Tolliver v. Noble et al
Filing
61
REPORT AND RECOMMENDATION issued re 34 MOTION for Preliminary Injunction and Temporary Restraining Order filed by Kevin A. Tolliver in that it is RECOMMENDED that the motion be DENIED. Objections to R&R due by 7/5/2019. Defendant is DIRECTED to respond to Plaintiffs Offer of Settlement 59 within 14 days of the date of this Report and Recommendation. Signed by Magistrate Judge Kimberly A. Jolson on 6/21/19. (sem)(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
KEVIN A. TOLLIVER,
Plaintiff,
v.
Civil Action 2:16-cv-1020
Judge George C. Smith
Magistrate Judge Jolson
WARDEN NOBLE,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Kevin Tolliver’s Motion for Preliminary Injunction and Temporary Restraining
Order (Doc. 34) is before the Court. For the reasons that follow, it is RECOMMENDED that the
Motion be DENIED. Defendant is DIRECTED to respond to Plaintiff’s Offer of Settlement
(Doc. 59) within 14 days of the date of this Report and Recommendation. Defendant may file a
notice with the Court indicating compliance with this directive but need not file the response on
the public docket.
I.
BACKGROUND
Plaintiff, an inmate at Pickaway Correctional Institution (“PCI”), seeks injunctive relief
from this Court in order to, in Plaintiff’s words, “protect” his ability to litigate. (Doc. 34 at 1).
More precisely, Plaintiff asks the Court to order the following:
1. With the exception of medical trips, prevent Defendants from moving Plaintiff from
his current institution and housing assignment;
2. Require Defendants to deliver two legal boxes to Plaintiff at his housing location
for inventory, consolidation, and storage in the vault, with monthly access
permitted to exchange materials with the smaller cardboard legal box kept at his
bunk area;
3. Require Defendants to “restore” Plaintiff’s religiously necessary Halal/Kosher diet;
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4. Require Defendants to provide Plaintiff with a copy of any and all electronically
filed documents in each and every grievance matter he has filed since his arrival at
PCI;
5. Require Defendants to stop ordering Plaintiff to remove his religious headgear
based on its color.
(Id. at 1–5).
The Motion is now ripe for resolution. (See Docs. 34, 46, 58).
II.
STANDARD
“A preliminary injunction is an extraordinary measure that has been characterized as ‘one
of the most drastic tools in the arsenal of judicial remedies.’” ACLU v. McCreary Cty., 354 F.3d
438, 444 (6th Cir. 2003) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264,
273 (2d Cir. 1986)). And, in cases like this one, “where a prison inmate seeks an order enjoining
state prison officials, the Court is required to proceed with the utmost care and must be cognizant
of the unique nature of the prison setting.” Roden v. Floyd, No. 2:16-CV-11208, 2018 WL
6816162, at *2–3 (E.D. Mich. Nov. 13, 2018), report and recommendation adopted, No. 16-11208,
2018 WL 6815620 (E.D. Mich. Dec. 27, 2018).
When considering a motion for preliminary injunction, a district court must balance four
factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the
movant would suffer irreparable injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4) whether the public interest would be
served by issuance of the injunction.” City of Pontiac Retired Employees Ass’n v. Schimmel, 751
F.3d 427, 430 (6th Cir. 2014) (en banc) (citation and internal quotation marks omitted).
Under the first factor, to establish a strong likelihood of success on the merits, the movant
must demonstrate “more than a mere possibility” of success. Nken v. Holder, 556 U.S. 418, 435
(2009). This requires, “at a minimum,” a movant to show “serious questions going to the merits.”
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Dodds v. United States Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (citation and internal
quotation marks omitted). The first factor is often determinative:
[C]ourts have often recognized that the first factor is traditionally of greater
importance than the remaining three. See Roth v. Bank of the Commonwealth, 583
F.2d 527, 537 (6th Cir. 1978). In fact, the Sixth Circuit has held that when the
proponent of the injunctive relief has no chance of success on the merits of the
claim, the Court may dismiss the motion without considering the other three factors.
See Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
Failure to do so is reversible error. See id.; Sandison v. Michigan High School
Athletic Ass’n, 64 F .3d 1026, 1037 (6th Cir. 1995).
