Santos v. Chambers-Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MIKE SANTOS,

Plaintiff,

v. Civil Action 2:19-cv-2984

Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

ANNETTE CHAMBERS-SMITH, et al.,

Defendants.

REPORT AND RECOMMENDATION

This is a civil rights action under 42 U.S.C. § 1983 in which Plaintiff, Mike Santos, an

inmate in the custody of the Southern Ohio Correctional Facility (“SOCF”) who is proceeding

without the assistance of counsel, alleges that Defendants Annette Chambers-Smith, Director of

the State of Ohio Department of Corrections, and Michael Davis, Religious Services

Administrator for the Ohio Department of Rehabilitation and Corrections, violated the Free

Exercise Clause of the First Amendment, as well as the Eighth and Fourteenth Amendments, by

denying his request for kosher meals. This matter is before the United States Magistrate Judge

for a report and recommendation on Defendants’ Motion for Summary Judgment (ECF No. 37),

Plaintiff’s Response in Opposition (ECF No. 43), and Defendants’ Reply (ECF No. 44), as well

as Plaintiff’s Motion for Summary Judgment (ECF No. 38) and Defendants’ Response in

Opposition (ECF No. 42).1 For the following reasons, it is RECOMMENDED that Defendants’

1 Plaintiff has not filed a Reply in support of his Motion for Summary Judgment, and the time to

do so has now expired.

Motion (ECF No. 37) be GRANTED IN PART and DENIED IN PART and that Plaintiff’s

Motion (ECF No. 38) be DENIED.

I. BACKGROUND

Plaintiff has been incarcerated since 2005. On each of August 26, 2016, and August 16,

2017, Plaintiff submitted a Request for Religious Accommodation to the Ohio Department of

Rehabilitation and Correction (“ODRC”) seeking approval to receive kosher meals in accordance

with his professed Jewish Orthodox religious beliefs. (Requests for Religious Accommodation,

ECF No. 37-1, PAGEID #579–82.) The request form used by the prison for religious

accommodations required Plaintiff to identify his religion, specify the accommodation he was

seeking, state the writings or teachings forming the basis for his request, identify a religious

leader who could verify his request, describe his faith, identify the date and location of his bar

mitzvah, explain how his faith impacts his life, list which resources he used to learn about his

faith, identify those religious leaders who helped develop his faith, explain why accommodation

is necessary for him to practice his faith, describe how he participates in his faith, and indicate

how long he has practiced his faith. (Id.) In his 2017 request,2 Plaintiff answered that he is a

converted Orthodox Jew; he is requesting kosher meals; his request is supported by Leviticus

Chapters 17–21 and Numbers Chapter 6; religious leaders were not available to verify his request

because “the outside Jewish organizations don’t accept me because I’m in prison”; “my faith is

in the name of the ‘most high’ which I seek”; he “never had a bar mitzvah” as he is “a spiritual

convert”; his faith impacts his life via “the peace I receive in my search to worship truth”; he

“researched all religions in my search for truth and am strongly/spiritually drawn to convert to

Judaism”; that “my religious leader is the most high”; that kosher meals are necessary to practice

2 As explained below, Plaintiff’s claims stemming from his 2016 request are time-barred.

his faith because “it is my faith to keep the divine order of the most high”; he participates in his

faith “in my cell because the bible instructs me to seek (which gives my mind peace) which is

better than accepting someone else’s name that neither brings peace nor gives life”; and he has

practiced his faith “since a few years prior to my incarceration.” (Id. at PAGEID #80–82.)

Plaintiff’s requests were denied on April 14, 2017, and November 28, 2017, respectively.

(Disposition of Grievance, ECF No. 4, PAGID #53.) The reasons given for denial were, “I am

unable to make a determination based on the information provided” and “I am unable to

determine the extent to which the request represents a strongly-held religious belief,”

respectively. (Decisions of the Religious Services Administrator, ECF No. 44-2, ECF No. 4,

PAGEID #59.)

After exhausting his appeal of the kosher meal denials through the prison grievance

process, Plaintiff commenced this action on May 29, 2019 (ECF No. 1.) Plaintiff asserts claims

against Defendants Annette Chambers-Smith and Mike Davis in both their individual and official

capacities for violation of his First, Eighth, and Fourteenth Amendment rights under 42 U.S.C.

