Case 1:13-cv-00373-GJQ-HWB Doc #98 Filed 06/20/14 Page 1 of 9 Page ID#944

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAMONT HEARD, et al.,

Plaintiff,

Civil Action No. 1:13-cv-373

v.

HON. GORDON J. QUIST

United States District Judge

TOM FINCO, et al.,

HON. HUGH W. BRENNEMAN, JR. United States Magistrate Judge

Defendants. ______________________________________________________________________________

STATEMENT OF INTEREST OF THE UNITED STATES INTRODUCTION
Plaintiffs’ preliminary injunction raises two crucial issues: (1) whether Michigan prison officials, if found to provide inadequate nutrition to prisoners observing Ramadan,1 are substantially burdening the exercise of religion in violation of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”); and, if so, (2) what remedies are needed to ensure that Michigan officials comply with RLUIPA. The United States files this Statement of Interest to assist the Court in determining whether there has been a violation of RLUIPA in the event that the Court finds that officials within the Michigan Department of Corrections (“MDOC”) are providing inadequate nutrition to Muslim prisoners

1 “Ramadan is the ninth month of the Arabian lunar calendar, when practicing Muslims . . . are required to fast during daylight hours for thirty consecutive days. This religious practice does not limit food consumption between sunset and dawn.” Lovelace v. Bassett, 2009 WL 3157367 at *1 (W.D. Va. 2009).

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observing Ramadan.2 If the Court finds such a violation and issues an injunction, the United States also recommends that the Court appoint an independent monitor to ensure that the injunctive relief the Plaintiffs seek is properly implemented.
INTEREST OF THE UNITED STATES
The United States has authority to file this Statement of Interest pursuant to 28 U.S.C. § 517,3 which permits the Attorney General to attend to the interests of the United States in any case pending in federal court. The United States, acting through the Civil Rights Division of the U.S. Department of Justice, has an interest in this matter because the alleged unlawful practices fall within the enforcement authority of the Civil Rights Division, which enforces RLUIPA. See, e.g., United States v. Fla. Dep’t of Corr., No. 1:12-cv-22958 (S.D. Fla.) (8/14/12 Compl., dkt. # 1); Ali v. Thaler, No. 9:09-cv-52 (E.D. Tx.) (3/29/12 Statement of Interest of the United States, dkt. # 159); Prison Legal News v. Berkeley Cnty. Sheriff’s Office, No. 2:10-02594 (D. S.C.) (04/12/11 Compl. Intervention, dkt. # 35-2); Willis v. Ind. Dep’t of Corr., No. 1:09-cv-815 (S.D. Ind.) (1/14/11 Statement of Interest of the United States, dkt. # 126). RLUIPA, a statute unanimously passed by Congress “to accord religious exercise heightened protection from government-imposed burdens,” Cutter
2 The United States takes no position here regarding the number of calories necessary to ensure adequate nutrition. The United States seeks to assist the Court in determining whether the Defendants have violated RLIUPA if, in fact, the Court finds Defendants to be providing its prisoners with inadequate nutrition during Ramadan. 3 The full text of 28 U.S.C. Section 517 is as follows: “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
2

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v. Wilkinson, 544 U.S. 709, 713 (2005), prohibits practices that impose a substantial burden on the exercise of religion unless they are the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000cc-1(a).
BACKGROUND Plaintiffs have moved the Court to issue a preliminary injunction, overseen by a monitor, requiring MDOC to provide Muslim prisoners with adequate nutrition during Ramadan. (Dkt. # 87.) Plaintiffs allege that Defendants have failed to provide them with nutritionally adequate meals during Ramadan in years past and that, without action from this Court, Defendants will do so again. (Id.) The uncontested facts are as follows: Last year Defendants assured this Court that they would provide Plaintiffs with at least 2,350 calories each day during Ramadan. (Dkt. # 17.) Because of concerns that Plaintiffs raised with MDOC’s proposed Ramadan menu, this Court ordered the Defendants to provide the promised 2,350 calories each day of Ramadan 2013. (Dkt. # 22.) 4 Despite both their assurances and this Court’s order, MDOC failed to actually provide the promised food. (Dkts. # 22, 70.) After Ramadan ended, the Court held the Defendants in contempt and imposed fines for their conduct. (Dkt. # 70.)
4 Based on Defendants’ most recent filing (dkt. # 94), it appears that the parties have conflicting views about whether the Court’s July 10, 2013 Order of Clarification binds Defendants for Ramadan 2014.
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DISCUSSION 1. Failure to Provide Adequate Nutrition to Prisoners Observing Ramadan
Substantially Burdens Their Religious Exercise The Sixth Circuit has laid out a framework to apply when assessing whether the government is imposing a substantial burden under RLUIPA. In Living Water Church of God v. Charter Twp. of Meridian, the court noted that when deciding whether a substantial burden exists, a court should consider whether the government action places “substantial pressure on a religious institution to violate its religious beliefs. . . .” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 737 (6th Cir. 2007); accord Evans v. Snyder, No. 2:11-cv492, 2014 WL 1369301, slip op. at *3 (W.D. Mich. 2014) (“[C]ourts have concluded that a burden is substantial where it forces an individual to choose between the tenets of his religion and foregoing governmental benefits or places ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs’” (quoting Living Water, 258 F. App’x at 733–34)). Failure to provide a prisoner with sufficient nutrition through meals served before sunrise and after sunset during Ramadan imposes a substantial burden on that prisoner’s religious exercise by “pressur[ing a prisoner] to break the fast, in violation of Islamic tenets.” Couch v. Jabe, 479 F. Supp 2d 569, 589-90 (W.D. Va. 2006). In Couch, the court found a substantial burden on the free exercise of religion where Defendants failed to show that meals they provided to Muslim prisoners during Ramadan “were either nutritionally or calorically” adequate. Id. The court issued a preliminary injunction requiring the Virginia Department of Corrections to provide Muslim prisoners with at least 2,200 calories a day during Ramadan, an amount equivalent to the number of calories offered to non-fasting prisoners during breakfast and evening meals. Couch v. Jabe, No. 7:05-cv-00642 (9/22/06 Order, dkt. # 51, at 5). See also Heard v. Caruso, 351 F.
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App’x 1, 13 (6th. Cir. 2009) (“If Heard’s religion requires adherence to a Nation–of–Islam diet, prison officials’ refusal to accommodate this diet would impose a substantial burden.” (citing Al– Amin v. Shear, 325 F. App’x 190, 193–95 (4th Cir. 2009) (unpublished) (finding that the denial of kosher food to a Sunni Muslim during Ramadan would be a substantial burden)); see also Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (“We have held that a prisoner’s religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.”). If MDOC fails to provide prisoners observing Ramadan with adequate nutrition, as defined by the Court, such failure establishes a substantial burden under RLUIPA.
2. Failure to Provide Adequate Nutrition is not the Least Restrictive Means of Furthering a Compelling Government Interest Once a Plaintiff has shown that the Defendant has imposed a substantial burden, the
Defendant has the burden of showing that its action is the least restrictive means of furthering a compelling government interest. 42 U.S.C.A. § 2000cc-2; See also Heard v. Caruso, 351 F. App’x at 13. Here, MDOC has not carried this burden, nor can it. MDOC has failed to identify a compelling interest implicated by its denial of sufficient calories to prisoners observing Ramadan, let alone that depriving prisoners of calories is the least restrictive means of furthering that interest. Since MDOC has not put forth a defense, the analysis under RLUIPA stops here.
Even if MDOC did articulate a compelling interest, it could not demonstrate that failing to offer adequate nutrition is the least restrictive means of furthering that interest for two reasons. First, MDOC has conceded that it can provide sufficient nutrition to the Plaintiffs during Ramadan by assuring the Court it could do so last year. (Dkt. # 17.) Second, other prison systems have shown that it is possible to put into place successful policies and procedures that
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ensure Muslim prisoners receive timely, adequate nutrition during Ramadan. See, e.g., Bureau of Prisons Policy P5360.09, Religious Beliefs and Practices, § 548.20 (Dec. 31, 2004) (“When inmates observe a public fast, i.e. one which is regulated by law or custom for all the faith adherents, Food Service will provide a meal nutritionally equivalent to the meal(s) missed.”); see also Garnica v. Wash. Dept. of Corrections, 965 F. Supp. 2d 1250, 1269 (W.D. Wash. 2013) (finding prison’s provision of an average of 2,700 calories a day to Muslim prisoners during the Ramadan fast to be sufficient to satisfy the prison’s obligations under RLUIPA). For these reasons, it is clear that failing to adequately feed Muslim prisoners observing Ramadan is not the least restrictive means to further any compelling government interest.
3. Failure to Provide Adequate Nutrition During Ramadan Violates RLUIPA Denying adequate nutrition to prisoners fasting during Ramadan substantially burdens
religious exercise, and the denial is not the least restrictive means of furthering a compelling government interest; thus, failing to provide sufficient nutrition before sunrise and after sunset to prisoners observing Ramadan violates RLUIPA. This Court has recognized that MDOC previously failed to provide at least 2,350 calories each day to Muslim prisoners observing Ramadan. If this Court finds that, absent relief, MDOC will provide inadequate nutrition to Plaintiffs during Ramadan 2014, then injunctive relief is appropriate to prevent violations of RLUIPA.
4. A Monitor Will Help Ensure Compliance with the Court’s Order If the Court finds a preliminary injunction to be appropriate, it may appoint an
independent monitor to ensure compliance with the Court’s order. The authority of the Court to appoint a monitor is well established. See Ex Parte Peterson, 253 U.S. 300, 312–13 (1920) (acknowledging inherent power of courts to “appoint persons unconnected with the court to aid
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judges in the performance of specific judicial duties,” and noting that courts have long exercised this power “when sitting in equity, by appointing, either with or without the consent of the parties, special masters, auditors, examiners, and commissioners.”). The effectiveness of injunctive relief is often contingent on some level of objective compliance monitoring. If the court does not put into place an independent, impartial monitoring system, particularly in a case like this where Defendants have a history of non-compliance, reliance on a Defendant to “selfcertify” its compliance can further endanger the rights of prisoners affected by a Defendant’s behavior. See Benjamin v. Schriro, 370 F. App’x 168, 171 (2d Cir. 2010) (affirming district court’s decision to appoint an independent monitor to oversee reforms where New York City Department of Correction had a history of noncompliance with a court order); see also United States v. Michigan, No. G84-63, 1986 U.S. Dist. LEXIS 25679, *23-24 (W.D. Mich. 1986) (noting the court “needs . . . an independent basis for judging defendants’ compliance efforts, and the case law amply supports the use of an independent expert for this purpose.”).
The United States often uses monitors to ensure compliance with settlement agreements or court orders. See, e.g., United States v. Detroit Police Dep’t, No. 2:03-cv-72258 (E.D. Mich.) (7/18/03 Consent J.: Use of Force, Arrest, and Witness Detention, dkt. # 22; 7/18/03 Consent J.: Conditions of Confinement, dkt. # 23); United States v. City of Detroit, No. 2:04-cv-73152 (E.D. Mich.) (12/22/05 Settlement Order, dkt. # 43) (referring to monitor as an “independent auditor”); United States v. Ohio, No. 2:08-cv-475 (S.D. Ohio) (6/28/11 Am. Stipulation for Inj. Relief, dkt. # 85, at 16-20); United States v. Robertson Cnty., No. 3:13-cv-00392 (M.D. Tenn.) (4/30/13 Settlement Agreement, dkt. # 4 at 15-20) (referring to monitor as an “independent consultant”). While not necessary to ensure compliance with every court order, monitoring is particularly important when an unlawful practice is entrenched. Here, given Defendants’ established history
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of providing an inadequate number of calories during Ramadan, the Court may appoint an independent monitor to guide implementation and oversight of the requested injunctive relief, if granted.
CONCLUSION Should the Court find the Defendants are providing inadequate nutrition during Ramadan, the Court should find a violation of RLUIPA for the reasons stated above. If the Court also finds a preliminary injunction to be the appropriate remedy, then the United States recommends that the Court grant Plaintiffs’ request for a monitor to ensure that the injunctive relief is properly implemented.

Dated: June 20, 2014

Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division
MARK KAPPELHOFF Acting Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Civil Rights Division Special Litigation Section
JUDY C. PRESTON Deputy Chief Civil Rights Division Special Litigation Section
/s/ T. Jack Morse___________ T. JACK MORSE DEENA FOX Trial Attorneys Civil Rights Division
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Special Litigation Section 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Telephone: (202) 305-4039 Email: Jack.Morse@usdoj.gov PATRICK A. MILES, JR. United States Attorney /s/ Ryan D. Cobb RYAN D. COBB (P64773) Assistant United States Attorney Post Office Box 208 Grand Rapids, Michigan 49501-0208 (616) 456-2404 Email: Ryan.Cobb@usdoj.gov Attorneys for the United States
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 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:13-cv-00373-GJQ-RSK

Heard #252329 et al v. Finco et al Assigned to: Judge Gordon J. Quist Referred to: Magistrate Judge Ray Kent Demand: $25,000 Case in other court: the Sixth Circuit, 14-02195
Michigan Eastern, 2:13-cv-11342 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 04/04/2013 Jury Demand: Defendant Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

plaintiff Lamont Heard #252329

represented by Daniel E. Manville Michigan State University College of Law P.O. Box 1570 East Lansing, MI 48826 (517) 432-6866 Fax: (517) 336-0646 Email: daniel.manville@law.msu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

plaintiff William Johnson #235820

represented by Daniel E. Manville (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

plaintiff Jamero T. Moses #231885

represented by Daniel E. Manville (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

plaintiff

Anthony Nelson #210771

represented by Daniel E. Manville (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. defendant Tom Finco Deputy Director of Michigan Department of Corrections, sued in his individual capacity
defendant Mike Martin Special Activity Coordinator of Michigan Department of Corrections TERMINATED: 04/14/2016

represented by Allan J. Soros MI Dept Attorney General (Corrections) Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 Email: sorosa@michigan.gov TERMINATED: 04/04/2014 ATTORNEY TO BE NOTICED
John L. Thurber Michigan Department of Attorney General Civil Litigation, Employment & Elections 525 W Ottawa St. P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Fax: 517-335-7157 Email: thurberj@michigan.gov ATTORNEY TO BE NOTICED
represented by Allan J. Soros (See above for address) TERMINATED: 04/04/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) ATTORNEY TO BE NOTICED

defendant Brad Purves Dietician and Food Service Manager, sued in his individual capacity
interested party United States of America

represented by Allan J. Soros (See above for address) TERMINATED: 04/04/2014 ATTORNEY TO BE NOTICED
John L. Thurber (See above for address) ATTORNEY TO BE NOTICED
represented by Ryan D. Cobb U.S. Attorney (Grand Rapids) The Law Bldg. 330 Ionia Ave., NW P.O. Box 208 Grand Rapids, MI 49501-0208 (616) 456-2404 Email: Ryan.Cobb@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 03/26/2013 03/26/2013 03/26/2013 03/26/2013 03/26/2013

# Docket Text
1 COMPLAINT filed by All Plaintiffs against Tom Finco, Mike Martin, Brad Purves (DWor) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 03/27/2013)
2 APPLICATION to Proceed without prepayment of fees by Lamont Heard (DWor) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 03/27/2013)
3 APPLICATION to Proceed without prepayment of fees by William Johnson. (DWor) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 03/27/2013)
4 APPLICATION to Proceed without prepayment of fees by Jamero Moses (DWor) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 03/27/2013)
5 APPLICATION to Proceed without prepayment of fees by Anthony Nelson. (DWor) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 03/27/2013)

04/03/2013 04/04/2013 04/05/2013 04/05/2013 04/25/2013
04/26/2013 05/07/2013
05/10/2013

6 ORDER TRANSFERRING CASE to the Western District of Michigan. Signed by District Judge Victoria A. Roberts. (KKra) [Transferred from Michigan Eastern on 4/4/2013.] (Entered: 04/03/2013)
7 CASE TRANSFERRED IN from Michigan Eastern, their case number 2:13-cv-11342; the documents listed above were electronically transferred to the Western District of Michigan (cmi) (Entered: 04/04/2013)
8 NOTICE of receipt of case (gjf) (Entered: 04/05/2013)
Copy of Receipt of Case Notice ​8​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson & Nelson (gjf) (Entered: 04/05/2013)
9 ORDER TO PROCEED IN FORMA PAUPERIS and FOR PAYMENT OF FILING FEE: plaintiffs Johnson and Nelson to pay an initial partial fee within 28 days; plaintiffs Heard and Moses may proceed with initial fee due when funds become available - see order for specifics; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 04/25/2013)
Copy of Order to Proceed IFP - Initial Fee Due in 28 Days Prisoner ​9​ sent via U.S. Mail to plaintiffs Heard, Johnson, Moses and Nelson (gjf) (Entered: 04/26/2013)
RECEIPT (Prisoner Litigation): initial filing fee installment by Johnson in the amount of $34.10, receipt number GR034828; amount paid to date by Johnson $34.10; amount paid to date by Heard $0.00; amount paid to date by Moses $0.00; amount paid to date by Nelson $0.00; amount paid to date in case $34.10 (anm) (Entered: 05/07/2013)
RECEIPT (Prisoner Litigation): filing fee installment by Nelson in the amount of $21.02, receipt number GR034861; amount paid to date by Nelson $21.02; amount paid to date by Johnson $34.10; amount paid to date by Heard $0.00; amount paid to date by Moses $0.00; amount paid to date in case $55.12(ns) (Entered: 05/10/2013)

06/04/2013 06/05/2013 06/05/2013 06/12/2013 06/12/2013 06/12/2013 06/14/2013
06/19/2013 06/19/2013

10 ORDER REGARDING SERVICE: the Clerk is to arrange for service of this order and the complaint upon the defendants; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 06/04/2013)
Copy of Order Regarding Service - Prisoner ​10​ sent via U.S. Mail to plaintiffs Heard, Johnson, Moses and Nelson (gjf) (Entered: 06/05/2013)
NOTICE OF LAWSUIT/REQUEST FOR WAIVER of service delivered to USM as to defendants Tom Finco, Mike Martin, Brad Purves (gjf) (Entered: 06/05/2013)
11 WAIVER OF SERVICE returned executed as to Tom Finco waiver sent on 6/5/2013, answer due 8/5/2013 (gjf) (Entered: 06/12/2013)
12 WAIVER OF SERVICE returned executed as to Mike Martin waiver sent on 6/5/2013, answer due 8/5/2013 (gjf) (Entered: 06/12/2013)
13 WAIVER OF SERVICE returned executed as to Brad Purves waiver sent on 6/5/2013, answer due 8/5/2013 (gjf) (Entered: 06/12/2013)
14 MOTION for preliminary injunction ​and motion to post security, expedited hearing requested​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit A - E)(jem) (Entered: 06/14/2013)
15 ORDER FOR RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION ​14​ : Defendants to respond by 6/28/2013; Clerk to serve Order on Defendants; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/19/2013)
Copy of Order Regarding Response to Motion ​15​ sent via U.S. Mail to Lamont Heard #252329, Jamero T. Moses #231885, William Johnson #235820, Anthony Nelson #210771, Tom Finco, Mike Martin, Brad Purves (jem) (Entered: 06/19/2013)

06/24/2013 06/24/2013 06/28/2013
06/28/2013 07/08/2013 07/08/2013 07/08/2013 07/09/2013 07/10/2013

(NON-DOCUMENT) ATTORNEY APPEARANCE of Allan J. Soros on behalf of defendants Tom Finco, Mike Martin, Brad Purves (Soros, Allan) (Entered: 06/24/2013)
16 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Attorney Appearance (Soros, Allan) (Entered: 06/24/2013)
17 RESPONSE TO MOTION for preliminary injunction ​and motion to post security, expedited hearing requested​ ​14​ ​, Index of Exhibits, and Exhibits 1 through 3​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2​ Exhibit 1--PD 04.07.100.pdf, # ​3​ Exhibit 2--Affidavit of Brad A. Purves.pdf, # ​4 Exhibit 3--Prisoners' Orders & Refunds.pdf)(Soros, Allan) (Entered: 06/28/2013)
18 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Response to Motion, ​17​ ​for Preliminary Injunction, Index of Exhibits, and Exhibits A through C​ (Soros, Allan) (Entered: 06/28/2013)
19 REPLY to response to motion ​14​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Attachment 1, # ​2​ Attachment 2)(jem) (Entered: 07/08/2013)
20 MOTION for hearing re ​14​ ​expedited hearing request​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (jem) (Entered: 07/08/2013)
21 MEMORANDUM OPINION AND ORDER denying Plaintiffs' motion ​14​ for preliminary injunction; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 07/08/2013)
Copy of Order on Motion for Preliminary Injunction, Order on Motion for Hearing ​21​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson & Nelson (gjf) (Entered: 07/09/2013)
22 ORDER OF CLARIFICATION re ​21​ : Defendants to provide Plaintiffs 2,350 calories per day during 2013 Ramadan observance; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 07/10/2013)

