Turner v. Davis

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSHUA KENNETH TURNER,

Plaintiff,

Civil Action 2:19-cv-02376

Judge Michael H. Watson

v. Magistrate Judge Elizabeth P. Deavers

OHIO DEPARTMENT OF

REHABILITATION AND

CORRECTION, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Joshua Kenneth Turner, a state prisoner currently incarcerated in the Southern

Ohio Correctional Facility (“SOCF”), proceeding pro se and in forma pauperis, brings this civil

rights action under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. (ECF No. 7.) Following an initial screening, Plaintiff

is proceeding on claims against Defendants Mike Davis and Chaplain Kehr, in their individual

capacities, for violations of his rights under the Free Exercise Clause of the First Amendment to

the United States Constitution and RLUIPA. This matter is before the Court for consideration of

Defendants’ Motion for Summary Judgment. (ECF No. 81.) Plaintiff has filed a response and

Defendants have filed a reply. (ECF Nos. 82, 83.) For the reasons that follow, it is

RECOMMENDED that the Court GRANT, in part, and DENY, in part, Defendants’ Motion

for Summary Judgment.

I. FACTUAL BACKGROUND

The following factual summary, construed in the light most favorable to Plaintiff, is

derived from the record as a whole, including the summary judgment briefing, documentary

evidence submitted by Defendants in response to Plaintiff’s motion for summary judgment, and 1

a “Motion of Declaration Under Penalty of Perjury filed by Plaintiff on November 12, 2020

(ECF No. 72). Plaintiff asserts in his unverified Complaint that he has practiced Reconstruction

Judaism his whole life. (ECF No. 7, at 5). When Plaintiff arrived at the Warren Correctional

Institution (“WCI”) in February 2019 he “put in a kite to Chaplain Kehr for [a] kosher meal

accommodation.” (Id. at 6.) Chaplain Kehr forwarded his request to Defendant Davis. (Id.)

Defendant Davis denied Plaintiff’s request on March 22, 2019, because he was unable to

determine that Plaintiff’s religious beliefs were sincerely held. (Id.) Prior to his arrival at WCI,

Plaintiff had been granted this accommodation and had met with a rabbi at other institutions.

(Id.)

Defendant Davis avers the following by affidavit. He is the Religious Services

Administrator for the Ohio Department of Rehabilitation and Correction (“ODRC”). (ECF No.

60-1 at ¶ 2.) As part of his job duties, he is “responsible for overseeing and advising ODRC and

its facilities on issues related to religious services offered at ODRC institutions.” (Id. at ¶ 5.)

His position requires him “to have thorough knowledge of religious principles and practices of a

significant number of faiths, and be well versed in clinical pastoral education.” (Id.) He also

1 Plaintiff filed a motion for summary judgment on June 26, 2020. (ECF No. 57.) That motion

was denied. (ECF Nos. 62, 63.) Defendants filed the evidentiary materials upon which they rely

in support of their motion for summary judgment in response to Plaintiff’s motion. (ECF No.

60.)

serves as the final step of appeals for all religious accommodation requests and issued the final

decision on Plaintiff’s appeal of the denial of his religious accommodations. (Id. at ¶ 6.)

In reviewing Plaintiff’s religious accommodation request, Defendant Davis noted several

grounds for denial. (ECF No. 60-1 at ¶ 8.) These grounds included the following. Plaintiff

failed to attach to his accommodation request a letter or other supporting evidence from his rabbi

as would be customary. (Id. at ¶ 8a.) When interviewing Plaintiff, Chaplain Kehr noted

Plaintiff’s failure to articulate an understanding of Orthodox or Reconstruction Judaism. (Id. at ¶