§ 1983, and seeks monetary damages, injunctive relief, and a declaratory judgment. (Compl.,

ECF No. 4.)

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

The burden then shifts to the nonmoving party to “set forth specific facts showing that

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

in his favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than

simply show that there is some metaphysical doubt as to the material facts, . . . there must be

evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to

create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x

435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P.

56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts

of materials in the record”). “When a motion for summary judgment is properly made and

supported and the nonmoving party fails to respond with a showing sufficient to establish an

essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486

(citing Celotex, 477 U.S. at 322–23).

III. ANALYSIS

A. Defendants’ Motion for Summary Judgment

Defendants make several arguments as to why they are entitled to summary judgment:

(1) Plaintiff’s allegations are insufficient to establish a violation of the Eighth or Fourteenth

Amendments; (2) Plaintiff’s request for kosher meals does not stem from a sincerely-held

religious belief; (3) Defendants are entitled to qualified immunity; (4) Plaintiff’s official capacity

claims are barred by the Eleventh Amendment; (5) Plaintiff’s claims are barred by the two-year

statute of limitations applicable to § 1983 claims; (6) the allegations against Defendant

Chambers-Smith are insufficient to establish supervisor liability under § 1983; and (7) Plaintiff’s

claims for money damages are barred by the Prison Litigation Reform Act. The undersigned will

consider each argument in turn.

1. Plaintiff’s allegations are insufficient to establish a violation of the Eighth or

Fourteenth Amendment.

Although Plaintiff’s Complaint and briefing focus primarily on the alleged violation of

his First Amendment rights, he also makes passing references to violations of the Eighth and

Fourteenth Amendments. He has failed to adequately allege claims under either of these two

amendments.

Plaintiff vaguely refers to Defendants’ “deliberately not providing Plaintiff with a kosher

diet” in violation of the Eighth Amendment. “The [Eighth] Amendment . . . imposes duties on

[prison] officials, who must provide humane conditions of confinement; prison officials must

ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take

reasonable measures to guarantee the safety of the inmates . . . .” Farmer v. Brennan, 511 U.S.

825, 932-33 (1994) (internal quotation marks and citations omitted). See also Helling v.

McKinney, 509 U.S. 25, 33 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.,

489 U.S. 189, 200 (1989)) (holding that the Eighth Amendment “requires that inmates be

furnished with the basic human needs”). To make out a claim under the Eighth Amendment, the

prisoner must satisfy both an objective and a subjective component. Farmer, 511 U.S. at 834.

To satisfy the objective component for a claim based upon a failure to prevent harm, “the inmate

must show he is incarcerated under conditions posing a substantial risk of serious harm.”

Farmer, 511 U.S. at 834 (citations omitted). “To satisfy the subjective component, an inmate

must show that prison officials had a sufficiently culpable state of mind.” Berksire v. Beauvais,

928 F.3d 520, 535 (6th Cir. 2019) (internal quotation marks and citations omitted). Here,

because Plaintiff has not alleged any harm sufficient to satisfy the requisite objective component,

he cannot prevail on an Eighth Amendment claim.

Plaintiff also vaguely refers to religious discrimination in violation of the Fourteenth

Amendment. (Pl.’s Resp. 2, ECF No. 43). “The threshold element of an equal protection claim

is disparate treatment.” Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir.

2006). 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 there was no rational basis for the difference in treatment. See Heard

v. Caruso, 351 F. App’x 1, 11 (6th Cir. 2009) (citing Buchanan v. City of Bolivar, 99 F.3d 1352,

1360 (6th Cir. 1996)). Because Plaintiff’s Complaint and summary judgment briefing are devoid

of any reference to disparate treatment of other similarly-situated prisoners, Plaintiff cannot

establish a Fourteenth Amendment violation.

Accordingly, to the extent Plaintiff advances claims under the Eighth and Fourteenth

Amendments, Defendants are entitled to summary judgment on these claims.

2. An issue of fact remains as to whether Plaintiff’s request for kosher meals

represents a sincerely-held religious belief.

