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Ervin v. Davis

United States District Court, S.D. Ohio, Eastern Division

August 21, 2017

Levert Ervin, Plaintiff,
v.
Dr. Michael Davis, Defendant.

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

         On June 14, 2017, Magistrate Judge Kemp, to whom this case was originally referred, issued a Report and Recommendation ("R&R") recommending that the Court grant Dr. Michael Davis's ("Defendant") motion for summary judgment, ECF No. 16, and deny Levert Ervin's ("Plaintiff") motion for partial summary judgment, ECF No. 9, in this prisoner civil rights case. R&R, ECF No. 19. For the following reasons, the Court ADOPTS the R&R.

         I. FACTS

         The R&R sets forth the pertinent facts in this case, which are as follows. Plaintiff is a prisoner at Grafton Correctional Institution ("Grafton"). Defendant is the Religious Services Administrator for the Ohio Department of Rehabilitation and Correction.

         In August of 2015, Plaintiff submitted a "request to change religious affiliation" form to the Grafton Chaplain, Ronald Smith ("Chaplain Smith"). Plaintiff sought to change his religious affiliation from Pentecostal Christian to Natsarim (Messianic Judaism). The request was approved the same day. The warden subsequently approved several religious accommodations for Plaintiff, including permitting Plaintiff to wear a yarmulke, a tallit (prayer shawl), and tzitzits (undergarments with tassles), and to be excused from work duty on the Sabbath.

         On December 21, 2015, during the same time frame that the warden was approving certain religious accommodations for Plaintiff, Plaintiff requested to be placed on a kosher diet. Defendant denied that December request, stating that he was "[u]nable to make a determination based on information provided." Defendant denied Plaintiffs request based on Chaplain Smith's recommendation. Davis Decl. ¶ 9, ECF No. 16-1. Chaplain Smith, in turn, recommended that Defendant deny Plaintiff's December 2015 request because Defendant had denied a prior, September 2015, request of Plaintiffs for a kosher diet. Id. ¶ 9-10; Resp. Ex. A, ECF No. 16-4. Defendant had also denied Plaintiff's September 2015 request based on the recommendation of Chaplain Smith, which recommendation stated that, when he interviewed Plaintiff about the request, Plaintiff appeared to change his mind and asked that the request be torn up. Davis Decl. ¶ 11, ECF No. 16-1; Resp. Ex. C, ECF No. 16-6; Resp. Ex. D, ECF No. 16-7.

         Plaintiff again requested a kosher diet on March 18, 2016. Defendant approved that request based on Chaplain Smith's recommendation. Resp. Ex. F, ECF No. 16-9.

         Plaintiff alleges that, in denying Plaintiff's December 2015 request for a kosher diet, Defendant violated Plaintiff's First and Fourteenth Amendment rights as well as the Religious Land Use Institutionalized Persons Act ("RLUIPA"). Plaintiff sues Defendant in his individual and official capacities. Plaintiff seeks a declaratory judgment, the award of compensatory and punitive damages, and an injunction requiring Defendant to place Plaintiff on a kosher diet.

         II. STANDARD OF REVIEW

         Magistrate Judge Kemp issued the R&R pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). Under Rule 72(b), the Undersigned must determine de novo any part of the Magistrate Judge's disposition that has been properly objected to. Fed.R.Civ.P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id.

         III. ANALYSIS

         The R&R recommended the Court grant summary judgment for Defendant on all of Plaintiff's claims.

         A. ...


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