the
parties, and their exhibits.

Mr. Ervin submitted a Request to

Change Religious Affiliation to Ronald Smith, the GCI Chaplain,
on or about August 20, 2015, requesting to change his religious
affiliation from Pentecostal Christian to Natsarim (also known as
Messianic Judaism). The request was approved on the same day.
Complaint at ¶4. In December of 2015, the GCI Warden approved
additional requests by Mr. Ervin for religious accommodations:
(1) to own and wear Kippahs (yarmulke or skullcaps); (2) to own
and wear a Tallit (prayer shawl); (3) to own and wear three
Tzitzits (undergarments with tassels of strings); and (4) a work
proscription to be excused from work on the Sabbath (Friday
Sundown to Saturday sundown). Id. ¶¶5-6.

In a separate request

in September of 2015, Mr. Ervin requested a kosher diet, and
attended an interview with Chaplain Smith in relation to this
request. During the interview, Mr. Ervin changed his mind about
his request and requested that Chaplain Smith “tear that
accommodation form up.” Id. ¶¶10-11. Mr. Ervin does not recall
telling Chaplain Smith to tear up the form, but admits to telling
Chaplain Smith that he would “hold off for now” because he wanted
to research how the kosher meals would affect his low protein
diet. (Doc. 17, Ex. 10). On December 21, 2015, Mr. Ervin again
requested that he be provided with a kosher diet, but the request
was denied by Dr. Davis on January 29, 2016. Complaint, ¶7, Ex.
A.

The denial was based on Chaplain Smith’s recommendation,

which stated that he “would not recommend it based on
information/disposition of a prior request,” referring to the
September, 2015 interview. (Doc. 16, Ex. A, ¶9).

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Mr. Ervin did

not submit another request for kosher meals until March 18, 2016,
which was approved on April 11, 2016. Id. ¶¶12-13, Ex. E-F.
Dr. Davis avers that he denied Mr. Ervin’s September and
December 2015 requests for kosher meals based solely on the
recommendation of Chaplain Smith. (Doc. 16, Ex. A, ¶9). Dr. Davis
states that as a matter of policy he does not individually
interview inmates who submit requests for religious meal
accommodation, as that is the duty for prison chaplains or other
religious officials at each institution.

The reason for this is

because he would not have time to conduct separate interviews
with each inmate, and the individuals working within each
institution are able to personally observe the inmates’ behavior
and participation in faith practices. Id. ¶4-6.
Mr. Ervin asserts in his complaint that by being denied a
kosher diet, he will be precluded from observing the Passover
Seder and participating in eating matzah for Passover and the
Feast of Unleavened Bread (“Feast”), which are major tenets of
Natsarim.

Complaint, ¶18. He argues that Dr. Davis acted with an

“evil intent/motive” to deny him of his right to practice his
religion. Mr. Ervin claims that Dr. Davis knew, or should have
known, that by denying him kosher meals he was violating his
rights under the First and Fourteenth Amendments to the
Constitution and RLUIPA. In support of his claims, Mr. Ervin
refers to a number of related lawsuits that have been filed in
this Court by other GCI inmates who were ultimately granted
kosher meals.

See Case Nos. 2-14-cv-614; 2-14-cv-971; 2-14-cv-

1054; 2-14-cv-1219; 2-14-cv-2099; and 2-15-cv-2704. Complaint,
¶14. Mr. Ervin also furnished declarations from himself and a
fellow inmate attesting to his sincerely held belief in Natsarim,
but the sincerity of his belief is not in dispute. (Doc. 17, Ex.
A-B).

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Mr. Ervin seeks a declaratory judgment stating that Dr.
Davis’ actions and inactions violated his constitutional and
statutory rights by substantially burdening the practice of his
religion, not being the least restrictive means of furthering any
compelling government interest.

He also seeks for Dr. Davis to

approve his request for a kosher diet and for the Court to award
compensatory damages for the violation of his rights, including
$4,335.00 which he calculated based on a cost of $3.75 per missed
kosher meal (621 meals allegedly missed) plus his expenses
related to bringing this litigation. Id. at 8-9.
In his motion for partial summary judgment, Mr. Ervin
asserts that he is entitled to judgment as a matter of law
because Dr. Davis prevented him from exercising his religion due
to denying his requests for kosher meals.

Dr. Davis asserts that

he is entitled to judgment as a matter of law because, among
other reasons, Mr. Ervin has failed to demonstrate that his
constitutional rights were violated and because no relief is
available to him under RLUIPA.
II.

LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.

It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).

The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party.
(1970).

Adickes v. S.H. Kress & Co., 398 U.S. 144

Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving
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party.

United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.

See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).

Of course, since "a party seeking

summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
to respond to those issues clearly identified by the moving party
as being subject to the motion.

