Turner v. Davis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joshua Kenneth Turner,

Plaintiff, Case No. 2:19-cv-2376

vV. Judge Michael H. Watson

Ohio Department of Rehabilitation Magistrate Judge Deavers

and Correction, ef a/.,

Defendants.

OPINION AND ORDER

On May 27, 2021, Magistrate Judge Deavers issued a Report and

Recommendation (“R&R”), recommending the Court deny Mike Davis's (“Davis”)

and Chaplain Thomas Kehr’s (“Kehr,” collectively, “Defendants”) Motion for

Summary Judgement in this prisoner civil rights case. R&R, ECF No. 87.

Defendants object. Obj., ECF. No. 92. For the reasons below, the Court

ADOPTS the R&R and DENIES Defendants’ summary judgment motion.

I. FACTS AND PROCEDURAL HISTORY

Joshua Kenneth Turner (“Plaintiff”) is a former inmate at the Warren

Correctional Institute (“WCI"). Kehr is the Chaplain at WCI. Davis is the

Religious Services Administrator for the Ohio Department of Rehabilitation and

Correction (“ODRC’).

Plaintiff's Complaint alleges that he has practiced Reconstruction Judaism

his entire life and had been granted a religious accommodation to receive kosher

meals while housed at other correctional institutions. Compl., ECF No. 7.

Accordingly, in February 2019, while a prisoner at WCI, Plaintiff “put in a kite to

Chaplain Kehr for [a] kosher meal accommodation.” /d. Kehr recommended

denying the request and forwarded it to Davis, who denied it on the following

basis: “unable to make a determination, if the request reflects a strongly held

religious belief.” Decision, ECF No. 60-2 at PAGEID # 315. Plaintiff alleges

Davis’s and Kehr’s denial of his request for kosher meals violated his First

Amendment right to practice his religion (“Free Exercise claim”) and violated the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Id. He also

originally brought claims against other defendants.

After filing his Complaint in this case, the Court dismissed all claims

against all Defendants save for Davis and Kehr. Order, ECF No. 20. With

respect to the claims against Davis and Kehr, the Court dismissed all claims for

money damages against Davis and Kehr in their official capacities as well as any

individual-capacity RLUIPA claims against Davis and Kehr. /d. at 1. In other

words, the only claims that survived the initial screen in this case were Plaintiff's

official-capacity RLUIPA claims against Davis and Kehr for injunctive relief and

Plaintiff's First Amendment Free Exercise Claims against Davis and Kehr in their

individual capacities for injunctive relief and monetary damages. R&R 1, ECF

No. 20.

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Plaintiff moved for summary judgment, Mot. Summ. J., ECF No. 57, which

was denied, R&R, ECF No. 62; Order, ECF No. 63. Thereafter, Defendants

moved for summary judgment. Mot. Summ. J., ECF No. 82. Magistrate Judge

Deavers’s R&R recommends the Court dismiss Plaintiffs RLUIPA claim as moot

and deny Defendants summary judgment on Plaintiffs First Amendment Free

Exercise claim. R&R, ECF No. 87. Defendants object to Magistrate Judge

Deaver’s R&R, Obj., ECF No. 92, and Plaintiff responded to Defendants’

objections. Resp., ECF No. 93.

ll. © STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 72(b), the Court must determine de

novo any part of the Magistrate Judge’s disposition to which a party has properly

objected. Fed. R. Civ. P. 72(b)(3). The Court may accept, reject, or modify the

R&R, receive further evidence, or return the matter to the Magistrate Judge with

instructions. /d. Conversely, if any party fails to timely object to a part of the

R&R, any such objection is waived.

lll. ANALYSIS

As a preliminary matter, neither party has objected to Magistrate Judge

Deavers’s recommendation that the Court dismiss as mcot Plaintiff's official-

capacity RLUIPA claims for injunctive relief given that, since the filing of his

Complaint, his request for kosher meals has been approved. R&R 8, ECF No.

87. Accordingly, the Court ADOPTS that portion of the R&R without further

review and DISMISSES AS MOOT Plaintiffs RLUIPA claims.

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Similarly, the Court DISMISSES AS MOOT Plaintiff's request for injunctive

relief for any violation of the Free Exercise Clause of the First Amendment.

The only remaining claims, then, are Plaintiffs claims under the Free

Exercise Clause of the First Amendment against Davis and Kehr in their

individual capacities for damages. The Court now turns to the R&R and

objections pertaining to those claims.

Notably, Davis and Kehr do not object to Magistrate Judge Deavers's

conclusion that a genuine dispute of material fact exists regarding whether

Defendants’ denial of kosher meals substantially burdened Plaintiff's sincerely

held religious belief. See R&R 13, ECF No. 87; Obj. 4, ECF No. 92. Rather,

Davis and Kehr object only that their actions were nonetheless reasonable under

the balancing test set forth in Turner v. Safiey, 482 U.S. 78 (1987).

Magistrate Judge Deavers correctly explained 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

foliows:

(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.

ld. 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

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

90-91).