8b.) Plaintiff was a noted security threat group member and has a number of tattoos, which are

not permitted in the practice of Orthodox Judaism. (Id. at ¶¶ 8c, 8d.) Contrary to Plaintiff’s

representation, there was no record of Plaintiff having received kosher meals during his previous

incarceration. (Id. at 8e.) Plaintiff had not requested kosher meals while he had been registered

as an adherent to Orthodox Judaism, which, in contrast to Reconstruction Judaism, does require

its adherents to keep kosher. (Id. at ¶¶ 8f, 9.) Also, during Plaintiff’s time as a registered

adherent to Orthodox Judaism, Plaintiff had not requested a yarmulke or a Torah. (Id. at ¶9.) In

2019, Plaintiff changed his religious affiliation from Orthodox Judaism to Reconstruction

Judaism. (Id. at ¶ 10.) Reconstruction Judaism does not require that its adherents keep kosher

and keeping kosher is not a central tenet to the practice of the faith. (Id.) As a result, the denial

of kosher foods does not inhibit or infringe upon the ability to practice the faith. (Id.)

Legitimate budgetary, safety, security and health concerns supported the decision to deny

Plaintiff’s kosher meal request. (Id. at ¶ 11.) Alternative options were available to Plaintiff

including vegetarian meal offerings and the availability of kosher foods for purchase in the

commissary. (Id. at ¶ 12.) In Defendant Kehr’s professional opinion, Plaintiff was not sincere in

his request for a religious accommodation. (Id. at ¶ 13.)

Defendant Davis supported his affidavit with Plaintiff’s religion file as kept by ODRC in

the ordinary course. (ECF Nos. 60-1 at ¶ 4, 60-2.) These records reveal the following.

Plaintiff’s Lebanon Correctional Institution Religious Services Intake Form indicates that

on April 20, 2017, Plaintiff registered as Jewish (Orthodox). (ECF No. 60-2, at 12.) On

February 28, 2019, Plaintiff completed a Request for Religious Accommodation at Warren

Correctional Institution stating that he belonged to the Jewish religion, requesting a “Tora,”

yarmulke, and kosher meals, describing the basis for his request as “practicing, reading Judah

Tradation,” and indicating that “Rabi Mindy” was the religious leader who could verify his

request. (Id. at 10.) Plaintiff also completed a questionnaire in support of his accommodation

request describing his faith and its impact on his life, explaining why he considered the

accommodation necessary, and the length of time he had practiced his faith. (Id. at 9.)

On March 3, 2019, Defendant Kehr completed a Response to Request for Religious

Accommodation, recommending as follows:

Inmate Turner is listed as Jewish his request to purchase scriptures and yarmulke

(white or tan) is appropriate RE Kosher In two of his previous numbers Inmate

Turner did not register as Jewish During my interview with him he did not identify

any deeper Jewish practices demonstrate any knowledge of Reconstruction or

Orthodox Judaism (his listed preference when at LeCI on a previous number) He

was not at the time approved for Kosher meals His current rationale for Kosher

meals did not demonstrate sufficient justification.

(ECF No. 60-2, at 7.) The document further reflects that Plaintiff’s request was referred to the

Religious Service Administration for approval of kosher meals. (Id.) By decision dated March

22, 2019, Defendant Davis denied Plaintiff’s request stating that he was “unable to make a

determination, if the request reflects a strongly held religious belief.” (Id at 6.)

On May 15, 2019, Defendant Kehr completed a Conduct Report stating that:

During the past several weeks while I round in TPU Inmate Turner has been

screaming, yelling profanities, threatening and banging on his cell door. Turner

blames me for a decision by Columbus NOT APPROVING Kosher meals.

Yesterday as in the past several weeks he continued his rant against me but this

time he threatened me with a broom he was using to clean his cell. His cuff port

was open for him to give the broom and dust pan back to the Officer. He swung

the broom out of the port saying “I am going to smack you in the face.” He

proceeded to yell profanities and bang loudly on his door inciting other TPU

inmates to join in a loud banging up rise disturbing peace in the block.

(ECF No. 60-2, at 1.)

