Monson v. Steward et al
OPINION AND ORDER - Monson's Motion for Preliminary Injunction 123 , his Motion for Appointment of Counsel 118 , and his Motion for Order 119 are DENIED. (See attached 6-page Opinion and Order, a copy of which was mailed to plaintiff on 3-6-2017) Signed on 3/6/2017 by Judge Garr M. King. (pg) Modified on 3/6/2017 (pg).
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
HEIDI STEWARD; STUART YOUNG;
DENNIS HOLMES; KELLY RATHS;
CHERIE JACKSON; DON HODNEY;
JOHN MYRICK, sued in their Official
and Individual Capacities; NANCY
HOWTON; MIKE GOWER; KIM
BROCKAMP; STEVE FRANKE;
COLLETTE PETERS, sued in their
82911 Beach Access Rd.
Umatilla, OR 97882
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Case No. 2:15-cv-00513-KI
OPINION AND ORDER
Ellen F. Rosenblum
Shannon M. Vincent
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
Attorneys for Defendants
Maurice Monson, an Oregon Department of Corrections’ inmate, brings several claims
against a dozen ODOC officials arising out of the decision to provide Monson with a vegetarian
diet rather than a kosher diet. He alleges violations of his right to free exercise under the First
Amendment, his right to equal protection under the Fourteenth Amendment, his right to be free
from cruel and unusual punishment under the Eighth Amendment, and his statutory rights under
the Religious Freedom Restoration Act (“RFRA”). The latter claim has been interpreted by
defendants as a claim under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), the statute which replaced RFRA when the Supreme Court deemed RFRA
unconstitutional. Defs.’ Mot. 1, n.1 (citing Boerne v. Flores, 521 U.S. 507, 536 (1997)) (ECF
No. 100). Pending before me is Monson’s Motion for Preliminary Injunction (ECF No. 123), his
Motion for Appointment of Counsel (ECF No. 118), and his Motion for Order (ECF No. 119).1
Plaintiff is a Rastafarian who seeks a kosher diet. He identifies as a member of the 12
Tribes of Israel and describes himself as a “Biblical Believer.” Am. Comp. Ex. C (Monson Aff.)
Also pending are the parties’ cross-motions for summary judgment, which I hold in
abeyance pending further briefing on ODOC’s supplemental motion for summary judgment
based on new developments in the case.
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(ECF No. 31). He also describes himself as a “Rastafarian-Christian, with Judaic or Judaism
teachings and observances of the Jewish laws.” Id. In his Religious Accommodation Request,
plaintiff explained that Rastafarians believe in eating natural foods, and that the foods must be
prepared separately because he cannot eat any part of the animal. In response to the question
about what alternatives might be consistent with his religious needs, plaintiff wrote that the most
observant Rastas follow the Ital diet, which consists of natural food that is not canned, and is free
of chemicals and preservatives. Coffee and milk are not permitted. He explained that most
Rastas are vegetarians or vegans. Am. Compl. Ex. E. When asked about the non-meat
alternative diet, plaintiff complained that the diet caused him to lose weight, affected his blood
pressure, and tempted him to buy items from the commissary. Id. ODOC denied Monson’s
requests for a kosher diet.
ODOC has been providing Monson with a kosher diet during the pendency of this case.
In recent correspondence to the Court, ODOC confirmed it has made Monson’s kosher diet
Motion for Preliminary Injunction
Plaintiff has filed a motion for preliminary injunction, but he does not specify what he
seeks to enjoin or mandate. In the documents he attaches to his motion, he describe problems
with the quality of his kosher diet that ODOC has been providing him during the pendency of
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
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555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1)
the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm
in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and
(4) an injunction is in the public interest. Id. at 20 (rejecting the Ninth Circuit’s earlier rule that
the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some
circumstances, to justify a preliminary injunction).
The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s
alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship
balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the
other two elements of the Winter test are also met.” Id. at 1132. Thus, a preliminary injunction
may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious
questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and
the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing
A “preliminary injunction is always appropriate to grant intermediate relief of the same
character as that which may be granted finally.” De Beers Consol. Mines v. U.S., 325 U.S. 212,
220 (1945); Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631 (9th Cir. 2015)
(“A preliminary injunction is appropriate when it grants relief of the same nature as that to be
finally granted.”). After reviewing the motion for preliminary injunction and the Amended
Complaint, I conclude that, although Monson frames his motion as one for preliminary relief, his
request for better kosher food is not preliminary to any decision on the merits.
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Monson’s request is not for “relief of the same character as that which may be granted
finally.” See De Beers, 325 U.S. at 220. In his Amended Complaint, Monson does not challenge
the quality of the kosher food he is receiving (as he was not receiving any kosher food at the time
he initiated litigation), and he does not request declaratory or injunctive relief related to the
quality of his food. As a result, Monson seeks an injunction on matters “lying wholly outside the
issues in the suit” and “no decision of the suit on the merits can redress any injury done by [such
an] order.” See id. at 217. As a result, I deny his Motion for Preliminary Injunction.
Motion for Appointment of Counsel
Generally, there is no constitutional right to counsel in a civil case. United States v.
$292,888.04, 54 F.3d 564, 569 (9th Cir. 1995) (“$292.888.04”); United States v. 30.64 Acres of
Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to 28 U.S.C. § 1915(e)(1),2 this
court has discretion to request volunteer counsel for indigent plaintiffs in exceptional
circumstances. $292,888.04, 54 F.3d at 569; Wood v. Housewright, 900 F.2d 1332, 1335 (9th
Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While this court may
request volunteer counsel in exceptional circumstances, it has no power to make a mandatory
appointment. Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 301-08
(1989). There are no funds available to pay the services of such volunteer counsel.
In order to determine whether exceptional circumstances exist, this court evaluates the
plaintiff’s likelihood of success on the merits and the ability of the pro se plaintiff to articulate
his or her claim in light of the complexity of the legal issues involved. $292,888.04, 54 F.3d at
The text of 28 U.S.C. § 1915(e)(1) reads “[t]he court may request an attorney to
represent any person unable to afford counsel.”
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569; Wood, 900 F.2d at 1335-36; Wilborn, 789 F.2d at 1331. However, “[n]either of these
factors is dispositive and both must be viewed together before reaching a decision on request of
counsel under section 1915(d).” Wilborn, 789 F.2d at 1331; Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991).
I do not find that exceptional circumstances exist to warrant an effort by the court to
obtain volunteer counsel for Monson. Monson has sufficiently articulated the basis of his claim,
and the legal issues are not so complex that counsel would be necessary. I deny the motion for
appointment of counsel (ECF No. 18).
Motion for Order
Finally, Monson asks that the Court issue a ruling on his pending Motion for Summary
Judgment (ECF No. 78). Given recent developments in the case, it is most efficient to resolve all
of the pending motions at once.
Based on the foregoing, I deny Monson’s Motion for Preliminary Injunction , his
Motion for Appointment of Counsel , and his Motion for Order .
IT IS SO ORDERED.
day of March, 2017.
/s/ Garr M. King
Garr M. King
United States District Judge
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