07/11/2013 07/23/2013 07/31/2013 07/31/2013
07/31/2013
07/31/2013 08/21/2013

Copy of Order ​22​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson & Nelson (gjf) (Entered: 07/11/2013)
23 MOTION for contempt ​(document named as motion to hold defendants in contempt of court for refusing to comply with preliminary injunction order)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit 1, # ​2​ Exhibit 2)(gjf) (Entered: 07/23/2013)
24 MOTION for summary judgment by defendants Tom Finco, Mike Martin, Brad Purves; (Soros, Allan) (Entered: 07/31/2013)
25 BRIEF in support of MOTION for summary judgment ​24​ ​, Index of Exhibits, Exhibits A through E [EXHIBITS CONTINUED]​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​Index of Exhibits, # ​2​ Exhibit A--2013 Ramadan Menu.pdf, # ​3​ Exhibit B--Affidavit of Brad Purves, with Att.pdf, # ​4​ Exhibit C--PD 03.02.130.pdf, # ​5​ Exhibit D--Burnett v Howard (unpublished decision).pdf, # ​6​ Exhibit E--Alderson v Pitcher (unpublished decision).pdf)(Soros, Allan) (Entered: 07/31/2013)
26 EXHIBIT re ​25​ ​F through Exhibits I ​by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit F--Mabon v Campbell (unpublished decision).pdf, # ​2​ Exhibit G--Jaami v Compton (unpublished decision).pdf, # ​3​ Exhibit H--Hall v Jabe (unpublished decision).pdf, # ​4​ Exhibit I--Welch v Kusey (Report & Recommendation).pdf)(Soros, Allan) Modified text on 8/1/2013 (ald). (Entered: 07/31/2013)
27 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Exhibit, ​26​ , Brief in Support of a Motion, 25​ , MOTION for summary judgment ​24​ ​, Index of Exhibits, and Exhibits A through I​ (Soros, Allan) (Entered: 07/31/2013)
28 MOTION for leave to file excess pages ​with proof of service​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (gjf) (Entered: 08/22/2013)

08/21/2013 08/21/2013 08/21/2013
08/23/2013 08/26/2013 09/17/2013 09/17/2013 09/17/2013

29 RESPONSE in opposition to MOTION for summary judgment ​24 filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (gjf) (Entered: 08/22/2013)
CROSS MOTION for summary judgment ​(taken from document ​29 )​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (gjf) (Entered: 08/22/2013)
30 BRIEF in support of CROSS MOTION for summary judgment (taken from document ​29​ )​ ​and in support of opposition to defendants' motion for summary judgment​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Exhibit List, # ​2 Exhibits 1-11, # ​3​ Exhibits 12-20)(gjf) Modified text on 8/22/2013 (gjf). Modified text on 8/26/2013 per order ​31​ (gjf). (Entered: 08/22/2013)
31 ORDER granting ​28​ motion for leave to file excess page; plaintiffs' proposed brief ​30​ is accepted for filing; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 08/23/2013)
Copy of Order on Motion for Leave to File Excess Pages ​31​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson & Nelson (gjf) (Entered: 08/26/2013)
32 MOTION to stay ​Discovery, with proposed Order​ by defendants Tom Finco, Mike Martin, Brad Purves; (Attachments: # ​1​ Proposed Order)(Soros, Allan) (Entered: 09/17/2013)
33 BRIEF in support of MOTION to stay ​Discovery, with proposed Order​ ​32​ ​, Index of Discovery Exhibits, and Exhibit A​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index of Discovery Exhibits, # ​2​ Exhibit A--Plaintiffs' Discovery Requests.pdf)(Soros, Allan) (Entered: 09/17/2013)
34 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Brief in Support of a Motion, ​33​ , MOTION to stay ​Discovery, with proposed Order​ ​32​ ​, Index of Discovery Exhibits, and Exhibit A​ (Soros, Allan) (Entered: 09/17/2013)

09/17/2013 09/26/2013
10/02/2013 10/03/2013 10/08/2013 10/10/2013 10/10/2013 10/16/2013

CHANGE OF ADDRESS for plaintiff William Johnson #235820 to Chippewa Correctional Facility from document ​34​ and MDOC (gjf) Modified text on 9/18/2013 (gjf). (Entered: 09/18/2013)
35 RESPONSE in opposition to MOTION to stay ​Discovery, with proposed Order​ ​32​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Rule 56(f) Affidavit for Discovery)(gjf) (Entered: 09/26/2013)
36 ORDER FOR RESPONSE TO PLAINTIFFS' MOTION ​23​ TO HOLD DEFENDANTS IN CONTEMPT OF COURT: Defendants to file within 14 days; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 10/02/2013)
Copy of Order Regarding Response to Motion ​36​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson & Nelson (gjf) (Entered: 10/03/2013)
37 REPLY to response to motion ​32​ (document named as Response to Plaintiffs' Rule 56 Affidavit) filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A)(Soros, Allan) Modified text on 10/9/2013 (gjf). (Entered: 10/08/2013)
38 CHANGE OF ADDRESS for plaintiff Lamont Heard #252329 to chippewa Correctional Facility (ald) (Entered: 10/10/2013)
Copy of Order Regarding Response to Motion ​36​ sent via U.S. Mail to Lamont Heard #252329 to new address on Chippewa MSP (ald) (Entered: 10/10/2013)
39 RESPONSE TO CROSS MOTION for summary judgment ​(taken from document ​29​ )​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A, # ​2​Exhibit B, # ​3​ Exhibit C, # ​4​ Exhibit D)(Soros, Allan) Modified text on 10/17/2013 (gjf). (Entered: 10/16/2013)

10/16/2013 10/21/2013 10/21/2013 10/25/2013
10/25/2013 10/31/2013 10/31/2013

40 RESPONSE TO MOTION for contempt ​(document named as motion to hold defendants in contempt of court for refusing to comply with preliminary injunction order)​ ​23​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A, # ​2​ Exhibit B, # ​3​ Exhibit C)(Soros, Allan) Modified text on 10/17/2013 (gjf). (Entered: 10/16/2013)
41 REPLY to response to motion ​23​ (document named as letter of clarification) filed by Lamont Heard #252329, William Johnson #235820 (gjf) Modified text on 10/21/2013 (gjf). (Entered: 10/21/2013)
42 PROOF OF SERVICE by plaintiffs Lamont Heard #252329, William Johnson #235820 re Reply to Response to Motion ​41​ (gjf) (Entered: 10/21/2013)
43 MOTION for order ​(document named as motion for the court to treat as true the facts set forth in their motion to hold defendants in contempt because defendants failed to file a responsive pleading admitting or denying the contemptuous conduct)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (gjf) (Entered: 10/25/2013)
44 PROOF OF SERVICE by plaintiff Lamont Heard #252329 re MOTION for order ​(document named as motion for the court to treat as true the facts set forth in their motion to hold defendants in contempt because defendants failed to file a responsive pleading admitting or denying the contemptuous conduct)​ ​43​ (gjf) (Entered: 10/25/2013)
45 RESPONSE TO MOTION for order ​(document named as motion for the court to treat as true the facts set forth in their motion to hold defendants in contempt because defendants failed to file a responsive pleading admitting or denying the contemptuous conduct)​ ​43​ filed by Tom Finco, Mike Martin, Brad Purves (Soros, Allan) (Entered: 10/31/2013)
46 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Response to Motion, ​45​ ​for the Court to Treat as True the Facts Set Forth in Their Motion to Hold Defendants in Contempt (D/E #43)​ (Soros, Allan) (Entered: 10/31/2013)

10/31/2013
11/12/2013 11/12/2013 12/04/2013 02/14/2014 02/14/2014 02/24/2014 02/24/2014 02/24/2014

47 MOTION for hearing ​to schedule a show cause hearing; evidentiary hearing​, MOTION for order ​to issue three subpoenas for non-party witnesses to appear at hearing​, MOTION for leave to file ​reply to defendants' response to palintiffs' contempt motion​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​Exhibit 1, # ​2​ Attachment 1 - Proof of Service)(jlg) (Entered: 11/01/2013)
48 REPLY to response to ​CROSS MOTION for summary judgment (taken from document 29 )​ filed by Lamont Heard #252329, William Johnson #235820 (pjw) (Entered: 11/14/2013)
49 PROOF OF SERVICE by plaintiff William Johnson #235820 re Reply to Response to Motion ​48​ (pjw) (Entered: 11/14/2013)
50 CHANGE OF ADDRESS for plaintiff Jamero T. Moses #231885 to Handlon (MSP) (pjw) (Entered: 12/05/2013)
51 MOTION for leave to file ​amended response to defenants' motion for summary judgment​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit A)(pjw) (Entered: 02/19/2014)
52 PROOF OF SERVICE by plaintiff Lamont Heard #252329 re MOTION for leave to file ​amended response to defenants' motion for summary judgment​ ​51​ (pjw) (Entered: 02/19/2014)
53 ORDER granting ​51​ motion for leave to file amended response; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 02/24/2014)
54 (DISREGARD) ORDER granting ​32​ motion to stay discovery; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) Modified text on 2/24/2014; replaced by entry ​55​ (jlg). (Entered: 02/24/2014)
55 ORDER granting defendants' motion to stay discovery ​32​ ; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 02/24/2014)

02/25/2014 02/25/2014 02/26/2014 03/12/2014 03/24/2014
03/25/2014 03/31/2014 04/01/2014

Copy of Orders ​53​ and ​55​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson and Nelson (pjw) (Entered: 02/25/2014)
56 REPORT AND RECOMMENDATION re ​24​ , ​29​ ; objections to R&R due within 14 days; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 02/25/2014)
Copy of Report and Recommendation ​56​ sent via U.S. Mail to plaintiffs Heard, Moses, Johnson and Nelson (pjw) (Entered: 02/26/2014)
57 OBJECTION by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 to Report and Recommendation ​56​ (Attachments: # ​1 Exhibit 1-6)(pjw) (Entered: 03/13/2014)
58 ORDER (1) SETTING HEARING ON PLAINTIFFS' MOTION ​23 TO HOLD DEFENDANTS IN CONTEMPT; (2) DENYING PLAINTIFFS' MOTION ​43​ TO TREAT FACTS SET FORTH IN PLAINTIFFS' MOTION AS TRUE; AND (3) GRANTING IN PART PLAINTIFFS' MOTION ​47​ FOR AN EVIDENTIARY HEARING AND ISSUANCE OF THREE SUBPOENAS: Motion 23​hearing set for 4/28/2014 at 10:00 AM before Judge Quist; Plaintiffs shall attend by telephone; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/24/2014)
Copy of Order on Motion for Order, Order on Motion for Hearing,, Order on Motion for Leave to File ​58​ sent via U.S. Mail to Lamomt Heard #252329, Jamero T. Moses #231885, William Johnson #235820, Anthony Nelson #210771 (jlg) (Entered: 03/25/2014)
59 ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION ​56​ re ​24​ , ​29​ ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/31/2014)
Copy of Order Regarding Report and Recommendation ​59​ sent via U.S. Mail to Anthony Nelson #210771, Jamero T. Moses #231885, Lamont Heard #252329, William Johnson #235820 (jlg) (Entered: 04/01/2014)

04/01/2014 04/01/2014 04/04/2014 04/08/2014
04/09/2014 04/10/2014 04/17/2014 04/17/2014

60 ANSWER to complaint ​1​ with affirmative defenses and jury demand by Tom Finco, Mike Martin, Brad Purves(Soros, Allan) (Entered: 04/01/2014)
61 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves re Answer to Magistrate-Referred Complaint 60​ ​, Affirmative Defenses and Jury Demand​ (Soros, Allan) (Entered: 04/01/2014)
62 ATTORNEY SUBSTITUTION adding attorney John L. Thurber in the place of Allan J. Soros (Thurber, John) (Entered: 04/04/2014)
63 NOTICE CHANGING TIME ONLY OF MOTION HEARING re 23​ previously set for 4/28/2014 at 10:00 AM; motion hearing is set for 4/28/2014 at 3:00 PM at 499 Federal Building, Grand Rapids, MI before Judge Gordon J. Quist; Plaintiffs shall attend by telephone (Judge Gordon J. Quist, jmt) (Entered: 04/08/2014)
Copy of Notice Rescheduling Motion Hearing, ​63​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (pjw) (Entered: 04/09/2014)
64 MOTION for order ​document named as "Plaintiffs' Motion for a Pre-Trial Schedule and Order" with certificate of service​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (pjw) (Entered: 04/10/2014)
65 MOTION to take deposition from Lamont Heard #252329, William Johnson #235820, Jamero Moses #231885, Anthony Nelson #210771 by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) (Entered: 04/17/2014)
66 BRIEF in support of MOTION to take deposition from Lamont Heard #252329, William Johnson #235820, Jamero Moses #231885, Anthony Nelson #210771 ​65​ filed by Tom Finco, Mike Martin, Brad Purves(Thurber, John) (Entered: 04/17/2014)

04/21/2014 04/22/2014 04/24/2014 04/28/2014
04/29/2014 04/30/2014 05/05/2014 05/05/2014

67 ORDER granting ​65​ motion to take deposition of plaintiffs Lamont Heard, William Johnson, Jamero Moses and Anthony Nelson; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 04/21/2014)
Copy of Order on Motion to Take Deposition ​67​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 04/22/2014)
68 MOTION for contempt ​document named as "Plaintiffs' Money Compensation Claim for Defendants Civil Contempt of Court"​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (pjw) (Entered: 04/25/2014)
69 MINUTES of motion hearing re ​23​ MOTION for contempt (document named as motion to hold defendants in contempt of court for refusing to comply with preliminary injunction order)​ filed by William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771, Lamont Heard #252329 held before Judge Gordon J. Quist (Proceedings Digitally Recorded) (Judge Gordon J. Quist, jmt) (Entered: 04/28/2014)
70 ORDER granting motion for contempt ​23​ : Defendants to pay each Plaintiff $200 within 30 days; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 04/29/2014)
Copy of Order on Motion for Contempt ​70​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 04/30/2014)
71 MOTION to appoint counsel by plaintiff Jamero T. Moses #231885; (pjw) (Entered: 05/06/2014)
72 CERTIFICATE OF SERVICE by plaintiff Jamero T. Moses #231885 re MOTION to appoint counsel ​71​ (pjw) (Entered: 05/06/2014)

05/12/2014 05/12/2014 05/13/2014 05/13/2014
05/15/2014 05/15/2014 05/19/2014 05/19/2014

73 MOTION for reconsideration and relief re ​59​ with affidavits by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Attachment 1, # ​2​ Attachment 2)(pjw) Modified text on 5/13/2014 (pjw). (Entered: 05/13/2014)
74 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION for reconsideration re ​59​ ​73​ (pjw) (Entered: 05/13/2014)
75 MOTION for partial summary judgment by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) (Entered: 05/13/2014)
76 BRIEF in support of MOTION for partial summary judgment ​75 filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1 Index, # ​2​ Exhibit A) Affidavit and Grievance Report for Lamont Heard, # ​3​ Exhibit B) Affidavit and Grievance Report for William Johnson, # ​4​ Exhibit C) Affidavit and Grievance Report for Jamero Moses, # ​5​ Exhibit D) Affidavit and Grievance Report for Anthony Nelson, # ​6​ Exhibit E) Policy Directive 03.02.130)(Thurber, John) (Entered: 05/13/2014)
77 MOTION for order ​(Plaintiffs' Interim Motion for a Declaration of the Minimum Number of Calories that is Constitutionally Sufficient to Maintain An Inmate's Health During Ramadan)​ by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Attachment)(pjw) (Entered: 05/16/2014)
78 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION for order ​(Plaintiffs' Interim Motion for a Declaration of the Minimum Number of Calories that is Constitutionally Sufficient to Maintain An Inmate's Health During Ramadan)​ ​77​ (pjw) (Entered: 05/16/2014)
79 MOTION for protective order by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Exhibit A, # ​2​ Exhibit B)(pjw) (Entered: 05/21/2014)
80 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION for protective order ​79​ (pjw) (Entered: 05/21/2014)

05/22/2014 05/22/2014 05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/28/2014 05/28/2014

81 MOTION for extension of time to file response/reply ​regarding discovery​ by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) (Entered: 05/22/2014)
82 BRIEF in support of MOTION for extension of time to file response/reply ​regarding discovery​ ​81​ ​w/certificate of service​ filed by Tom Finco, Mike Martin, Brad Purves(Thurber, John) (Entered: 05/22/2014)
83 RESPONSE TO MOTION for protective order ​79​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A, # ​2 Exhibit B)(Thurber, John) (Entered: 05/27/2014)
84 ORDER granting ​81​ motion for extension of time: defendants' responses to plaintiffs' discovery requests are due 6/9/2014; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 05/27/2014)
85 RESPONSE in opposition to MOTION for partial summary judgment ​75​ filed by Lamont Heard #252329, William Johnson #235820 (pjw) (Entered: 05/29/2014)
86 PROOF OF SERVICE by plaintiff William Johnson #235820 re Response in Opposition ​85​ (pjw) (Entered: 05/29/2014)
Copy of Order on Motion for Extension of Time to File Response/Reply ​84​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 05/28/2014)
87 SECOND MOTION for preliminary injunction ​(Motion for Preliminary Injunction, Motion to Post Security for Preliminary Injunction and "Request for Appointment of Monitor at Defendants Expense" with Affidavits, Expedited Hearing Requested)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​Exhibit A-D)(pjw) (Entered: 05/30/2014)

05/28/2014
05/28/2014 05/29/2014
06/09/2014 06/09/2014 06/09/2014 06/12/2014 06/16/2014 06/16/2014

88 CERTIFICATE OF SERVICE by plaintiff Jamero T. Moses #231885 re SECOND MOTION for preliminary injunction (Motion for Preliminary Injunction, Motion to Post Security for Preliminary Injunction and "Request for Appointment of Monitor at Defendants Expense" with Affidavits, Expedited Hearing Requested) ​87​ (pjw) Modified filers on 5/30/2014 (pjw). (Entered: 05/30/2014)
90 MOTION for order ​to prevent any further impediment as it relates to trying to obtain legal copies to be filed with this Court and served upon the defendants (letter format to Judge Quist)​ by plaintiff Jamero T. Moses #231885; (pjw) (Entered: 06/02/2014)
89 SUPPLEMENT re SECOND MOTION for preliminary injunction (Motion for Preliminary Injunction, Motion to Post Security for Preliminary Injunction and "Request for Appointment of Monitor at Defendants Expense" with Affidavits, Expedited Hearing Requested)​87 ​(Notice to Correct Err)​ by plaintiff Jamero T. Moses #231885 (pjw) (Entered: 06/02/2014)
91 REPLY to response to motion ​75​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 06/09/2014)
92 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves ​Discovery Responses​ (Thurber, John) (Entered: 06/09/2014)
93 MOTION to amend/correct ​1​ ​(Motion for Leave to File Their First Verified Amended Civil Complaint and Supplemental Pleading)​ by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Attachment 1-Proposed Document)(pjw) (Entered: 06/10/2014)
96 MOTION to expedite ​ruling on Motion for Preliminary Injunction 87​ (letter format) with proof of service​ by plaintiff Lamont Heard #252329; (pjw) (Entered: 06/17/2014)
94 MOTION for relief from ​22​ ​Order​ by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) (Entered: 06/16/2014)
95 BRIEF in support of MOTION for relief from ​22​ ​Order​ ​94​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A) Affidavit of Norma Killough)(Thurber, John) (Entered: 06/16/2014)

06/18/2014 06/20/2014 06/20/2014 06/23/2014
06/23/2014
06/27/2014 06/27/2014 06/27/2014