Sometime prior to July 2, 2019, Plaintiff was transferred to SOCF. (ECF No. 10.)

Plaintiff’s “motion of declaration under penalty of perjury” filed on November 12, 2020, states

that both Chaplain Kehr at WCI and Chaplain Ruckle from SOCF recognize that he is Jewish

and observes all of the holidays. (ECF No. 72.) Plaintiff attaches several documents to this

motion, including a copy of the ODRC policy relating to Religious Accommodations and Jewish

Religious Services. (ECF No. 72-1, at 1-7; 8-11.) He also has submitted a copy of the religious

service intake form that he completed at SOCF listing his religious choice as Jewish

(Reconstruction). (ECF No. 72-1, at 13.) Finally, Plaintiff submitted copies of several kites and

responses. (Id. at 14-27.) Many of them lack dates. However, under penalty of perjury,

Plaintiff states that Exhibits E, F, and G (Id. at 14-18) are “kites from Chaplain Kehr” (ECF No.

72, at 2.) Further, he states that Exhibits H, I, J, and K (ECF No. 72-1, at 20-27) are kites from

Chaplain Ruckel at SOCF. (ECF No. 72, at 2.)

On April 22, 2021, Plaintiff filed a “Motion for a settlement from Defendants.” (ECF

No. 86.) According to that motion, in March 2021, Plaintiff filed another request for a religious

accommodation requesting kosher meals. (Id.) That request was approved. Plaintiff has

attached to his motion a copy of a Decision of the Religious Services Administrator, dated March

24, 2021, indicating approval of his request for a kosher meal. (Id.) The document is not signed

by Defendant Davis but states that his signature is “on file.” (Id.)

In his complaint, Plaintiff seeks $25,000,000 for his pain, anguish, and humiliation, and

to be allowed his kosher food accommodation. (ECF No. 7, at 8.)

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), “[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.” The burden of proving that no genuine issue of material

fact exists falls on the moving party, “and the court must draw all reasonable inferences in the

light most favorable to the nonmoving party.” Stransberry v. Air Wisconsin Airlines Corp., 651

F.3d 482, 486 (6th Cir. 2011) (citing Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710

(6th Cir. 2001)); 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”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, 439 F. App’x 492,

495 (6th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317-324 (1986)); 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”). “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 Cty., 432 F. App’x

435, 441 (6th Cir. 2011) (citations omitted).

In considering the factual allegations and evidence presented in a motion for summary

judgment, the Court “must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.” Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150

(6th Cir. 1995). “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.” Stransberry, 651 F.3d at 486 (citing Celotex, 477

U.S. at 322–23).

III. ANALYSIS

Defendants have moved for summary judgment on both Plaintiff’s First Amendment and

RLUIPA claims. (See generally ECF No. 81.) Also, despite the clarity with which the Court

defined Plaintiff’s claims in connection with the initial screening of the Complaint (see ECF

Nos. 11 and 20), Defendants have construed Plaintiff’s complaint as asserting a claim that he

was denied the right to grieve and moved for summary judgment on it as well. (ECF No. 81 at

3.) Because the Court’s construction of Plaintiff’s claims is clear and has not been challenged by

Plaintiff, it will not address this latter issue. The Court considers the other issues in turn.

A. The RLUIPA Claim

Section 3 of RLUIPA provides in pertinent part: “No government shall impose a

substantial burden on the religious exercise of a person residing in or confined to an institution,”

unless the burden furthers “a compelling governmental interest,” and does so by “the least

restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA defines “religious exercise” to

include “any exercise of religion, whether or not compelled by, or central to, a system of

religious belief.” § 2000cc-5(7)(A). The threshold inquiry, however, is “whether the challenged

governmental action substantially burdens the exercise of religion.” Baranowski v. Hart, 486

F.3d 112, 124 (5th Cir. 2007); see also Barhite v. Caruso, 377 F. App’x 508, 511 (6th Cir. 2010).