Stanley v. Ohio Dep’t of Rehab. & Corr., No. C2–02–178, 2002 WL 3140935, at *3 (S.D. Ohio
August 12, 2002) (denying motion for injunctive relief after evaluation only of chance of success
on the merits factor); see also City of Pontiac Retired Employees Ass’n, 751 F.3d at 430 (“When
a party seeks a preliminary injunction on the basis of a potential constitutional violation, the
likelihood of success on the merits often will be the determinative factor.”).
III.
DISCUSSION
The Court considers each of Plaintiff’s requests in turn.
A. No Prison Transfer Pending Litigation
In his first request, Plaintiff seeks an order requiring Defendants “to leave Plaintiff be
during the period of litigation.” (Doc. 34 at 2). Plaintiff seeks to remain at his current institution,
claiming that “Defendants have twice moved [him] as retaliatory punishment for attempting to
enforce his rights under the U.S. Constitution.” (Id. at 1).
As a general matter, a plaintiff “ha[s] no constitutional right to remain in a particular
institution, and prison officials are afforded broad discretion in transferring inmates.” Rouse v.
Caruso, No. CIV 06-10961, 2007 WL 909583, at *5 (E.D. Mich. Mar. 23, 2007) (citation omitted)
(denying request for preliminary injunction preventing plaintiffs’ transfers to other prisons during
pendency of litigation). It follows, then, there must be “extraordinary circumstances” for a Court
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to find a prison transfer unconstitutional. See Prim v. Jackson, No. 2:14-CV-1219, 2015 WL
1647293, at *17–18 (S.D. Ohio Apr. 14, 2015), report and recommendation adopted, No. 2:14CV-1219, 2015 WL 3544668 (S.D. Ohio June 4, 2015) (citing LaFountain v. Harry, 716 F.3d 944,
948 (6th Cir. 2013)).
Plaintiff, in requesting that the Court enjoin prison officials from transferring him, does not
set forth extraordinary circumstances supporting his request. Nor does he rely on his Complaint
to show such extraordinary circumstances. In fact, Plaintiff provides no evidence that his risk of
transfer is imminent. Rather, he bases his request solely on the fact that he has been transferred in
the past. (See, e.g., Doc. 34 at 1 (“The reasons justifying this order is, as stated in the complaint,
that Defendants have twice moved Plaintiff as retaliatory punishment for attempting to enforce his
rights under the U.S. Constitution.”); Doc. 58 at 2 (arguing that Plaintiff “has been punitively
transferred twice because of his successful grievances”)). These allegations of past transfers are
not enough. Indeed, “it is not the purpose of a preliminary injunction to prevent such speculative
behavior.” Rouse, 2007 WL 909583, at *5; see also Ford v. Haas, No. CV 16-11485, 2017 WL
6460299, at *2 (E.D. Mich. July 24, 2017), report and recommendation adopted, No. 16-CV11485, 2017 WL 6450602 (E.D. Mich. Dec. 18, 2017) (explaining that “at best, [plaintiff’s] motion
is based on unsupported speculation that he will soon be transferring to [another prison]” and
therefore could not show he was in imminent danger of irreparable injury).
Accordingly, absent a showing of “extraordinary circumstances” supporting his no-transfer
request, Plaintiff cannot demonstrate a strong likelihood of success on the merits. See, e.g., Prim,
2015 WL 1647293, at *17 (finding that plaintiff had “not provided any evidence of extraordinary
circumstances” and as a result, “failed to meet his burden of demonstrating a strong likelihood of
success on the merits as to his claim regarding transfers between prisons”); Rouse, 2007 WL
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909583, at *5 (explaining that “[t]he mere fact that plaintiffs’ transfers may make it harder for
them to prosecute this litigation is not the type of irreparable harm justifying the issuance of a
preliminary injunction,” and also noting that “[a]ny problems caused by the housing of plaintiffs
at different institutions can be accomplished through the management of this case, and in particular
the scheduling of matters before the Court”) (citations omitted).
Briefly, the Court notes that the remaining factors also weigh in favor of denying Plaintiff’s
request for injunctive relief.
Both the Ohio Department of Rehabilitation and Corrections
(“ODRC”) and the public have an interest in prison officials’ ability to regulate the transfer of
inmates between facilities. Prison officials “are in a far better position than this court is to evaluate
the needs of the prison system writ large and, more specifically, the proper placement of Plaintiff
within that system.” Fisher v. Caruso, No. 06-CV-11110-DT, 2007 WL 551603, at *2–3 (E.D.