97 CHANGE OF ADDRESS for plaintiff Jamero T. Moses #231885 to Kinross (MSP) (pjw) (Entered: 06/20/2014)
98 STATEMENT OF INTEREST re ​87​ by interested party United States of America (Cobb, Ryan) Modified text on 6/23/2014 (pjw). (Entered: 06/20/2014)
99 CERTIFICATE OF SERVICE by interested party United States of America re Notice (Other) ​98​ ​Statement of Interest of The United States​ (Cobb, Ryan) (Entered: 06/20/2014)
100 RESPONSE TO MOTION to amend/correct ​1​ ​(Motion for Leave to File Their First Verified Amended Civil Complaint and Supplemental Pleading)​ ​93​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A)(Thurber, John) (Entered: 06/23/2014)
101 RESPONSE TO SECOND MOTION for preliminary injunction (Motion for Preliminary Injunction, Motion to Post Security for Preliminary Injunction and "Request for Appointment of Monitor at Defendants Expense" with Affidavits, Expedited Hearing Requested) ​87​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 6/24/2014 (pjw). (Entered: 06/23/2014)
102 MOTION to supplement ​87​ ​(Motion to Add Exhibit)​ by plaintiff Jamero T. Moses #231885; (Attachments: # ​1​ proposed exhibit)(pjw) (Entered: 06/27/2014)
103 CERTIFICATE OF SERVICE by plaintiff Jamero T. Moses #231885 re MOTION to supplement ​87​ ​(Motion to Add Exhibit) 102​ (pjw) (Entered: 06/27/2014)
104 OPINION REGARDING (1) PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION CONCERNING RAMADAN 2014 AND (2) DEFENDANTS' MOTION FOR RELIEF FROM AN ORDER PURSUANT TO FED. R. CIV. P. 60(b)(5); signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/27/2014)

06/27/2014
06/30/2014
06/30/2014 07/03/2014 07/03/2014 07/07/2014 07/14/2014

105 ORDER DENYING PLAINTIFFS' MOTION ​87​ FOR PRELIMINARY INJUNCTION CONCERNING RAMADAN 2014 AND GRANTING DEFENDANTS' MOTION ​94​ FOR RELIEF FROM AN ORDER PURSUANT TO FED. R. CIV. P. 60(b)(5); Defendants to file menu by 6/30/2014 and weekly sworn statements; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/27/2014)
Copy of Order on Motion for Preliminary Injunction, Order on Motion for Relief from, Order on Motion to Expedite, Order on Motion to Supplement ​105​ and Opinion ​104​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) Modified text on 7/1/2014 (pjw). (Entered: 06/30/2014)
106 RESPONSE TO ​105​ filed by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index, # ​2​ Exhibit A) Mens Lacto-Ovo Veg Ramadan Menu, # ​3​ Exhibit B) Mens Meat Ramadan Bagged Menu, # ​4​ Exhibit C) Mens Vegan Ramadan Bagged Menu, # ​5​ Exhibit D) Kevin Weissenborn Certification)(Thurber, John) (Entered: 06/30/2014)
107 REPLY to response to motion ​93​ filed by Lamont Heard #252329, William Johnson #235820 (pjw) (Entered: 07/07/2014)
108 PROOF OF SERVICE by plaintiff William Johnson #235820 re Reply to Response to Motion ​107​ (pjw) (Entered: 07/07/2014)
109 RESPONSE TO ​105​ ​Submission of Sworn Statements Regarding the 2014 Ramadan Menu​ filed by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit 1, # ​2​ Exhibit 2, # 3​Exhibit 3)(Thurber, John) (Entered: 07/07/2014)
110 RESPONSE TO ​105​ ​Submission of Sworn Statements Regarding the 2014 Ramadan Menu​ filed by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit 1-Affidavit of Popoff, # ​2​ Exhibit 2-Affidavit of Mastaw, # ​3​ Exhibit 3-Affidavit of Beaulieu)(Thurber, John) Modified text on 7/15/2014 (pjw). (Entered: 07/14/2014)

07/17/2014 07/17/2014 07/17/2014 07/21/2014
07/21/2014 07/21/2014
07/24/2014 07/24/2014 07/28/2014
08/08/2014 08/08/2014

111 AFFIDAVIT re ​110​ ​in Opposition to Patricia Popoff's Affidavit​ by plaintiff Anthony Nelson #210771 (pjw) (Entered: 07/21/2014)
112 AFFIDAVIT by plaintiff William Johnson #235820 (Attachments: # ​1​ Exhibit A-E)(pjw) (Entered: 07/21/2014)
113 PROOF OF SERVICE by plaintiff William Johnson #235820 re Affidavit ​112​ (pjw) (Entered: 07/21/2014)
114 RESPONSE TO ​105​ ​Submission of Sworn Statements Regarding the 2014 Ramadan Menu​ filed by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit 1-Affidavit of Popoff, # ​2​ Exhibit 2-Affidavit of Mastaw, # ​3​ Exhibit 3-Affidavit of Beaulieu)(Thurber, John) Modified text on 7/21/2014 (pjw). (Entered: 07/21/2014)
115 OBJECTION re ​109​ ​to Defendants Verification Regarding Ramadan Meals; Hearing and Monitor is Requested​ by plaintiff Jamero T. Moses #231885 (Attachments: # ​1​ Exhibit A-C)(pjw) (Entered: 07/21/2014)
116 CERTIFICATE OF SERVICE by plaintiff Jamero T. Moses #231885 re OBJECTION re ​109​ ​to Defendants Verification Regarding Ramadan Meals; Hearing and Monitor is Requested​ by plaintiff Jamero T. Moses #231885 ​115​ (pjw) (Entered: 07/21/2014)
117 AFFIDAVIT re ​105​ ​of Co-Plaintiff​ by plaintiff William Johnson #235820 (pjw) (Entered: 07/25/2014)
118 PROOF OF SERVICE by plaintiff William Johnson #235820 re Affidavit ​117​ (pjw) (Entered: 07/25/2014)
119 RESPONSE TO ​105​ ​Defendants' Submission of Sworn Statements Regarding the 2014 Ramadan Menu​ filed by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit 1, # ​2​Exhibit 2, # ​3​ Exhibit 3)(Thurber, John) (Entered: 07/28/2014)
120 AFFIDAVIT re ​114​ ​in Opposition to Patricia Popoff's Affidavit​ by plaintiff Anthony Nelson #210771 (pjw) Modified text on 8/11/2014 (pjw). (Entered: 08/11/2014)
121 CERTIFICATE OF MAILING by plaintiff Anthony Nelson #210771 re Affidavit ​120​ (pjw) (Entered: 08/11/2014)

08/15/2014 08/18/2014 08/25/2014 09/02/2014
09/02/2014 09/02/2014 09/11/2014 09/11/2014 09/12/2014

122 ORDER granting Plaintiffs' Motion ​73​ for Reconsideration; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 08/15/2014)
Copy of Order on Motion for Reconsideration ​122​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 08/18/2014)
123 PROOF OF SERVICE by plaintiff William Johnson #235820 regarding Plaintiffs' second discovery request​ (kw) Modified text on 8/26/2014 (kw). (Entered: 08/26/2014)
124 MOTION for contempt ​for violating this Court's June 27, 2014, Adequate Meals Order​, MOTION for hearing ​to show cause​, MOTION for order ​for issuance of subpoenas​ by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1 Exhibit 1, # ​2​ Exhibit 2, # ​3​ Exhibit 3, # ​4​ Exhibit 4)(jlg) (Entered: 09/04/2014)
125 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION for contempt ​for violating this Court's June 27, 2014, Adequate Meals Order​ MOTION for hearing ​to show cause​MOTION for order ​for issuance of subpoenas​ ​124​ (jlg) (Entered: 09/04/2014)
126 PROOF OF SERVICE by plaintiff William Johnson #235820 ​re Motion for Rule 11 Sanctions​ (jlg) (Entered: 09/04/2014)
127 MOTION for extension of time to file response/reply ​to the Plaintiffs' Motion for Contempt​ with certificate of service by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) Modified text on 9/12/2014 (pjw). (Entered: 09/11/2014)
128 BRIEF in support of MOTION for extension of time to file response/reply ​to the Plaintiffs' Motion for Contempt​ ​127​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves(Thurber, John) Modified text on 9/12/2014 (pjw). (Entered: 09/11/2014)
129 ORDER granting ​127​ motion for extension of time to file response/reply ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, kcb) (Entered: 09/12/2014)

09/12/2014
09/12/2014
09/15/2014 09/15/2014
09/18/2014 09/19/2014 09/19/2014 09/22/2014 09/22/2014 09/22/2014

130 MOTION for extension of time to file response/reply ​to the Plaintiffs' Motion for Rule 11 Sanctions​ w/certificate of service by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) Modified text on 9/15/2014 (pjw). (Entered: 09/12/2014)
131 BRIEF in support of MOTION for extension of time to file response/reply ​to the Plaintiffs' Motion for Rule 11 Sanctions​ ​130 w/certificate of service filed by Tom Finco, Mike Martin, Brad Purves(Thurber, John) Modified text on 9/15/2014 (pjw). (Entered: 09/12/2014)
132 NOTICE OF APPEAL re ​122​ by defendants Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 09/15/2014)
Copy of Motion for Extension of Time to File Response/Reply ​130 sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 09/15/2014)
CASE NUMBER 14-2195 assigned by the Sixth Circuit to appeal 132​ (mkc) (Entered: 10/06/2014)
133 MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ by plaintiff Anthony Nelson #210771; (Attachments: # ​1​ Exhibit 1-2)(pjw) (Entered: 09/22/2014)
134 PROOF OF SERVICE by plaintiff Anthony Nelson #210771 re MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ ​133​ (pjw) (Entered: 09/22/2014)
RECEIPT: USCA appeal fee re ​132​ by defendants Tom Finco, Mike Martin, Brad Purves in the amount of $505, receipt number GR041556 (ald) (Entered: 09/22/2014)
135 PROOF OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves ​for Defendant's Responses to Plaintiffs' Second Set of Interrogatories​ (Thurber, John) (Entered: 09/22/2014)
136 MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ by plaintiff Jamero T. Moses #231885; (Attachments: # ​1​ Exhibits and Proof of Service)(pjw) (Entered: 09/23/2014)

09/23/2014 09/24/2014 09/25/2014 09/25/2014 09/29/2014
09/29/2014 09/29/2014 09/29/2014

137 PROOF OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves ​for Defendants' Answers to Plaintiffs' Second Discovery Request​ (Thurber, John) (Entered: 09/23/2014)
138 PROOF OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves ​for Defendants' Supplemental Answers to Plaintiffs' Second Discovery Request​ (Thurber, John) (Entered: 09/24/2014)
139 MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Exhibit 1-23)(pjw) (Entered: 09/25/2014)
140 PROOF OF SERVICE by plaintiffs Lamont Heard #252329, William Johnson #235820 re MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ ​139​ (pjw) (Entered: 09/25/2014)
141 RESPONSE in opposition to MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ ​139​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2​ Exhibit A, # ​3​ Exhibit B)(Thurber, John) Modified text on 9/30/2014 (pjw). (Entered: 09/29/2014)
142 MOTION to stay district court proceedings pending appeal with certificate of service by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) Modified text on 9/30/2014 (pjw). (Entered: 09/29/2014)
143 BRIEF in support of MOTION to stay ​142​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves(Thurber, John) Modified text on 9/30/2014 (pjw). (Entered: 09/29/2014)
144 RESPONSE in opposition to MOTION for contempt ​for violating this Court's June 27, 2014, Adequate Meals Order​ MOTION for hearing ​to show cause​ MOTION for order ​for issuance of subpoenas​ ​124​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 09/29/2014)

09/29/2014
09/30/2014 10/01/2014 10/03/2014 10/06/2014 10/06/2014 10/22/2014 10/22/2014 10/22/2014

145 CORRECTED RESPONSE in opposition to MOTION for contempt for violating this Court's June 27, 2014, Adequate Meals Order MOTION for hearing ​to show cause​ MOTION for order ​for issuance of subpoenas​ ​124​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2​ Exhibit A, # ​3 Exhibit B)(Thurber, John) Modified text on 9/30/2014; this entry replaces ​144​ (pjw). (Entered: 09/29/2014)
146 ORDER granting ​130​ motion for extension of time to file; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 09/30/2014)
Copy of Order on Motion for Extension of Time to File Response/Reply ​146​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 10/01/2014)
147 RESPONSE in opposition to MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ ​133​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A, # ​2​ Exhibit B)(Thurber, John) (Entered: 10/03/2014)
148 DECLARATION re ​147​ ​Justin Phelps​ with certificate of service by defendants Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1 Exhibit A)(Thurber, John) Modified text on 10/7/2014 (pjw). (Entered: 10/06/2014)
149 RESPONSE in opposition to MOTION for sanctions ​(Motion for Rule 11 Sanctions)​ ​136​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A, # 2​Exhibit B)(Thurber, John) Modified text on 10/7/2014 (pjw). (Entered: 10/06/2014)
150 RESPONSE in opposition to MOTION to stay ​142​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (pjw) (Entered: 10/23/2014)
151 PROOF OF SERVICE by plaintiff William Johnson #235820 re Response in Opposition ​150​ (pjw) (Entered: 10/23/2014)
152 REPLY to response to motion ​139​ filed by Lamont Heard #252329, William Johnson #235820 (pjw) (Entered: 10/23/2014)

10/22/2014 10/22/2014 10/22/2014 10/24/2014 10/27/2014 11/07/2014
11/17/2014 12/03/2014 12/03/2014

153 PROOF OF SERVICE by plaintiff William Johnson #235820 re Reply to Response to Motion ​152​ (pjw) (Entered: 10/23/2014)
154 REPLY to response to motion ​124​ filed by Lamont Heard #252329, William Johnson #235820 (Attachments: # ​1​ Exhibit 1-3, # ​2 Exhibit 4-6, # ​3​ Exhibit 7-9, # ​4​ Exhibit 10-13)(pjw) (Entered: 10/23/2014)
155 PROOF OF SERVICE by plaintiff William Johnson #235820 re Reply to Response to Motion ​154​ (pjw) (Entered: 10/23/2014)
156 REPLY to response to motion ​142​ ​to Stay District Court Proceedings Pending Appeal​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 10/24/2014)
157 REPLY to response to motion ​133​ ​with proof of service​ filed by Anthony Nelson #210771 (pjw) (Entered: 10/29/2014)
158 MOTION to supplement ​reply to defendants' response to plaintiffs' motion for contempt ​124​ and sanctions ​139​ ​by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # 1​Proposed supplemental reply to defendants response, # ​2​ Proposed Exhibit 1 to supplemental reply, # ​3​ Proposed Exhibit 2 to supplemental reply, # ​4​ Proposed proof for supplemental reply, # 5​Proposed supplemental reply to response to motion for sanctions, # 6​ Proposed Exhibit 1 to reply to response to motion for sanctions, # 7​ Proposed Exhibit 2 to reply to response to motion for sanctions, # 8​ Proposed proof re: reply to response to motion for sanctions, # ​9 Proof of Service)(kvt) (Entered: 11/07/2014)
159 ORDER of USCA re appeal ​132​ ​; the motion to dismiss is denied (ns) (Entered: 11/17/2014)
160 ORDER denying as moot ​96​ motion to expedite; denying as moot 102​ motion to supplement; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 12/03/2014)
161 ORDER denying motions ​71​ , ​77​ , ​79​ , ​90​ , ​93​ , ​133​ , ​136​ and ​139 as improvidently filed; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 12/03/2014)

12/04/2014 12/12/2014 12/12/2014 01/12/2015
01/12/2015 01/12/2015
01/12/2015

Copy of Order on Motion to Expedite, Order on Motion to Supplement ​160​ and Order ​161​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 12/04/2014)
162 MOTION to supplement ​124​ , ​139​ by plaintiffs Lamont Heard #252329, William Johnson #235820; (Attachments: # ​1​ Proposed Supplement re: 124, # ​2​ Proposed Supplement re: 139)(pjw) (Entered: 12/15/2014)
163 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION to supplement ​124​ , ​139​ ​162​ (pjw) (Entered: 12/15/2014)
164 MOTION for leave to file ​their first verified amended complaint and supplemental pleading with proof of service​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1 Proposed Amended Complaint with attachments)(pjw) (Entered: 01/13/2015)
165 MOTION to appoint counsel by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (pjw) (Entered: 01/13/2015)
166 MOTION for protective order ​(Plaintiffs' renewed motion for a protective order for their medical records being discoverable)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit 1, # ​2​ Exhibit 2, # ​3​ Exhibit 3, # 4​ Exhibit 4)(pjw) (Entered: 01/14/2015)
167 MOTION for order ​(Plaintiffs' renewed motion for a declaration for the minimum number of calories that is constitutionally sufficient to maintain an inmate's health during ramadan)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (pjw) (Entered: 01/14/2015)

01/12/2015
01/16/2015 01/22/2015 01/22/2015 01/23/2015 01/23/2015 01/30/2015 02/06/2015

168 CERTIFICATE OF SERVICE by plaintiff Anthony Nelson #210771 re MOTION for protective order ​(Plaintiffs' renewed motion for a protective order for their medical records being discoverable)​166​ , MOTION for order ​(Plaintiffs' renewed motion for a declaration for the minimum number of calories that is constitutionally sufficient to maintain an inmate's health during ramadan)​ ​167​(pjw) (Entered: 01/14/2015)
169 MOTION for sanctions ​with proof of service​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibits 1-3)(jlg) (Entered: 01/16/2015)
170 RESPONSE in opposition to MOTION for protective order (Plaintiffs' renewed motion for a protective order for their medical records being discoverable)​ ​166​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 01/22/2015)
171 RESPONSE in opposition to MOTION for leave to file ​their first verified amended complaint and supplemental pleading with proof of service​ ​164​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 01/22/2015)
172 EXHIBIT re ​171​ ​Defendants' Response to Plaintiffs' Renewed Motion for Leave to File an Amended and Supplemental Complaint by defendants Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 01/23/2015)
173 RESPONSE in opposition to MOTION for order ​(Plaintiffs' renewed motion for a declaration for the minimum number of calories that is constitutionally sufficient to maintain an inmate's health during ramadan)​ ​167​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 01/23/2015)
174 RESPONSE in opposition to MOTION for sanctions ​with proof of service​ ​169​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 01/30/2015)
175 MOTION for sanctions by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Attachment 1 - Affidavits, # 2​Attachment 2 - Cover Letter)(jlg) (Entered: 02/06/2015)

02/06/2015 02/18/2015 02/23/2015 02/23/2015 03/09/2015 03/27/2015 03/27/2015 03/27/2015
03/30/2015

176 PROOF OF SERVICE by plaintiff Jamero T. Moses #231885 re MOTION for sanctions ​175​ (jlg) (Entered: 02/06/2015)
177 RESPONSE in opposition to MOTION for sanctions ​175​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 2/19/2015 (pjw). (Entered: 02/18/2015)
178 MOTION for sanctions ​(Renewed)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (pjw) (Entered: 02/23/2015)
179 PROOF OF SERVICE by plaintiff Anthony Nelson #210771 re MOTION for sanctions ​(Renewed)​ ​178​ (pjw) (Entered: 02/23/2015)
180 RESPONSE in opposition to MOTION for sanctions ​(Renewed) 178​ with certificate of service filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 3/10/2015 (pjw). (Entered: 03/09/2015)
181 REPORT AND RECOMMENDATION re ​75​ ; objections to R&R due within 14 days; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 03/27/2015)
183 MOTION to compel ​discovery disclosure, responses and cooperation​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit 1-8) (pjw) (Entered: 03/30/2015)
184 CERTIFICATE OF SERVICE by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 re MOTION to compel ​discovery disclosure, responses and cooperation​ ​183​ (pjw) (Entered: 03/30/2015)
182 ORDER denying ​64​ motion for order; granting ​142​ motion to stay discovery; signed by Magistrate Judge Hugh W. Brenneman, Jr (Magistrate Judge Hugh W. Brenneman, Jr., fhw) (Entered: 03/30/2015)