RLUIPA does not provide a cause of action against defendants in their individual capacities.

Colvin v. Caruso, 605 F.3d 282, 288 (6th Cir. 2010). RLUIPA permits “appropriate relief against

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

damages. Cardinal v. Matrish, 564 F.3d 794, 801 (6th Cir. 2009); see also Nelson v. Jackson,

2014 WL 197877 (S.D. Ohio Jan. 15, 2014).

In the Cardinal case, the plaintiff inmate sued under RLUIPA because the prison failed to

provide him with kosher food, but he was later transferred to a facility that provided him with

kosher meals. The court held that because the inmate had received the relief in the form of

kosher meals and was not entitled to monetary damages, his RLUIPA claim was moot. Cardinal,

supra, 564 F.3d at 798-99. As noted, Plaintiff has filed a “Motion for Settlement” stating that,

following his March 2021 request for a religious accommodation, he now has been approved for

kosher meals. (ECF No. 86.) Defendants have not challenged Plaintiff’s representation and,

therefore, it is undisputed that Plaintiff now has been approved for kosher meals. Thus, because

monetary damages are not available under RLUIPA, his claim under that statute is now moot

pursuant to the holding in Cardinal. See also Ervin v. Davis, No. 2:16-CV-186, 2017 WL

2573251, at *3 (S.D. Ohio June 14, 2017), report and recommendation adopted, No. 2:16-CV-

186, 2017 WL 3600447 (S.D. Ohio Aug. 21, 2017);Willison v. Davis, No. 2:15-CV-2704, 2016

WL 7117390 (S.D. Ohio Dec. 7, 2016), report and recommendation adopted, No. 2:15-CV-

2704, 2017 WL 57864 (S.D. Ohio Jan. 3, 2017).

B. First Amendment Free Exercise Claim

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. Tennessee, 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 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)). Defendants move for

summary judgment on Plaintiff’s First Amendment claim for two reasons: first, they assert that

Plaintiff does not have a sincerely held religious belief the central tenet of which requires him to

maintain a kosher diet; second, they assert that, even if Plaintiff could demonstrate a sincerely

held religious belief, their actions were reasonable under Turner.

1. Sincerity

Defendants have set forth several reasons for the decision that the sincerity of

Plaintiff’s belief could not be determined at the time of his 2019 accommodation request made

upon his arrival at WCI. None of their asserted reasons can be viewed as dispositive here. For

example, Defendants cite Plaintiff’s “failure to articulate an understanding of Orthodox or

Reconstruction Judaism.” (ECF No. 60-1, at ¶ 8b.) “However, the Sixth Circuit has

unambiguously held that prisoners cannot be denied kosher meals on grounds that they lack

objective knowledge of Judaism.” Santos v. Chambers-Smith, No. 2:19-CV-2984, 2020 WL

4434866, at *4 (S.D. Ohio Aug. 3, 2020) (citing Colvin v. Caruso, 605 F.3d 282, 297–98 (6th

Cir. 2010)). Further, Defendants cite Plaintiff’s “behavioral issues” as described by Chaplain

Kehr in a conduct report dated May 16, 2019. (ECF No. 60-1 at ¶ 8c, 60-2, at 1.) The date of

the conduct report, however, is nearly two months after Defendant Davis issued his decision.

Defendants also note Plaintiff’s failure to attach any supporting documentation from Rabbi

Mindy Kalmanson to his religious accommodation request. However, ODRC policy relating to

religious accommodations appears to require only that inmates provide “names of any religious

leaders needed to verify the request.” (ECF NO. 72-1, at 3.) Plaintiff identified “Rabi Mindy”

on his questionnaire form submitted with his accommodation request. (ECF No. 60-2, at 9.)

Further, to the extent Defendants point to Plaintiff’s membership in a security threat group or his

tattoos as a basis for questioning his sincerity, they offer only a conclusory statement as to these

factors. Under this circumstance, the Court finds that Defendants’ argument on this point is not

well-developed and declines to consider it. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th

Cir. 1997) (“[I]ssues adverted to in perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived. It is not sufficient for a party to mention a

possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.”)

Defendants particularly rely, however, on Plaintiff’s failure to request kosher meals, a

yarmulke, or a Torah while he was registered as an adherent to Orthodox Judaism during his

incarceration at LeCI. (ECF No. 81, at 6-7 “…perhaps the most perplexing point is that while

registered as an Orthodox Jew, … Plaintiff never once made a religious accommodation

request.”) To be sure, although Plaintiff states in his unverified Complaint that he received

kosher meals at LeCI, (see, e.g., ECF No. 7, at 5), he has not come forward with any supporting

evidence. Nor has he addressed Defendants’ claim that the religious accommodation request at

issue here is the first he submitted while incarcerated in an ODRC facility. This failure,

however, is not fatal to Plaintiff’s claim. This is because Plaintiff’s apparent failure to request a

religious accommodation during his previous incarceration, standing alone, does not require the

conclusion that Plaintiffs’ beliefs upon his arrival at WCI were insincere. Notably, Defendants

have not explained how Plaintiff’s alleged non-adherence to Orthodox Judaism during his

incarceration at LeCI, in at least 2017, undermines his request for a religious accommodation

upon arrival at WCI in 2019. It is plausible that Plaintiff chose to become more observant in the

interim. Based on the current state of the record, Defendants simply have not demonstrated

otherwise.

Most significantly, Defendants contend that they are entitled to summary judgment

because keeping kosher is not a central tenet of Reconstruction Judaism. However, even

assuming this to be true,2 it is not dispositive. Rather, “[a] purely objective inquiry into whether

a particular religious practice is necessary to practicing that religion, or is essential to it, cannot

be squared with either RLUIPA or First Amendment jurisprudence.” Ritter v. Davis, No. 1:18

CV 0826, 2018 WL 4271043, at *2 (N.D. Ohio Aug. 20, 2018), report and recommendation

adopted, No. 1:18CV826, 2018 WL 4258185 (N.D. Ohio Sept. 6, 2018); see also Hall v.

Martin, No. 1:10-CV-1221, 2012 WL 1579334, at *9 (W.D. Mich. Mar. 29, 2012), report and

recommendation adopted, No. 1:10-CV-1221, 2012 WL 1579321 (W.D. Mich. May 3, 2012)

(“The federal courts of this country have repeatedly rejected, under both RLUIPA and First

2 See, e.g., Ritter, 2018 WL 4271043, at *2 n.34, suggesting that the denial in that case was

based, at least in part, “on the improper conclusion that Reform Judaism does not impose a

requirement to keep kosher.”

Amendment jurisprudence, disapproval of requests for religious accommodation on the ground

that the religious accommodation was not compelled by or central to the prisoner's professed

religion”).

Moreover, “[i]n order to be entitled to accommodation, a person’s beliefs need not be

‘acceptable, logical, consistent, or comprehensible to others.’” Colvin v. Caruso, 605 F.3d at

298 (quoting Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). “Nor

must they be shared by all members of a religion or be part of any orthodox or official

interpretation of church doctrine. Id. (citing Thomas, at 715-716.) Of course, in Thomas, 450

U.S. at 715–16, the Supreme Court recognized that “[o]ne can … imagine an asserted claim so

bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free

Exercise Clause.” This idea was expounded upon by the court in Levitan v. Ashcroft, 281 F.3d

1313, 1321 (D.C. Cir. 2002):

A court may also consider whether the litigants' beliefs find any support in the

religion to which they subscribe, or whether the litigants are merely relying on a

self-serving view of religious practice. This inquiry is not a matter of deciding

whether appellants' beliefs accord in every particular with the religious orthodoxy

of their church. See Smith, 494 U.S. at 887, 110 S.Ct. at 1604 (holding that courts

should not question the “validity of particular litigants' interpretations” of their

creeds) (citing Hernandez v. Comm'r, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148–49,