The majority of Plaintiff’s Complaint and summary judgment briefing focuses on the

alleged violation of the Free Exercise Clause of the First Amendment resulting from the denial of

his request for kosher meals. The First Amendment, made applicable to the states through the

Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. “Prisoners retain

the First Amendment right to the free exercise of their religion.” Hayes v. Tenn., 424 F. App’x

546, 549 (6th Cir. 2011). “Under § 1983, a prisoner alleging that the actions of prison officials

violate his religious beliefs must show that the belief or practice asserted is religious in the

person’s own scheme of things and is sincerely held.” Barhite v. Caruso, 377 F. App’x 508, 511

(6th Cir. 2010) (citation and internal quotation marks omitted). The prisoner must also show that

the prison’s action substantially burdens his sincerely held religious beliefs. Id. “An action of a

prison official will be classified as a substantial burden when that action forced an individual to

choose between following the precepts of his religion and forfeiting benefits or when the action

in question placed substantial pressure on an adherent to modify his behavior and to violate his

beliefs.” Hayes, 424 F. App’x at 555 (internal quotation marks and citations omitted). Under

§ 1983, if the action substantially burdens a prisoner’s sincerely held beliefs, the action is

nevertheless “valid if it is ‘reasonably related to legitimate penological interests.’” Colvin v.

Caruso, 605 F.3d 282, 296 (6th Cir. 2010) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

In every case involving the Free Exercise Clause, the threshold inquiry is whether the

religious belief in question is “sincerely held.” United States v. Seeger, 380 U.S. 163, 185

(1965); Colvin, 605 F.3d at 298 (6th Cir. 2010) (“[T]he touchstone for determining whether a

religious belief is entitled to free-exercise protection is an assessment of whether the beliefs

professed are sincerely held.”) (citations, alterations, and internal quotation marks omitted). This

threshold inquiry “is, of course, a question of fact.” Seeger, 380 U.S. at 163.

The undersigned finds there is a dispute of fact as to the sincerity of Plaintiff’s belief that

he must consume only kosher food. Plaintiff has repeatedly asserted his Jewish Orthodox faith,

including the kosher dietary requirement. For instance, he changed his religious affiliation with

the prison to Jewish Orthodox on August 1, 2016 (Santos Dep. 45, ECF No. 36), and he

requested kosher meals in both 2016 and 2017 (Requests for Religious Accommodation, ECF

No. 37-1, PAGEID #579–82). He further testified at his deposition that, after considering

several religions, he concluded that Orthodox Judaism “was the most genuine” (Santos Dep. 12,

ECF No. 36); that he uses the Torah to learn about Orthodox Judaism (id. at 28); that he made

requests of prison officials to meet with a rabbi (id. at 44); that he wrote to Jewish organizations

in New York and Florida to obtain help with his religious studies (id. at 46–53); that he is “trying

[his] best to understand” and “trying [his] best to abide by” the tenets of Orthodox Judaism (id. at

77); that he attended classes on the Jewish religion offered at a previous correction facility (id. at

96–97); and that he knows keeping kosher to be a central requirement of Orthodox Judaism (id.

at 59).

In response, Defendants contend that Plaintiff’s alleged sincere belief in Orthodox

Judaism and the kosher diet requirement is belied by Plaintiff’s frequent changing of his

religious affiliation (see Santos Dep. at 15–16, acknowledging previous affiliations with

Catholicism, Santeria, and Kingism), his purchase of non-kosher food from the prison

commissary (id. at 123–24), and his general lack of knowledge about specific Jewish Orthodox

practices and rituals (id. at 33–36, 53–55, 75, 86–87, 90-91, 121). Defendants also submit

declarations from various prison employees asserting that Plaintiff did not attend available

Hebrew classes or request to take part in a Passover Seder (Kostenko Decl., ECF No. 37-5; York

Decl., ECF No. 37-2); that Plaintiff did not request any books on Judaism from the prison library

until after his deposition (Strickland Decl., ECF No. 37-4); and that in January 2020, Plaintiff

requested permission to attend Christian retreats (Ruckel Decl., ECF No. 37-3). The

undersigned finds that this testimony is not so overwhelming as to foreclose the possibility that

any reasonable jury could conclude Plaintiff’s belief is sincere. This is especially so as Plaintiff

also testified that his practice of Orthodox Judaism is hampered by the fact that he is presently

incarcerated in a maximum-security facility, where the ability to attend classes, receive religious

materials, and celebrate Jewish holidays is constrained. (Id. at 120). Further, Plaintiff testified

that he usually does not consume the non-kosher food he purchases from the commissary, but

rather trades it with other prisoners for other desirable items that he cannot purchase frequently

due to prison policies. (Id. at 125–26).