It is with these standards in

mind that Dr. Davis’ motion for summary judgment must be decided.
III.

RLUIPA

Section 3 of RLUIPA provides in pertinent part: “No
government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution,”
unless the burden furthers “a compelling governmental interest,”
and does so by “the least restrictive means.” 42 U.S.C. §
2000cc-1(a)(1)-(2).

RLUIPA defines “religious exercise” to

include “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.” §2000cc-5(7)(A).
The threshold inquiry, however, is “whether the challenged
governmental action substantially burdens the exercise of
religion.”

Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir.

2007); see also Barhite v. Caruso, 377 F.App’x. 508, 511 (6 th
Cir. 2010). RLUIPA does not provide a cause of action against
defendants in their individual capacities.
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Colvin v. Caruso, 605

F.3d 282, 288 (6th Cir. 2010).

RLUIPA permits “appropriate

relief against a government,” but the Sixth Circuit has held that
such relief does not extend to monetary damages.

Cardinal v.

Matrish, 564 F.3d 794, 801 (6th Cir. 2009); see also Nelson v.
Jackson, 2014 WL 197877 (S.D. Ohio Jan. 15, 2014).
In the Cardinal case, the plaintiff inmate sued under RLUIPA
because the prison failed to provide him with kosher food, but he
was later transferred to a facility that provided him with kosher
meals.

The court held that because the inmate had received the

relief in the form of kosher meals and was not entitled to
monetary damages, his RLUIPA claim was moot. Cardinal, supra, 564
F.3d at 798-99.

It is undisputed by the parties that Mr. Ervin

was approved for kosher meals on April 11, 2016.

Thus, because

monetary damages are not available under RLUIPA, his claim under
that statute is now moot pursuant to the holding in Cardinal.
IV.

CONSTITUTIONAL CLAIMS

To establish a prima facie claim under §1983, a
plaintiff must satisfy two elements: (1) that defendants acted
under color of state law, and (2) that defendants deprived
plaintiff of a federal statutory or constitutional right.

See,

e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); Searcy v.
City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); United of Omaha
Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992) (per
curiam).

Conclusory allegations are insufficient to state a

claim under §1983.

Rhodes v. Chapman, 452 U.S. 337 (1981).

Mr.

Ervin claims that Dr. Davis’ actions violated his First and
Fourteenth Amendment Constitutional rights to freedom exercise of
religion and equal protection of the law.
A.

First Amendment

In order to demonstrate a violation of the right to
religious freedom in the prison setting, a plaintiff must prove
the following. First, the plaintiff must show that the religion
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in question is, in fact, a religion. If it is a non-traditional
religion, the inmate must show that it "occupies a place in the
lives of its members 'parallel to that filled by the orthodox
belief in God' in religions more widely accepted in the United
States." Dettmer v. Landon, 799 F.2d 929, 931 (4th Cir. 1986),
cert. denied, 107 S.Ct. 3234 (1987). Several sub-issues are
involved in making that determination, including whether the
doctrines of the religion relate to a spiritual aspect of life,
whether the religion adheres to belief in a supreme being,
whether it has ceremonial worship practices, and whether it has
been practiced or recognized for a significant period of time.
Id. The plaintiff must also demonstrate a sincere belief in the
tenets of the questioned religion.
If a plaintiff can demonstrate a sincere belief in a
recognized or legitimate religion, his right to practice that
religion should be accommodated unless it interferes in some
fashion with the need for internal order and discipline which is
essential to the prison setting. Under the Religious Freedom
Restoration Act of 1993 (“RFRA”), which became effective on
November 16, 1993, see 42 U.S.C. §§2000bb et seq., burdens placed
on the free exercise of religion were permissible only if they
furthered a compelling governmental interest and if they were the
least restrictive means of furthering that interest. However,
the Supreme Court later concluded that the RFRA exceeded
Congress’ powers to legislate pursuant to §5 of the Fourteenth
Amendment. City of Boerne v. Flores, 521 U.S. 507 (1997).
Thus, the proper test to be applied to whether an
institutional denial of the right to engage in certain religious
practices or ceremonies is an appropriate restriction on an
inmate's First Amendment rights takes these factors into account:
whether the restriction is logically related to a legitimate
interest in security, whether the inmate is provided with
alternative means of exercising his right to pursue the religion
in question, the impact of any accommodations of the practice on

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other inmates, prison personnel, or the allocation of prison
resources, and the existence of ready alternatives to the
challenged regulation or prohibition. O'Lone v. Estate of
Shabazz, 482 U.S. 342 (1987); Turner v. Safley, 482 U.S. 78
(1987).
In this case, it is undisputed that Natsarim is a legitimate
religion and that Mr. Ervin has sincerely held beliefs. Mr.
Ervin’s allegations are based on kosher meal accommodation and
the opportunity to participate in Passover and the Feast. At the
time he initially requested religious meal accommodation, he met
with Chaplain Smith to discuss his request. Chaplain Smith
concluded, based on that meeting, that Mr. Ervin was not yet
committed to a kosher diet because he had said he would “hold off
for now” so that he could further research how the diet would
affect his health issues. (Doc. 17, Ex. 10). That interview
served as the basis for Chaplain Smith’s recommendation to Dr.
Davis to deny the kosher meal requests in September and December
of 2015. (Doc. 17, Ex. 10).
Chaplain Smith was obligated to consider Mr. Ervin’s
statements and make an informed decision as to whether kosher
meal accommodation was appropriate at that time.

See, Berryman

v. Granholm, 343 Fed. App’x 1 (6th Cir. 2009) citing Russell v.
Wilkinson, 79 Fed.App’x 175, 177 (6th Cir. 2003) (“Prison
officials have a legitimate penological interest not only in
controlling the cost of the kosher meal program and ensuring that
only those with sincere beliefs participate in the program, but
also in maintaining discipline within the prison.”).

Dr. Davis,

following ODRC policy, relied on the recommendation of Chaplain
Smith, and denied the initial request. Viewing the facts in the
light most favorable to Mr. Ervin, even if it were determined
that Chaplain Smith should have recommended the December 2015
request, Dr. Davis is the only named defendant in this case. In
accordance with ODRC policy, Dr. Davis relied on the
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recommendations of the GCI Chaplain. Again relying on Chaplain
Smith’s recommendation, Dr. Davis granted Mr. Ervin’s kosher meal
accommodation when it was requested again in the spring of 2016.
Mr. Ervin also alleges that by denying his meal
accommodation he was or would be prevented from participating in
Passover and the Feast. However, the record is clear that Mr.
Ervin did not request meal accommodation until September of 2015,
subsequent to that year’s Passover and Feast. Dr. Davis approved
kosher meals for him on April 11, 2016, which was prior to the
2016 Passover and Feast, celebrated from April 22-30, 2016, and
he currently continues to receive kosher meals. See Willison v.
Davis, 2016 WL 7117390, *3 (S.D. Ohio Dec. 7, 2016). For these
reasons, Dr. Davis is entitled to judgment as a matter of law on
Mr. Ervin’s First Amendment claim.
B.

Fourteenth Amendment

Mr. Ervin also argues that Dr. Davis’ actions constituted a
violation of his Fourteenth Amendment right to equal protection
of the law.

“Fundamentally, the [Equal Protection] Clause

protects against invidious discrimination among similarlysituated individuals or implicating fundamental rights.

The

threshold element of an equal protection claim is disparate
treatment; once disparate treatment is shown, the equal
protection analysis to be applied is determined by the
classification used by government decision-makers.”

Scarborough

v. Morgan County Bd. of Educ., 470 F.3d 250,259 (6th Cir. 2006).
“Prisoners are not considered a suspect class for the purposes of
equal protection litigation.”
619 (6th Cir. 2005).

Jackson v. Jamorg, 411 F.3d 615,

In order for the actions of prison

officials to rise to the level of a violation of the Equal
Protection Clause, a prisoner must show that he or she was
treated differently than similarly situated prisoners and that

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there was no rational basis for the difference in treatment.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The basis for Mr. Ervin’s Equal Protection claim seems to be
his belief that, because other inmates housed at Grafton received
a kosher diet following lawsuits bringing claims similar to the
ones he raises, he should be entitled to the same treatment.
Although his initial requests for kosher meals were not approved,
his other requests for religious accomodation were approved the
first time he asked.

Given the recent change in Mr. Ervin’s

religion and his interaction with Chaplain Smith in September of
2015, the Court does not deem Chaplain Smith’s initial
recommendations to be unreasonable. It is essential that prison
officials be given broad discretion in the day-to-day operation
of prisons.

Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).

Moreover, Mr. Ervin has not demonstrated any discriminatory
intent on the part of Dr. Davis, and it is undisputed that he was
ultimately provided with kosher meals when it was determined that
it was appropriate to do so. Dr. Davis followed ODRC protocol by
following the recommendation of the GCI chaplain, and Mr. Ervin
cannot show that he was treated any differently by Dr. Davis than
similarly situated inmates. Dr. Davis is entitled to judgment as
a matter of law on the Equal Protection claim.
Viewing the evidence in the light most favorable to Mr.
Ervin, there is no issue of material fact that he can demonstrate
either a constitutional violation or a claim under RLUIPA.
VI.

CONCLUSION

For the foregoing reasons, it is recommended that Mr.
Ervin’s motion for partial summary judgment (Doc. 9) be denied,
that Dr. Davis’ motion for summary judgment (Doc. 15) be granted,
and that this case be dismissed.

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PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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