Mich. Feb. 20, 2007) (denying motion for preliminary injunction regarding alleged retaliatory
transfers, explaining, in part, that “the confidence of the public in the criminal justice system
depends in large part upon the ability of prison officials to regulate internal matters with a free
hand”); see also Ford, 2017 WL 6460299, at *3 (holding that “[i]ssuing a preliminary injunction
prohibiting [plaintiff’s] transfer to a different prison would result in harm to both the [Michigan
Department of Corrections] and the public, because providing appropriate supervision of
Michigan’s large inmate population necessarily requires the ability to transfer prisoners between
facilities when the need arises.”) (citing Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997)
(explaining that “problems of prison administration are peculiarly for resolution by prison
authorities and their resolution should be accorded deference by the courts”)).
In sum, Plaintiff has failed to satisfy his heavy burden for a preliminary injunction
enjoining his transfer to another facility.
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B. Access to Legal Documents and Copies of Electronically Filed Documents
The Court turns next to Plaintiff’s requests concerning his access to legal documents.
Plaintiff seeks to recover his “his legal work, files, evidentiary exhibits,” which he alleges are “in
the general vault at PCI.” (Doc. 34 at 2.) He asserts that Defendants must deliver his legal boxes
“to him at his housing location” as part of “his ongoing fight to reverse his wrongful criminal
conviction.” (Id.). Relatedly, Plaintiff seeks copies of “all electronically filed documents in each
and every grievance matter filed by Plaintiff since his arrival at Pickaway Correctional Institute.”
(Id. at 3).
i.
Access to Legal Documents
While difficult to piece together his exact claims, Plaintiff seems to be arguing that,
because of prison policy, he is being denied access to the courts in violation of his constitutional
rights. (See generally Docs. 34 at 2–4; 58 at 2–3; id. at 5–6). ODRC has promulgated rules and
policies to manage and direct its operations, including Policy 59–LEG–01, governing inmate
property. (See Doc. 46-4 at 4). Under this policy, ODRC permits inmates to keep legal materials
within a 2.4 cubic foot locker box in their cells (the “2.4 requirement”). (Id., ¶ 2). Inmates may
not store in their cell any additional materials that do not fit within this box. (See id.). Inmates,
however, may request permission to store excess materials in a secure location designated by the
unit’s managing officer. (Id., ¶ 5). Inmates requesting such additional space “must first make
reasonable efforts to reduce the amount of legal material in their possession”, and “[a]ll excess
material, including inactive case files, must be either mailed out of the institution at the inmate’s
expense or otherwise disposed of by the inmate.” (Id.). At PCI, where Plaintiff is currently
incarcerated, the inmate property vault is used to store excess legal material. (Doc. 46-1 at 3, ¶ 12).
To view their documents in the vault, inmates must request that their unit staff call the vault officer
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in advance. (Id.).
Plaintiff also alleges that the box containing his legal materials “had somehow been moved
into a box labeled for [another inmate]” and had been missing for nearly 2 years. (Doc. 58 at 9).
In his affidavit, Plaintiff claims that many of his legal materials were missing from the box,
including his “most recent post-conviction filing and appeals that [he] needed to file a State Habeas
Corpus,” and as a result, he is “now out of time to file that action in the Ohio Supreme Court.”
(Id.; see also id. at 3).
Prisoners have a constitutional right of access to the courts. See Bounds v. Smith, 430 U.S.
817, 821 (1977). This right, however, is not limitless. Indeed, “the Sixth Circuit has explained
that the constitutional right ‘is not a generalized right to litigate but a carefully-bounded right.’”
Whiteside v. Collins, No. 2:08-CV-875, 2009 WL 4281443, at *6 (S.D. Ohio Nov. 24, 2009),
report and recommendation adopted, No. 2:08-CV-875, 2010 WL 1032424 (S.D. Ohio Mar. 17,
2010), aff’d (Apr. 17, 2014) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999)).
Further, “[i]n order to state a viable claim for interference with his access to the courts, a plaintiff
must show ‘actual injury.’” Odom v. Pheral, No. 5:12CV-P73-R, 2012 WL 3717979, at *2 (W.D.
Ky. Aug. 27, 2012) (quoting Lewis v. Casey, 518 U.S. 343, 349 (1996)). “Actual injury” means
that “a claim ‘has been lost or rejected, or that the prescription of such a claim is currently being
prevented.’” Id. (quoting Lewis, 518 U.S. 343 at 356). But “not every actual legal injury or
prejudice suffered by a prisoner triggers constitutional concerns.” Thomas v. Rochell, 47 F. App’x
315, 317 (6th Cir. 2002). Rather, “the First Amendment protects only a prisoner’s access to the
courts as it relates to cases which attack his convictions and sentences and to cases which challenge
the conditions of his confinement.” Id. (citing Lewis, 518 U.S. at 355). Finally, and especially
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important here, the prisoner’s alleged injury must have been “caused by more than mere negligence
on the part of prison officials.” Whiteside, 2009 WL 4281443, at *7.
Plaintiff’s most promising “access to the courts” claim is that, because of Defendants’
conduct, he missed a filing deadline with the Ohio Supreme Court. (Doc. 58 at 9, ¶ 6). But, as
noted, a viable claim in this context requires Plaintiff to provide supporting facts in his Motion or
to refer to facts in his Complaint showing that his injury “was caused by more than mere negligence
on the part of prison officials.” Whiteside, 2009 WL 4281443, at *7.
Plaintiff has done neither. He relies only on conclusory allegations regarding Defendants’
conduct. (See, e.g., Doc. 58 at 2 (“Unfortunately, defendant’s flagrant conduct was not based upon
any genuine concern for policy. At the time they forced plaintiff to leave one of his two legal
boxes at LoCi.”)). And, with regard to his claim that Defendants allegedly lost one of his boxes
containing legal materials, Plaintiff does not show that Defendants’ conduct was anything “more
than mere negligence.” Whiteside, 2009 WL 4281443, at *7. (See, e.g., Doc. 58 at 3 (“However
on March 28, 2019 officer Salyers called Mr. Tolliver to the PCI vault and informed him that
somehow the contents of Plaintiff’s missing box had been stored in a different box under another
inmates name.”; id. at 9, ¶ 4 (stating the same))).
Accordingly, because he has not set forth facts showing intentional conduct on behalf of
Defendants, Plaintiff has not shown a strong likelihood of success on the merits. See Whiteside,
2009 WL 4281443, at *7 (citing Lewis, 518 U.S. at 349; Simkins v. Bruce, 406 F.3d 1239, 1242
(10th Cir.2005) (“[W]hen access to courts is impeded by mere negligence, as when legal mail is
inadvertently lost or misdirected, no constitutional violation occurs.”)); Banks v. Sheldon, No.
3:13-CV-00020, 2013 WL 1947166, at *5 (N.D. Ohio May 9, 2013) (denying plaintiff’s claim that
defendants failed to timely forward his mail, resulting in him missing the deadline to file his notice
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of appeal to the Supreme Court of Ohio, explaining that “plaintiff has not alleged any facts
demonstrating that this Defendant intentionally mishandled his legal mail or acted with the intent
to impede Plaintiff’s access to the courts”) (citing Sims, 170 F. App’x at 957).
The other factors also cut against granting a preliminary injunction. Both ODRC and the
public have an interest in prison administrators’ freedom to promulgate rules and regulations
maintaining order within the prison. “Courts must accord prison administrators ‘wide-ranging
deference in the adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security.’” Ciavone v.
McKee, No. 1:08CV771, 2009 WL 2096281, at *1 (W.D. Mich. July 10, 2009) (quoting Ward v.
Dyke, 58 F.3d 271, 273 (6th Cir. 1984)). On this record, the Court will not disturb ODRC’s “2.4
requirement” governing the storage of inmates’ personal property. Accordingly, Plaintiff has
failed to satisfy his burden supporting a preliminary injunction regarding the storage of legal
material.
ii.
Copies of Electronically Filed Documents
Plaintiff also wants copies of his electronically filed grievances. (See Doc. 58 at 6).
Plaintiff states that such documents are necessary for his preparation of this case. (See id.).
Specifically, he alleges that the requested copies “are likely to be relevant to pleadings being
drafted” and “have anticipatory relevance to reply briefs.” (Doc. 34 at 4). While that may be true,
such allegations do not amount to a cognizable “access to the courts” claim nor do they justify the
extraordinary remedy of a preliminary injunction. See Lewis, 518 U.S. at 354 (holding that the
State is not required to “enable the prisoner to discover grievances, and to litigate effectively once
in court”). Accordingly, Plaintiff has failed to meet his burden to show a substantial likelihood on
the merits regarding his request for copies of his grievances.
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A weighing of the other factors only further undermines Plaintiff’s request. As already
established, both ODRC and the public have a keen interest in ODRC’s ability to effectively
manage administrative and financial concerns within prison walls. At PCI, inmates are entitled to
one free copy of electronically filed grievances. (Doc. 46-1, ¶ 13). “It is at the discretion of the
inspector to supply copies of cases that are beyond 6 months old and do not have a pending court
case attached to the reason.” (Id.). Moreover, “cases pertaining to the inmate grievance procedure
are electronic and can be viewed at the leisure of the inmate” whether the case is open or closed.
(Id., ¶ 14). Plaintiff responds, however, that because he does not know the individual case numbers
of his previously filed grievances, he cannot request electronic copies of them. (Docs. 34 at 3–4;
58 at 3). But such an administrative issue is best left to prison officials and is not an appropriate
basis for Court intervention.
Indeed, “[f]ederal courts are typically reluctant to intervene in the day-to-day operation of
state prisons, even when an inmate's constitutional rights are implicated in that operation, unless
the challenged prison regulation is not reasonably related to legitimate penological goals.” Carter
v. Wilkinson, No. 2:05-CV-0380, 2007 WL 2874722, at *1 (S.D. Ohio Sept. 27, 2007), report and
recommendation adopted, No. 2:05-CV-0380, 2008 WL 5142998 (S.D. Ohio Dec. 5, 2008); see
also Ward 58 F.3d at 273 (holding that courts must accord prison administrators “wide-ranging
deference in the adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security”).
Accordingly, as to his request regarding copies of his electronically filed grievances,
Plaintiff has not satisfied his burden under the stringent preliminary injunction standard.
C. Halal/Kosher Diet
Next, Plaintiff asks the Court to order ODRC to provide him with a Halal/Kosher diet.
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(Doc. 34 at 2–3). Specifically, Plaintiff seeks an order requiring Defendants ensure he is provided
with the following: 2 frozen TV style meals, on a rotating variable menu; cereal; hard boiled eggs;
prepackaged muffin or cinnamon rolls; peanut butter & jelly for breakfast; and ample fresh fruit
throughout the day. (Id. at 2).
The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) “provides
protection for ‘institutionalized persons who are unable to attend to their religious needs and are
therefore dependent on the government’s permission and accommodation for exercise of their
religion.’” Roberts v. Schofield, No. 3:11-1127, 2014 WL 1028427, at *2 (M.D. Tenn. Mar. 18,
2014) (quoting Cutter v. Wilkinson, 544 U.S. 709, 721, (2005)). “Under RLUIPA, the inmate must
present prima facie evidence that prison officials have substantially burdened his religious
exercise.” Id. (citing 42 U.S.C. § 2000cc–2(b)). Applying that same standard here, the Court must
decide whether Plaintiff’s vegetarian, rather than Halal or Kosher diet, “substantially burdens” his
religious exercise.
ODRC prisons offer vegetable and non-pork meals to Muslim inmates, like Plaintiff. (Doc.
46-10 at ¶ 7). Prepackaged Kosher meals are served to inmates who have been approved by the
Religious Service Administrator for religious meal accommodations. (Id., ¶ 9). There are
currently 136 inmates with approved kosher meal accommodations. (Id.). Plaintiff first requested
Kosher meals in 2015 and Halal meals in 2016. (Id., ¶ 10). Plaintiff’s requests, however, were
denied because “ODRC currently provides meal accommodation in the form of either non-pork or
vegetarian meals for Muslims.” (Id.).
“Federal courts have consistently recognized that a prohibition of halal meat does not
amount to a substantial burden on religious exercise when vegetarian options are available.”
Robinson v. Crutchfield, No. 1:14-CV-115, 2014 WL 934548, at *2–3 (S.D. Ohio Mar. 10, 2014).
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“While ‘prison administrators must provide an adequate diet without violating the inmate’s
religious dietary restrictions ... [i]f the prisoner’s diet ... is sufficient to sustain the prisoner in good
health, no constitutional right has been violated.’” Robinson v. Jackson, No. 1:14-CV-115, 2014
WL 4988152, at *2 (S.D. Ohio Oct. 6, 2014), aff’d, 615 F. App’x 310 (6th Cir. 2015) (quoting
Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010)).
Plaintiff does not allege that his diet is inadequate to sustain him in good health. Rather,
Plaintiff asserts that, as a practicing “Shafi” and adherent to “Sufism,” he has “additional beliefs
and restrictions that are more strict than those of the Muslim groups typically found in prisons.”
(Doc. 58 at 10, ¶ 10).
These core beliefs include additional animals such as frogs, crocodiles, and any
creature with talons. As well as, core criterion for persons who may be permitted
to prepare my food. It is not permissible for me to eat food prepared or served by
pagans, wiccans, nor even atheist. The evidence of which was part of that taken
from me at LOCI. It specifically explained that I cannot eat food of the “Luati”
(people from the story of prophet Lot) who practice lewd and abominable sex
forbidden in Islam (as between two men).
(Id., ¶ 13).
Plaintiff also filed a letter, written by Lumumba K. Shakur, the “lead instructor at Tayba
Foundation,” which is an “educational religious organization” providing services to “incarcerated
Muslims all across the United States.” (Doc. 60). Mr. Shakur’s letter reiterates, in detail, the same
religious dietary restrictions that Plaintiff articulates in his pleadings. (See, e.g., id. (stating that
“[w]ith respect to Mr. Tolliver, he is a follower of the Shafi’i School of Jurisprudence and the
Shafi’i School of Jurisprudence is the strictest in this particular matter”)). However, despite his
protests otherwise, Plaintiff “has no right to choose the items on his menu, including meat that is
slaughtered in accordance with Islamic law.” Robinson, 2014 WL 934548, at *2–3 (finding that
“other than Plaintiff’s self-serving statements, there is no evidence that the vegetarian meal, which
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is halal, is not sufficient to sustain Plaintiff in good health”) (citing Spies v. Voinovich, 173 F.3d
398, 406 (6th Cir. 1999)); see also Adams v. Woodall, No. 3:14-CV-00020, 2015 WL 998324, at
*7 (M.D. Tenn. Mar. 5, 2015), report and recommendation adopted, No. 3-14-0020, 2015 WL
1549002 (M.D. Tenn. Apr. 7, 2015) (holding that “as long as a plaintiff is given an alternative to
eating non-halal meat, he does not suffer a ‘substantial burden’ to his religious beliefs under the
RLUIPA”) (quotation marks and citation omitted); Sareini v. Burnett, No. 08–13961–BC, No. 08–
13961, 2011 WL 1303399 (E.D. Mich. Mar. 31, 2011) (noting that “Plaintiff may prefer Halal
meat entrees over the vegetarian and non-meat substitutes provided, but his food preferences, as a
prisoner, may be limited”).
As the above case law makes clear, Plaintiff has failed to show a strong likelihood of
success on his religious diet claim. See, e.g., Robinson, 615 F. App’x at 313 (holding that
“vegetarian meals are, in fact, Halal” and, because plaintiff was not being denied Halal meals, he
therefore failed to state a claim under RLUIPA); Adams, 2015 WL 998324, at *6 (holding that
“[i]t is well established that Muslim prisoners do not have a right under the First Amendment or
the RLUIPA to be provided halal meat entrees;” rather, a prison must not force an inmate to violate
his religion) (quotation marks and citations omitted); Hudson v. Caruso, 748 F. Supp. 2d 721, 729–
30 (W.D. Mich. 2010) (stating the same).
Briefly, the other factors also cut against a preliminary injunction. According to Kevin
Stockdale, ODRC’s Deputy Director of Administration, “[t]he projected annual cost of providing
an extreme budgetary hardship at ODRC.” (Doc. 46-2, ¶ 3). While Plaintiff challenges the
three Halal meals to the approximately 3,400 Muslim inmates . . . is $5,802,586 and would cause
accuracy of these numbers, (see, e.g., Doc. 58 at 4–5, 10), the Court finds that both ODRC and the
public’s interest weighs against the granting of an injunction. As established, the Court must tread
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lightly “in the context of a motion impacting on matters of prison administration,” as “[a]ny
interference by the federal courts in the administration of state prison matters is necessarily
disruptive.” Orum v. Mich. Dep’t of Corr., No. 2:16-CV-00109, 2019 WL 2076996, at *2–4 (W.D.
Mich. Apr. 8, 2019), report and recommendation adopted, No. 2:16-CV-109, 2019 WL 2073955
(W.D. Mich. May 10, 2019); see also Robinson, 2014 WL 934548, at *6 (noting the burden on
ODRC and taxpayers that would result from “forced accommodation of all Muslim inmates’
requests for a halal diet that includes religiously slaughtered meat” and finding that “[s]training
the budget and impinging upon prison security will not advance the public interest”).
In sum, Plaintiff has not met his burden under the preliminary injunction standard, and
accordingly, the Court will not grant an injunction ordering Defendants to serve Plaintiff Halal or
Kosher meals.
D. Religious Headgear
Finally, Plaintiff requests that this Court order Defendant Inspector Lawrence to honor
Plaintiff’s religious headgear and cease asking him for “proof of purchase” of his headgear. (See
Docs. 34 at 4; 58 at 7). Specifically, he asserts that Defendant Inspector Lawrence is “challenging
the color of [his] kufis.” (Doc. 58 at 7).
In accordance with ODRC policy, inmates are permitted to wear a “white or beige kufi.”
(Doc. 46-1, ¶ 15 (citing ODRC policy 61-PRP-01 (“Inmate Personal Property”) and ODRC policy
72-REG-12 (“Muslim Religious Practices”))).
Inmates, like Plaintiff, incarcerated prior to
November 7, 2007, are “grandfathered in to maintain their current head covering color.” (Id. at 5
(the Grandfather Memorandum)). Also, under prison policy, “[i]nmates may be required to
provide proof of ownership for any item of their personal property at any time.” (Id. at 3, ¶ 16
(citing ODRC Policy 61-PRP-01)).
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According to her sworn affidavit, Inspector Lawrence met with Plaintiff regarding the color
of his kufi. (Id., ¶ 17). At their meeting, Plaintiff requested that his non-white or beige kufis be
deemed “grandfather property,” and Inspector Lawrence “requested [Plaintiff] to provide proof of
ownership in the form of a receipt prior to November 1, 2007, as proof of purchase in accordance
to the [“Grandfather Memorandum”].” (Id.). Plaintiff maintains that, by requiring him to abide
by ODRC policy regarding religious headgear, Inspector Lawrence is religiously “targeting” him.
(Doc. 34 at 4).
As a threshold issue, and as Defendants note, Plaintiff’s Amended Complaint is silent on
the issue of religious headgear. (See generally Doc. 30) “A court may not grant a preliminary
injunction when the issues raised in the motion are entirely different from those raised in the
complaint.” Frost v. Stalnaker, No. 1:09–cv–662, 2009 WL 3873666, at *2 (S.D. Ohio Nov.18,
2009) (citations omitted); see also Worth v. Wamsley, No. 2:17-CV-00043, 2018 WL 1315017, at
*3 (S.D. Ohio Mar. 14, 2018), appeal dismissed, No. 18-3300, 2018 WL 7959120 (6th Cir. July
2, 2018) (holding that “[i]f a party fails to establish a relationship between the requested relief in
the preliminary injunction and the conduct alleged in the compliant, the Court may deny the
motion”) (citation omitted).
In his reply brief, Plaintiff responds that the Grandfather Memorandum and its
interpretation is “at the heart” of his RLUIPA claim. (Doc. 58 at 7). Plaintiff’s conclusory
statement linking his new claim regarding his kufi to his Amended Complaint is not well taken.
Plaintiff may not use his preliminary injunction motion as an extra bite at the apple to argue new
claims not before this Court. “The purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981). Accordingly, a motion for a preliminary injunction should be denied if
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the movant cannot “demonstrate that the relief sought is related to the injury” alleged in the
complaint. Moody v. Bell, No. 1:08–CV–796, 2009 WL 3011505, *4 (S.D. Ohio June 26, 2009)
(citation omitted); see also Atakpu v. Lawson, No. 1:05–CV–00524, 2006 WL 3803193, *2 (S.D.
Ohio 2006) (holding that plaintiff’s motion for a preliminary injunction was properly denied where
plaintiff had failed to “establish a relationship between the injury claimed in the party’s motion
and the conduct asserted in the complaint”) (internal quotation marks omitted).
Even assuming, arguendo, that Plaintiff’s claim concerning his kufi relates to the RLUIPA
claims in his Complaint, Plaintiff has still not satisfied his burden under the preliminary injunction
standard. First, Plaintiff has not shown a likelihood of success on the merits because he has not
shown that ODRC’s policy concerning religious headgear substantially burdens his religious
exercise. See 42 U.S.C. § 2000cc–2(b). This Court addressed a similar situation in Moore v.
Cruse. There, the Court held that a prisoner’s constitutional rights were not violated by being
required “‘to have paperwork’” for his kufi. No. 2:12-CV-609, 2013 WL 6578935, at *5 (S.D.
Ohio Dec. 16, 2013), report and recommendation adopted, No. 2:12-CV-609, 2014 WL 878864
(S.D. Ohio Mar. 5, 2014). The Court explained:
In the case presently before the court, Defendants’ actions did not
unconstitutionally infringe Plaintiff’s free exercise of religion. Significantly,
Defendant Cruse did not prohibit Plaintiff from all use of religious headgear; rather,
Defendant Cruse informed Plaintiff that “in order to wear religious headgear in the
gym he must provide the proper religious affiliation paperwork.” Declaration of
Brent Cruse, ¶ 6. This requirement did not substantially burden Plaintiff’s freedom
to wear the religious headgear. See Treesh v. Bobb–Itt, No. 2:10–cv–211, 2011 WL
3837099, at *4 (S.D. Ohio Aug. 29, 2011). A prison regulation requiring
paperwork for religious headgear is reasonably related to legitimate penological
interests. See Weinberger, 2009 WL 331632, at *4. “The needs of the institution
and penological objectives must be balanced against the right of the individual
prisoner.” Jihaad v. O’Brien, 645 F.2d 556, 564 (6th Cir. 1981). Allowing inmates
to wear religious headgear in areas outside their cells and during activities other
than religious services “conceivably could undermine the [prison’s] legitimate
penological interests, primarily its overriding concern for prison security.”
Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (holding that “prison
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regulations restricting the use of Kufi caps and religious insignia bore reasonable
relationship to legitimate penological interest of prison security.”).
Id. at *6.
The Court reaches the same conclusion here and does not find that ODRC’s policy
concerning religious headgear substantially burdens Plaintiff’s exercise of his religion. See also
Heyward v. Cooper, No. 3:16-CV-2774, 2019 WL 1428341, at *5 (N.D. Ohio Mar. 29, 2019)
(“[plaintiff] fails to allege how his rights are substantially burdened by the ODRC’s requirement
that he wear a white and beige kufi instead of a multi-colored one”); Adams, 2015 WL 998324, at
*5–6 (upholding prison policy that prisoners purchase more expensive religious oils from prison
union supply instead of other, less expensive vendors).
Plaintiff emphasizes that a receipt showing proof of ownership of his kufi “would only
indicate a kufi was purchased, but it could not prove it was the same kufi.” (Doc. 58 at 7). These
are precisely the type of issues to which the Court will defer to the expertise and experience of
prison administrators. See Moore, 2013 WL 6578935, at *6 (finding that policy regarding religious
headgear was reasonably related to penological interests); Roden, 2018 WL 6816162, at * 3 (noting
that “[c]orrectional officials are professional experts in matters of security and discipline; as such,
they are better suited to make decisions about security and discipline than are the courts” (citing
McKune v. Lile, 536 U.S. 24, 37 (2002) (“Running a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of resources, all of which are peculiarly
within the province of the legislative and executive branches of government. To respect these
imperatives, courts must exercise restraint in supervising the minutiae of prison life.”) (quotation
marks and citation omitted))). Accordingly, Plaintiff’s final request for a preliminary injunction
fails.
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At base, “[a] preliminary injunction is an extraordinary measure that has been characterized
as ‘one of the most drastic tools in the arsenal of judicial remedies.’” McCreary Cty., 354 F.3d at
444 (quoting Hanson Trust PLC, 781 F.2d at 273). Moreover, in a case like this one, where a
prisoner seeks an order enjoining state prison officials, the Court must “proceed with the utmost
care and must be cognizant of the unique nature of the prison setting.” Roden, 2018 WL 681612,
at *3. Plaintiff has not satisfied his burden to show that such an extraordinary remedy is
appropriate. Accordingly, the Court will not grant a preliminary injunction here.
IV.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Motion (Doc. 34) be
DENIED. Defendant is DIRECTED to respond to Plaintiff’s Offer of Settlement (Doc. 59)
within 14 days of the date of this Report and Recommendation. Defendant may file a notice with
the Court indicating compliance with this directive but need not file the response on the public
docket.
V.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. Upon proper objection, a District 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).
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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).
IT IS SO ORDERED.
Date: June 21, 2019
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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