Accordingly, the undersigned finds that an issue of fact remains as to whether Plaintiff

sincerely holds a religious belief requiring him to maintain a kosher diet. As a result, Defendants

are not entitled to summary judgment on Plaintiff’s First Amendment claim.3

3. Defendants are not entitled to qualified immunity.

Defendants contend that, even if Plaintiff’s First Amendment rights were violated, they

are protected by qualified immunity. Under the doctrine of qualified immunity, “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.” Moldowan v. City of Warren, 578 F.3d

351, 374 (6th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also

Reichle v. Howards, 566 U.S. 658, 664 (2012). “[Q]ualified immunity applies irrespective of

whether the official’s error was a mistake of law or a mistake of fact, or a mistake based on

mixed questions of law and fact.” Hall v. Sweet, 666 F. App’x 469, 477–78 (6th Cir. 2016)

(citing Pearson v. Callahan 555 U.S. 223, 231 (2009)). In determining whether an official is

entitled to qualified immunity, the Court asks two questions: “First, viewing the facts in the light

3 If a prison action is found to burden a prisoner’s First Amendment rights, courts go on to

examine the factors set forth in Turner v. Safley, 482 U.S. 78 (1987) to determine whether the

action is nevertheless valid because it is reasonably related to a legitimate penological interest.

Because an issue of fact exists at the threshold inquiry of whether Plaintiff’s belief is sincerely

held, the undersigned does not reach the Turner analysis. However, the undersigned notes that,

if Plaintiff’s belief is determined to be sincerely-held, it would be difficult for Defendants to

establish that denying him kosher meals is related to a legitimate penological interest because

they acknowledge kosher meals are provided to other prisoners who “have demonstrated that

kosher food is necessary for the practice of their religion.” (Defs.’ Mot. 17, ECF No. 37.)

most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has

occurred? Second, was the right clearly established at the time of the violation?” Mitchell v.

Schlabach, 864 F.3d 416, 420 (6th Cir. 2017) (quoting Miller v. Sanilac County, 606 F.3d 240,

247 (6th Cir. 2010)). Government officials are protected from damages liability by the doctrine

of qualified immunity unless the answer to both questions is yes. Id. Courts “are free to

consider those questions in whatever order is appropriate in light of the issues before them.”

Moldowan, 578 F.3d at 375. “Once the qualified immunity defense is raised, the burden is on

the plaintiff to demonstrate that the officials are not entitled to qualified immunity.” Id. (citing

Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) and Barrett v. Steubenville City

Schools, 388 F.3d 967, 970 (6th Cir. 2004)).

Here, Defendants contend that they cannot have committed a constitutional violation

because “there [is no] evidence in the record suggesting that Plaintiff’s request for a kosher diet

is founded on a sincerely-held religious belief since Plaintiff knows virtually nothing about

Orthodox Judaism and, as his deposition testimony demonstrates, had not bothered to learn

anything about it since becoming a spiritual convert in 2016.” (Defs.’ Mot. 20, ECF No. 37.)

Defendants further contend that, “even if the Court were to find a constitutional violation,

Plaintiff has failed to show that the unlawfulness of Defendants’ conduct was clearly established

at the time.” (Id.) The undersigned disagrees with Defendants on both points.

a. An issue of fact remains as to whether Defendants violated Plaintiff’s

First Amendment rights.

As explained supra, an issue of fact remains as to the threshold First Amendment inquiry

of Plaintiff’s sincerely-held religious belief. Moreover, the basis for Defendants’ conclusions in

2017 that Plaintiff lacked a sincerely-held religious belief is far from clear. The written denials

stated only, “I am unable to make a determination based on the information provided” and “I am

unable to determine the extent to which the request represents a strongly-held religious belief,”

respectively. (Decisions of the Religious Services Administrator, ECF No. 44-2, ECF No. 4,

PAGEID #59.) In their briefing, Defendants explain their decision-making at the time only by

stating, “Plaintiff’s responses to [the] questions [on the religious accommodations request form]

were conclusory in nature and less than convincing.” (Defs.’ Mot. 10, ECF No. 37.)

