Maynard v. Hale et al

Filing 20

REPORT AND RECOMMENDATION: The Magistrate Judge Recommends that the MOTION to Dismiss as to all Defendants 12 be Granted and this case be dismissed with prejudice. Signed by Magistrate Judge Joe Brown on 4/17/12. (xc:Pro se party by regular and certified mail.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DUSTON DEAN MAYNARD,
Plaintiff
v.
PAM HALE, BRUCE HELMS, JESSIE
OLIVER, BARBARA JACKSON,
LYNETTE GAVIN, and
PATRICIA PATTERSON,
Defendants

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No. 3:11-1233
Judge Sharp/Brown

TO: THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Presently

pending

is

a

motion

to

dismiss

by

the

Defendants Pam Hale, Bruce Helms, Jesse Oliver, Barbara Jackson,
and Patricia Patterson (Docket Entry 12).1

For the reasons stated

below the Magistrate Judge recommends that the motion as to all
Defendants be GRANTED and this case dismissed.
BACKGROUND
In his statement of claims (Docket Entry 1, par. 4) the
Plaintiff alleges that Ramadan began on August 1, 2011.

The

Plaintiff alleges that he wanted to participate as a Muslim by
eating a predawn meal during the month of August and having another
meal served after sunset.

1

He alleges that he was not given a

The Defendants’ counsel also represents Lynette Gavin, and in the
body of his memorandum of law (Docket Entry 13, p. 6) refers to the
activities of the Defendant Gavin. For this purpose of this report and
recommendation, the Magistrate Judge will consider it as to all six
Defendants, as it appears the arguments are identical as to Defendants
Gavin, Patterson, Jackson and Oliver.

predawn meal on August 1st and he asked why not.

He was later

contacted by Chaplain Helm’s office and informed that, after
receiving his complaint, that he was placed on the list for
Ramadan.
Plaintiff stated that after sunset that night he was
advised by a correctional officer that there was no Ramadan list.
He, therefore, did not receive a meal that evening after fasting
all day.
On August 2nd he was again not provided a predawn meal.
He stated that when he got his regular meal that day, his food tray
had on it a tag which stated “Ramadan per Chaplain Helms.”

He

attached to his complaint a statement provided by Chaplain Fleming
to Islamic inmates that the jail would be observing the holy month
of Ramadan and that inmates who signed up for Ramadan would be
getting a breakfast tray as usual before daylight, and that they
would receive a double portion dinner after dark.

They were

advised that if they were seen eating during daylight hours they
would be removed from the Ramadan list, and once removed they would
not be put back on the list.

They were instructed to sign up for

Ramadan with their case manager.
In his grievance filed on August 2, 2011 (Docket Entry 11, p. 6) he states that he made inquiry at 12:30 a.m. on August 1st
about the Ramadan list and was provided the memo mentioned above by
Correctional Officer Dalton.

However, he states that he was

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advised that the memo was not for the Hill Detention Center, but
for another institution.

He states that Correctional Officer

Dalton told him that there was no memo for Hill Detention Center.
He advised that he did talk to Chaplain Helms and Lieutenant Bone
and that he was told that he was placed on the Ramadan list and
that if he had any problems he was to let Chaplain Helms know.

He

states that later that evening at approximately 8:15 he asked if
they were going to call the Ramadan participants to eat so that
they could break their fast.

He states that Correctional Officer

Lang said there was no list of preparation for Ramadan and that he
had been to the Chaplain’s office that morning.

Correctional

Officer Lang said it was out of his control and he received nothing
to eat that evening.
On the morning of August 2nd at approximately 5:38, he
states that he again asked Correctional Officer Lang why he had not
received the predawn meal and was told that there was no Ramadan
list.

He stated that he did not receive a meal that morning, but

still made his intentions to fast.

He states that about 8:20 p.m.

he was called to the chow hall where he spoke to Lieutenant Pacmele
and Correctional Officer Williams and they gave him a lunch and
dinner tray and told him that everything was in order.

He states

that the tag on the diet tray stated that he was on Ramadan per
Chaplain Helms.

He retained this tag and filed a copy with his

complaint (Docket Entry 1-1, p. 5).

3

On August 3rd he states that he received his predawn meal
and was told by Correctional Officer Lang that everything was now
in order.

He states that at 8:30 p.m. on August 3rd he asked

Correctional Officer McCutchen if they were ready for Ramadan and
was told that he was not on a Ramadan list.

He spoke again to

Lieutenant Pacmele who told him that he was not on the list.

When

he

tray

showed

Lieutenant

Pacmele

the

tag

from

his

morning

confirming that he was on the list, Lieutenant Pacmele told him
that it was out of his control and he received nothing to eat that
night.
At 5:15 a.m. on August 4th Plaintiff asked about the
predawn meal and Correctional Officer McCutchen told him that he
still was not on the list.

He received no predawn meal that

morning and still made his intentions to fast for the day.

That

evening at 7:45, he was called to a lineup in the hallway to get a
dinner tray and he was able to take the tray back to his cell to
eat after sunset.
Plaintiff stated that on August 5th at 4:18 a.m. he asked
Correctional Officer Lang about eating the predawn meal and was
told that he was not on the list, although Correctional Officer
Lang told him that he knew he was on it from days earlier and did
not know how he was removed.

He again did not receive a predawn

meal and still made his intentions to fast for the day.

At 8:04

p.m. he was called to the chow hall and given his lunch and dinner
trays and Lieutenant Pacmele informed him he was on the list again.

4

On August 7th at 8:01 p.m. he was given his food inside
the unit by Correctional Officer Lang.

He states that when he

opened his tray he noticed that the main course was missing.
Correctional Officer Lang informed him that the contract workers
were gone and that there was nothing he could do at that time.

He

therefore did not receive a proper meal for that evening.
On August 8th Plaintiff received a response from his
grievance that he wrote to Pam Hale, who advised him that he was on
the list for Ramadan.

At 8:46 p.m. he entered the chow hall to

break his fast and was given a peanut butter sandwich and an
orange. He complained and Lieutenant Miller came and said that the
contract cafeteria people were gone and that there was nothing he
could do at this time.

He again did not receive a meal that he was

supposed to receive.
Plaintiff states that on August 15 in the evening he
received only a lunch tray and no dinner tray.
The complaint contains no factual allegations that the
Defendants Gavin, Patterson, Jackson and Oliver did anything.

The

factual allegations against the Defendant Hale simply alleges that
she responded to his grievance and told him that he was on the
Ramadan list.

The factual allegations against Defendant Helms are

that when he complained to Chaplain Helms about not getting to eat
a Ramadan meal on August 1st that Chaplain Helms placed him on the
list and told him to let him know if there were any problems.
There are no allegations that he complained further to Chaplain

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Helms or that Chaplain Helms did anything other than place him on
the list.
There

are

allegations

that

other

individuals

gave

Plaintiff various reasons why he was not provided a meal, that he
was not on the Ramadan list, and that the contract food service
employees had failed to properly prepare a food tray.
LEGAL DISCUSSION
The motion to dismiss and accompanying memorandum of law
were filed on March 23, 2012 (Docket Entries 12 and 13).

As of the

date of this Report and Recommendation Plaintiff has filed no
response to this motion.

Under Local Rule 7.01 a response is due

no later than 14 days after the service of the motion and that
failure to file a timely response shall indicate that there is no
opposition to the motion.
Even though no objection to the motion has been filed,
the Magistrate Judge will nevertheless review the matter for legal
sufficiency.
The Magistrate Judge believes that the memorandum of law
(Docket Entry 13) is well written and accurately summarizes the law
in this matter.2

As an initial matter, under Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009), threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice and

2

A number of citations are to decisions outside of the Sixth
Circuit. More Sixth Circuit cases would be even more useful.

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a court is not required to accept as true legal conclusions couched
as a factual allegation.

Iqbal at 1950.

In this case the Plaintiff makes no factual allegations
against the Defendants Gavin, Patterson, Jackson and Oliver, and
his complaint against them is subject to dismissal on that ground
alone.
The allegations against the Defendant Hale are that Hale
responded to his grievance and told him that he was on the Ramadan
list.
The mere fact that the Plaintiff feels that a response
was inadequate does not state a Constitutional claim.
v. Parker, 2008 WL 4138175 (W.D. Tenn. 2008).

See Rogers

The Rogers court

quotes with approval George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007), which states
Ruling against a prisoner on an administrative complaint
does not cause or contribute to the Constitutional
violation. A guard who stands and watches while another
guard beats the prisoner violates the Constitution; a
guard who rejects an administrative complaint about a
completed act of misconduct does not.
In the present case, there is no allegation that the
Defendant Hale did anything except to respond to the Plaintiff’s
administrative grievance.

It further appears from his complaint

that the advise she gave him was correct even though it appears
that there were problems in carrying out the actual providing of
Ramadan meals.
Concerning the Defendant Chaplain Helms, the Magistrate
Judge agrees with the Defendant’s position that these allegations
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do not state a claim under § 1983.

According to the complaint,

when the Plaintiff complained to Chaplain Helms he was placed on a
Ramadan list and was told to let the Chaplain know if he had any
problems.

The complaint does not allege that he ever complained

further to Chaplain Helms or that Chaplain Helms did anything to
prevent him from being on the Ramadan list or directly interfered
with his receipt of meals.
Taking
favorable

to

the

him,

he

Plaintiff’s
does

allege

complaint
that

in

there

a
were

light

most

errors

in

providing him proper Ramadan meals on August 1, 4, 5, 7, 8, and 15.
However, the failure appears to be from bureaucratic errors in the
preparation of the Ramadan list and in the preparation of meals by
the food service employees.

While certainly not being provided a

proper meal is unpleasant, the Plaintiff does not allege that he
was not able to practice his religion properly as he states that he
did fast as required by his religious belief.

A short-term and

sporadic disruption of his Ramadan eating habits does not, under
these circumstances, allege a substantial burden on his religious
freedom.

See Kennedy v. Boardman, 91 F.3d 30, 33 (7th Cir. 1996).

This is particularly true when it appears that the failure to
properly serve the Plaintiff a predawn meal and a double portion
evening meal was the result of bureaucratic bungling rather than a
deliberate act by any of the named Defendants in this matter.

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RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion to dismiss as to all Defendants be
GRANTED and this case be dismissed with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 17th day of April, 2012.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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