Magistrate Judge Deavers concluded that the first Turner factor should be

tweaked in this case to analyze not whether Defendants’ policy of providing

kosher meals to only those with sincere religious beliefs had a valid, rational

connection to a legitimate governmental interest—as even Plaintiff agrees it

does—but whether Defendants’ conclusion that Plaintiff lacked a sincere

religious belief was itself reasonable, as opposed to arbitrary or capricious. R&R

15-16, ECF No. 87 (citing Santos v. Chambers-Smith, No. 2:19-cv-2984, 2020

WL 4434866, at *3 (S.D. Ohio Aug. 3, 2020)). Magistrate Judge Deavers

concluded Defendants’ decision was unreasonable, the first Turner prong was

not met, and, therefore, she did not balance the remaining three factors. /d. at

16.

Defendants do not frame the first Turner factor in the same way as this

Court in Santos or the Magistrate Judge in the R&R in this case did. Instead of

arguing whether Defendants’ decision was reasonable as opposed to arbitrary

and capricious, Defendants’ first objection argues there is a valid, rational

connection between the policy of “deny[ing] kosher meals to inmates whose

religion is not perceived to require it and the ODRC’s legitimate interests’

concerning budget and safety. Obj. 4-5, ECF No. 92. Defendants ask the Court

to find the first Turner factor satisfied merely because there is a valid, rational link

between the policy and those budgetary and security concerns. But, as Santos

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and Magistrate Judge Deavers noted, the inquiry in a case where only the

application of the policy is challenged is whether Defendants’ actual denial was

reasonable, not whether the policy was reasonable. See Santos, 2020 WL

4434866, at *3 (“Santos does not challenge the policy that kosher meals are

reserved for those with a sincere belief. Rather, he challenges the conc/usion

pursuant to that policy that his belief was not sincere. The Court's task,

therefore, is to determine whether Defendants reasonably (rather than arbitrarily

or irrationally) concluded that Santos’s kosher meal request was not based on a

sincere religious belief.” (citation omitted)); R&R 16, ECF No. 87; Berryman v.

Granholm, 343 F. App’x 1 (6th Cir. 2009) (“[T]he defendants’ determination that

[the prisoner] had violated the prison rules was not unreasonable.”); Nixon v.

Davis, 2020 WL 1929363, at **4—5 (S.D. Ohio Apr. 21, 2020) (stating, “[uJnder

the first Turner factor, Defendant's motivation matters. His conduct was

reasonable only if he denied Plaintiff's request for a legitimate penological

reason” and finding the denial was reasonable). Thus, to the extent Defendants

argue the first Turner factor is satisfied simply because there is a valid

connection between their overall policy and legitimate budgetary and security

concerns, they have failed to show why Santos or the Magistrate Judge’s

approach is incorrect, and that objection is overruled.

Defendants do, however, also argue that the denial itself was reasonable

under the circumstances in this case. Obj. 6-12, ECF No. 92. In this respect,

Case No. 2:19-cv-2376 Page 6 of 8

the second half of Defendants’ first objection overlaps with the substance of

Defendants’ second objection.

Defendants offer on objection several arguments as to why the denial was

reasonable: (1) Plaintiff demonstrated a lack of knowledge about the Jewish

religion; (2) Plaintiff never requested kosher meals, a yarmulke, or a Torah until

2019, despite identifying as an adherent to Orthodox Judaism for the majority of

his life; and (3) Davis was unable to contact the religious leader listed on

Plaintiff's religious services accommodation request form. Obj. 7—8, ECF No. 92.

Upon de novo review, the Court agrees with Magistrate Judge Deavers’s

analysis. As Magistrate Judge Deavers found, “the Sixth Circuit has

unambiguously held that prisoners cannot be denied kosher meals on grounds

that they lack objective knowledge of Judaism.” Santos, 2020 WL 4434866, at “4

(citing Colvin v. Caruso, 605 F.3d 282, 297-98 (6th Cir. 2010)). Moreover, it is

unreasonable to deny Plaintiffs 2019 request on the basis that he failed to

request a kosher diet earlier. As Magistrate Judge Deavers concluded, there is

nothing inconsistent with becoming more devout over the course of time or even

of finding Reconstruction Judaism aligned more appropriately with certain life

choices, such as his tattoos, but wanting to keep kosher. Finally, the Court

rejects as unreasonable denying Plaintiff's request based on Plaintiff's failure to

include documentation from his religious leader with his religious accommodation

request. ECF No. 60-1. Plaintiff included Rabbi Mindy’s name, which is all that

is required by the ODRC policy, ECF Nos. 60-2, 72-1, and it is therefore

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unreasonable to deny a request because it failed to include something that was

not required to be included. Because Defendants’ justifications for denying

Plaintiff's request for a kosher diet are not sufficient to show that the decision

was not “arbitrary or irrational,” the Court overrules Defendants’ second

objection. See Turner, 482 U.S. 89-90.

Finally, although Defendants argue Magistrate Judge Deavers erred in her

qualified immunity assessment, the Court agrees upon de novo review that

Defendants’ briefing on this argument before the Magistrate Judge was so

inadequate as to amount to a waiver of the same. R&R 18, ECF No. 87; see

Mot. Summ. J. 16-18, ECF No. 81 (arguing it was not clearly established that

Defendants’ denial of separate congregation services—which is not the issue in

this case—amounted to a burden on the right to freely exercise religion).

IV. CONCLUSION

For these reasons, the Court ADOPTS the R&R, DENIES Defendants’

motion for summary judgment, and ORDERS the parties to notify the Court within

FOURTEEN DAYS of the date of this Opinion and Order as to whether they

consent to having Magistrate Judge Deavers preside over the jury trial in this

case.

IT IS SO ORDERED. ff Non,

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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