104 L.Ed.2d 766 (1989)). Nor is it a matter of adjudicating intrafaith differences in

practice or belief. See Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450

U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981) (holding that “it is not

within the judicial function and judicial competence to inquire whether the

petitioner or [another member of his faith] more correctly perceived the commands

of their common faith,” because “[c]ourts are not arbiters of scriptural

interpretation”). Instead, a court may determine whether the litigants' views have

any basis whatsoever in the creed or community on which they purport to rest their

claim. For example, a Catholic litigant who asserted that it was part of his religion

to wear sunglasses would be making a claim “so bizarre ... as not to be entitled to

protection” under the First Amendment. Id. at 715, 101 S.Ct. at 1431. The litigant's

assertion of a view so totally foreign to the creed with which he claimed to affiliate

might well lead the court to question his sincerity. It is therefore unlikely that a

litigant challenging a rule limiting his right to wear sunglasses could satisfy the

threshold requirement.

Id. at 1321.

Here, the Court cannot say that Plaintiff’s alleged belief that his faith requires kosher

meals is “so bizarre.… as to not be entitled to protection.” Thomas, at 715. Accordingly, the

dispositive inquiry is not whether the consumption of kosher food is a component, requirement

or mandate of Plaintiff’s faith. Rather, the only relevant inquiry is whether Plaintiff sincerely

believes that it is. That inquiry “is, of course, a question of fact.” United States v. Seeger, 380

U.S. 163, 185 (1965). To be sure, the record before the Court on this specific issue could be

better. At this juncture, however, Plaintiff cannot be said to have merely rested on his pleadings.

Rather, he has submitted statements and documents under penalty of perjury (ECF Nos. 72, 82),

which construed in his favor, are sufficient to raise an issue of fact as to the sincerity of his

beliefs at the time of the denial at issue here.

Moreover, other evidence in the record, including certain of the documents submitted

under penalty of perjury by Plaintiff, raise questions that Defendants have not addressed. For

example, on the Response to Request for Religious Accommodation, Chaplain Kehr noted that

Plaintiff’s requests to purchase scriptures and a yarmulke were appropriate. (ECF No. 60-2, at

8.) Additionally, on that same form, the “Accommodation Review Committee Response” states

“Refer to Religious Service Admin. for Approval (kosher meals). (Id.) Plaintiff has submitted

a copy of ODRC’s Religious Accommodations Policy, 72-REG-02, effective date March 12,

2018. (ECF No. 72-1, at 379-385.) That policy provides, in relevant part, “[t]he committee

shall forward the Request for Religious Accommodation (DRC4326) along with its

recommended Response to Request for Religious Accommodation (DRC4327) to the managing

officer/designee for review and approval.” Absent a more developed record, however, it is not

clear what specific recommendation was forwarded on as required. Further, according to

Plaintiff, Chaplain Kehr forwarded to food service Plaintiff’s request to participate in the Fast of

17 Tammuz, a Jewish Holiday, and confirmed that Plaintiff was “on our list as an observer” in

response to Plaintiff’s request for a menorah. (ECF No. 72-1, at 14-18.)

In sum, reviewing the record as a whole, an issue of fact exists as to whether, at the time

Defendants denied Plaintiff’s kosher meal request in March 2019, Plaintiff’s sincerely held

religious beliefs required him to maintain a kosher diet. Resolving this fact-intensive issue as

presented here will come down to credibility. Assessing credibility is a jury matter and,

therefore, a court cannot make credibility determinations on summary judgment. See Anderson

v. Liberty Lobby, 477 U.S. at 255. While a factfinder may ultimately find that Plaintiff’s beliefs

were not sincerely held when his request was denied, that is not the Court’s job here.

Accordingly, Defendants are not entitled to summary judgment on this issue. However, the

Court must now consider whether Defendants’ actions were reasonable under Turner v. Safley,

482 U.S. 78 (1987). See Santos v. Chambers-Smith, No. 2:19-cv-2984, 2020 WL 4434866, at *2

(S.D. Ohio August 3, 2020) (Sargus, J.) (recognizing that “most courts, upon finding an issue of

fact as to the sincerity of the inmate’s belief, go on to consider whether the prison’s action was

nonetheless under Turner….”)

2. The Turner Balancing Test

In Turner, the United States Supreme Court held that four factors are relevant in

balancing the deference owed to prison policies designed to maintain security and discipline with

the important need to protect inmates’ constitutional rights. 482 U.S. 78, 85-89 (1987). The four

factors are as follows:

(1) whether the regulation has a “valid, rational connection” to a legitimate

governmental interest;

(2) whether alternative means are open to inmates to exercise the asserted right;

(3) what impact an accommodation of the right would have on guards and inmates and

prison resources; and

(4) whether there are “ready alternatives” to the regulation.

Id. at 89–91. If the first factor is not present, the regulation is unconstitutional, and the other

factors do not matter. Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999); Muhammad v.

Pitcher, 35 F.3d 1081, 1084 (6th Cir. 1994). The remaining factors are considerations that must

be balanced together. Spies, 173 F.3d at 403 (quoting Turner, 482 U.S. at 90–91).

“Under the first Turner factor, Defendants’ motivation matters.” Nixson v. Davis, No. 2:18-cv-

1720, 2020 WL 1929363, at *4 (S.D. Ohio April 21, 2020) (Jolson, J.) Thus, their “conduct was

reasonable only if [they] denied Plaintiff’s request for a legitimate penological reason.” Id.

Here, Defendant Davis avers by affidavit that “the decision to deny Inmate Turner’s request for

kosher meals were (sic) based on legitimate budgetary, safety, security, and health concerns.”

(ECF No. 60-1, at ¶ 11.) This explanation is, at best, conclusory. However, containing costs and

maintaining discipline among prisoners have been found to be legitimate penological interests.”

See Berryman v. Granholm, 343 F. App’x 1 (6th Cir. 2009); Santos, 2020 WL 4434866, at *3.

Defendants argue that their policies are designed to ensure that kosher meals are designated for

inmates with a sincere belief. (ECF No. 81, at 11.) Plaintiff does not challenge this policy.

Rather, as in Santos, Plaintiff’s challenge here is fairly characterized as directed to “the

conclusion pursuant to that policy that his belief was not sincere.” Santos, 2020 WL 4434866, at

*3 (emphasis in original). See ECF No. 82, at 2, 3 (“the Defendants refused to allow plaintiff to

receive kosher meals, under policy and ODRC Regulation”… “knowingly refused to allow

plaintiff to kosher meals” … “Under my First Amindment right to the United States Constitution

should allow my free exercise of practicing Judaism and receiving kosher meals as all Jewish

inmates are allowed.”) Consistent with the Court’s guidance in Santos then, the task here “is to

determine whether Defendants reasonably (rather than arbitrarily or irrationally) concluded that

[Plaintiff’s] kosher meal request was not based on a sincere religious belief.” Id. (citing Turner,

482 U.S. at 89-90.)

As set forth above, the Court is unable to make such a determination given the current

state of the record. Accordingly, unlike the circumstances in Santos, the Court cannot conclude

that the first Turner factor weighs in favor of Defendants. That is, Defendants have not

demonstrated that there was “a rational connection between their conclusion that [Plaintiff’s]

belief was not sincere and the legitimate governmental interests underlying the ODRC policy

that limits kosher meals to inmates who sincerely believe that consuming only such meals is

required by their religion.” Id. at *4; see also Horacek v. Burnett, No. 07-11885, 2008 WL

4427825, at *8 (E.D. Mich. Aug. 19, 2008), report and recommendation adopted in part, No. 07-

11885, 2008 WL 4427792 (E.D. Mich. Sept. 30, 2008) (denying summary judgment where the

defendant set forth adequate penological justifications for the policy of denying kosher meals to

inmates who are not sincere in their beliefs, but failed to explain what purpose is served by

denying kosher meals to inmates who are sincere). In short, Defendants’ “argument for

summary judgment essentially stands or falls on the issue of the sincerity of [] Plaintiff’s

religious beliefs.” Horacek, 2008 WL 4427825, at *8. As discussed above, a genuine issue of

material fact exists on that issue, such that a jury could reasonably find in Plaintiff’s favor.

Summary judgment is therefore not appropriate. Accordingly, the Court need not undertake an

analysis of the remaining Turner factors.

It is therefore RECOMMENDED that summary judgment be DENIED on Plaintiff's

First Amendment Free Exercise claim.

C. Qualified Immunity

Defendants also contend that the Court should grant their motion for summary judgment

because they are entitled to 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.’ ” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir.

2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“‘Qualified immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.’ ” Richko v.

Wayne Cty., Mich., 819 F.3d 907, 914 (6th Cir. 2016) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)). “To determine whether an officer is entitled to qualified immunity, a court

evaluates two independent prongs: whether the officer's conduct violated a constitutional right,

and whether that right was clearly established at the time of the incident.” Id. at 914–15 (citations

omitted).

After defining qualified immunity and reciting relevant law in their motion, Defendants

do not even refer to the issue before the Court and argue as follows:

The Sixth Circuit have held that inmates have “no proscriptions placed on his beliefs

or the practices of his religion, but is simply deprived of a special time and place to

observe his beliefs exclusively with others who profess the same faith.” Johnson v.

Baker, 67 F.3d at *4 [published in full-text format at 1995 U.S. App. LEXIS 32117]

(emphasis in original). Critically, not only did the prison officials deny Johnson’s

request for separate congregation services, but the Sixth Circuit concluded that the

denial of separate congregation services did not burden Johnson’s First Amendment

right to exercise religion. Id. Just as the prison officials in Johnson, the Defendants

could not have violated a clearly established constitutional right since their denial of

separate congregation services did not burden the Plaintiff’s right to exercise his

religion.

(ECF No. 81, at 18.) The discussion in their Reply is slightly better in that it recognizes

the alleged constitutional violation at issue here. (See, e.g., ECF No. 83, at 5 “The record

is bereft of evidence to show Plaintiff has a sincerely held belief.”)

As noted above, “‘[i]ssues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention

a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.’”

Faith Baptist Church v. Waterford Twp., 522 F. App’x 322, 328 (6th Cir. 2013) (quoting

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (citations omitted). “[Q]ualified

immunity for damages in his individual capacity is a mixed question of law and fact. . . . [and a]

bare recitation of the legal standard and the elements necessary to meet it is insufficient to trigger

review of a mixed question.” Id.; see also Pettry v. City of Parma, No. 1:14-cv-01667, 2015 WL

5437772, at *2 (N.D. Ohio Sept. 15, 2015) (“Defendants do cite some boilerplate law concerning

qualified immunity, but fail to set forth a meaningful analysis of how it applies to the case at

bar.”). For these reasons, Defendants have not established that they are entitled to qualified

immunity on Plaintiff’s claims.

D. The Prison Litigation Reform Act

Defendants also 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.” (ECF No. 81, at 8.) 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 definitively 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 for money damages are not barred by the PLRA.

IV. RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that the Court GRANT, in part,

Defendants’ Motion for Summary Judgment (ECF No. 81) as to Plaintiff’s RIULPA claim and

DENY, in part, Defendants’ Motion for Summary Judgment as to Plaintiff’s First Amendment

Free Exercise claim.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal....” (citation

omitted)).

Date: May 27, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE