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Long v. Sloan

United States District Court, N.D. Ohio

May 23, 2019

STACEY LONG, Plaintiff,
v.
BRIGHAM SLOAN, et al., Defendants.

          DONALD NUGENT, JUDGE

          REPORT AND RECOMMENDATION AND ORDER

          JONATHAN D. GREENBERG, U.S. MAGISTRATE JUDGE

         This case is before the Court upon referral for general pretrial supervision. See Non-Document Order dated October 2, 2018. Currently pending are the following: (1) Plaintiff Stacey Long's Requests for Preliminary Injunction (Doc. Nos. 8, 22); (2) Defendant Michael Davis' Motion to Dismiss for Failure to State a Claim (Doc. No. 29); (3) Defendants Brigham Sloan's and J. King's Joinder in Defendant Davis' Motion to Dismiss, and Motion to Dismiss for Failure to State a Claim (Doc. No. 31); (4) Defendants E. Weizer's and G. Stills' Joinder in Defendant Davis' Motion to Dismiss (Doc. No. 32); and (4) Plaintiff's Motion for Appointment of Counsel (Doc. No. 41).

         For the following reasons, it is recommended that Plaintiff's Requests for Preliminary Injunction (Doc. Nos. 8, 22) be DENIED. It is further recommended that Defendant Davis' Motion to Dismiss (Doc. No. 29) be GRANTED; Defendant Sloan and King's Motion to Dismiss (Doc. No. 31) be GRANTED; and Defendant Weizer and Stills' Motion to Dismiss (Doc. No. 32) be GRANTED. In addition, Plaintiff's Motion for Appointment of Counsel (Doc. No. 41) is DENIED.

         I. Procedural Background

         On June 15, 2018, Plaintiff Stacey Long, proceeding pro se, filed a“Complaint and Request for Injunction” against (1) Brigham Sloan, Warden, Lake Erie Correctional Institution (“La.E.C.I.”); (2) Ms. J. King, Warden, Special Programs, La.E.C.I.; and (3) Michael Davis, Ph.D., Religious Service Administrator, Ohio Department of Rehabilitation & Correction (“ODRC.”) (Doc. No. 1.) Plaintiff's “Complaint” consisted of two pages, which listed the case caption and parties only. (Id.) There were no factual allegations or legal claims, and the “Complaint” was unsigned. (Id.)

         On October 4, 2018, the undersigned issued an Order finding the “Complaint” to be deficient in several respects. (Doc. No. 6.) Plaintiff was provided the opportunity to file a full, complete, and signed copy of his Complaint by no later than November 4, 2018. (Id.)

         Plaintiff thereafter filed a Complaint (Doc. No. 7) and Request for Preliminary Injunction (Doc. No. 8) on October 15, 2018. In the Complaint, Plaintiff again named Sloan, King, and Davis as Defendants. (Doc. No. 7.) Plaintiff alleged violations of the First, Eighth, and Fourteenth Amendments to the U.S. Constitution, as well as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. and 28 CFR § 541.12(1) & (4), based on Defendants' alleged refusal to provide him kosher meals. (Id. at PageID#33.)

         On November 13, 2018, Defendant Davis filed a Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (Doc. No. 11.) Shortly thereafter, Defendants Sloan and King filed a Motion to Dismiss, in which they joined in the arguments raised by Defendant Davis and raised additional arguments in support of their Motion. (Doc. No. 13.) Plaintiff filed a Brief in Opposition to both Motions, as well as a “Declaration” regarding his religious affiliation, on December 19, 2018. (Doc. Nos. 15, 16.)

         On that same date, Plaintiff filed a Motion for Leave to Amend Complaint pursuant to Fed.R.Civ.P. 15(a)(2). (Doc. No. 14.) Therein, Plaintiff sought leave to amend his Complaint to add two new parties, identified only as Ms. Weizer and Mr. Stills of Trinity Food Service. (Id.) Defendants did not oppose Plaintiff's Motion for Leave.

         On January 25, 2019, the undersigned issued an Order granting Plaintiff leave to amend the Complaint for the limited purpose of adding claims against Ms. Weizer and Mr. Stills. (Doc. No. 19.) The Order required Plaintiff to file his Amended Complaint by no later than February 14, 2019. (Id.)

         On February 15, 2019, Plaintiff filed an Amended Complaint (Doc. No. 24) and Motion for Preliminary Injunction (Doc. No. 22.).[1] On February 26, 2019, Defendant Davis filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 29.) Defendants Sloan and King filed a Joinder in Davis' Motion and their own Motion to Dismiss, on March 18, 2019. (Doc. No. 31.) Shortly thereafter, on March 20, 2019, Defendants Weizer and Stills filed a Joinder in Davis' Motion to Dismiss. (Doc. No. 32.) Plaintiff filed Briefs in Opposition on March 22, 2019 (Doc. No. 33), April 1, 2019 (Doc. No. 34), and April 11, 2019 (Doc. No. 36.) Defendants each filed Reply Briefs, to which Plaintiff filed additional responses. (Doc. Nos. 35, 37, 38, 39, 40, 42.) Lastly, on May 6, 2019, Plaintiff filed a Motion for Appointment of Counsel (Doc. No. 41), which Defendants Sloan and King opposed (Doc. No. 43.)

         II. Factual Allegations

         The Amended Complaint (Doc. No. 24) contains the following factual allegations.

         Plaintiff is currently an inmate at La.E.C.I. On December 4, 2017, he “requested the sign in sheet to retrieve the Kosher breakfast, when I was then informed that they were discontinued at this institution.” (Id. at PageID#175.) Plaintiff asserts that “the aforementioned employee's of ODRC and contracted employees of Core Civic & Trinity Food Service have been deliberately obscurant in stating the person[s] responsible for the abnegation of the guaranteed constitutionally & Federally protected rights of the free exercise of religion.” (Id.) In particular, he states Defendant Stills, whom he identifies as “Director of Operations, ” “was obdurate to my request of the person[s] in the issuance of the directive to cease the Religious Accommodation of Kosher Meals.” (Id. at PageID#176.)

         Plaintiff then alleges the non-kosher meals provided at La.E.C.I. are “a high glycemic diet, consisting largely of starch & carbohydrates and hydrogenated oils that are directly related to diabetes, cardio-vascular & heart disease.” (Id. at PageID#178.) He asserts that meat dishes served at the prison are “innately nutritionless, unpalatable, & unsatiating with a putrid odor, ” and not in accordance “with the State & Federal requirements for a nutritionally healthy diet.” (Id.) Plaintiff states “the peanut butter is of the lowest quality, ” and “the exorbitant sodium inherent with these processed foods results in deliberate & systematic poisoning.”[2] (Id.) He claims “this putrid product is explicitly forbidden by the jewish dietary law of Kashrut & the jewish rituals & religious observances grounded in jewish law of Halkhah.” (Id.) Plaintiff further claims Defendants failed to provide prior notification or explanation of the decision to discontinue kosher meals, thereby depriving him of due process. (Id. at PageID#177.)

         As a result of Defendants' refusal to provide him with kosher meals, Plaintiff claims he suffered “an imbalance & fluctuation in my internalized Normalized Ratio (INR).” (Id. at PageID# 179.) He asserts this fluctuation is related to the fact that he is a “lifetime recipient” of the medication, coumadin. (Id.) Plaintiff claims “gastrointestinal disorders which are side effects of [this] medication compounded by the consumption of soy which is inherently difficult to digest, but is recommended not to be consumed by those of us on said medication due to its interference with the effectiveness of the medication.” (Id.) Plaintiff alleges he suffered “chronic distention and acute abdominal pain” as a result of the discontinuance of kosher meals. (Id. at PageID#177.) He asserts “medical then refused to provide relief with a diet pass from the dietician, ” claiming “medical is non-existent for the same reason of the crypto ethos of regulatory insouciance that drives the Trinity Food Service to circumvent U.S.D.A. Guidelines, profit at the expense of the health & well-being of those of us incarcerated in this for-profit industry.” (Id. at Page ID#s 176, 179.)

         In sum, Plaintiff claims he “has been subjected to a bevy of medical exigents resulting in acute pain & denied adequate medical & dietary intervention that a reasonably trained professional responsible for the lives of other would be cognitive of the side effects of prescribed medication & certain products served at the dining hall are to be avoided.” (Id. at PageID#s 179-180.) He states he “is subjected to nothing less, then the ‘Cruel & Unusual Punishment' of a hobson's choice; consume the products served by the Trinity Food Company that have been recognized by one of the ‘World's' leading authority in health, the Cleveland Clinic, as imminently fatal, or don't eat & succumb to the inevitable deteriorating health consequences of nutritional deprivation.”[3] (Id. at PageID#180.)

         The Amended Complaint asserts “the denial of Religious Accommodations of Kosher meals and its subsequent ramifications” violates RLUIPA, and the First, Eighth, and Fourteenth Amendments of the U.S. Constitution. (Id. at PageID#179.) With regard to his Eighth Amendment claim, Plaintiff claims Defendants have been deliberately indifferent to his medical needs, asserting Defendants had “prior knowledge of law & Plaintiffs chronic medical exigence, whereby denying Plaintiff adequate medical attention & a safe nutritional diet.” (Id. at PageID#180.) He seeks injunctive relief, including an Order directing Defendants to reinstate kosher meals and “institute an independent oversight committee with the ‘authority' to correct the tacitly condoned ethos of malfeasance of Core Civic, Trinity Food Service, and contracted medical provider.” (Id. at PageID#177.) Plaintiff also seeks punitive damages in the amount of $250, 000. (Id.)

         III. Motions to Dismiss

         A. Standard of Review

         Under Fed.R.Civ.P. 12(b)(6), the Court accepts the plaintiff's factual allegations as true and construes the Complaint in the light most favorable to the plaintiff. See Gunasekara v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, “a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,' (2) more than ‘formulaic recitation of a cause of action's elements,' and (3) allegations that suggest a ‘right to relief above a speculative level.'” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

         The measure of a Rule 12(b)(6) challenge-whether the Complaint raises a right to relief above the speculative level-“does not ‘require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.'” Bassett v. National Collegiate Athletic Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555-556, 127 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Deciding whether a complaint states a claim for relief that is plausible is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937.

         Consequently, examination of a complaint for a plausible claim for relief is undertaken in conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' ” Gunasekera, 551 F.3d at 466 (quoting in part Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)) (quoting Twombly, 127 S.Ct. at 1964). Nonetheless, while “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

         B. Evidence Submitted Outside the Pleadings

         Prior to reaching the merits of the parties' arguments, the Court notes that Plaintiff has attached several exhibits to his various responses to Defendants' Motions to Dismiss, and asked the Court to consider these exhibits as support for the claims set forth in his Amended Complaint. These exhibits include the following: (1) a document entitled “Declaration of Stacey Long, ” which is unsigned and dated December 15, 2018 (Doc. No. 38-4); (2) a document entitled “Declaration of Stacey Long, ” which is signed and dated April 5, 2019 (Doc. No. 36-1); (3) a letter dated June 8, 2018 from “M. Tatman, RDN, LDN, ” to Plaintiff regarding “ODRC Menu Nutrition” (Doc. No. 36-2); and (4) an article from “mercola.com” entitled “7 Worst Ingredients in Food” (Doc. No. 36-3).

         Defendants Weizer and Stills argue the Court should disregard the above exhibits because they are matters outside the pleadings and, therefore, not properly considered in the context of a Rule 12(b)(6) motion. (Doc. No. 39 at 2.) In response, Plaintiff argues “the declaration with exhibits are not extrinsic to Plaintiff's pleadings, but to the contrary intrinsic and central to Plaintiff's complaint to provide this Court a visual display of products that are in violation of the United States Constitution, Ohio Revised Code, and DRC policy to provide three (3) nutritionally balanced meals daily.” (Doc. No. 42-1 at 2.)

         In ruling on a Rule 12(b)(6) motion, a court “may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett, 528 F.3d at 430. See also Brent v. Wayne County Dep't of Human Services, 901 F.3d 656, 694 (6th Cir. 2018) (same); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (“This circuit has further ‘held that ‘documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.' ”). Under Rule 12(d), however, “[i]f . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). If a motion to dismiss is converted to a motion for summary judgment, the court must give all parties “a reasonable opportunity to present all the material that is pertinent to the motion.” Id.

         For the following reasons, it is recommended that the Court decline to consider the exhibits attached to Plaintiff's briefs. The “Declarations, ” letter, and article noted above are not referenced in the Complaint nor has Plaintiff demonstrated they are central to his claims. Moreover, the Court notes that the December 15, 2018 Declaration attached to Plaintiff's brief is unsigned, [4] and the letter is unauthenticated. Accordingly, it is recommended the Court exclude these documents from consideration of Defendants' Motions.

         Plaintiff also requests this Court consider the arguments raised, and attachments to, his Brief in Opposition to Defendant Davis' previously filed Motion to Dismiss. (Doc. No. 38-1 at 3.) It is recommended the Court decline to do so. The briefing relating to Defendants' previous motions to dismiss related to Plaintiff's originally filed Complaint, which is no longer the operative Complaint in this matter. Moreover, the Court does not look favorably on Plaintiff's attempt to subvert the page limitations[5] in this matter by incorporating entire briefs previously filed in this matter. Finally, with regard to the Exhibits attached to Plaintiff's previous brief in opposition (Doc. Nos. 15-1 through 15-5), these Exhibits are neither referenced in the Complaint, central to Plaintiff's claims, or properly authenticated.[6] Accordingly, it is recommended the Court decline to consider Plaintiff's prior briefing and exhibits in the context of Defendants' Motions to Dismiss.

         C. RLUIPA

         As noted above, in the Amended Complaint, Plaintiff asserts that “the denial of Religious Accommodations of Kosher meals” violates the RLUIPA. (Doc. No. 24 at PageID#179.) Defendants move for dismissal of this claim on the basis that Plaintiff has failed to allege that the lack of a kosher diet places a substantial burden on his religious exercise.

         Under the RLUIPA, “[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)(1)-(2). The Act 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).[7] “A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”[8] § 2000cc-2(a).

         “To establish a cognizable claim under RLUIPA, the inmate must first demonstrate that a prison policy substantially burdens a religious practice.” Haight v. Thompson, 763 F.3d 554, 559-560 (6th Cir. 2014). See also Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007) (“The threshold inquiry under RLUIPA is whether the challenged governmental action substantially burdens the exercise of religion.”); Dunlap v. Losey, 40 Fed.Appx. 41, 43 (6th Cir. 2002) (“RLUIPA ... requires the complainant to show that his religious exercise was substantially burdened.”); Green v. Tudor, 685 F.Supp.2d 678, 703 (W.D. Mich. 2010); Ketzner v. Williams, 2008 WL 4534020 at * 25 (W.D. Mich. Sept. 30, 2008). “So long as the practice is traceable to a sincerely held religious belief, see Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), it does not matter whether the inmate's preferred exercise is ‘central' to his faith, 42 U.S.C. § 2000cc-5(7)(A).” Haight, 763 F.3d at 560. The burden of proving the existence of a substantial burden rests on the inmate. See Baranowski, 486 F.3d at 124. Once an inmate makes this showing, the prison policy survives only if it serves a compelling governmental interest in the least restrictive way. See § 2000cc-1(a); Haight, 763 F.3d at 560.

         The RLUIPA does not define the phrase “substantial burden, ” but courts have interpreted it as imposing a high burden. See Livingston Christian Schools v. Genoa Charter Township,858 F.3d 996, 1003 (6th Cir. 2017) (explaining that “not just any imposition on religious exercise will constitute a violation of RLUIPA. Instead, a burden must have some degree of severity to be considered ‘substantial.'”). See also Living Water Church of God v. Charter Twp. of Meridian, 258 Fed.Appx. 729, 736 (6th Cir.2007) (“[A] substantial burden [under the RLUIPA] is a difficult threshold to cross”); Green, 685 F.Supp.2d at 703 (same). The Sixth Circuit has articulated the contours of this burden, as follow: “[w]hen prison officials ‘place[ ] substantial pressure on an adherent to modify his behavior and to violate his beliefs,' . . ., or ‘effectively bar' his sincere faith-based conduct, .. . . they necessarily place a substantial burden on it.” Haight, 763 F.3d at 565 (internal citations omitted). See also Barhite v. Caruso, 377 Fed.Appx. 508, 511 (6th Cir. May 14, 2010) (“An action will be classified as a substantial burden ‘when that ...


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