However, Defendant’s subsequent arguments and deposition questions suggest

Defendants primarily discounted the sincerity of Plaintiff’s belief that he required a kosher diet

based on his lack of knowledge about traditional Jewish Orthodox teachings and practices. (See

Defs.’ Mot. 2–3, ECF No. 37) (“[B]ecause Plaintiff has failed to demonstrate that he has

sincerely converted to Orthodox Judaism, and has little knowledge of that faith other than that

some Jews believe in God and that some keep kosher, he has no constitutional right to the

permanent injunction, declaratory relief or monetary damages he seeks from the Defendants.”).

Defendants spend much of their briefing recounting all the deposition questions regarding

Judaism that Plaintiff was not able to answer to their satisfaction, highlighting Plaintiff’s lack of

knowledge of bar mitzvahs, Passover, the visual appearance of the Torah, the Talmud, the

Mishnah, matzos, tikkun olam, minyans, or Hebrew. (Id. at 3–4.)

Yet the United States Court of Appeals for the Sixth Circuit has unambiguously held that

prisoners cannot be denied kosher meals on grounds that they lack objective knowledge of

Judaism. Colvin v. Caruso, 605 F.3d 282, 297–98 (6th Cir. 2010). In Colvin, the prison denied

the plaintiff’s request for kosher meals on the basis that he exhibited “minimal knowledge of

Judaism and its dietary requirements” and “provided minimal information in response to a

question about his faith’s major teachings.” Id. at 297. The Sixth Circuit quoted a magistrate

judge’s discussion from district court proceedings in a previous lawsuit by Colvin:

Defendants’ purely objective approach cannot be squared with First Amendment

jurisprudence. In order to be entitled to accommodation, a person’s beliefs need

not be “acceptable, logical, consistent or comprehensible to others.” Thomas, 450

U.S. at 714, 101 S.Ct. 1425. Nor must they be shared by all members of a religion

or be part of any orthodox or official interpretation of church doctrine. Id. at 715–

16, 101 S.Ct. 1425. Defendants in the present case have gone beyond an inquiry

into the subjective sincerity by administering a test on Judaism and judging for

themselves the congruence between plaintiff’s beliefs and Judaism, as prison

officials understand it.

By basing their decision to deny plaintiff’s request for kosher meals purely on the

content of plaintiff’s knowledge of Judaism, defendants have set themselves up as

arbiters of religious orthodoxy. To be entitled to be treated as a Jew in prison,

plaintiff is not required to demonstrate that he is a good Jew or an expert in the

Torah. He just must show that he sincerely adheres to the Jewish faith, despite his

personal flaws and the obvious gaps in his religious education.

Id. at 298 (quoting Colvin v. Curtis, No. 02–cv–0728, Report and Recommendation (W.D. Mich.

Aug. 25, 2003) (ECF No. 70 at 13–14). Concurring with the magistrate judge’s analysis, the

Sixth Circuit held that, “to the extent that [prison officials’] decision to deny Colvin’s [kosher

meal] request was based on his lack of objective knowledge, it was unconstitutional.” Id. at 298

(emphasis added). Accordingly, there is sufficient evidence in the record to demonstrate an issue

of fact as to whether Defendants violated Plaintiff’s First Amendment rights by denying his

kosher meal request on the basis of his lack of objective knowledge of traditional Jewish

teachings and practices.

b. To the extent Defendants violated Plaintiff’s First Amendment rights,

the violation was clearly established.

Moreover, if this constitutional violation occurred, the violation was clearly established at

the time Plaintiff’s 2017 request for kosher meals was denied. As explained by the Supreme

Court of the United States:

“[C]learly established” for purposes of qualified immunity means that “[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right. This is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.”

Wilson v. Layne, 526 U.S. 603, 614–15 (1999) (quoting Anderson v. Creighton, 483 U.S. 635,

639 (1987)). The facts of the present case easily clear the bar set by Wilson and Anderson, as

“the very action in question” (i.e., denying kosher meals to a prisoner based on lack of objective

knowledge about traditional Jewish teachings and practices) “has previously been held unlawful”

by Colvin. The one case cited by Defendant for the proposition that any constitutional violation

would not be clearly established was an unreported district court case from the Western District

of Michigan. See Allison v. Martin, No. 08-15093-BC, 2011 WL 6217425, at *6 (E.D. Mich.

Dec. 14, 2011) (holding that any constitutional violation stemming from denial of kosher meals

based on prisoner’s lack of knowledge of Judaism was not clearly established). However, the

denial in Allison occurred prior to the Sixth Circuit’s decision in Colvin, and Allison is therefore

inapplicable to the kosher meal denials made seven years post-Colvin in this case.

Because an issue of fact remains as to whether Defendants violated Plaintiff’s First

Amendment rights, and because any such violation would have been clearly established,

Defendants are not entitled to qualified immunity.

4. Plaintiff’s official capacity claims for money damages, but not for injunctive

or declaratory relief, are barred by the Eleventh Amendment.

Plaintiff plainly asserts claims against Defendants in both their official and individual

capacities. (Compl. ¶ 6, ECF No. 4) (“Each defendant is sued individually and in his official

capacity.”) Defendants assert in a footnote that, “[t]o the extent Plaintiff has brought his § 1983

claims against the Defendants in their official capacities, they are barred both by the statute itself

and by the Eleventh Amendment.” (Defs.’ Mot. 7 n.7, ECF No. 37) (citing Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989)). Defendants are correct that “[i]n 1989, the Supreme

Court ruled that states and state employees sued in their official capacities were not ‘persons’

under § 1983, and therefore could not be held liable for money damages.” Moore v. City of

Harriman, 272 F.3d 769, 771 (6th Cir. 2001) (citing Will, 491 U.S. at 71).

However, the Eleventh Amendment’s proscription on official capacity claims against

state officials does not extend to claims for injunctive or declaratory relief, as Will itself

recognized. 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when

sued for injunctive relief, would be a person under § 1983 because official-capacity actions for

prospective relief are not treated as actions against the State.”) (internal quotation marks and

citations omitted); see also Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987

F.2d 376, 381 (6th Cir. 1993) (“[T]he [Eleventh] amendment does not preclude actions against

state officials sued in their official capacity for prospective injunctive or declaratory relief.”).

Accordingly, Defendants are entitled to judgment on Eleventh Amendment grounds on

Plaintiff’s claims against them in their official capacities for money damages only.

5. Plaintiff’s claims are only partially time-barred.

Defendants assert Plaintiff’s claims are time-barred in their entirety. “In § 1983 suits, the

applicable statute of limitations is determined by state law, while the ‘date on which the statute

of limitations begins to run . . . is a question of federal law.’” King v. Harwood, 852 F.3d 568,

578 (6th Cir. 2017) (quoting Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631,

635 (6th Cir. 2007) (alteration in original)). Ohio Revised Code § 2305.10 sets forth a two-year

statute of limitations for § 1983 claims. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.

1989). That statute of limitations “begins to run when the plaintiff knows or has reason to know

of the injury that is the basis of the action.” Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009).

Defendants point out that Davis’s first denial of Plaintiff’s request for kosher meals

occurred on April 14, 2017, yet Plaintiff did not commence this action until May 29, 20194 (ECF

No. 4), more than two years later. However, Plaintiff’s second request for kosher meals was not

denied until November 28, 2017. (Decision of the Religious Services Administrator, ECF No. 4,

PAGEID #59.) The second denial falls within § 1983’s two-year limitations period and is thus

timely. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s claims related

to the April 14, 2017 denial only.5

6. Plaintiff’s allegations are insufficient to establish supervisory liability against

Defendant Chambers-Smith under § 1983.

Defendants contend that Plaintiff’s allegations, even if accepted as true, are insufficient to

support supervisor liability against Defendant Chambers-Smith. “Supervisory liability under

§ 1983 cannot attach where the allegation of liability is based upon a mere failure to act.”

Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (quoting Bass v. Robinson, 167

F.3d 1041, 1048 (6th Cir.1999)). “Therefore, liability must lie upon more than a mere right to

control employees and cannot rely on simple negligence.” Id. Instead, for Chambers-Smith “to

be individually liable for failing to train or supervise, Plaintiff[ ] needed to demonstrate that [she]

took deliberate action or was otherwise involved in [her supervisees’] illegal acts.” See Essex v.

Cty. of Livingston, 518 F. App’x 351, 357 (6th Cir. 2013).

4 Defendants incorrectly assert that Plaintiff commenced this action on July 12, 2019, the date

Plaintiff’s Complaint was filed on the docket following the Court’s initial screen under 28 U.S.C.

§§ 1915 and 1915A. However, under the “prison mailbox rule,” a prisoner’s complaint is

deemed filed on the date on which it was handed over to prison officials for mailing, and this

date is presumed, absent contrary evidence, to be the date the prisoner signed the complaint.

Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). Here, that was May 29, 2019.

5 The April 14, 2017 denial is a “discrete act,” and therefore Plaintiff’s claims related to the

earlier denial are not saved under the continuing violation doctrine by the later timely claims.

Sharpe v. Cureton, 319 F.3d 259, 268 (6th Cir. 2003).

Here, Plaintiff’s Complaint states only that “Defendant Annette Chambers-Smith is too

responsible for violating Plaintiff’s rights for failure to properly supervise her staff.” (Compl.

¶ 10, ECF No. 4). Plaintiff’s summary judgment briefing does not elaborate on these allegations.

Accordingly, Plaintiff has failed to sufficiently allege, let alone demonstrate an issue of fact,

regarding Chambers-Smith’s supervisory liability. See Gregory, 444 F.3d at 751 (upholding

summary judgment for defendants where the plaintiff “present[ed] evidence only that supervisors

Thomas, Ammon, and Kessinger failed to review their subordinates’ work”). Defendant

Chambers-Smith is therefore entitled to summary judgment on all claims against her in her

individual capacity.

7. Plaintiff’s claims for monetary damages are not barred by the Prison

Litigation Reform Act.

Defendants argue that the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”),

“precludes an award of monetary damages for First Amendment claims if the inmate does not

suffer a physical injury.” (Defs.’ Mot. 12, ECF No. 37.) Subsection (e) of § 1997e provides:

No Federal civil action may be brought by a prisoner confined in a jail, prison, or

other correctional facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury or the commission of a sexual act (as

defined in section 2246 of title 18, United States Code).

Defendants cite case law relying on this provision to bar constitutional claims for money

damages by prisoners who have suffered no physical injuries. See Stepler v. Warden, Hocking

Corr. Facility, No. 2:12-CV-1209, 2014 WL 3459880, at *10 (S.D. Ohio July 11, 2014), report

and recommendation adopted, 2014 WL 4181703 (S.D. Ohio Aug. 21, 2014) (citing Yaacov v.

Collins, No. 09–4148, 2010 U.S.App. LEXIS 27719, at *10 (6th Cir. Dec. 1, 2010)).

However, the Sixth Circuit has spoken definitely on this issue in the time since

Defendants’ cited cases were decided. In King v. Zamiara, the Sixth Circuit held that

“deprivations of First Amendment rights are themselves injuries, apart from any mental,

emotional, or physical injury that might also arise from the deprivation, and that § 1997e(e) does

not bar all relief for injuries to First Amendment rights.” 788 F.3d 207, 212 (6th Cir. 2015). See

also Lucas v. Chalk, 785 F. App’x 288, 292 (6th Cir. 2019) (the PLRA does not bar

compensatory damages for constitutional violations). Accordingly, Plaintiff’s claims are not

barred by the PLRA.

B. Plaintiff’s Motion for Summary Judgment

Plaintiff also moves for summary judgment (ECF No. 38), but his motion is unsupported

by any declarations made under penalty of perjury or other admissible evidence. Further, his

motion primarily repeats the same allegations made in his Complaint, and, as explained supra,

there remains an issue of fact as to the threshold inquiry of whether he sincerely believes he must

consume a kosher diet as part of his religious faith. Because all of Plaintiff’s remaining claims

depend on that threshold inquiry, he is not entitled to summary judgment.

IV. DISPOSITION

For the following reasons, it is RECOMMENDED that Defendants’ Motion (ECF No.

37) be GRANTED IN PART and DENIED IN PART, such that Plaintiff’s claims for

violations of the Eighth and Fourteenth Amendments, Plaintiff’s claims against Defendants in

their official capacity for money damages, Plaintiff’s claims stemming from the April 14, 2017

denial of his request for kosher meals, and Plaintiff’s claims against Defendant Chambers-Smith

in her individual capacity are DISMISSED. Plaintiff may proceed with his remaining First

Amendment claims. It is further RECOMMENDED that Plaintiff’s Motion (ECF No. 38) be

DENIED.

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 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/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE