Colvin v. Caruso

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0135p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KENNETH COLVIN, JR.,

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Plaintiff-Appellant,

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No. 08-2441

v.

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PATRICIA L. CARUSO, MDOC Director, in her -

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official and personal capacities; DAVE

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BURNETT, MDOC Special Activities

Coordinator, in his official and personal -

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capacities; WAYNE DESHAMBO, LMF Food

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Service Director, in his official and personal

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capacities; GERALD ANDERSON, LMF

Assistant Food Service Director, in his -

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official and personal capacities; GERALD

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RILEY, LMF Chaplain, in his official and

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personal capacities,

Defendants-Appellees. -

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Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 07-00061—R. Allan Edgar, District Judge.

Submitted: March 10, 2010

Decided and Filed: May 13, 2010

Before: COLE, GILMAN, and WHITE, Circuit Judges.

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COUNSEL

ON BRIEF: Kevin Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellees. Kenneth Colvin, Jr., Ionia, Michigan, pro se.

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No. 08-2441 Colvin v. Caruso Page 2

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Upon being transferred from one

Michigan prison facility to another, inmate Kenneth Colvin, Jr. was mistakenly denied

kosher meals for 16 days. The prison to which he was transferred, once it realized its

mistake, immediately placed Colvin in the kosher-meal program, but on various occasions

thereafter inadvertently served Colvin nonkosher food items. Although he was later

transferred to a third prison facility, Colvin sued multiple officials associated with the

interim prison in question, alleging that its food-service errors, as well as the prison’s lack

of Jewish services and literature, violated his constitutional rights.

The district court granted summary judgment in favor of the defendants. It also

denied Colvin’s motions for a preliminary injunction, for discovery, and to amend his

complaint. Colvin appeals each of these determinations. For the following reasons, we

AFFIRM the district court’s grant of summary judgment with regard to the claims in

Colvin’s original complaint, its denial of his motion for discovery, and its denial of his

motion for a preliminary injunction based on his original complaint. We VACATE,

however, the district court’s denial of Colvin’s motion to amend and its denial of his second

motion for a preliminary injunction. Finally, we REMAND the case for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Factual background

Colvin, an inmate within the Michigan Department of Corrections (MDOC) system,

was transferred to the Alger Maximum Correctional Facility (commonly referred to as LMF)

on February 28, 2006. He had been placed in a kosher-meal program pursuant to a 2003

settlement agreement and court order from a prior lawsuit and, upon being notified of his

transfer, he requested that he maintain the same status while he was at LMF. But LMF

officials initially denied Colvin kosher-meal status, erroneously believing that Colvin was

not approved for the program and that he was a Muslim.

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In response, Colvin wrote the officials to notify them of his prior approved status,

and he filed two grievances. The LMF officials finally placed Colvin on the kosher-meal

program as of March 15, 2006, and noted in a response to one of Colvin’s grievances that

the “initial denial was incorrect” and that the kitchen staff should “accommodate him as

quickly as possible.” All told, Colvin was mistakenly denied kosher-meal status for 16 days.

Even after being placed on the program, Colvin inadvertently received nonkosher

food on various occasions. In October 2006, for example, the prison kitchen sent Colvin

nonkosher orange juice and a nonkosher vegetarian burger and, in November 2006, similarly

sent him a nonkosher bagged meal. Colvin filed a grievance following each of these

incidents and, in their responses, LMF officials admitted to making mistakes and stated that

they had instructed the kitchen staff regarding proper kosher-food service.

In addition, from September through December 2006, Colvin filed various

grievances asserting that he was served nonkosher lasagna, bread, milk, powdered milk,

eggs, and muffins. Colvin further alleged in his complaint that his meals were not securely

wrapped and were served on trays carrying nonkosher foods, and he objected to there being

no “Jewish practicing prisoners” to prepare his meals. Finally, Colvin accused the prison of

using a vegetarian kosher menu distinct from that required under MDOC’s policies. LMF

officials denied all of Colvin’s allegations that they were violating kosher food-preparation

and serving protocols.

Colvin asserted one additional claim unrelated to his kosher diet, alleging that he was

denied the ability to practice his religious beliefs while incarcerated at LMF. He claimed

that the prison has only four Jewish books and that, despite his complaints regarding the lack

of Jewish materials and the need for funds to purchase additional books, the prison denied

his requests. LMF responded to this assertion by presenting evidence that it has at least

twelve Jewish books in its library. Colvin also objected to the lack of Jewish services and

notes that he was told on multiple occasions that such services were not available because

he was the only inmate requesting them.

In May 2007, Colvin was removed from the kosher-meal program after he was found

to have nonkosher protein powder in his possession. Colvin refiled for kosher status two

months later, but was denied reentry after being interviewed by Gerald Riley, the chaplain

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at LMF. During the interview, Chaplain Riley asked Colvin to briefly explain (1) the

teachings of Judaism, (2) why a kosher diet is required by Judaism, and (3) what a kosher

diet is and how it differs from food otherwise provided by the prison. In a memo to the LMF

warden at that time, Riley concluded that Colvin did “not have any sincerely held religious

belief in Judaism.” He added that Colvin provided “only minimal information in response

to my questioning about his faith’s major teachings.” Riley further asserted that Colvin had

declared “Muslim” as his religious preference in February 2002 and described Colvin as a

“self-identifying Muslim.”

MDOC Special Activities Coordinator Dave Burnett echoed Chaplain Riley’s

conclusions in a separate memo to the LMF warden shortly thereafter. Relying on Riley’s

questioning of Colvin, Burnett reported that Colvin “interviewed as if he were Jewish” but

that his “faith of preference is Al Islam.” Burnett observed that Colvin “provided nothing

that suggests his request for the Kosher meal program is motivated by a sincere desire to

pursue religious practice,” and thus recommended denying Colvin reentry into the kosher-

meal program. In July 2007, sometime between the warden’s receipt of the separate memos

from Riley and Burnett, Colvin was transferred to the Marquette Branch Prison.

B. Procedural background

Colvin filed his complaint pro se in March 2007, asserting that the 16-day denial of

kosher food, the multiple mistakes in administering the kosher-meal program, and the lack

of Jewish services and literature violated his constitutional rights under 42 U.S.C. § 1983 and

the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1.

He named as defendants MDOC Director Patricia Caruso, MDOC Special Activities

Coordinator Dave Burnett, LMF Food Service Director Wayne DeShambo, LMF Assistant

Food Service Director Gerald Anderson, and Chaplain Gerald Riley, all of whom were sued

in both their individual and official capacities. In addition to requesting injunctive relief to

rectify the alleged errors in LMF’s kosher-meal program, library, and religious services,

Colvin sought $750,000 in damages. Shortly after filing his complaint, Colvin also filed a

motion for a preliminary injunction, which the district court denied by adopting the

conclusion of the magistrate judge’s Report and Recommendation (R & R) that Colvin had

not demonstrated a likelihood of success on the merits.

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The prison officials then moved for summary judgment. In a second R & R, the

magistrate judge rejected the prison officials’ claim that Colvin had not properly exhausted

his grievances, but nonetheless recommended granting the motion on other grounds. First,

the magistrate judge concluded that Chaplain Riley was entitled to qualified immunity

regarding the 16-day delay in placing Colvin in the kosher-meal program. The magistrate

judge next found that although Caruso and Burnett had not joined in the motion for summary

judgment, the claims against them should similarly be dismissed because they were not

personally involved in the denial of kosher meals to Colvin. Finally, the magistrate judge

dismissed the claims against DeShambo and Anderson because any errors in the preparation

of Colvin’s kosher meals were inadvertent and isolated.

In addition, the magistrate judge recommended granting summary judgment to all

of the defendants on Colvin’s remaining claims under RLUIPA and § 1983. The magistrate

judge reasoned that the failure to provide Jewish services was reasonable because Colvin

was the only prisoner requesting them and that the prison never prevented Colvin from

practicing his religious beliefs. Colvin’s motions to amend his complaint and to conduct

discovery were also denied by the magistrate judge, who concluded that neither action would

have cured the defects in Colvin’s claims.

Adopting the second R & R in full without further analysis, the district court granted

the defendants’ motion for summary judgment and denied all three of Colvin’s motions.

This timely pro se appeal followed.

II. ANALYSIS

A. Summary judgment

Colvin appeals the district court’s grant of summary judgment to the prison officials

as to both his RLUIPA claim and his § 1983 claim. We review de novo a district court’s

grant of summary judgment. ACLU of Ky. v. Grayson County, 591 F.3d 837, 843 (6th Cir.

2010). Summary judgment is proper where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). In

considering a motion for summary judgment, the district court must draw all reasonable

inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

No. 08-2441 Colvin v. Caruso Page 6

Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986).

1. RLUIPA claim

Colvin’s first issue challenges the district court’s grant of summary judgment with

respect to his claims under RLUIPA regarding the prison’s kosher-meal program and his

alleged denial of Jewish services and literature at LMF. The RLUIPA statute provides, in

pertinent part, that

[n]o government shall impose a substantial burden on the religious exercise

of a person residing in or confined to an institution . . . even if the burden

results from a rule of general applicability, unless the government

demonstrates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental

interest.

42 U.S.C. § 2000cc-1(a).

Colvin sought damages, a declaratory judgment, and an injunction based on his

original complaint, but none of these forms of relief are available to him. Although the

statute permits the recovery of “appropriate relief against a government,” 42 U.S.C.

§ 2000cc-2(a), this court has recently held that monetary damages are not available under

RLUIPA. Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009) (“[T]he Eleventh

Amendment bars plaintiff’s claim for monetary relief under RLUIPA.”), petition for cert.

filed, 78 U.S.L.W. 3065 (U.S. July 22, 2009) (No. 09-109).

This leaves Colvin’s requests for declaratory and injunctive relief. But these forms

of relief are moot because Colvin’s requests were directed specifically at LMF’s policies and

procedures and were not targeted at the MDOC kosher-meal program as a whole. See Kensu

v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (finding that a prisoner’s request for injunctive

relief from prison inspection of his mail was moot because he had been transferred to a

No. 08-2441 Colvin v. Caruso Page 7

different facility that did not search his mail). Accordingly, we affirm the district court’s

grant of summary judgment on Colvin’s RLUIPA claim as set forth in his complaint.

2. § 1983 claim

Colvin next challenges the district court’s denial of his § 1983 claim. As noted

above, any declaratory or injunctive relief that Colvin seeks stemming from his complaint

has been mooted by his transfer to a different prison facility. We therefore need consider

only whether Colvin is entitled to monetary damages for any alleged violation of his

constitutional rights under § 1983.

Colvin sued the prison officials in both their individual and official capacities.

Although the magistrate judge failed to make mention of it in his second R & R, all of the

officials are entitled to Eleventh Amendment immunity on Colvin’s claims for damages

against them in their official capacities. See Cady v. Arenac County, 574 F.3d 334, 344 (6th

Cir. 2009) (“[A]n official-capacity suit against a state official is deemed to be a suit against

the state and is thus barred by the Eleventh Amendment, absent a waiver.”) (citation and

ellipsis omitted). Anderson, DeShambo, and Chaplain Riley raised the issue of Eleventh

Amendment immunity before the district court and therefore did not waive their right to this

defense.

We also have the authority to raise the issue of sovereign immunity as it applies to

Caruso and Burnett despite their failure to assert the defense in the district court. “The Sixth

Circuit has largely followed the ‘jurisdictional bar’ approach [to sovereign immunity] by

holding that a federal court can raise the question of sovereign immunity sua sponte because

it implicates important questions of federal-court jurisdiction and federal-state comity.” Id.

(citations and internal quotation marks omitted). Accordingly, we need consider Colvin’s

§ 1983 claims against the prison officials only in their individual capacities.

a. Chaplain Riley

In granting the prison officials’ motion for summary judgment, the district court first

concluded that Chaplain Riley was entitled to qualified immunity. (Although Anderson and

DeShambo might also be entitled to qualified immunity, they failed to raise this defense in

the district court or on appeal and have therefore waived the argument. See Brown v.

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Crowley, 312 F.3d 782, 788 (6th Cir. 2002) (“[T]he defense of qualified immunity may be

deemed as waived if not properly and timely presented before the district court.” (citation

omitted)).) The district court found that Riley’s only involvement in the kosher-meal

program was his response to correspondence that Colvin had sent to the warden regarding

the program, that Riley’s belief that Colvin was a Muslim was reasonable, and that any delay

that Colvin experienced in receiving kosher meals was unintentional and was resolved in a

reasonable amount of time.

To prevail on his § 1983 claim, Colvin must show that Chaplain Riley deprived him

of his First Amendment right to practice his religion. See Dorsey v. Barber, 517 F.3d 389,

394 (6th Cir. 2008) (“In order to prevail on a civil rights claim under 42 U.S.C. § 1983,

plaintiffs must establish that a person acting under the color of state law deprived them of

a right secured by the Constitution or laws of the United States.”). As a state employee,

however, Riley is entitled to qualified immunity if his “conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” See id. (citation omitted).

A two-part test is used to determined whether qualified immunity applies:

“(1) whether, considering the allegations in a light most favorable to the party injured, a

constitutional right has been violated, and (2) whether that right was clearly established.”

Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). For a right to be

“clearly established,” the “contours of the right must be sufficiently clear that a reasonable

[government official] would understand that what he is doing violates that right.” Harris v.

City of Circleville, 583 F.3d 356, 366-67 (6th Cir. 2009). We are “free to consider [the two-

part test] in whatever order is appropriate in light of the issues before us,” and therefore need

not decide whether there was a constitutional violation if we determine that an official in

Riley’s position would reasonably believe that his actions were not in contravention of

Colvin’s constitutional rights. See Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir. 2009)

(citation omitted).

This court has previously held that “prison administrators must provide an adequate

diet without violating the inmate’s religious dietary restrictions.” Alexander v. Carrick,

31 F. App’x 176, 179 (6th Cir. 2002). “If the prisoner’s diet . . . is sufficient to sustain the

No. 08-2441 Colvin v. Caruso Page 9

prisoner in good health, no constitutional right has been violated.” Id. In Alexander, an

inmate requested a grape-free diet in accordance with his Nazerite religion. He was

subsequently placed on close-observation status for approximately three weeks, and he

received “breakfast bags” for his morning meal during two of those weeks. (For the other

week, Alexander was placed on a special Nutri-loaf diet.) Each bag contained milk, fruit,

and a peanut-butter and grape-jelly sandwich. Observing that Alexander received other

nongrape food for his other meals while on close-observation status, the court concluded that

the prison officials’ denial of his request for a plain peanut-butter sandwich at breakfast did

not violate Alexander’s constitutional rights. Id.

Many of the facts in the present case mirror those of Alexander. Colvin, like

Alexander, received food that was not in accordance with his religious beliefs for a

temporary period of time and, by his own admission, Colvin was able to eat other food (fruit)

in lieu of the nonkosher items. But unlike Alexander, who received the offending food at

only some of his meals, Colvin received nonkosher food at every meal for the first 16 days

he was at LMF and was therefore limited to eating fruit during that time. The instant case

thus presents a closer call regarding whether Colvin received food “sufficient to sustain

[him] in good health.” See id.

Nonetheless, we need not decide this issue because Colvin has not pointed to any

evidence showing that Chaplain Riley acted unreasonably or that he “knowingly” violated

Colvin’s rights. See Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (holding that

qualified immunity protects “all but the plainly incompetent or those who knowingly violate

the law” (citation omitted)). Rather, Riley, consistent with his job function, received

Colvin’s request for kosher meals, checked Colvin’s eligibility, and was informed that

Colvin was a Muslim and therefore not qualified for the program. Riley, at worst, committed

a “reasonable mistake” as to Colvin’s status, a mistake that does not disqualify him from

receiving qualified immunity. See Dorsey, 517 F.3d at 394 (“The concern of the immunity

inquiry is to acknowledge that reasonable mistakes can be made as to the [conduct of a

government official].” (citation omitted)). Furthermore, once the mistake was discovered,

LMF officials, including Riley, worked “as quickly as possible” to ensure that Colvin

received kosher meals.

No. 08-2441 Colvin v. Caruso Page 10

Chaplain Riley is similarly entitled to qualified immunity on Colvin’s claims

regarding the lack of Jewish services and literature in the prison library because Riley’s

actions were reasonable. He justified the lack of Jewish services by noting that Colvin was

the only inmate requesting them and that, under LMF policies, a minimum number of

inmates must request religious services before they will be held.

This court has consistently permitted prisons to take into account the level of inmate

interest in a particular religion when determining whether to hold services. See, e.g., Spies

v. Voinovich, 173 F.3d 398, 404 (6th Cir. 1999) (concluding that a prison’s requirement that

a minimum of five inmates of a particular faith must be interested in forming a faith group

before the prison will provide for religious services has a “valid, rational connection to

legitimate government interests in maintaining security and allocating prison resources”);

Hall v. Tyszkiewicz, 28 F. App’x 493, 495-96 (6th Cir. 2002) (holding that an inmate was not

deprived of his constitutional rights where the prison did not hold Jewish services due to a

lack of interest, and where a rabbi visited the inmate once a month); Bruton v. McGinnis, 110

F.3d 63, 1997 WL 139797, at *3 (6th Cir. Mar. 26, 1997) (unpublished table decision)

(“Scheduling constraints make it clearly unreasonable to provide separate group services for

every religious sect that may arise.”). In addition, Colvin points to no restrictions on his

ability to practice Judaism privately, read Jewish literature, or correspond with other

practitioners of the Jewish faith. See Spies, 173 F.3d at 404-05 (concluding that an inmate’s

ability to “meditate privately in the chapel, correspond with fellow believers, and consult

individually with a personal minister” demonstrated that he had alternative ways of

exercising his religious rights).

Colvin also argues that LMF violated his constitutional rights by having only four

Jewish books in the prison library. (The prison maintains that it has twelve such books.) But

Colvin has not shown that LMF is required to keep a set number of religious books in its

library or that the prison is in any way prohibiting him from receiving religious materials

through other means. See Wilson v. Schwarz, 99 F.3d 1141, 1996 WL 603656, at *1 (6th

Cir. Oct. 21, 1996) (unpublished table decision) (holding that a prisoner’s right to practice

Islam was not violated where several Islamic books were available to inmates and inmate

access to religious material from other sources was not “unduly restricted”). Accordingly,

Colvin can point to no violation of his constitutional rights stemming from any lack of

No. 08-2441 Colvin v. Caruso Page 11

Jewish materials at LMF. Chaplain Riley is therefore entitled to qualified immunity on all

of Colvin’s claims against him as set forth in the complaint.

b. Caruso and Burnett

The district court next dismissed Colvin’s § 1983 claims against Caruso and Burnett

because they hold supervisory positions within the Michigan prison system and were not

personally involved in any of the alleged incidents at LMF. Allegations of respondeat

superior do not sustain a § 1983 claim against state employees in their individual capacities,

meaning that officials are personally liable for damages under that statute “only for their own

unconstitutional behavior.” Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir.

1989). That is, “even if a plaintiff can prove a violation of his constitutional rights, his

§ 1983 claim must fail against a supervisory official unless the supervisor encouraged the

specific incident of misconduct or in some other way directly participated in it.” Cardinal

v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009) (citations and internal quotation marks

omitted). To succeed on his claim, Colvin must therefore show that Caruso and Burnett “at

least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional

conduct of the offending officers.” See id. at 803 (citations omitted).

Colvin does not allege that Caruso had any involvement in the administration of the

kosher- meal program or the Jewish services and literature selection at LMF. There is also

no allegation in Colvin’s complaint that Burnett was involved in any of the incidents about

which Colvin complains or that he was in any way “actively involved” in the denial of

kosher food, literature, or religious services. See id. (affirming the grant of summary

judgment on a § 1983 claim against a prison warden where there was no allegation that the

warden was “actively involved in the denial of kosher food”). In fact, the only evidence of

Burnett’s involvement is his instruction to Chaplain Riley that Colvin be placed in the

kosher-meal program “as soon as possible” upon Burnett’s being alerted to the mistake of

Colvin not receiving kosher meals. The district court therefore did not err in granting

summary judgment on Colvin’s § 1983 claims against Caruso and Burnett in their individual

capacities.

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c. DeShambo and Anderson

As with Chaplain Riley, Caruso, and Burnett, the district court granted summary

judgment in favor of DeShambo and Anderson. Unlike Caruso and Burnett, however,

DeShambo and Anderson are specifically identified by Colvin as having been actively

involved in serving Colvin nonkosher food items. We must therefore address the merits of

Colvin’s claim that their conduct deprived him of his constitutional rights.

An inmate’s claim regarding a constitutional violation is analyzed under the

framework set forth in Turner v. Safley, 482 U.S. 78 (1987). Under that framework, prison

regulations that impinge on an inmate’s constitutional rights are valid if they are “reasonably

related to legitimate penological interests.” Id. at 89. This deferential standard is employed

in light of the “inordinately difficult undertaking” of prison administration, which “requires

expertise, planning, and the commitment of resources, all of which are peculiarly within the

province of the legislative and executive branches of government.” Id. at 85. We

accordingly consider four factors to determine the reasonableness of a challenged regulation:

First, there must be a valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it.

If not, the regulation is unconstitutional, and the other factors do not matter.

Unlike the first factor, the remaining factors are considerations that must be

balanced together: (2) whether there are alternative means of exercising the

right that remain open to prison inmates; (3) the impact that accommodation

of the asserted constitutional right will have on guards and other inmates,

and on the allocation of prison resources generally; and (4) whether there are

ready alternatives available that fully accommodate the prisoner’s rights at

de minimus cost to valid penological interests.

Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999) (citations and internal quotation marks

omitted).

After citing these factors, the magistrate judge did not conduct a further Turner

analysis, presumably because Colvin does not challenge LMF’s kosher-meal policy itself.

He instead contends that DeShambo and Anderson on multiple occasions violated the policy

by mistakenly serving him nonkosher food. In evaluating this claim, the magistrate judge

found dispositive the fact that any mistakes in serving Colvin nonkosher food were “isolated

incidents,” that there was no evidence that the LMF staff was intentionally serving him

No. 08-2441 Colvin v. Caruso Page 13

nonkosher items, and that, after each incident, the LMF staff addressed Colvin’s complaints

and worked to correct their errors. The district court agreed.

These findings are not erroneous. Because Colvin has asserted only isolated

incidents of DeShambo and Anderson serving him nonkosher food, and because these

incidents are not sufficient to sustain his claim, we find no error in the district court’s ruling.

See Johnson v. Wilkinson, 229 F.3d 1152, 2000 WL 1175519, at *2 (6th Cir. Aug. 11, 2000)

(unpublished table decision) (holding that a prisoner’s allegations about “random and

isolated interference with [his] mail” did not rise to the level of a First Amendment

violation). In addition, LMF presented evidence showing that, pursuant to LMF policy, had

Colvin alerted LMF food-service workers to the fact that he received nonkosher items when

the food was being served (rather than later filing grievances), such items could have been

promptly replaced with kosher items.

Nor is there any evidence that the isolated mistakes were willful. See Gallagher v.

Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009) (affirming the dismissal of an inmate’s claim

that kosher utensils were contaminated because, despite evidence that prison officials might

have “imperfectly implemented the kosher requirements, or were even negligent,” there was

“no basis to conclude that any of the defendants deliberately contaminated the kosher

utensils”). Given the isolated nature of the nonkosher food service and the lack of any

evidence indicating deliberate violations of LMF’s kosher-meal program, Anderson and

DeShambo are entitled to summary judgment on Colvin’s claims.

B. Motion for discovery

Colvin next contends that the district court improperly denied his request for

discovery. In September 2007, the magistrate judge issued an order staying discovery and

stating that, to the extent Colvin desired to engage in discovery to defend against the prison

officials’ motions for summary judgment, he could “so state in his response to the dispositive

motion[s], indicating as specifically as possible what facts he believes might be revealed in

discovery which will support his cause.” Colvin in fact requested discovery in his response

to the prison officials’ motion for summary judgment, but he did not specify how the

discovery would help his cause. The magistrate judge therefore recommended denying

Colvin’s motion.

No. 08-2441 Colvin v. Caruso Page 14

We review a district court’s decision concerning discovery matters under the abuse-

of-discretion standard. Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003). “[A] plaintiff

complaining that a district court granted summary judgment without allowing adequate

discovery must, at a minimum, be able to show that he could obtain information through

discovery that would disclose material facts.” Id.; see also Sierra Club v. Slater, 120 F.3d

623, 628 (6th Cir. 1997) (holding that the denial of the plaintiffs’ request to take a deposition

was not an abuse of discretion because the plaintiff had failed to show “how the deposition

would have aided their opposition to summary judgment”).

Colvin argues that, had he been permitted to conduct discovery, he would have

requested information regarding inspections of the LMF kosher-meal program, a copy of the

MDOC kosher- meal policies, the names of the food-service workers who handled kosher

meals, and the name of the official who approved the kosher-meal program. The information

requested, however, would not have cured the defects in Colvin’s claims because he would

still have been unable to show, for the reasons set forth above, that his constitutional rights

were violated. Accordingly, the district court’s denial of Colvin’s discovery request was not

an abuse of discretion.

C. Motion to amend complaint

Colvin further argues that the district court erred in denying his motion to amend his

complaint. We review the denial of a motion to amend under the abuse-of-discretion

standard, “unless the motion was denied because the amended pleading would not withstand

a motion to dismiss, in which case the standard of review is de novo.” Total Benefits

Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437 (6th Cir.

2008). “A motion to amend a complaint should be denied if the amendment is brought in

bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or

would be futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). Although a district

court’s failure to state a basis for its decision to deny a motion to amend ordinarily

constitutes an abuse of discretion, such an abuse amounts to harmless error where the

proposed amendment would have been futile. Konkol v. Diebold, Inc., 590 F.3d 390, 404

(6th Cir. 2009) (holding that the district court did not err in denying a motion to amend the

No. 08-2441 Colvin v. Caruso Page 15

complaint because the lack of allegations regarding scienter in a securities-law case rendered

the proposed amended complaint futile).

The Federal Rules of Civil Procedure generally permit a plaintiff to “amend [his]

pleadings once as a matter of course.” Fed. R. Civ. P. 15(a)(2). Otherwise, the complaint

may be amended “only with the opposing party’s written consent or the court’s leave,” and

a “court should freely give leave when justice so requires.” Id. In the present case, the

magistrate judge concluded, without any analysis, that Colvin’s proposed amended

complaint would be futile. This ruling was upheld by the district court, again without any

analysis.

We agree in part with the district court’s conclusion. A portion of Colvin’s motion

to amend sought to add the names of LMF food-services workers who were allegedly

responsible for serving him nonkosher items. But, as discussed above in Part II.A., Colvin’s

claims fail not because he is unable to identify these workers by name, but because he has

not shown that his constitutional rights were violated in any of the instances described. His

proposed amendment to add these names would therefore have been futile.

We also conclude, however, that the district court abused its discretion by failing to

address two additional claims that Colvin raised in his motion to amend. These claims allege

that Colvin (1) was wrongly removed from the kosher-meal program, and (2) was wrongly

denied reinstatement by Burnett, Chaplain Riley, and other prison officials. Although he

labels these claims as constituting “retaliation and conspiracy,” Colvin, as in his original

complaint, seeks relief in his proposed amended complaint pursuant to RLUIPA and § 1983.

We will accordingly analyze his proposed additional claims as being brought under these

two statutes.

As discussed in Part II.A.1. above, the Eleventh Amendment bars Colvin’s claims

for monetary damages under RLUIPA. But, unlike Colvin’s original claims for injunctive

and declaratory relief, which were moot because Colvin had been transferred from LMF to

another prison, we cannot conclude that the claims in Colvin’s proposed amended complaint

are moot for the same reason. This is because the Marquette Branch Prison, the facility to

which Colvin was transferred, relied on LMF’s removal of Colvin from kosher-meal status

to justify a continuation of the status quo. The chaplain of this latter prison relied on

No. 08-2441 Colvin v. Caruso Page 16

Burnett’s memo in concluding that Colvin’s religious preference was Muslim and that he

was therefore not eligible to receive kosher meals. No additional interviews or questioning

appear to have taken place. The record thus indicates that LMF’s removal of Colvin from

kosher-meal status and its subsequent refusal to reinstate him had long-term consequences

for Colvin within the Michigan prison system, even after he was transferred away from

LMF.

Whether a prison transfer moots an inmate’s claim where the inmate faces the

potential for future harm following the transfer is undecided in this circuit. In Berryman v.

Granholm, 343 F. App’x 1 (6th Cir. 2009), this court held that a Michigan inmate’s request

for declaratory and injunctive relief regarding his removal from the kosher-meal program

was moot upon being transferred to a different prison. Id. at 4-5. But the Berryman court

did not face the question of whether the inmate was denied kosher meals at the second prison

based on his initial removal from the program at the prior prison, so there was no indication

that any alleged harm was on-going. Moreover, at least two other circuits that have

considered the effect that a prison transfer has on an inmate’s claim for equitable relief have

refused to dismiss the inmate’s claim as moot. In Andreola v. Wisconsin, 171 F. App’x 514

(7th Cir. 2006), the United States Court of Appeals for the Seventh Circuit held that a

prisoner’s claim for injunctive relief after he was allegedly denied “ultra Orthodox” kosher

food when housed at another prison was “not moot because [the senior personnel in the State

of Wisconsin’s Department of Corrections] can control his diet throughout the state’s prison

system.” Id. at 515.

The Eighth Circuit reached a similar result in Randolph v. Rodgers, 170 F.3d 850

(8th Cir. 1999). There, a deaf prisoner sought an injunction as part of his claim that the

Missouri prison where he had previously been housed had wrongfully deprived him of a

sign-language interpreter. Id. at 857. The district court found this claim to be moot, but the

Eighth Circuit reversed because the prisoner was “exposed to an actual future threat under

the control of the Department of Corrections—that he will not be provided an interpreter.”

Id. Thus, the injunction the prisoner sought would prevent future harm. See id.

This logic compels a similar result in the present case. The record suggests that

Colvin’s nonkosher status traveled with him to the Marquette Branch Prison. We therefore

No. 08-2441 Colvin v. Caruso Page 17

cannot conclude that Colvin’s wrongful-removal and denial-of-reinstatement claims are

moot.

Nor can we conclude that these additional claims are futile, a finding that would

render harmless the district court’s error in dismissing them. Under RLUIPA, a prison

cannot impose a “substantial burden” on an inmate’s ability to practice his religion unless

there is a showing that the imposition of the burden “(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000cc-1(a). The constitutional protection afforded

under § 1983 is less strong, however. See, e.g., Lovelace v. Lee, 472 F.3d 174, 199-200 (4th

Cir. 2006) (holding that “the First Amendment affords less protection to inmates’ free

exercise rights than does RLUIPA”). As noted earlier, under § 1983, a prison regulation

abridging inmates’ constitutional rights is valid if it is “reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

Turning first to Colvin’s wrongful-removal claim, we note that MDOC’s policy of

removing a prisoner from the kosher-meal program for mere possession of a nonkosher food

item may be overly restrictive of inmates’ religious rights. Colvin was removed from the

program pursuant to this policy after LMF officials discovered nonkosher protein powder

in his cell. Recently, a federal district court in New Hampshire considered the

constitutionality of a prison’s “zero tolerance” policy of suspending a prisoner from the

kosher-meal program for six months if the prisoner consumed or possessed food in violation

of the diet. Kuperman v. Warden, N.H. State Prison, Civil No. 06-cv-420-JL, 2009 WL

4042760, at *6 (D.N.H. Nov. 20, 2009). Surveying recent caselaw on this issue, the court

remarked that

[a] circuit split is brewing . . . . The Fourth Circuit Court of Appeals recently

held that a prison violated RLUIPA when it prevented a prisoner from

participating in Ramadan meals and group prayers after catching him

breaking his Ramadan fast. See Lovelace v. Lee, 472 F.3d 174 (4th Cir.

2006). In an earlier case, however, the Eighth Circuit Court of Appeals

reached the opposite conclusion, upholding such a policy because “[r]ather

than burdening Ramadan worshippers, the . . . policy allows full

participation in the fast and removes from the procedures only those

worshippers who choose to break the fast.” Brown-El v. Harris, 26 F.3d 68,

69-70 (8th Cir. 1994). The Lovelace court distinguished Brown-El because

it applied a First Amendment analysis, whereas Lovelace applied the “more

No. 08-2441 Colvin v. Caruso Page 18

rigorous” RLUIPA analysis. Lovelace, 472 F.3d at 188 n.3. But a

dissenting judge saw no material distinction and argued for the result in

Brown-El. See id. at 208 (Wilkinson, C.J., concurring in the judgment in

part and dissenting in part).

In a case even closer to this one, the Seventh Circuit Court of Appeals

recently applied the heightened statutory standard and nevertheless

concluded that suspension of kosher diet privileges in response to dietary

violations is not a substantial burden on religious exercise because it does

not “compel conduct contrary to religious beliefs: [the prisoner] was forced

to eat the non-kosher meals only because he turned down the kosher ones.”

Daly v. Davis, No. 08-2046, 2009 WL 773880 (7th Cir. 2009)

(unpublished). This holding also appears to be in tension with Lovelace.

Id. (alterations in original) (footnote omitted). Without further factual development on this

issue, we cannot definitively conclude that LMF’s strict application of its kosher-meal

policies to Colvin was constitutional.

We likewise cannot say as a matter of law that Colvin’s failure-to-reinstate claim

lacks merit based on the record before us. In particular, we question the rationale upon

which the prison officials relied to deny Colvin’s request for reinstatement. Both Chaplain

Riley and Burnett remarked that Colvin self-identified as Muslim, but neither provided any

support for this conclusion. The record further demonstrates that Colvin consistently stated

his religious preference as Jewish throughout his incarceration. In April 2002, for instance,

he submitted a “Declaration of Religious Preference” form, indicating his “faith group” as

Judaism. He also submitted numerous grievances during his time at LMF concerning alleged

violations of kosher practice by the kitchen staff and the lack of Jewish services and Jewish

reading materials. LMF, moreover, implicitly acknowledged Colvin’s Jewish faith by

allowing him to participate in the kosher-meal program.

Furthermore, some of the prison officials had reason to know of Colvin’s religious

beliefs in light of a prior lawsuit that he filed in October 2002. In that case, Colvin alleged

that prison officials at a different Michigan facility improperly excluded him from the

kosher-meal program because of insufficient answers that he gave in an interview about his

religious faith. Burnett was named as a defendant in that lawsuit. The district court in that

prior case criticized the prison officials for unconstitutionally requiring Colvin to

demonstrate a certain level of objective knowledge about Judaism prior to being allowed to

participate in the program, and it ordered the prison to provide Colvin with kosher meals

No. 08-2441 Colvin v. Caruso Page 19

pending trial. Soon thereafter, the defendants offered Colvin a judgment in his favor, and

the court ordered that Colvin be placed in the kosher-meal program. Collectively, these facts

undermine Chaplain Riley’s and Burnett’s conclusory assertions that Colvin self-identified

as a Muslim.

We further question the remaining rationale provided by LMF in denying Colvin

kosher-meal status. Following an interview with Colvin, Chaplain Riley concluded that he

exhibited “minimal knowledge of Judaism and its dietary requirements.” Burnett echoed this

assertion in his memo, commenting that, in his interview with Riley, “Colvin provided

minimal information in response to a question about his faith’s major teachings.” But the

touchstone for determining whether a religious belief is entitled to free-exercise protection

is an assessment of “whether the beliefs professed . . . are sincerely held,” not whether “the

belief is accurate or logical.” Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) (emphasis

in original) (citations and internal quotation marks omitted). And, under RLUIPA, prison

officials are to focus their inquiries on “the sincerity of a prisoner’s professed religiosity.”

See Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005).

In Colvin’s 2002 lawsuit, the magistrate judge faulted prison officials for focusing

on Colvin’s “knowledge of the tenets of [Judaism]” rather than on the issue of whether he

“was subjectively insincere in his embrace” of the religion. The magistrate judge further

remarked that

[d]efendants’ 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. 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. . . . 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

No. 08-2441 Colvin v. Caruso Page 20

to the Jewish faith, despite his personal flaws and the obvious gaps in his

religious education.

Colvin v. Curtis, No. 02-cv-0728, Report and Recommendation (W.D. Mich. Aug. 25, 2003)

(Docket Entry 70 at 13-14). Significantly, the prison officials in the 2003 lawsuit had used

the same three-question test that Chaplain Riley used when he interviewed Colvin at LMF.

Chaplain Riley and Burnett emphasized Colvin’s lack of objective knowledge of

Judaism, and thus they appear to have failed to make a proper inquiry into the sincerity of

Colvin’s beliefs. And, to the extent that their decision to deny Colvin’s reinstatement request

was based on his lack of objective knowledge, it was unconstitutional. See, e.g., Love v.

Reed, 216 F.3d 682, 688 (8th Cir. 2000) (rejecting a challenge to the sincerity of a inmate’s

religious beliefs due to his lack of scripture knowledge, noting that “[w]e would not deny

that a Jew’s desire to keep Kosher is rooted in religion even if he were not a Rabbinical

scholar capable of explaining the more subtle spiritual aspects of Judaism”).

We conclude, in sum, that the district court abused its discretion by failing to address

the wrongful-removal and failure-to-reinstate claims that Colvin brought in his proposed

amended complaint. Neither of these claims is moot, nor was the error in failing to address

them harmless, because they cannot be said to be devoid of merit as a matter of law.

Because these arguments were not addressed by the district court, and because additional fact

finding is likely necessary to resolve these issues, we decline to rule on the merits of

Colvin’s claims in his proposed amended complaint. See Mt. Clemens v. EPA, 917 F.2d 908,

916 n.7 (6th Cir. 1990) (remanding to the district court and declining to affirm on alternative

grounds “[b]ecause these arguments were not addressed by the district court and additional

fact finding would be required to resolve the issues raised”). Rather, in order to allow the

district court to fully consider these claims and to grant the prison officials an opportunity

to respond, we will remand this matter for further proceedings.

D. Motion for preliminary injunction

Colvin’s final argument on appeal concerns the district court’s denial of his motion

for a preliminary injunction. Two months following the filing of his original complaint,

Colvin was removed from the kosher-meal program for possessing nonkosher protein

powder in his cell. His motion for a preliminary injunction requested both that he be

No. 08-2441 Colvin v. Caruso Page 21

reinstated in the program and that LMF cure the alleged deficiencies in its kosher-food

preparation and service.

In his first R & R, the magistrate judge recommended denying Colvin’s motion on

the grounds that Colvin did not establish a likelihood of success on the merits of his claim

that the prison officials violated his constitutional rights, and on the basis that Colvin had

failed to demonstrate that irreparable harm would result if the motion was not granted. The

district court adopted the first R & R without further comment. Colvin then filed a

“Renewed Motion for Preliminary Injunction” seeking similar relief. The district court did

not rule on this second motion.

“Whether a preliminary injunction should be granted is a decision left to the sound

discretion of the district court.” Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411

F.3d 777, 782 (6th Cir. 2005). “A district court, in deciding whether to grant an injunction,

abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal

standard, or relies upon clearly erroneous findings of fact.” Id. (citation and internal

quotation marks omitted).

In this case, the magistrate judge recited the four-factor inquiry that this court uses

to determine whether a preliminary injunction is appropriate:

(1) whether the movant has a “strong” likelihood of success on the merits;

(2) whether the movant would otherwise suffer irreparable injury;

(3) whether issuance of a preliminary injunction would cause substantial

harm to others; and (4) whether the public interest would be served by

issuance of a preliminary injunction.

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citation omitted). The district court

adopted the magistrate judge’s conclusions that Colvin would not likely succeed on the

merits of his claim and that he would not suffer irreparable harm in the absence of an

injunction. It reached this result because Colvin was found in possession of nonkosher

protein powder, in violation of the kosher-meal prison policy, and that the sincerity of his

religious beliefs was called into question by Chaplain Riley.

Although we question this analysis for the reasons discussed in the previous section,

any error made by the district court was harmless because Colvin did not have a strong

No. 08-2441 Colvin v. Caruso Page 22

likelihood of success on the merits of his claim regarding LMF’s errors in executing its

kosher-meal program, as discussed in Part II.A. above. Moreover, Colvin’s request for

reinstatement in the kosher-meal program was improper because he did not bring his

wrongful-removal claim in his original complaint. “[A] party moving for a preliminary

injunction must necessarily establish a relationship between the injury claimed in the party’s

motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471

(8th Cir. 1994). This is because “[t]he purpose of interim equitable relief is to protect the

movant, during the pendency of the action, from being harmed or further harmed in the

manner in which the movant contends [he] was or will be harmed through the illegality

alleged in the complaint.” Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14,

16 (4th Cir. 1997). Colvin had no grounds to seek an injunction pertaining to allegedly

impermissible conduct not mentioned in his original complaint.

But Colvin sought the same injunctive relief in his second motion for a preliminary

injunction, and he brought this motion after filing his proposed amended complaint that sets

forth the factual basis for his wrongful-removal claim. Given the arguably meritorious

nature of Colvin’s propsed amended complaint, the district court’s failure to rule on the

second motion for a preliminary injunction was an abuse of discretion.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the district court’s grant of

summary judgment on the claims in Colvin’s original complaint, its denial of his motion for

discovery, and its denial of his first motion for a preliminary injunction. We VACATE,

however, the district court’s denial of Colvin’s motion to amend and its denial of his second

motion for a preliminary injunction. Finally, we REMAND the case for further proceedings

consistent with this opinion.