03/30/2015 04/02/2015 04/02/2015 04/10/2015 04/10/2015
04/13/2015 04/13/2015

Copy of Report and Recommendation ​181​ and Order on Motion for Order, Order on Motion to Stay ​182​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 03/30/2015)
185 REPLY to response to motion ​178​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Exhibit 1-3) (pjw) (Entered: 04/03/2015)
186 PROOF OF SERVICE by plaintiff William Johnson #235820 re Reply to Response to Motion ​185​ (pjw) (Entered: 04/03/2015)
187 OBJECTION by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 to Report and Recommendation ​181​ ​(Partial) with proof of service​ (Attachments: # 1​ ​ Exhibits 1-3) (jlg) (Entered: 04/13/2015)
188 MOTION for leave to file ​(document titled Plaintiffs' FRCP 11(a) and 15(c) Motion to Re-Submit Signed Plaintiffs' Response Partially Opposing Defendants' Motion for Partial Summary Judgment) with proof of service attached to Partial Objection ​187​ ​by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # 1​Proposed Document) (jlg) (Entered: 04/13/2015)
189 OBJECTION by plaintiff Anthony Nelson #210771 to Report and Recommendation ​181​ (jlg) (Entered: 04/14/2015)
190 CERTIFICATE OF MAILING by plaintiff Anthony Nelson #210771 re Objection to Report and Recommendation ​189​ (jlg) (Entered: 04/14/2015)

05/04/2015
05/04/2015 05/04/2015 05/04/2015 05/04/2015 05/04/2015 05/04/2015 05/04/2015 05/04/2015

191 MEMORANDUM ORDER: (1) GRANTING PLAINTIFFS HEARD'S AND JOHNSON'S MOTION TO HOLD DEFENDANTS IN CONTEMPT FOR VIOLATING THE COURT'S JUNE 27, 2014 ORDER (Dkt. # 124); (2) DENYING PLAINTIFFS' MOTIONS FOR RULE 11 SANCTIONS (Dkt. ## 169, 175, 178); (3) GRANTING PLAINTIFFS HEARD'S AND JOHNSON'S MOTIONS TO SUPPLEMENT (Dkt. ## 158, 162); and (4) DISMISSING PLAINTIFFS' OBJECTION TO SWORN STATEMENTS (Dkt. # 115); signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 05/04/2015)
192 ORDER referring this matter to Magistrate Judge Ellen S. Carmody for the sole purpose of appointment of counsel and related matters pursuant to the Pro Bono Plan of this Court; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 05/04/2015)
193 SUPPLEMENT re Reply to Response to Motion ​154​ by plaintiffs Lamont Heard #252329, William Johnson #235820 (Attachments: # 1​ Exhibit 1, # ​2​ Exhibit 2) (pjw) (Entered: 05/05/2015)
194 PROOF OF SERVICE by plaintiff William Johnson #235820 re Supplement ​193​ (pjw) (Entered: 05/05/2015)
195 SUPPLEMENT re Reply to Response to Motion ​152​ by plaintiffs Lamont Heard #252329, William Johnson #235820 (Attachments: # 1​ Exhibit 1, # ​2​ Exhibit 2) (pjw) Modified document link on 5/5/2015 (pjw). (Entered: 05/05/2015)
196 PROOF OF SERVICE by plaintiff William Johnson #235820 re Supplement ​195​ (pjw) (Entered: 05/05/2015)
197 SUPPLEMENT re Reply to Response to Motion ​154​ by plaintiffs Lamont Heard #252329, William Johnson #235820 (Attachments: # 1​ Exhibit 1 and 2) (pjw) Modified document link and file date on 5/5/2015 (pjw) (Entered: 05/05/2015)
198 PROOF OF SERVICE by plaintiff William Johnson #235820 re Supplement ​197​ (pjw) (Entered: 05/05/2015)
199 SUPPLEMENT re Reply to Response to Motion ​152​ by plaintiffs Lamont Heard #252329, William Johnson #235820 (Attachments: # 1​ Exhibit 1 and 2) (pjw) (Entered: 05/05/2015)

05/04/2015 05/05/2015 06/10/2015
06/10/2015 06/22/2015
06/26/2015 06/26/2015 06/26/2015

200 PROOF OF SERVICE by plaintiff William Johnson #235820 re Supplement ​199​ (pjw) (Entered: 05/05/2015)
Copy of Orders ​191​ and ​192​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (pjw) (Entered: 05/05/2015)
201 MOTION for order to show cause ​and hold defendants in civil contempt of court for failing to obey this court's May 4, 2015 Order by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Exhibit 1-2) (pjw) (Entered: 06/12/2015)
202 PROOF OF SERVICE by plaintiff William Johnson #235820 re MOTION for order to show cause ​and hold defendants in civil contempt of court for failing to obey this court's May 4, 2015 Order​201​ (pjw) (Entered: 06/12/2015)
203 RESPONSE TO MOTION for order to show cause ​and hold defendants in civil contempt of court for failing to obey this court's May 4, 2015 Order​ ​201​ with Certificate of Service filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Exhibit A) (Thurber, John) Modified text on 6/23/2015 (pjw). (Entered: 06/22/2015)
204 ORDER ADOPTING IN PART AND REJECTING IN PART 3/27/15 REPORT AND RECOMMENDATION ​188​ , ​181​ , ​75​ ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/26/2015)
205 ORDER DISMISSING AS MOOT PLAINTIFFS' MOTION ​201 TO SHOW CAUSE; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/26/2015)
206 RESPONSE TO MOTION for partial summary judgment ​75 (response ​85​ signed by all plaintiffs filed per order 2​ 04​ )​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (kw) (Entered: 06/29/2015)

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07/20/2015 07/31/2015 08/01/2015 08/04/2015 08/04/2015

Copy of Order on Motion for Order to Show Cause ​205​ , Order Regarding Report and Recommendation ​204​ sent via U.S. Mail to Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885 and Anthony Nelson #210771 (kw) (Entered: 06/29/2015)
207 ORDER appointing attorney Daniel E. Manville for Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 under the Pro Bono Appointment Plan of the Court; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal) (Entered: 07/02/2015)
208 MOTION for reconsideration re ​204​ ​(Plaintiff Heard's Motion to Alter or Amend and Reconsider Part of June 26, 2015 Order Dismissing His 2011 Ramandan Claims Against Defendant's for a Purported Failure to Exhaust) with Certificate of Service​ by plaintiff Lamont Heard #252329; (Attachments: # ​1​ Exhibit 1-5) (ems) Modified text on 7/9/2015 (ems). (Entered: 07/09/2015)
209 LETTER from plaintiff Lamont Heard #252329 regarding status of case; (Attachments: # ​1​ Response from Clerk) (pjw) (Entered: 07/22/2015)
210 LETTER from Jamero Moses #231885, regarding change of address to Chippewa Correctional Facility (jlg) (Entered: 08/03/2015)
211 NOTICE that matters in this case previously assigned or referred to Magistrate Judge Hugh W. Brenneman, Jr. are reassigned to Magistrate Judge Ray Kent pursuant to Administrative Order Number 15-CA-59; Magistrate Judge Hugh W. Brenneman, Jr no longer assigned (kvt) (Entered: 08/03/2015)
(DISREGARD) Copy of Notice Regarding Reassignment (ref HWB), ​211​ sent via U.S. Mail to Danielle S. Scott #194644 (pjw) Modified text on 8/4/2015; incorrectly entered in this case (pjw). (Entered: 08/04/2015)
212 ORDER granting Plaintiff Heard's ​208​ motion to reconsider: Plaintiff Heard's Ramadan 2011 claim is REINSTATED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 08/04/2015)

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10/05/2015 10/16/2015 10/28/2015

213 ORDER denying as moot ​165​ motion to appoint counsel; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem) (Entered: 09/21/2015)
214 ORDER denying ​166​ motion for protective order; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem) (Entered: 09/21/2015)
215 ORDER denying ​167​ motion for order; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem) (Entered: 09/21/2015)
216 ORDER denying ​164​ motion for leave to file verified first amended complaint; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 09/25/2015)
217 TRANSCRIPT of Hearing re: Plaintiffs' Motion for Contempt held April 28, 2014 before U.S. District Judge Gordon J. Quist; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the ​Policy Regarding Transcripts​ the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 12/24/2015 ; redaction request due 10/16/2015 (Court Reporter: Gaugier, Kevin (616) 456-6133) (Entered: 09/25/2015)
218 NOTICE of status conference set for 10/28/2015 at 02:00 PM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Ray Kent; (Magistrate Judge Ray Kent, fhw) (Entered: 10/05/2015)
219 ORDER denying ​183​ motion to compel; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 10/16/2015)
220 MINUTES of status conference held before Magistrate Judge Ray Kent; Stay to be continued for 60 days; Order to issue (Proceedings Digitally Recorded) (Magistrate Judge Ray Kent, jem) (Entered: 10/28/2015)

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221 (DISREGARD) ORDER staying discovery an additional 60 days; setting further status conference for 12/29/2015 at 10:00 AM before Magistrate Judge Kent; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) Modified text on 10/30/2015; no document attached; replaced by ​222​ (pjw). (Entered: 10/29/2015)
222 ORDER staying discovery an additional 60 days; setting further status conference for 12/29/2015 at 10:00 AM before Magistrate Judge Kent; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 10/29/2015)
223 (WITHDRAWN) MOTION to modify Order of Discovery ​182​ and Brief in Support by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text and document link on 11/5/2015 (pjw). Modified text on 12/23/2015 per ​230​ (jlg). (Entered: 11/05/2015)
224 MOTION for leave to file a supplemental complaint ​1​ and Brief in Support by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Exhibit-Proposed Supplemental Complaint, # ​2 Exhibit 1 to Motion) (Manville, Daniel) Modified text on 11/6/2015 (pjw). (Entered: 11/06/2015)
225 (WITHDRAWN) MOTION to modify preservation requirement in recent continuation of stay of discovery re: ​222​ with proof of service by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 11/10/2015 (pjw). Modified text on 12/23/2015 per ​230​ (jlg). (Entered: 11/09/2015)
226 RESPONSE TO MOTION for leave to file a supplemental complaint ​224​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 11/24/2015 (pjw). (Entered: 11/23/2015)
227 RESPONSE TO MOTION to modify the order staying discovery 223​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 11/24/2015 (pjw). (Entered: 11/23/2015)

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12/28/2015 12/29/2015 12/30/2015

228 RESPONSE TO MOTION to clarify re ​222​ ​Continuation of Stay as to Preservation of Documents​ ​225​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) Modified text on 11/30/2015 (pjw). (Entered: 11/25/2015)
229 ORDER of USCA (certified copy) re appeal ​132​ ​the district court's order is affirmed; and this case is remanded​ ; mandate to issue (jlg) (Entered: 12/21/2015)
230 WITHDRAWAL by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 of MOTION for relief from ​55​ ​Order Staying Discovery 223​filed by William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771, Lamont Heard #252329, MOTION to clarify re ​222​ ​Continuation of Say as to Preservation of Documents​225​ filed by William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771, Lamont Heard #252329 (Manville, Daniel) (Entered: 12/23/2015)
231 ORDER (REVERSED by Order ​244​ ) denying ​224​ motion to supplement; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, jem) Modified text on 4/15/2016 (cep). (Entered: 12/28/2015)
232 MINUTES of status conference held before Magistrate Judge Ray Kent; parties appeared by telephone; case management order to issue (Proceedings Not Digitally Recorded) (Magistrate Judge Ray Kent, jem) Modified text on 12/30/2015 (jem). (Entered: 12/29/2015)
233 CASE MANAGEMENT ORDER: discovery deadline 6/29/2016; dispositive motion deadline 7/20/2016; settlement conference set for 10/27/2016 at 01:30 PM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Ray Kent; final pretrial conference set for 11/16/2016 at 03:00 PM at 482 Federal Building, Grand Rapids, MI before Judge Gordon J. Quist; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 12/30/2015)

01/11/2016
01/12/2016 02/05/2016 02/05/2016 03/29/2016 03/29/2016
03/29/2016 03/29/2016

234 OBJECTION re ​231​ ​Order Denying Filing Supplemental Complaint by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Index Exhibit Listing, # ​2​ Exhibit 1, Riggs v. Valdez, # ​3 Exhibit 2, Brown v. Warden, Ross Corr. Inst., # ​4​ Exhibit 3, Robbins v. Payne) (Manville, Daniel) (Entered: 01/11/2016)
235 MANDATE of USCA re appeal ​132​ (pjw) (Entered: 01/14/2016)
236 PROPOSED STIPULATION and ORDER ​Re: withdrawal of ADR by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 02/05/2016)
237 ORDER granting STIPULATION ​236​ re: ADR requirement; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 02/05/2016)
238 MOTION for extension of time to ​File Discovery Respones-Expedited Consideration Requested​ by defendants Tom Finco, Mike Martin, Brad Purves; (Thurber, John) (Entered: 03/29/2016)
239 BRIEF in support of MOTION for extension of time to ​File Discovery Respones-Expedited Consideration Requested​ ​238 Expedited Consideration Requested​ filed by Tom Finco, Mike Martin, Brad Purves (Attachments: # ​1​ Index Index of Exhibit, # ​2 Exhibit A. Email to Attorney Manville and Reply to Attorney Thurber) (Thurber, John) (Entered: 03/29/2016)
240 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for extension of time to ​File Discovery Respones-Expedited Consideration Requested​ ​238​ filed by Tom Finco, Mike Martin, Brad Purves (Thurber, John) (Entered: 03/29/2016)
241 RESPONSE in opposition to MOTION for extension of time to ​File Discovery Respones-Expedited Consideration Requested​ ​238​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 03/29/2016)

03/29/2016 03/30/2016 04/14/2016
04/14/2016
04/18/2016 05/06/2016 05/06/2016 05/10/2016 05/17/2016

242 EXHIBIT re ​241​ ​Response to Motion Extend Time​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 03/29/2016)
243 ORDER granting ​238​ motion for extension of time to file discovery responses: defendants' responses due 4/18/2016; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 03/30/2016)
244 ORDER GRANTING PLAINTIFFS' APPEAL ​234​ OF MAGISTRATE JUDGE'S DECEMBER 28, 2015 ORDER ​231​ : Order ​231​ is REVERSED; Clerk to file Plaintiffs' proposed Supplemental Complaint; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 04/14/2016)
245 ("Supplemental")​ AMENDED COMPLAINT ​as per ORDER ​244 against Tom Finco, Brad Purves filed by Jamero T. Moses #231885, William Johnson #235820, Lamont Heard #252329, Anthony Nelson #210771 (cep) (Entered: 04/15/2016)
246 CERTIFICATE OF SERVICE by defendants Tom Finco, Mike Martin, Brad Purves ​Defendants' Responses to Plaintiff's First Set of Discovery Requests​ (Thurber, John) (Entered: 04/18/2016)
247 AFFIRMATIVE DEFENSES by defendants Tom Finco, Brad Purves re ​60​ (Thurber, John) (Entered: 05/06/2016)
248 DEMAND for TRIAL BY JURY by defendants Tom Finco, Brad Purves (Thurber, John) (Entered: 05/06/2016)
249 CERTIFICATE OF SERVICE by defendants Tom Finco, Brad Purves ​of Responses to Subpoena Requests to Director Washington (Thurber, John) (Entered: 05/10/2016)
250 MOTION to quash ​Subpoenas​ with Brief in Support by plaintiff Lamont Heard #252329; (Attachments: # ​1​ Index Exhibit Listing, # 2​ Exhibit 1, Subpoenas and Letters, # ​3​ Exhibit 2, Sami v. Detroit Medical Center, # ​4​ Exhibit 3, Sanford v. Steward, # ​5​ Exhibit 4, Response to Subpoena) (Manville, Daniel) Modified text on 5/18/2016 (pjw). (Entered: 05/17/2016)

05/18/2016 05/18/2016 05/26/2016 05/26/2016 05/26/2016 05/26/2016
05/27/2016

251 ORDER regarding Motion to Quash ​250​ and certificate of concurrence; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 05/18/2016)
252 NOTICE re ​251​ ​Compliance with LR 7.1(d)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 05/18/2016)
253 NOTICE ​Certification of Compliance with LR 7.1(d)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 5/31/2016; this document replaced by ​255​ (pjw). (Entered: 05/26/2016)
254 WITHDRAWAL by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 of Notice (Other) ​253​ filed by William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771, Lamont Heard #252329 (Manville, Daniel) (Entered: 05/26/2016)
255 NOTICE ​Compliance with LR 7.1(d)​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Exhibit 1, Email Barkman, # ​2​ Exhibit 2, Email Thurber); this document replaces 253​ (Manville, Daniel) Modified text on 5/31/2016 (pjw). (Entered: 05/26/2016)
256 MOTION to enforce ​subponea​ with Brief in Support by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Index Exhibit list, # ​2​ Exhibit 1, Notice Subpoena & Subpoena, # ​3 Exhibit 2, Responses to Subpoena, # ​4​ Exhibit 3, Madeline LLC v. St.) (Manville, Daniel) Modified text on 5/27/2016 (pjw). (Entered: 05/26/2016)
257 PROPOSED STIPULATION AND ORDER regarding ​Filing of Experts' Reports​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 5/31/2016 (pjw). (Entered: 05/27/2016)

05/27/2016 05/31/2016 05/31/2016
06/01/2016 06/01/2016 06/01/2016 06/01/2016 06/02/2016 06/02/2016 06/03/2016

258 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Defendant Purves' Responses to Plaintiffs' Second Set of Discovery Request​ (Thurber, John) (Entered: 05/27/2016)
259 CERTIFICATE OF MAILING by defendant Tom Finco ​Responses to Plaintiffs' Second Set of Discovery​ (Thurber, John) (Entered: 05/31/2016)
260 RESPONSE TO MOTION to quash ​Subpoenas​ ​250​ filed by Tom Finco and Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2 Exhibit A. Email messages between Daniel Manville and John Thurber, # ​3​ Exhibit B. Authorizations for Disclosure of Health Records, # ​4​ Exhibit C. Defendants' Notice of Subpoenas and proposed Subpoenas, # ​5​ Exhibit D. Stevens v. Hutchinson, Case No. WD 1:13-cv-918 - Order Vacating Order to Seal) (Thurber, John) Modified text on 6/1/2016 (pjw). (Entered: 05/31/2016)
261 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Notice of Taking Deposition of Lamont Heard​ (Thurber, John) (Entered: 06/01/2016)
262 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Notice of Taking Deposition of William Johnson​ (Thurber, John) (Entered: 06/01/2016)
263 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Notice of Taking Deposition of Jamero Moses​ (Thurber, John) (Entered: 06/01/2016)
264 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Notice of Taking Deposition of Anthony Nelson​ (Thurber, John) (Entered: 06/01/2016)
265 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Corrected Notice of Taking Deposition of Lamont Heard (Thurber, John) (Entered: 06/02/2016)
266 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Corrected Notice of Taking Deposition of Jamero Moses (Thurber, John) (Entered: 06/02/2016)
267 PROPOSED STIPULATION and ORDER ​Extending Time to Respond​ by defendant Brad Purves (Thurber, John) (Entered: 06/03/2016)

06/06/2016 06/06/2016 06/10/2016 06/13/2016 06/13/2016 06/14/2016 06/15/2016 06/21/2016
06/23/2016

268 ORDER granting STIPULATION ​267​ ; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 06/06/2016)
269 ORDER granting PROPOSED ORDER AMENDING CASE MANAGEMENT ORDER ​257​ ; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 06/06/2016)
270 PROOF OF SERVICE by defendants Tom Finco, Brad Purves ​of Defendants Responses to Plaintiffs' Subpoena to Director Washington​ (Thurber, John) (Entered: 06/10/2016)
271 CERTIFICATE OF MAILING by defendants Tom Finco, Brad Purves ​Defendant Purves' Responses to Plaintiff's Fifth Set of Discovery​ (Thurber, John) (Entered: 06/13/2016)
272 RESPONSE TO MOTION to enforce ​subponea​ ​256​ filed by Tom Finco, Brad Purves (Attachments: # ​1​ Exhibit A. Email Communication) (Thurber, John) (Entered: 06/13/2016)
273 NOTICE re ​250​ ​to Withdraw Motion to Suppress Subpoenas​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 06/14/2016)
274 NOTICE OF MOTION HEARING regarding document number 250​ , ​256​ : motion hearing is set for 6/27/2016 at 11:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Ray Kent; (Magistrate Judge Ray Kent, fhw) (Entered: 06/15/2016)
275 NOTICE RESCHEDULING MOTION HEARING regarding document number ​256​ that was previously set for 6/27/2016 at 11:00 AM; motion hearing is rescheduled for 7/11/2016 at 11:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Ray Kent; (Magistrate Judge Ray Kent, fhw) (Entered: 06/21/2016)
276 PROPOSED STIPULATION AND ORDER regarding ​Extending Time to File Dispositive Motions​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 6/24/2016 (pjw). (Entered: 06/23/2016)

07/08/2016 07/08/2016 07/27/2016 07/30/2016 07/30/2016
08/01/2016 08/02/2016 08/02/2016

277 ORDER granting PROPOSED ORDER ​276​ amending Case Management Order: dispositive motion deadline extended to 8/3/2016; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 07/08/2016)
278 Notice of​ WITHDRAWAL by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 of MOTION to enforce ​subponea​ ​256​ filed by William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771, Lamont Heard #252329 (Manville, Daniel) (Entered: 07/08/2016)
279 PROPOSED STIPULATION and ORDER ​for Protective Order​ by defendants Tom Finco, Brad Purves (Thurber, John) (Entered: 07/27/2016)
280 NOTICE ​of Certification of Compliance with Local Rule​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 07/30/2016)
281 MOTION for summary judgment ​as to Defendants Finco and Purves​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Attachments: # ​1​ Index Plaintiffs' Exhibit List, # ​2​ Exhibit 1, Finco's deposition, portions of, # ​3​ Exhibit 2, Purves' Deposition, portions of, # ​4​ Exhibit 3, Popoff's portions of, # 5​ ​ Exhibit 4, Anderson's Deposition, portions of, # ​6​ Exhibit 5, Grievance of Heard, # ​7​ Exhibit 6, Grievance of Moses, # ​8​ Exhibit 7, O'Brien's Response to Kite) (Manville, Daniel) (Entered: 07/30/2016)
282 EXHIBIT re ​281​ ​This Exhibit should replace R.281-3,PageID.2202-05​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 08/01/2016)
283 PROPOSED STIPULATION and ORDER ​Extending The Date for Disposition Motions​ by defendants Tom Finco, Brad Purves (Thurber, John) (Entered: 08/02/2016)
284 ORDER granting STIPULATION ​283​ amending Case Management Order: dispositive motion deadline extended to 8/17/2016; signed

08/03/2016 08/11/2016 08/16/2016 08/17/2016 08/17/2016
08/25/2016 08/26/2016 08/31/2016

by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 08/02/2016)
285 ORDER granting STIPULATION ​279​ ; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 08/03/2016)
286 PROPOSED STIPULATION and ORDER of partial dismissal by defendants Tom Finco, Brad Purves (Thurber, John) Modified text on 8/12/2016 (pjw). (Entered: 08/11/2016)
287 ORDER OF PARTIAL DISMISSAL ​286​ ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 08/16/2016)
288 MOTION for partial summary judgment with Certificate of Service by defendants Tom Finco, Brad Purves (Thurber, John) Modified text on 8/18/2016 (pjw). (Entered: 08/17/2016)
289 BRIEF in support of MOTION for partial summary judgment with Certificate of Service ​288​ filed by Tom Finco, Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2​ Exhibit A - Finco Deposition, # ​3​ Exhibit B - Purves Deposition, # ​4​ Exhibit C Heard v. Finco, 14-2195, # ​5​ Exhibit D - Affidavit of Patricia Willard) (Thurber, John) Modified text on 8/18/2016 (pjw). (Entered: 08/17/2016)
290 PROPOSED STIPULATION and ORDER ​Extending the Date for Defendant's Response​ by defendants Tom Finco, Brad Purves (Thurber, John) (Entered: 08/25/2016)
291 ORDER granting STIPULATION ​290​ : defendants' response re ​281 due 9/7/2016; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 08/26/2016)
292 PROPOSED STIPULATION and ORDER to Extend Time of File Response to motion for summary judgment by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 8/31/2016 (pjw). (Entered: 08/31/2016)

09/07/2016 09/07/2016
09/08/2016 09/09/2016 09/21/2016 09/22/2016
10/11/2016 10/19/2016

293 NOTICE re ​292​ ​Withdraw R.292​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 9/8/2016 (pjw). (Entered: 09/07/2016)
294 RESPONSE TO MOTION for summary judgment ​as to Defendants Finco and Purves​ ​281​ filed by Tom Finco, Brad Purves (Attachments: # ​1​ Index of Exhibits, # ​2​ Exhibit A. Heard v. Finco, Case No. 14-2195, # ​3​ Exhibit B. MDOC PD 04.07.100, # ​4​ Exhibit C. MDOC PD 05.03.150, # ​5​ Exhibit D. Affidavit of Patricia Willard, RD, # ​6​ Exhibit E. Barbara Anderson deposition transcript pages) (Thurber, John) Modified text on 9/8/2016 (pjw). (Entered: 09/07/2016)
295 PROPOSED STIPULATION and ORDER ​to Extend Time to File Response to Defendants' Dispositive Motion​ by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 09/08/2016)
296 ORDER granting STIPULATION ​295​ : plaintiff's response re ​288 due 9/22/2016; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 09/09/2016)
297 REPLY to response to motion ​281​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 09/21/2016)
298 RESPONSE in opposition to MOTION for summary judgment Defendants' Motion for Partial Summary Judgment with Certificate of Service​ ​288​ filed by Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Attachments: # ​1​ Exhibit 1, portions of Depositions) (Manville, Daniel) (Entered: 09/22/2016)
299 REPLY to response to motion ​288​ filed by Tom Finco, Brad Purves (Thurber, John) (Entered: 10/11/2016)
300 NOTICE adjourning without date settlement conference set for 10/27/2016 at 1:30 PM before Magistrate Judge Kent (Magistrate Judge Ray Kent, fhw) (Entered: 10/19/2016)

10/25/2016 11/04/2016 11/16/2016
11/21/2016 12/05/2016 02/16/2017
04/21/2017 06/08/2017

301 NOTICE adjourning 11/16/2016 FPTC without date (Judge Gordon J. Quist, jmt) (Entered: 10/25/2016)
302 REPORT AND RECOMMENDATION re ​281​ , ​288​ ; objections to R&R due within 14 days; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw) (Entered: 11/04/2016)
303 OBJECTION by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 to Report and Recommendation ​302​ (Attachments: # ​1 Exhibit 1, Totten v. Caldwell, unpublished) (Manville, Daniel) (Entered: 11/16/2016)
304 OBJECTION by defendants Tom Finco, Brad Purves to Report and Recommendation ​302​ (Thurber, John) (Entered: 11/21/2016)
305 CERTIFICATE OF MAILING re medical records by defendants Tom Finco, Brad Purves (Thurber, John) Modified text on 12/6/2016 (pjw). (Entered: 12/05/2016)
306 ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION ​302​ re ​288​ , ​281​ : Plaintiffs' Motion ​281​ for Summary Judgment is DENIED; Defendants' Motion ​288​ is GRANTED; Plaintiffs' claims based on Ramadan 2013 and 2014 are DISMISSED WITH PREJUDICE; case to continue on Plaintiffs' claims based on Ramadan 2011 and 2012; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 02/16/2017)
307 NOTICE of settlement conference set for 6/8/2017 at 01:30 PM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Ray Kent; (Magistrate Judge Ray Kent, fhw) (Entered: 04/21/2017)
308 MINUTES of settlement conference held before Magistrate Judge Ray Kent; the parties did not reach a settlement of the case (Portions of Proceedings Digitally Recorded) (Magistrate Judge Ray Kent, sjc) Modified text on 6/8/2017 (sjc). (Entered: 06/08/2017)

07/21/2017
10/31/2017 10/31/2017 03/05/2018 03/06/2018 03/09/2018 03/12/2018 03/13/2018

309 SECOND CASE MANAGEMENT ORDER: final pretrial conference set for 3/13/2018 at 2:00 PM at 482 Federal Building, Grand Rapids, MI before Judge Gordon J. Quist; jury selection and trial set for 3/20/2018 at 9:00 AM at 499 Federal Building, Grand Rapids, MI before Judge Gordon J. Quist; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 07/21/2017)
310 CHANGE OF ADDRESS by Daniel E. Manville counsel for plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 10/31/2017)
311 AMENDED CHANGE OF ADDRESS by Daniel E. Manville counsel for plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 11/1/2017; this entry replaces 310​ (pjw). (Entered: 10/31/2017)
312 MOTION for order ​to Allow Law Students to Present at Trial​ with Brief in Support and attached Application by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771; (Manville, Daniel) Modified text on 3/6/2018 (pjw). (Entered: 03/05/2018)
313 MOTION for writ of habeas corpus ad testificandum and Brief in Support by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) Modified text on 3/6/2018 (pjw). (Entered: 03/06/2018)
314 PROPOSED PRETRIAL ORDER by plaintiffs Lamont Heard #252329, William Johnson #235820, Jamero T. Moses #231885, Anthony Nelson #210771 (Manville, Daniel) (Entered: 03/09/2018)
315 NOTICE rescheduling 3/20/2018 jury trial - date to be determined (Judge Gordon J. Quist, jmt) (Entered: 03/12/2018)
316 MINUTES of final pretrial conference held in Chambers before Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/13/2018)

03/23/2018 04/30/2018 05/10/2018

NOTE: $39.20 from receipt number GR060047, dated 3/21/2018 was transferred to this case from case number 1:16-CV-248 because of an overpayment of PLRA filing fees for Jamero T Moses #231885; total paid to date in this case for Jamero T Moses #231885 is $39.20 (Financial Administrator, ced) (Entered: 03/23/2018)
NOTE: $16.46 from receipt number GR060512, dated 4/25/2018 was transferred to this case from case number 1:16-CV-248 because of an overpayment of PLRA filing fees for Jamero T Moses #231885; total paid to date in this case for Jamero T Moses #231885 is $55.66 (Financial Administrator, ced) (Entered: 04/30/2018)
317 ORDER SETTING TRIAL: jury selection and trial are scheduled for October 2, 2018, at 9:00 AM before Judge Quist, 499 Ford Federal Building, 110 Michigan, NW, Grand Rapids, MI; parties to file Amended FPT Order ​314​ , if necessary, by 9/25/2018; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 05/10/2018)

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 1 of 14 PageID.1
UNITED STATES DISTRICT COURT
F"OR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN O!VISION

LAMONT HEARD, WILLIAM JOHNSON,
JAMERO MOSES end ANTHONY NELSON; Pro-Se Platntif~a.
v.
TOM FINCO, Deputy Director of

Case:2 : 13-cv-11342 Judge: Roberts, VICtoria A.
MJ: Hluchaniuk, Michael J.
Filed: 03-26-2013 At 03:04 PM PRIS HEARD, ET AL V FINCO, ET AL (E
B)

Michigan Department of Correction~(MDOC),

M!KE MARTIN, Special Activity Coordinator

of MOOC, ~P.AD PURVES,

Dietician end Food Service Menger.

Each Defendant aued in both

Individual end Official Cepecity
__________D_e_fe_n_d_a_n_t_s;____________________!

CIVIL ACTION COMPLAINT

THE P,QRTIES, JliR!SO!CTION AND VENUE

1.

Plaintiff, LAMONT HEARD, is incarcerated under the cuetody o~

the Michigan OepartMent Of Corrections (MOOC)_ He is currently held

at Lakeland Correctional F"ecility(LCF), at 141 First St. Coldwater

Michigan, 4903fi .

2.

P\1!1! nt 1. ff Heard filed at least, one pervious 1awaui te.

See

Heprd v. Ceru~o, ~t al, 2:05-cv-231 t USOC, ~0-ND. See also, HEARD v

WOOD et el, 11 - 121q09-CK Oakland County Circuit Court.

3.

Plaintif'f ti!flliem John~on 1!! incarcerated under tha custody of

MDOC. He ls currently held at LCF.

4. Plaintiff J ohngon felled at len~t Q previous lawsuite.

5.

Plaintiff JAP'. ERO MIJSES. is inc•srceratecl under tl-te custody of'

MOOC . H~ is currently held et LCF.

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 2 of 14 PageID.2

F. Plaintiff MOSES failed at least ! previous lawsuits. see MOSES
v. PR!SONtR HEALTH SERVICES(PHS) 2:n9-cv-236

7.

Plaintiff ANTHONY NELSON, is incarcerated under the custody of

MOOC. He is currently held et LCr.

U 8. Plaintiff Neleon filed pervious laweuites.

9. Defendant TOM FINCO, ie Deputy Oirector of MDOC. Hie office is

in MOOC Central Office, located at 20~ East Michigan Avenue, Lensing, ,.,ichigen 48909.

10.

Defendant FINCO responsihility is to approve and implement

religious menus and ensure plaintiffs receive en adequate meal. He

is sued in both individual end official capacity.

11. Defendant MIKE MARTIN is special Activity Director of MDOC. his

office is in Central Office.

He is suited in both individual and

official.

12.

Defendant Martin reeponsibllity is to ensure plaintiff's

religiou9 neerla ere met end to coordinate religious activity.

1 3.

Defendant RRAO PURVES, is the Dietician end Food Service

~enager of MDOC, his office ie in Centr~l Office .

Defendant PURVES

is sued in both individual and official capacity.

14.

Defendant PURVES respon!!lhi 11 ty ie to ensure Food Serviee

religious menu~ ere nutritional end met plaintiff's religious

reg 1men. l"h <- Cc<.H' \: ha ~ jut"·~-,c..-\-\c" \) v.~~~...~.<:>.n\- -\-o ·z<; us c%~'?.~ t, 1 '3 <1 ~ G..."'d 4.2 v.sc ?__, ) <t-s 3 ,

rACTUAL RACK GROUND

15.

Pleintt.ffs, HEARn, JOHNSON, MOSES end NELSON ftre rnuslims and

~embers of The N~tion Of I~lem Prison Refer~ Ministry.

1~. Plaintiffs sincerely held beliefe are found ln the Holy Our'en,

divine revelation5 of the Muslim~.

1 7

One of the tenet!\ of Plaint i ffe fa 1th is that 1 t 1e mandatory

for muslim~ to fast during the Arabic Lunar Month of Ramendon. The

Ar~htc month of Ramsndon haa ? 9 to 30 deye .

1". rRsting during Ramendon le e religious holiday of every Musli~. 19. In the Holy Qur•en, chapter~. verse 1q~, Allah, the God of the

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 3 of 14 PageID.3

GESAY(ARMHXIIOLNAVCEALUDMuEKALsATHlODCIiTOmOSLEHNRTEOSsAHAEI,PERRNOIS~NSEgK!ERa)GPSSEvAR.RET"SeOHTNEHJTAAOOtATETFhUTSAEIeRSNSITNENVOfEOFoTUYOFWHlO,FTlEHoRHSIHw(CEAHMOHLYiEUOLnGOANLgUTUDSHTHI,HHDEiA,ACnFALNOONjQLHCuRMDUEEnRPFL'HcHASEAAtAEHSTN~iVTAoEDID)LnNWLEGTTAASHtHSIoEFERG(AELRUSaNCEIITUDKlVRNMlEEEIOTTDAA)TMEEHLRREEYNuHIRDOUsOAAlEU,MiNNRIMBDND.AEA,sSRN:THGDHAIUOPANSFI"TDDTOTHFAHOOANVWWETTROCHHHUEEOMOYVREEOOOSVTVNUUHOEEDTRORHAUMAMYLNAIOOESDVSDNF.f

20. Fasting during Ramadan is a blaeeed tc 30 deyB. Muslims eeek! spiritual blis entire Ho 1 y Qur 'an throughout the month peec@ end oneneee with Allah(GOO). There this once a yaer experience.

exp~rienca. It last for 29 s, brot~arhood and reed the . Mueli"'e mind-set is of
is no otM~r alternative for

21 .

Fasting during Remandon

consuming foorl and liquid during

require the dAy

plalnti ffs to light hour~.

abstain

from

22. end

When liqude.

the

sun

is

sat,

plaintiffe

can

return

to

consuming

food

?~.
ele the

Michigan ct to partici
sun rise end

Oepartme pate in
another

nt
th~
me

nf f
al

Correction~ provide sst two meele per de after the sun set.

th y.

o

se One

muslims meal b

that efore

24.
bAqged

Each fee 111 ty has the option of choosing meal or allowing the muelims that ehooea to

dinning hall.

bstween fest to

eerv ing e eat in the

I I I

?5.

The

count.

beg

meels

do

not

meet

k4t'OC

mandated

2,qoo

celory

in-teke

I
I
'I

2r.. The dining hell meels consist

?.7.

Most. facllitiea chooea to

dinning hell bP.cause bag meals cost

of 10n0 to
elloto~ the
more.

1500 celery intake. Muelim!3 to eat in the

I I

211. hurd end food

ThP lowaren of choosing suffer deterio
and liquid ln

colric betwee ratinQ order

intake place on olaintiff the ~ubstentiel n obeying Allah(God), by continuing the fest
health or disobey D.llah(God) by consuming to eubstein goorl health.

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 4 of 14 PageID.4

29.

Plaintiff complained to d--fendant~. end other prison officials

that the caloric intake they Wft8 receiving during Ramadan waa to low.

30.

Th~ restricted caloric in-take cause plaintiffs to suffer the

1njur1ee "' being ohyslcelly waak, P.)(perience hungflfr paine end loss

weight, etc. The restriction also take plaintiffs out of the spirit

of faatt.ng.

~1.

See grievance LCF' 12-08-0Bt.9-09b, 12-!JA-091 0-2Ae • 12-06-0664-

20e, 11-0901270-09ft, URF 10-08-3147-09e end MBP QQ-OB-01872-2Bc.

3?.

Plaint 1ffs also aubmt tted proposal a to def'l!tndants for the

puroos~ of ma~in~ chengeft to the food olen. Sea eKhlbit A.

'3. Moreover, plaintiffs forward to defendants an article from the

puhlicfttion 'PRISONER lEGAL Nnts', that reported on an incarcerated

~nu"lims in the state of Vlrginie that had stated the same claim end

obt8lned a favorable judgment. See erticlee, e)(hibit A

:54.

Defendents responded "A F'AST BV OEF'INIT!ON IS LOWER CALORIC

INTAKE. 11 ''THOSE OF"F"E:NDERS CHOOSING TO PARTICIPATE IN RAMADON ARE

CHOOSING TO ARSTAIN F'ROM THE REGULAR STATE WIDE MENU AND THEREF"nRE,

ARE NOT RECEIVING THE SAME NUTRITIONAL CONTENT BECAUSE OF' FASTING."

See EKhibit c.

3'5.

However, that ie not plaintiff"!!l 1 end Islamic definition of

fasting during Re~edon.

36.

Isle~ic definition of fasting during Remandon means ebeteining

fro~ food and liquid during the day light hours.

16.

Tnv~, Defend~nt~ could provide all of th~ mandated daily 2900

calorie int~ke by dividing it between the two meale.

3A. Mlchigen Deoartment of Correction~ u~e to do that. Within ths

l8st five veer~ lt changed.

3q.

Therefore, de fendantg are diec riminat 1ng agalns t Pl Ri nt 1 ffs

sincerely helrl h~liefs end i'"posing their beliefs of festi.ng on

plaintiffs, which herme plaintiffs mentel end physical health. Also

it burd~n~ the pr~ctice of olaintiffe sincerely h~ld beliefs.

~AUSE OF A~TTO~ ONE:

FIRST AMENDMENT VIOLATION, Ath AMENDMfNT VIOLATION AHD RLUIPA V!OLATIO~

t.n.

Plaintiffs raetete~ end incorporate~ by refP.rence ~is previous

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 5 of 14 PageID.5

alleget1.on!'S. 41. Plaintiffs mamberehlp in ths Nation Of Islam requires adherence to Allah(God) mandates to fast in the Arable Lunar Month of Remedon.
42. Defendants FINCO. MARTIN and PURVES have refused to accommodate
plaintiffa requeet to be provided with adaQuate meals before the

start and at th~ end of the daily fest.

43.

Defendants refusal is e violation of the United States

Constitution tirst Am~ndment and Religious Land Usa end

ln~tttutionalize Person Act (RLUIPA) U.S.C. § 2000cc-1 et seg.

44. Defendants receive fed~rsl funding.

45.

Defendants• refusal has substantially burdened plaintiffs

exercise of religion by if'lhib1ting their free exercise of it and

reouires them to abandon orecepts of his religion relating to fasting

ln order to servive.

46.

Defendants refusal is e violation of the United States

Con~tltuticn Eight A~endment.

Defendant ' s refusal to provide

Plaintiff~ with adequate end nutritional meals, thet consist of 2900

colorias, caused plaintiffs to suffer the following injuries:

dehydration, dizziness , lose of weight, hungsr pains, end weakness,

for a 29 to 30 day peroid. Thi3 discourage pleintiffe participation

in their mandatory fast. Which violetes th•lr first amendment right

and RLUIPA protection.

47.

Defendant seeks to impose their view~ of 'Fasting' on

Plaintiffs, which harm plaintiffs health and interfere with the

practice of 0 laintlff s ~incerely held belief&.

48.

Oefendents seek to punish ple1ntiffe ~or being mu~11m9.

Their

directive that prohibit food service s teff from providing Plaintiffs

end other Muslim~ with all th~ir c ~ lorias end nu~rltion is evidence

of that .

49.

Oefe~dants food restriction on pleinti ff!! i a not releted to

s ecurity.

50.

Further, defend ents ec t ion a :re unreesonehl~ in 1 igh t of the

fact. that the sam ~ coloric intake restrlction9 ere not placed on

slmilnrly Bituat&d Jewish prisoner during their feating period.

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 6 of 14 PageID.6

fact, that the sam~ caloric intake restriction~ are not pla c ed on 5 imilerly situated Jewi~h prisoner during their ~~sting ~ e ~ 1o d. 51 . Plaintiffs h~ve suf~ered a n d c onti nues to $ Uffsr irr~ p~ rable harm and damages as a re~ult of d e f e nda nta conduct .

W HEREFnR~. Plelntiffs rg que~ t~ t hg t thig Court entsr j u ~g e m ~nt:

(1) . Oeclerlna th~t ~efendent~ 1 r~f u ~e~ t~ ~cco~~c~ete P laintiff's

request for Bd~quate m~ale duri"q Rnrn~Mnn vtolPt~s t~e 1 ~ t ~ Rth

Amf!ndment!!! and RLIJlPA,

(2). Entering e nu!Htdetory !!'1 ,1unct1rm requiring that. iJefl"ln dant ,:

ecco~mo d~ te Pleintiffs' request for ~rl~0 1 1~te m~els d uri ng RemAde ~.

(3).

Awarding plaintiffs 80oroor1at~ manpy dn~~ n ~ ~ ~~~ comn~n~etory

rel1.ttf, end other equita h le r-elief i n Rcce~s rJf $~!:,000 froon ~Pch

defand~"t for the con~t!tutionel v t ol8 ti on . Plaintiffs e~yeth

noth i ng flJrtner.

235R20
LAKELAND CORP . fAC .
141 F"IRSl ST . COLOWATEP, ~~ 490~fi
MAR C!-! 20, 201 ~·

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 7 of 14 PageID.7
RAf-1ADON PRDPOSAL (CHf\NGES Tu THE CURRENT r'inJU & PROCEDURES)
STATE WIDE
To: Food 5srv1ce Diatioian, end Special Activ1t1aa Coord!nator
14lchlgoo OepartmGnt Of Correctinnn (fliDOC)
From: r1uoU.m Population. t1DOC
Subject: Proposal To t·1okm Ctlonoes To Tho r1unlim F'eating Period Dur!og Th-:J Boly r10nth Of Recnadon; nnd To Add Id ol-FU.r al~e Eid ul F'1tr.
Thara !a a nand to mal·m change~ to the food aetrvlce menu, that io
provldad for tha nuslim Fset during tho month of Ramsden. TIYi.l cur-rant m9nu end procadura d1ocouroges 1'<1Uel1m particlnnt1on. For axamplrl, cartain
foods, such aa the~ peanut buttGr, t hat was provJ.ded nsarly evaryday, ha'3 an un-healthy impact on the digeativa nystam. Alao, PO 04.07.100, Paragraph "H" mandetBa that the pl'leon population must have two "Hot MaAla" par dey. However, during the provlous fraets' ell of ths maole have baao cold. Alao, the manu provides laao then 2000 calor ic lntoke.
Changes naed to be made concorning the lighta/pot:~er procedures. 11m
warrona end/or ohift command at eoch or certain fec111t1aa are not
author1ziog ataff to tum on the 1.1ghte/powar during th9 breakfast meal. In othor worda, Muslims hava ta eat tha!r breakfast mmal in the dark.
Lastly, Id al-F'ltr or Eid, naade to ba eddsd to tha faot, beceuoe it
1e "the festival at the and of tm fast of Ramsden on tho 1at. of the
r-mth of Shawwal." In oasaf1Cl!l, 1t 1a a fe::~st or congr:aget1onel gatooring whtu•a thoae who participated itt the fagt, are opiritually ancouregod, and bonded to tng faith of Islam and Allah(God). Ta thio and, below i s tOO
datg1lgd proposal.
l\Y.TlfPiil.T! I
Pursuant to PO 04.07.100 011 ffondar Meola;" end PO 05.03.150 Ral1g1oua
Be 11efa &: Practices of Pl'isonars" Paragraph 11TT" oll propooad changae to
tha food oerv1co manu and i!taUilR dtitaltno with roligioua ng!.mmrte must ba submitted to too food oarv1eta dtroctor ond chaplBJ.n, whom in turn wtll s ubmit tho propooola up tllmir dmin of command. Sel!l aloo, 42 U.S.C. Soo2000 cc Ral1yioun Land Use In81tuttooolh~!tl Pnreona Acrt.
F'urtha:t:moro , in a moat r a Ci.lnt. cou:t"t holding, Cough v. JabG), 479 F.Supp. 2d 569 ( W. D. Va. 2006) , e fede ral d!atdot court 1onua d a praU.mtnary injunction on tho (anmo) urouncla ra1n~tf \n t:hb proposal. ! t is tha papulat.\ona hopes, tha t :a CivU Action !a not raquired in ttl;;: cas o. Alag U.S . Canst. & Stota Cans t. ORainst Cru~l & Unu9ual Puniat~t~
~~
rrn;,ra ero twc.l objact1vmG for th1$ propoael. Tha f1rct 1o to make
changes, Stata (D&pa rtrmnt) bli oo to tho f-?OOC fll3f:U, for t-tlalime during i'.ha
Month of RamerJoo. Alao, too procadurg t hat dl$COUt'Etg~n partj.cipation mt1st
oh.:mgo. Secondly, ld el-Fitr !1/Y../1\ Eld muot ba added bcceu~n lt b opart of the oincerely hold baliofe ond practicaa of lelom~

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 8 of 14 PageID.8

(1) CHANG~p ~0 .,tgy: (a) ouX::ng regular meals, thA r-mnc populet.lon ia ma1nta1ood bv o
2, DOD caloric 1ntak~. Howi!lvar, during t .ha month of namadon, tha maala drop a1gn1f!contly below 2,000, and nearly 1,100 calories p~r meal. TI11a COU$Oa
dehydration, dil!zinass, hunger pains and ~t~a1g'ht loss. Thia has the effect
of d1ocauraging religious pract1CB.

(b) Ttm ttdO beg meele era usually cold and atalo tmcause thoy aM
properat1 1n advanca and kapt !n the fmazar for pr99ervat1oo. Pol!cy requires that pllpula'U.on bo glvl!n ttoiO hot meals per day. So, whan PoU.cy 1e Violated, and the tH'JM cold meeJ.s em prov1dr!d nearly ~very day, a ~~oJ~ma health is placad !n jeopBrdy. Aleo, it caueaa engar, end d1ae1patoo the ap!rit of participatlon in t;he f .oat. Tho fest 1a above
epirltual connection end thankfulness to God. It should not be e David v.
r~liath feat to over-coma tha feet.

(c) For aama raaaon, staff rafuees to turn the lights on eo that one can eee tho food that they at'a ttatJ.ng, 1.a. nraakfast !'-'leal. Steff claims that the: Warden did not authox-l?.a the l!ghta to be turned on. People in
oinglo occupancy calls: hove no way of se~ing and proparlng th~ir food in the dark.

2 ~ Eld .ul.. Fltr

. and..,_Sel:v

:

E d ul F tr

the E1d ul Fitr m9al and tha

Eid f1tr prayer, le an ~seantlel part of observance 1n the religion of

Islam which commemorot't!a end oolabrataa tho 30 day feat of Ramadan. Tha

Eid ul F'itr Prayor ta e congrBgat1onsl prover that must ba performed

during th9 morning of the first day following tha completion of Ramadan.

The Eid ul F'itr meels rnuet be held st e time batldSen tha first and th1;.-d
ctav aftar t~ complatioo of Romadon. Tha meal typically begins on the

avl!fling of thljl first day foll01ding th~ completion of Ramedon and ttm

mortling of 'tha Eid ul Fitr. prayer aervica.

(a) JJscousa thiA io a tenet of the r·,uol.tma oincerely hald baliofe and pr:mcticas, 1t muat ba incorporatod in all future faots orchoGtt:ated OO[J coor:dinatnd by t1DOC Food Servtce Oapertment(n), Special Activity Coord1nator(a), and the appropriate etaff.

(b) Ti.,t:ma who f~~t t~l!thout t (lo ~oa1At:aoos of thtl f·IDOC ohoul.d ba
aUOtJJ13d t Q pat>'t~.cipots 1n the congr s g;::ttlonal prsyer. Typically, bacau9o of p;:~:1'!; t;1j,Str5~p~ct toti.IBJ:de r·1ueltm be.Uav\!n~, tooy cto oot 91gn up fot> beg llliJals. Thary una too!!' own meang to oose:r.ve thr.;; fest. Just bacauoo thay do not feat hO(U the dcportrnant sean f1t, or undar tha1r r rtcCJgOitioo, ohould
not excluda th~m f'rnm the Eid ul F'ltr nrayt3r earvicl!la .

(b) Food!) thst moy b~ rcp9tit,.vo t:~nd cau~9 digt'lativa m:obl.em9 muot ba
f'3ttbstl tutt'!ld.
(c) Fe::rt part1c.tpaoto rnust oo given at loast 20 m1n9. t.o eat, e a nonfooting pnrt!cipant;s. The lights in tha ce ll muat be on during thot time.

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 9 of 14 PageID.9

(d) The meals muat cona1a t of 2,000 c9lor11\1e. r-tuslims am prohibite d from oat lng in the! day light hours. Nothing in their beli~fe deny tharn e full doya worth of calories, i.e. 2,000 oela.
(e) Hanes forth t~ualims Eid ul F1tr rnaal ~mJ prayer aarvi ca muot ba obae rvod.

(f) A room in the programs building or tho unit must bo pravidP.d to eccommodata the E1d ul Fitr prayar aervJ.c~, tmld in the momlng.
(g) The Food Ssrvico Director anc! local Suparvisora muat hevo n directive, and plan a budget end/or arrange for the food mgnu to accommodate the Eid ul Fitr meal .

(h) Inoarcaratad Muslima muat ba allowed to distinguish between participating in the entire faat end tha Eid ul Fitr, ar juat the Fitr.

~IIt1E

,,& D~E:
Cane s t a

nt

w1th

r·,uallma

emual

Eid ul Fitr on too 1st . of ShetdWel.

fas t

during the Month of Ramadan end

biHAT,_.LJibL; -!HIS,&Gtl".efall?J.!? This will accaliiPilGh and encourage r9hab1l1tatS.on, wh1cll halpe ease
tenaion within the MDOC. ~WrGovar, it 1ncreaeaa ona'e apirituel conn3ctlon ta Alleh(God). Also, studies ehaw, incarcerated persons, who hava spiritual activity have a lowor rats of engaging 1n v1olenca end returning to pria!Dn. Lastly, approval of thie proposal will incrtuJse civility between staff and residents.

Thamfora, ld!! prey, that our cleime are conslde:retf, ra:!!aerchad and ultimately granted, before tha start of tho 2009 Fest.

Ra epactfully SUbmitted By,

T Muslim Population,
!~ . aa:nd!-rl/ lb;

f~ation 0 Islam

Prb:on Raform
l a m t- <71" )/ /., liea .-d ,

.r,.1.. z1..n'>.7- '; .",)

cc: rlla
~~allm Population
r-moc F"ootf Se:trvice
Special Act1vlt!Aa Coo:r.d.in~tor sr-1F'/Chaplain

- .. . . - . .- ~ - . . ...

...,. ·.

.. -· ~

Muol1m arotnerilood

Ill ... Islam

( .,..A-r h i/ell• 1- k --h 10 It! I 7 t-

-· Dated: ......J..u..nFJ .-j..f , -I .iZ009 .

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 10 of 14 PageID.10

of records); understaffing; and lax suicide -- Muslim -'Virginia- Prisoner Entitled to 2,200

prevention procedures. Plainly, based-on the three plaintiffs' experiences, concern

C_alories. Poring R~~adan

• for suicida-l prisoners was mortally in• adequate. These flawed policies of the

Afede_i:-a~ distri_c~:co~ hasiss~e? a injunctive relief to prevent future viola-

county made them directly liable under

prelnninary mjunctJon requmng tions arid harin. The court granted the

42 U.S.C. § 1983, if only by omission of the Virginia Department of Corrections defendants' inotion for· sUrnmaryjudg-

constitutionally adequate safeguards for (VDOC} to provide a Muslim prisoner inent in part, :firiding that some of Couch's

the mental health and well-beihg of the with "food items containing 2,200 calc- claims were barred by the statute of limi-

decedents. A major point in Abdollahi's ries" daily during Ramadan, a month-long tations and others for failure to exhaust

suit was that he was experiencing severe period of religious fasting.

administrative .remedies. •The remaining

heroin withdrawal, specialized needs for • This a ction .was brought by Keen exhausted claimswere allowed to proceed. which were simply ignored. In Summers _ · Mountain Correctional ~enter prisoner See: Couch v. Jabe, 479 F.Supp.2d 569

suit, falsified .record&·of non-existenl:cell .William R 0:Couch; who is. a·sunni Mus- (WD.Va. 2006).

checks were found contributory. Finally, lim. Couch's complaint alleged claims

In ruling on the preliminary injunc-

the inadequate suicide prevention policy under the First Amendment and Rell~ous tion motion, the district court found the

at the time of Arambula's death was ac- Land Use and Institutionalized Persons defendants did n ot present evidence to

cepted by the court as a triable issue.

Act (RLUIPA), stating that prison of- contradict Couch's claim that he suffered

Named defendants included staff- ficials had "deprived him of adequate physical inju ry of weight loss due to re-

ers in the Sheriff's -department as well as nutrition and calories during Ramadan" duced caloric intake during· Ramadan.

nurses provided under contract from the in 2002,2003, 2004 and 2005 .

Nor did they refute that the smaller bag

University of California at Davis. The

VDOC operating procedure s al- breakfast only provides about 1,000 calo-

. settlement provided that the county would low each prison to decide whether to ries per day.

pay $450,000 while the University paid the provide Ramadan participants with the

The court held that such weight loss

remaining $550,000. Of the $1 ,000;000, same full , ho t breakfast that is served is "an injury that amounts to irreparable

half went to Katz and the three attor- to the general prison population or to harm." The- defendants offered no evi-

neys who worked for years gaining relief provide a significantly smaller, cold bag dence that the preliininary injunction, if

for the plaintiffs. Arambula's two sons meal. Prison officials always opted to granted, would "disrupt the orderly opera-

each received $100,000 annuities while serve the bag meal. During previous tion of the food service process at Keen

his parents received $50,000. Abdollahi's Ramadans, Couch was provided with Mountain and other prisons." As such,

~ son was paid $150,000 and Summers' only "appr-oximately 1,000 calories per the district court entered prelimina ry

mother received $100,000. See: Abdollahi day." As a result, he said he experienced injunctive reliefrequiring prison officials

v. County ofSacramento, U.S.D.C. (E.D. weight loss of about 13 pounds, con- to provide Couch wi th 2,200 calories

Cal.) Case No. CIV-S-02-2488 FCD JFM stant hunger, " hunger headaches" and daily during Ramadan. See: Couch v. Jabe,

(consolidated cases). The settlements are listlessness.

USDC WD.Va., Case No. 7:05-cv-00642-

posted on PLN's website. , .

For the Ramadan fast in 2006, prison PMS (Sept. 22, 2006).

officials advised Couch they would follow

The case settled on undisclosed terms

the previous Ramadan procedures. Couch cin March 19, 2007, and the court retained

Dictionary ofthe Law- Random House
Thousands of clear concise definitions See page 45 for ordering information

then filed suit on the previous violations jurisdiction to enforce the settlement of his religious rights and for preliminary agreement between the parties. ~

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. :. /

Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 11 of 14 PageID.11

JENNIFER M . GRANHO LM
GOVERNOR

STATE OF MICHIGAN
DEPARTMENT OF CORRECTIONS
LANSING

PATRICIA L CARUSO
DIRECTOR

June 25, 2009
Mr. Heard # 252329 Standish Correctional Facility 471 3 W. M-6i Standish, MI 48658
Addressing your letter concerning Changes to the Muslim Fasting Period- The Holy Month of Ramadon: and to add ID al-Fitr aka Eid ul Fitr. Michigan Department of Corrections Policies and Procedures addressed the recognized religious holidays. Central office Food Service can not make changes to the recognized religious holidays.
Religious fasts are elected by an individual. Bagged meals are offered for consumption outside of facility meal service times. Hot meals are offered at least twice a day at the facility meal services as directed by policy. You have an option of eating the hot meal or observing the fasting period.
A fast by definition is low caloric intake. However MDOC serves a bag meal for Ramadan that contains a regular caloric intake.
Sincerely,
fl.lYl ~ ~~~
v
J. McKinney, Assistant Food Service Program Manager
cc. Warden Birkett Standish Correctional Facility G. McClellan, Food Service Program Manager D. Spaulding, Food Service Director, Standish Correctional Facility

C F A REGION II OFFICE • 777 W. R IVERSIDE DR IVE · IO NIA, MICH IGAN 48846 (6 16) 527-9775

~.
Ca.s. e 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 12 of 14 PageID.12

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Case 1:13-cv-00373-GJQ-RSK ECF No. 1 filed 03/26/13 Page 14 of 14 PageID.14
CIVIL COVER SHEET FOR PRISONER CASES

Case No. 13-1 1342

Judge: Victoria A. Roberts

Magistrate Judge: Michael Hluchaniuk

Name of 1•1 Listed Plaintiff/Petitioner:
LAMONT HEARD, ET AL

Name of 1•1 Listed Defendant/Respondent:
TOM FINCO, ET AL

Inmate Number: 252329 Plaintiff/Petitioner's Attorney and Address Information:

Additional Information:

Correctional Facility:
Lakeland Correctional Facility
14 1 First Street Coldwater, Ml 49036 BRANCH COUNTY

BASIS OF JURISDICTION C 2 U.S. Government Defendant li 3 Federal Question
NATURE OF SUIT C 530 Habeas Corpus
r 540 Mandamus
IX 550 Civil Rights C 555 Prison Conditions

ORIGIN IE 1 Original Proceeding C 5 Transferred from Another District Court D Other:
FEE STATUS
I'K IFP In Forma Pauperis
CPO Paid

PURSUANT TO LOCAL RULE 83.11

1. Is this a case that has been previously dismissed?

~ Yes

~ No

»- If yes, give the following information:

Court: --------------------------------------------------------------------Case No:-------------------------------------------------------------------
Judge: ---------------------------------------------------------------------

2. Other than stated above, are there any pending or previously discontinued or dismissed companion cases in this or any

other court, including state court? (Companion cases are matters in which it appears substantially similar evidence will

be offered or the same or related parties are present and the cases arise out of the same transaction or occurrence.)

r Yes

~ No

»- If yes, give the following information:

Court: --------------------------------------------------------------------Case No:-------------------------------------------------------------------
Judge: ------------------------------------------------------------------

MIED (Rev. 07/06) Civil Cover Sheet for Prisoner Cases

 
 CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID1.2o0f2111 PPaaggeeI1Do.1f 81617

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Southern Division

LAMONT HEARD, WILLIAM JOHNSON JAMERO MOSES, and ANTHONY NELSON,

Plaintiffs, V.
TOM FINCO and BRAD PURVES, sued In their individual capacities,

Case No. 1:13—CV—373 HON. GORDON J. QUIST Magistrate Judge Ray Kent JURY TRIAL DEMANDED

Defendants.

___________________________________/

PROPOSED DRAFT OF

PLAINTIFFS’ SUPPLEMENTAL CIVIL COMPLAINT

JURISDICTION

This Court has jurisdiction over this civil action pursuant to 28 USC §§ 1337, and 1343 et

seq.

VENUE

Venue is proper in this Court because the constitutional violation occurred in the Western

District of Michigan. See 28 USC § 1391 et seq.

Parties

1. Plaintiff,Lamont Heard (Heard) is incarcerated in the custody of Michigan Department of

Corrections (MDOC). He is currently located at Kinross Correctional Facility, 16770 W

Watertower Dr, Kincheloe, MI. 49784, prison identification number 252329.

2. Plaintiff William Johnson (Johnson) is incarcerated in the custody of MDOC, prison

number 235820, and is located at Chippewa Correctional Facility.

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID2.2o0f2121 PPaaggeeI2Do.1f 81618
3. Plaintiff Jamero Moses (Moses) is incarcerated in the custody of MDOC. He is currently located at Chippewa Correctional Facility, Kincheloe, MI 49788, prison number 231885.
4. Plaintiff Anthony Nelson (Nelson) is incarcerated in the custody of MDOC. He is currently located at Lakeland Correctional Facility, 141 First Street, Coldwater, MI., 49306, prison number 210771.
5. Defendant Thomas Finco is Deputy Director of MDOC. He is personally responsible for approving religious menus between the years 2011 to present.
6. Defendant Brad Purves is a retired MDOC Food Service Manager. Between the years 2010-2014, his responsibilities included preparing Ramadan menus, advising and managing Ramadan meal plans, and determining how much calories, nutrition, and food Muslim Ramadan participants received.
7. Both Defendants are sued as to the 2013 and 2014 claims in their individual capacities 8. Each defendant acted under the color of law during the entire relevant time period.
FACTUAL BACKGROUND 9. Plaintiffs Heard, Johnson, Moses, and Nelson (herein known as “Plaintiffs”) are Muslim
and members of the protected class; the Nation of Islam Prison Reform Ministry. 10. The Plaintiffs sincerely held beliefs are found in the Holy Qur’an, the divine scriptures of
the Muslims. 11. One of the tenets of Plaintiffs sincerely held beliefs mandates that they fast during the
daylight hours of the Arabic Lunar month of Ramadan. 12. Ramadan was the month the Holy Qur’an was revealed to Prophet Muhammad, and is a
Holy month in Islamic Jurisprudence. 13. The “fast” is not a fast in the sense of not eating for 30 consecutive days.

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID3.2o0f2131 PPaaggeeI3Do.1f 81619
14. A Ramadan fast means abstaining from food and liquid during the daylight hours. 15. Once the sun sets, Muslims consume an adequate meal that meets the Dietary Guidelines
for Americans, recommended caloric and nutritional intake levels for their age group and activity level, and civilized norms. 16. The fast also include[s] the achievement of a blessed experience. 17. During Ramadan, Muslims seek spiritual bliss and brotherhood; read the entire Holy Qur’an; maintain a peaceful mindset and God consciousness and oneness with Allah, and good physical health. 18. Mental, physical, and spiritual health goes hand in hand in Islam. A Muslim cannot have one without the other. 19. Plaintiffs expected Defendants to provide them with adequate meals that met the Dietary Guidelines for Americans between 2013-2014, as well as Plaintiffs’ “active” to “moderate” lifestyles and age bracket. However, these expectations were not met. 20. Plaintiffs know of no actual MDOC Ramadan policy. Ramadan is instituted based on the prison official in office. Thus, Plaintiffs use the nomenclature “custom and policy” to describe Defendants’ procedure and treatment of Plaintiffs during previous Ramadans. 21. It is the custom and policy of MDOC to post a pre-Ramadan notice in housing units, informing Muslims how to sign-up to participate in Ramadan and the Ramadan eating schedule. 22. MDOC’s custom and policy is to provide a fast observant with a pre-dawn meal and a post-sunset meal during Ramadan. 23. Once the person notifies the designated prison official- usually the Chaplain- of his intentions to participate in the fast, that person’s name is compiled with a list of other fast

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID4.2o0f2141 PPaaggeeI4Do.1f 81710
participants. The list is subsequently posted in each housing unit, food service, and facility control center. 24. Once Ramadan starts, participants are given an itinerary, which regulates the times they can enter the dining hall to receive their pre-dawn and post-sunset meals. 25. The itinerary specifically denies them access to the dining hall to receive their normal lunch meal. 26. If a Ramadan participant enters the dining hall during lunch and accepts the meal, he will receive a misconduct and an administrative hearing to determine if he should be removed from the Ramadan list. 27. An adequate meal, according to the MDOC “Offender Meal” policy directive is a daily meal that meets the Dietary Reference Caloric Values as approved by the National Research Council and the Dietary Guidelines for Americans. 28. Each facility Food Service Director had the option to make his or her own Ramadan menu or follow the statewide menu. If the statewide menu did not meet civilized norms, Food Service Directors would add more calories and nutrition to the menu. 29. Prior to 2009, MDOC custom and policy was to provide both Jewish and Muslim prisoners with adequate meals for the holidays that included fasting, such as Seder and Ramadan. 30. Plaintiffs have personal knowledge of this because they have been participating in Ramadan since the 1990’s while incarcerated in MDOC, plus during those times, they were employed by the MDOC Food Service Department.

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID5.2o0f2151 PPaaggeeI5Do.1f 81711
31. After 2008, the former MDOC Deputy Director Straub, approved the reduction of Ramadan observant meals, based on MDOC dietician Anderson and Purves’ recommendations. He then reduced Ramadan meals by two-thirds of civilized norms.
32. Also, he did that, despite the fact that in 2001 MDOC settled in Hudson-Bey v. Martin Case No. No. 1:00–cv–389 (Order) (May 23, 2002) (Enslen, J.) (docket no. 51–1). In Hudson-Bey, the Court held that providing Muslims with less than 2,000 kcals per day during Ramadan violates both the First and Eight Amendments.
33. Also, the change included mandating all Food Service Directors follow the statewide menu and prohibited adding additional food, even if the daily calories did not meet civilized norms.
34. However, that restriction and custom change was not placed on Jewish holiday menus that were made to accommodate daily fasts.
35. In or around 2010, Deputy Director Straub appointed Defendant Purves-former MDOC Food Service Manager- to enforce MDOC Ramadan custom and policy.
36. Plaintiffs notified Deputy Director Straub and Defendant Purves that the meals were inadequate and contained food items that Plaintiffs were prohibited to eat, such as bean burgers, turkey ham and certain beans.
37. Deputy Director Straub and Purves not only provided inadequate meals, they also put food items on the menu that they knew Muslims were prohibited to eat.
38. Plaintiffs also requested to enter the dining hall to package their lunch meal to eat after sunset to compensate for the inadequate meals.
39. Defendants responded with a no, telling Plaintiffs, “You chose to fast, thus you have to stay restricted to the statewide Ramadan meals.”

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID6.2o0f2161 PPaaggeeI6Do.1f 81712
40. Furthermore, Defendants Finco and Purves claimed the menu met national norms. 41. If the Plaintiffs had not learned how to count calories, they would not have known the
Ramadan meals did not meet civilized norms. 42. Defendants were aware of the facts that Plaintiffs were being fed between 1,000 – 1,500
daily during Ramadan from 2009 through 2013 when the original complaint was filed. 43. Defendants were aware that this practice of not providing the equivalent of three meals a
day at Ramadan had been the practice of the MDOC for years. 44. Defendant Purvis needed the approval of Defendant Finco to provide such limited
number of calories to Muslim during Ramadan. 45. After learning Defendants had deceived Plaintiffs regarding the adequacy of Ramadan
meals, Plaintiffs filed the original civil action against Defendants Finco and Purves, and requested a Preliminary Injunction mandating Defendants to provide Plaintiffs with adequate meals during Ramadan. 46. Before the Court granted the injunction, Defendants Finco and Purves added another third of food to the menu and MDOC Dietician Anderson misrepresented to the Court that the Ramadan menu met civilized norms. 47. In March of 2014, the Court found Defendants did not comply with the Court’s order and held Defendants in contempt. 48. Defendants Finco and Purves instructed subordinates not to comply with the Court Order, thus denying Plaintiffs adequate meals during Ramadan 2013 and 2014. 49. Defendants basically robbed Plaintiffs of their Ramadan experience. 50. Each inadequate meal took Plaintiffs’ focus off the objectives of the fast.



CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID7.2o0f2171 PPaaggeeI7Do.1f 81713
51. Defendants’ acts in effect pressured the Plaintiffs to break the fast. Plaintiffs felt like they were in a David vs. Goliath situation.
52. Plaintiffs held hate in their hearts against Defendants and prison staff. Prison staff would laugh at Plaintiffs saying, “If you want to eat an adequate meal, stop fasting.”
53. During Ramadan, instead of studying the words of God and communing with God, Plaintiffs’ focus was diverted instead toward filing complaints, grievances, researching case law and maintaining their health.
54. Plaintiffs were depressed and suffered mental anguish, spiritual deprivation, and humiliation.
55. Physically, they were dizzy, suffered significant weight loss, migraine headaches, hunger pains, fatigue and decrease in mental alertness -among other symptoms. CAUSES OF ACTIONS FOR RAMADAN 2013 and 2014 FIRST AMENDMENT AND RLUIPA CLAIM
56. Plaintiffs Re-incorporate the above Paragraphs. 57. Defendants Finco and Purves were personally involved in substantially burdening
Plaintiffs’ exercise of religion by requiring them to abandon precepts of religion in order to survive during the 2013 and 2014 Ramadan. 58. Defendant Purves authored the Ramadan menus and managed the operation of Ramadan. 59. Defendant Purves knew that some of the food items he placed on the menus for Ramadan violated the dietary laws of Plaintiffs’ faith and that Plaintiffs would not eat such items. 60. Defendant Purves knew that the menu contained inadequate daily calories and nutrition, and thus, would make Plaintiffs upset and take Plaintiffs out of the spirit of fasting, and


CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID8.2o0f2181 PPaaggeeI8Do.1f 81714
therefore deteriorate Plaintiffs’ health. The menus provided approximately 1,000-1,500 kcals per day. 61. Defendant Finco approved Ramadan menus and mandated each facility to abide by the same menu, without deviation. 62. Defendant Finco knew the menu had false representations and was inadequate, which would make Plaintiffs angry and take Plaintiffs out of the spirit of fasting. 63. Plaintiffs filed complaints, grievances, and proposals to MDOC dietician Anderson and Defendants Finco and Purves, notifying them of the negative impact the Ramadan customs, policies, and menus were having on Plaintiffs’ exercise of religion. 64. Defendants responded, “No change will be made to the Ramadan menu”, and instructed subordinates not to add food to the menu. 65. These actions by the Defendants caused Plaintiffs to be depressed and pressured them to think about discontinuing Ramadan. 66. This pressure caused the Plaintiffs to be taken out of the spirit of fasting. 67. Thus, because of Defendants actions, Plaintiffs were taken out of the spirit of fasting and Plaintiffs lost the concentration, peace of mind, etc. and grew hatred toward prison staff. 68. Defendants burdened the practice of Plaintiffs’ faith and inhibited the free exercise of their religion during Ramadan. 69. Defendants placed a substantial burden on the practice of the religious beliefs of the Plaintiffs. 70. The Plaintiffs exhausted their administrative remedies. 71. Defendants are not entitled to qualified immunity, see Welch v. Spaulding, Case No. 14cv-2050, --Fed.Appx. -- (6th Cir. Sept. 30, 2015) (unpublished).


CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID9.2o0f2191 PPaaggeeI9Do.1f 81715
EIGHTH AMENDMENT CLAIM 72. Defendants Finco and Purves denied Plaintiffs adequate meals during 2013 and 2014
Ramadan. 73. During a normal day in prison, prisoners receive breakfast, lunch and dinner meals. 74. During Ramadan, fast participants are prevented from entering the dining hall during
lunch to receive a lunch meal. 75. If Plaintiffs had entered the dining hall, they would have received a misconduct. 76. Thus, during Ramadan, Defendants deny Plaintiffs their normal lunch meal. 77. The meal calories and nutrients are not made-up in other meals. 78. Plaintiffs have filed complaints, grievances and proposals requesting to package their
lunch meal for eating after sunset, since the statewide Ramadan menu is inadequate. 79. Defendants Finco and Purves responded “no” claiming MDOC Dietician Anderson,
stated the menu is sufficient, since Plaintiffs chose to fast. 80. Defendants inflicted cruel and unusual punishment on Plaintiffs because Plaintiffs are
Muslims. 81. Almost every day of Ramadan each of the Plaintiffs suffered from different level of
hunger due to the low level of calories that were provided each day. 82. As a result of Defendants’ action, Plaintiffs were subjected to both physical and mental
pain. 83. Defendants’ actions have caused significant injury to Plaintiffs’ emotional, mental and
physical health during the 2013 and 2014 Ramadan. EQUAL PROTECTION
84. Plaintiffs Re-incorporate the above Paragraphs.


CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID1.020o3f011PaPgaege1I0Do.1f 81716
85. During Jewish Passover and Seder, prisoner participants receive adequate meals that are prepared in accordance with their dietary regimen.
86. Defendants did not reduce Jewish fast participants menu below civilized norms. 87. Defendants discriminated against Plaintiffs because Plaintiffs are Muslim, in violation of
the 14th Amendment of the U.S. Constitution during the 2013 and 2014 Ramadan. CIVIL CONSPIRACY
88. Plaintiffs Re-incorporate the above paragraphs. 89. Defendants had a meeting of the minds regarding the insufficient Ramadan menus for
2013 and 2014 Ramadan. 90. It was at that time Defendants Finco and Purves agreed to provide Muslims with less
calories and nutrition than MDOC policy regulates and constitutional norms demand. 91. Defendants did deprive Plaintiffs of adequate meals through their Ramadan policy. 92. Neither Defendant Finco nor Purves abandoned the conspiracy, or exposed it. 93. These Defendants did conspire for the purpose of depriving Plaintiffs of privileges and
rights secured by the United States Constitution in violation of 42 USC § 1983.
WHEREFORE, this Court should grant the following relief to the Plaintiffs: 1. Grant a declaratory judgment that Plaintiffs’ rights were violated during the 2013
and 2014 Ramadan. 2. Award Plaintiffs compensatory and punitive damages. 3. Award attorneys’ fees and costs. 4. Award any other relief that this Courts find is just and equitable.

CCaassee11:1:133-c-cvv-0-000337733-G-GJJQQ-R-RSSKK EECCFFNNoo. .222445-1fiflieledd0141/1/046/1/165 PPaaggeeID1.120o3f111PaPgaege1I1Do.1f 81717

Respectfully submitted,

s/ Daniel E. Manville . Daniel E. Manville (P39731) Director, Prisoners’ Rights Clinic

Alexa Herlosky Broc Gullett Clinical Law Students

Michigan State University College of Law 610 Abbott Rd. East Lansing, MI 48823 517-336-8088 (office) 517-336-8089 (fax) daniel.manville@law.msu.edu

CERTIFICATE OF SERVICE

I certify that on November

, the foregoing document was served on

Defendants’ counsel of record through ECF on Defendants’ counsel.

.

/s/Daniel E. Manville

Daniel E. Manville (P39731)

 
 !

2014 WL 1347436 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
Lamont HEARD, William Johnson, Jamero T. Moses, and Anthony Nelson, Plaintiffs, v. Tom FINCO, et al., Defendants.
No. 1:13–cv–373. |
Signed Feb. 25, 2014.
Attorneys and Law Firms
Lamont Heard, Kincheloe, MI, pro se.
William Johnson, Kincheloe, MI, pro se.
Jamero T. Moses, Ionia, MI, pro se.
Anthony Nelson, Coldwater, MI, pro se.
Allan J. Soros, MI Dept Attorney General (Corrections), Lansing, MI, for Defendants.
REPORT AND RECOMMENDATION
HUGH W. BRENNEMAN, JR., United States Magistrate Judge.
REPORT AND RECOMMENDATION
*1 This is a pro se civil rights action brought by four state prisoners pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc–1 et seq. This matter is now before the court on a motion for summary judgment filed by defendants Thomas Finco, Michael Martin and Brad Purves (docket no. 24) and a cross-motion for summary judgment filed by plaintiffs Lamont Heard, William Johnson, Jamero Moses and Anthony Nelson (docket no. 29).
!
!

I. Plaintiffs’ complaint Plaintiffs filed their pro se complaint in the Eastern District of Michigan. See Compl. (docket no. 1). The action was transferred to this district on April 4, 2013. See Order (docket no. 6); Transfer documents (docket no. 7). Plaintiffs named three defendants in this action: Michigan Department of Corrections (MDOC) Deputy Director Thomas Finco; MDOC Special Activity Director Michael Martin; and MDOC Food Service Manager Brad Purves. In their complaint, plaintiffs allege that defendants violated their rights under the First and Eighth Amendments and RLUIPA by failing to provide plaintiffs and other Muslim prisoners with 2,900 calories of food per day during Ramadan, as required by MDOC policy, and instead reducing their calories to approximately 1,000 to 1,500 calories per day. See Compl. For their relief, plaintiffs seek (1) a declaration that defendants’ refusal to accommodate plaintiffs’ request for adequate meals during Ramadan violated their rights under the First Amendment, Eighth Amendment and RLUIPA; (2) entry of an injunction requiring defendants to accommodate plaintiffs’ request for adequate meals during Ramadan; and (3) monetary damages in excess of $25,000.00 from each defendant for the constitutional violation. Id. at p. 6.
II. Motions for summary judgment
A. Legal standard “The 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.” Fed.R.Civ.P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir.1995), the
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court set forth the parties’ burden of proof in deciding a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party’s case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
*2Copeland, 57 F.3d at 478–79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir.2000).
In their complaint, plaintiffs seek relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 3, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360–61 (6th Cir.1988); 42 U.S.C. § 1983.
Plaintiffs also seek relief under RLUIPA, which provides in pertinent part that:
(a) No 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.
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!

42 U.S.C. § 2000cc–1. Under § 3of RLUIPA, 42 U.S.C. § 2000cc–2, “[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. at § 2000cc–2(a). For purposes of a claim brought under § 2000cc–2(a), the term “government” is defined as: “(i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under color of State law[.]” Id. at § 2000cc–5.
B. Motion and Cross–Motion for summary judgment
1. Background In their motion, defendants seek summary judgment on four grounds: (1) plaintiff Heard’s grievance is unexhausted; (2) plaintiff Heard’s cause of action is time barred; (3) plaintiffs are not entitled to monetary damages for claims alleged against defendants in their official capacities; and (4) defendants have qualified immunity with respect to plaintiffs’ § 1983 claims. Plaintiffs responded to the motion by filing a combined “Crossmotion for summary judgment and response in opposition to defendants’ motion for summary judgment.” See docket no. 29. Plaintiffs’ response addressed defendants’ four arguments raised in support of the motion for summary judgment, while their brief “cross-motion” sought summary judgment on their claims brought under the First Amendment, Eighth Amendment and RLUIPA. Plaintiffs’ Brief (docket no. 30). Defendants raised the following arguments in their response to plaintiff’s crossmotion: (1) there was no Eighth Amendment violation; (2) plaintiffs’ request for monetary damages under RLUIPA should be denied; (3) plaintiffs have not alleged or shown personal involvement of defendants Purves and Martin sufficient to support a § 1983 claim against them; and (4) plaintiffs’ request for injunctive relief is moot. See Defendants’ Response (docket no. 39). Finally, plaintiffs’ filed a reply, seeking to strike defendants’ response as “non-responsive.” See Reply (docket no. 48). Given the overlaps in issues raised by the parties in their respective dispositive motion, the will address the issues raised in both dispositive motions in §§ II.B. 2–9, infra.
2. Eleventh Amendment immunity *3 Plaintiffs have sued defendants in both their individual and official capacities. Defendants seek dismissal of plaintiffs’ claims to the extent that plaintiffs seek monetary damages against defendants in their official
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capacities. Plaintiff’s § 1983 claims for monetary damages against the defendants in their official capacities are barred by Eleventh Amendment immunity. See Will v. Department of State Police, 491 U.S. 58, 64–71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Rodgers v. Banks, 344 F.3d 587, 594 (6th Cir.2003) (“the Eleventh Amendment bars § 1983 suits seeking money damages against states and against state employees sued in their official capacities”). Plaintiffs agree that defendants are not liable for monetary damages with respect to the official capacity claims brought under § 1983. See Plaintiffs’ Response (docket no. 30 at p. 12). Accordingly, defendants are entitled to summary judgment with respect to plaintiffs’ § 1983 claims for monetary damages in their official capacity.
3. Plaintiff Heard’s Failure to Exhaust
a. Exhaustion requirement The PLRA provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520;Booth, 532 U.S. at 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court.
Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.
Jones v. Bock, 549 U.S. 199, 204, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218;Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ ” Jones, 549 U.S. at 218.
!
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b. MDOC Grievance process The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms:
*4 The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.
Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id . at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.
c. Plaintiff Heard failed to properly exhaust his claims Defendants contend that plaintiff Heard’s lawsuit arose from a grievance MBP 09–08–01872–28c (“1872”), which lists the incident date as July 21, 2009. See Grievance No. 1872 (docket no. 14–1 at p. 21). Defendants’ contention is supported by the record, because plaintiffs’ complaint cited grievance no. 1872 as one of the grievances which raised the issues alleged in their complaint. See Compl. at ¶ 31. While this grievance was not attached to plaintiffs’ complaint, it was attached as an exhibit to their subsequent motion for a preliminary injunction. See Grievance No. 1872 (docket no. 14–1). Based on this grievance, defendants contend that plaintiff Heard did not properly exhaust this claim. At Step III, the MDOC summarized the issues raised in the Step I
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grievance as raising the following claims: the proposal to add an Eid celebration at the end of Ramadan was denied; during Ramadan Muslims are not served 2,900 calories; the lights are off during the morning meals; and the food is cold. Id. at p. 20. The MDOC noted that the grievance was rejected at Step I as vague because the grievance did not identify any action that violated a MDOC policy or procedure and that plaintiff could not grieve the content of a policy or procedure except as it directly affected him. Id. The Step II respondent supported the Step I rejection. Id. At Step III, the MDOC investigator reviewed the record and determined: that the grievance was not attempting to grieve the content of any policy or procedure; that the issues presented were “clear”; and, that the previous “rejection as vague is not supported.” Id. However, the MDOC denied the grievance and rejected it at Step II because it raised “very separate issues [related to Ramadan] which should have been addressed in separate grievances,” and that “[t]he grievance identified code has been changed to reflect a rejection due to multiple issues rather than a rejection due to being vague.” Id.
In his response, plaintiff Heard presented a copy of a more recent grievance, LCF 2012–08–0863–09B (“863”), which he claims exhausted the issue. See Grievance No. 863 (docket no. 30–3 at pp. 5–6); Plaintiffs’ Brief at pp. 9–10 (docket no. 30). The copy of Grievance No. 863, however, is illegible, being essentially a blank piece of paper from which it is impossible to determine what plaintiff grieved. In addition, there is no evidence that plaintiff Heard exhausted grievance no. 863 to Step III. Plaintiff Heard also refers to another grievance, LCF 12– 08–0864–20e (“864”), which he admits is a “duplicative grievance” to grievance no. 863. Plaintiffs’ Brief at pp. 9– 10; Grievance No. 864 (docket no. 30–3 at pp. 8–9). Plaintiff Heard filed only copies of the Step II and Step III appeals of no. 864. There is no record of the what issue plaintiff Heard raised in the original grievance. Grievance No. 864 was rejected at Step II and Step III as duplicative of no. 863. Grievance No. 864 (docket no. 30–3 at pp. 8– 9). Viewed in the light most favorable to plaintiff Heard, there is no evidence that he properly exhausted either grievance no. 1872, 863 or 864, that any of these grievances named a defendant in this action, or that any of the grievances raised the issues set forth in the complaint, which claims that LCF intended to provide less than 2,900 calories to prisoners who participated in Ramadan.
*5 Plaintiff Heard has failed to properly exhaust a grievance against any of the defendants. See Jones, 549 U.S. at 218;Woodford, 548 U.S. at 90–91. Accordingly, defendants’ motion for summary judgment should be granted as to plaintiff Heard’s claims.
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4. Plaintiff Heard’s claims are untimely In the alternative, defendants contend that the Court should dismiss plaintiff Heard from this action because his allegations in grievance no. 1872 are time barred. In Grievance No. 1872, plaintiff claimed that the incident date was July 21, 2009. Clearly, plaintiff Heard’s claim was untimely based upon that incident date. The docket sheet reflects that plaintiffs’ complaint was filed stamped in the Eastern District on March 26, 2013. Under the prisoner mailbox rule1 the Court will construe the complaint as filed on March 20, 2013, the date when the plaintiffs signed it. See Compl. (docket no. 1 at p. 6). The statute of limitations for a § 1983 claim in Michigan is three years, based upon Michigan’s three-year statute of limitations for injury to a person or property, M.C.L. § 600.5805(10). Chippewa Trading Company v. Cox, 365 F.3d 538, 543 (6th Cir.2004). The three-years statute of limitations on that claim expired on July 21, 2012. Plaintiff Heard’s complaint was filed long after that date. Defendants are entitled to summary judgment as to plaintiff Heard’s First and Eighth Amendment claims brought pursuant to § 1983.
5. Qualified immunity Plaintiffs’ complaint alleged that defendants violated their rights under the First Amendment and Eighth Amendment because the caloric content of the meals served to prisoners participating in Ramadan did not equal the caloric content of the meals served to other prisoners. The allegations in plaintiffs’ complaint referring to caloric content are as follows (in plaintiffs’ words):
23. Michigan Department of Corrections provide those muslims that elect to participate in the fast two meals per day. One meal before the sun rise and another meal after the sun set.
24. Each facility has the option of choosing between serving a bagged mealor allowing the muslims that choose to fast to eat in the dining hall.
25. The bag meals do not meet MDOC mandated 2,900 calory in-take count.
26. The dining hall meals consist of 1000 to 1500 calory intake.
27. Most facilities choose to allow the Muslims to eat in the dining hall because bag meals cost more.
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* * *
36. Islamic definition of fasting during Ramondon means abstaining from food and liquid during the day light hours.
37. Thus, Defendants could provide all of the mandated daily 2900 caloric intake by dividing it between the two meals.
Compl. at ¶¶ 23–27, 36–37. This Court previously addressed plaintiffs’ claim that the MDOC policy requires that prisoners receive 2,900 calories per meal, noting that MDOC Policy Directive 04.07. 100 (“Offender Meals”) does not specify a minimum caloric meal value. See Memorandum Opinion and Order Denying Plaintiffs’ Motion for Preliminary Injunction at pp. 3–4 (July 8, 2013) (docket no. 21). In that order, the Court found that in light of information contained in defendant Purves’ affidavit, meals containing between 2,400 and 2,600 calories meet plaintiffs’ recommended caloric intake, noting that a registered dietician with the MDOC has determinated that a daily caloric intake of 2,350 to 2,594 calories will not pose a health risk to healthy, moderately active males. Id. at p. 4. On July 10, 2013, the Court clarified its order after receiving a reply from plaintiffs which indicated that the Ramadan “bag menu meal option” to be used at LCF would provide only 1,149.2 calories per day. See Order of Clarification (July 10, 2013) (docket no. 22). Based on this information, the Court clarified its earlier order to hold defendants to their representation that Muslim prisoners who observe Ramadan will be provided with at least 2,350 calories per day. Id.2
*6 Defendants contend that they are entitled to qualified immunity with respect to plaintiff’s First Amendment claims brought under § 1983. Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from civil liability unless their conduct violates clearly established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, a defendant is entitled to qualified immunity on summary judgment unless the facts, when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right was clearly established. Pearson v. Callahan, 555 U.S. 223, 231–33, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir.2011). The court may exercise its sound discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”
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Pearson, 555 U.S. at 236.
Defendants contend that they are entitled to qualified immunity because their actions were not objectively unreasonable in light of clearly established law. “The First Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, prohibits governments from ‘abridging the freedom of speech’ and ‘prohibiting the free exercise’ of ‘religion.’ ” Ward v. Polite, 667 F.3d 727, 732 (6th Cir.2012). The core of the guarantee of the First Amendment right to freely exercise one’s religious beliefs is the right to practice any religion privately. See Walker v. Mintzes, 771 F.2d 920, 930 (6th Cir.1985). While a prison inmate does not lose his or her right to exercise their religion by virtue of incarceration, “the circumstances of prison life may require some restriction on prisoners’ exercise of their religious beliefs.” Id. at 929. As a result, restrictions to a prisoner’s right to freely exercise his or her religion is permissible if it is reasonably related to a legitimate penological objective. See Thornburgh v. Abbot, 490 U.S. 401, 414–16, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); O’Lone v. Estate of Shabazz, 482 U.S. 342, 350–53, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Turner v. Safley, 482 U.S. 78, 92, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
In order to find that a clearly established right exists, “the district court must find binding precedent by the Supreme Court, [the Sixth Circuit], the highest court in the state in which the action arose, or itself, so holding.”Wayne v. Village of Sebring, 36 F.3d 517, 531 (6th Cir.1994). “The burden of convincing a court that the law was clearly established ‘rests squarely with the plaintiff.’ ” Key v. Grayson, 179 F.3d 996, 1000 (6th Cir.1999).
Plaintiff has not established that they have a clearly established right to receive 2,900 calories per day during Ramadan. Defendants identified three unpublished Sixth Circuit decisions which touch on various aspects of Ramadan meals. In Alderson v. Pitcher, No. 94–1254, 1994 WL 529852 (6th Cir. Sept.28, 1994), the Sixth Circuit rejected the plaintiff’s claim that during Ramadan, Muslim inmates should be served the same food as other inmates, affirming the district court’s conclusion that the providing inmates with peanut butter and jelly sandwiches, fruit and milk at night during the month-long Muslim holiday of Ramadan, rather than letting Muslim inmates have the same food that was served to nonMuslim inmates during the day, was “an appropriate attempt to accommodate the Muslim prisoners’ requirements during the Ramadan holiday.” In Mabon v. Campbell, Nos. 98–5468 and 98–5513, 2000 WL 145177 at *3 (6th Cir. Feb.1, 2000), the Court held that “[p]laintiffs’ complaint of delay in breakfast while
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segregated during the period of Ramadan does not rise to a constitutional violation.” In Jaami v. Compton, No. 98– 5055, 1999 WL 455374 at * 1 (6th Cir. June 23, 1999), the Court found that the prisoner plaintiffs’ claim that “the defendants served the plaintiffs cold breakfast during the Muslim holiday of Ramadan” was clearly frivolous.
*7 In Alexander v. Carrick, 31 Fed. Appx. 176 (6th Cir.2002), the Sixth Circuit declined to find a constitutional violation under the following facts: the prisoner’s religious diet as a Nazerite required that he “eat nothing made of grapes;” the prisoner was placed in a close observation status after cutting his right forearm and advising prison personnel that he would engage in selfmutilating behavior; that while on close observation status the prisoner was given only “finger foods” in a paper bag (so as not to provide him with eating utensils that could be used as weapons); that defendants served him a bag lunch consisting of “an eight-ounce carton of milk, fruit, and a peanut butter and jelly sandwich,” that the prisoner request a plain peanut butter sandwich; and that defendants would not make him a plain peanut butter sandwich. Ultimately, the prisoner filed a lawsuit against defendants claiming violation of his First Amendment right to have a “grape free diet.” Alexander, 31 Fed. Appx. at 177. The Sixth Circuit affirmed a grant of qualified immunity, stating in pertinent part:
The cases bear out that prison administrators must provide an adequate diet without violating the inmate’s religious dietary restrictions. For the inmate, this is essentially a constitutional right not to eat the offending food item. If the prisoner’s diet, as modified, is sufficient to sustain the prisoner in good health, no constitutional right has been violated.
Id. at 179. See Colvin v. Caruso, 605 F.3d 282, 290–91 (6th Cir.2010) (same) (quoting Alexander, 31 Fed. Appx. at 179).
In addition, the Court has reviewed the additional authority pointed out by plaintiffs, Hudson–Bey v. Martin, No. 1:00–cv–389 (Order) (May 23, 2002) (Enslen, J.) (docket no. 51–1). Hudson–Bey involved an Eighth Amendment claim that the plaintiff was not sufficiently fed during Ramadan, receiving 764 fewer calories than the MDOC’s policy of providing the daily necessary caloric intake of 2,900 calories. The Hudson–Bey order cited Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir.1982), in which the Sixth Court affirmed a district court’s finding on remand that a meal with an estimated
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caloric content of between 2,000 and 2,500 calories was sufficient to maintain a prisoner’s health for the 15 days that a prisoner was in solitary confinement, and that such treatment did not violate his Eighth Amendment rights.3 The court in Hudson–Bey denied defendants’ claim of qualified immunity because there were factual disputes, in that particular case. Nevertheless, the legal reasoning set forth in the Hudson–Bey order supports a grant of qualified immunity in the present case. Notably, in Hudson–Bey the court stated that the decision in Cunningham, 667 F.2d at 566, “would have given a prison official reason to believe that a diet of 2,000–2,500 calories for a male prisoner was constitutionally sufficient.”
The Court also notes that in another case involving the MDOC’s 2013 Ramadan menu, Welch v. Kusey, No. 2:12–cv–13172 (Report and Recommendation) (E.D.Mich. July 3, 2013) (docket no. 26–4), adopted in Order (Sept. 24, 2013), the magistrate judge agreed with the defendants that “the law was not clearly established that a prisoner fasting for Ramadan was entitled to the exact number of calories as the general population.” Welch, Report and Recommendation at p. 29.
*8 Based on foregoing, the Court concludes that there is no “clearly established” law to support plaintiffs’ claims that they are entitled to 2,900 calories per day during the Ramadan fast. While the Sixth Circuit’s published decision in Colvin established that prison administrators must provide an “adequate diet without violating the inmate’s religious dietary restrictions” and that such diet must be “sufficient to sustain the prisoner in good health,” there is no clearly established law that a prisoner is entitled to 2,900 calories per day or that a prisoner is entitled to receive 2,900 calories during Ramadan. Accordingly, defendants are entitled to qualified immunity with respect to plaintiffs’ claims brought under the First Amendment.
6. Plaintiffs’ Eighth Amendment claims Plaintiffs also allege that the meals provided during Ramadan 2013 were so inadequate as to constitute cruel and unusual punishment under the Eighth Amendment. In the context of prison conditions, the Eighth Amendment’s Cruel and Unusual Punishment Clause “forbids conditions that involve the ‘wanton and unnecessary infliction of pain,” or are “grossly disproportionate to the severity of the crime.’ ” Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir.2004), citing Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). “To succeed in an Eighth Amendment challenge, [p]laintiff must establish that (1) a single, identifiable necessity of civilized human
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existence is being denied (objective prong) and (2) the defendant prison official acted with a sufficiently culpable state of mind.” Hadix, 367 F.3d at 525, citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). With respect to the objective prong, “[t]he contemporary standards of civilized decency that currently prevail in society determine whether conditions of confinement are cruel and unusual.” Hadix, 367 F.3d at 525, citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Extreme deprivations are required and only deprivations denying “the minimal civilized measure of life’s necessities” are grave enough to create a violation of the Cruel and Unusual Punishment Clause. Hadix, citing Hudson v. McMcillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) and quoting Rhodes, 452 U.S. at 347. “Harsh and uncomfortable prison conditions do not automatically create such a violation.” Hadix, 367 F.3d at 525. To establish an Eighth Amendment claim based upon an alleged inadequate diet, plaintiffs must demonstrate that they were denied “the minimal civilized measure of life’s necessities.” Sims v. Michigan Department of Corrections, 23 Fed. Appx. 214, 216 (6th Cir.2001), citing Rhodes, 452 U.S. at 347 and Cunningham, 667 F.2d 565.
The Court previously addressed the adequacy of the Ramadan 2013 diet, and in the course of denying plaintiffs’ motion for a preliminary injunction, determined that the MDOC’s proposed menu would be adequate, consisting of between 2,350 and 2,594 calories. See Order of Clarification. When confronted with documentation suggesting that the diet might fall below that amount, the Court clarified that defendants were to provide plaintiffs at least 2,350 calories per during Ramadan 2013. Id. This menu would fall within the range of 2,000 to 2,500 calories as set forth by the Sixth Circuit in Cunningham, 667 F.2d 565. Defendants are entitled to summary judgment on this claim.
7. Plaintiffs’ Eighth Amendment claims against defendants Purves and Martin *9 In the alternative, assuming that plaintiffs could assert an Eighth Amendment claim with respect to the Ramadan 2013 diet, defendants’ Purves and Martin contend in their response to the cross-motion that plaintiffs’ complaint is deficient because it fails to identify any personal involvement of these two defendants.4 Defendants have briefed their claims as a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b) (6). See Defendants’ Response at pp. 7–10. Since plaintiffs seek summary judgment for the Eighth Amendment claim, the Court will address this legal challenge raised by defendants Purves and Martin.
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Both defendants Purves and Martin hold supervisory positions at the MDOC. In their complaint, defendants allege that Purves is the Dietician and Food Service Manager at MDOC and that Martin is the Special Activity Director at the MODC. Compl. at ¶¶ 11–14. Plaintiffs do not claim that either of these defendants were on staff at LCF prior to Ramadan 2013. It is well settled that a § 1983 action cannot be based on a theory of respondeat superior. See Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Taylor v. Michigan Dep’t. of Corrections, 69 F.3d 76, 80–81 (6th Cir.1995). A supervisor’s liability under § 1983 cannot attach where the allegation of liability is based upon a mere failure to act. Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.1998). In order to hold a supervisor liable under § 1983, “[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984).
Plaintiff does not allege that either of these supervisory defendants encouraged or directly participated in LCF’s decision to serve bag lunches for Ramadan 2013. As defendants point out, MDOC Policy Directive 05.03.150 “Religious Beliefs and Practices of Prisoners” provides that the Deputy Director (Martin) authorizes “the development of a separate menu to meet the necessary religious dietary restrictions of a prisoner.” See Policy Directive 05.03 .150 ¶ QQ. With respect to defendant Purves, the Manager of Food Services for MDOC is only required to “maintain a list of approved religious menus” while Chaplain Michael Martin, the Special Activities Coordinator for CFA approves or denies a prisoner’s request to “eat from a religious menu.” Id. at ¶¶ RR and SS. Neither defendants’ Martin or Purves are authorized to develop a Ramadan menu for either the entire MDOC or as served at a particular facility such as LCF. Plaintiffs have failed to allege or demonstrate personal involvement sufficient to impose liability on either defendant pursuant to § 1983. Thus defendants Purves and Martin are entitled to summary judgment with respect to plaintiffs’ claims brought pursuant to § 1983.
8. Plaintiffs’ claim for damages under RLUIPA *10 Defendants seek dismissal of plaintiffs’ claim for monetary damages under RLUIPA because such damages are not available. See Defendants’ Response at p. 6 (docket no. 39). While plaintiffs’ complaint seeks monetary damages for the alleged constitutional violations, they do not seek damages for the alleged RLUIPA violation. See Compl. at p. 6. Accordingly,
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defendants’ request should be denied.
9. Plaintiffs’ claim for injunctive relief This Court previously resolved plaintiffs’ claim for injunctive relief, having directed defendants to provide plaintiffs at least 2,350 calories per day during the 2013 Ramadan observance. See Memorandum Opinion and Order (July 8, 2013); Order of Clarification (July 10, 2013).

III. Recommendation For the reasons set forth above, I respectfully recommend that defendants’ motion for summary judgment (docket no. 24) be GRANTED and that plaintiffs’ motion for summary judgment (docket no. 29) be DENIED. I further recommend that this action be TERMINATED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1347436
!

Footnotes!

!

1
!

Under! the! prisoner! mailbox! rule,! a! prisoner! plaintiff’s! motion! is! considered! filed! at! the! time! he! “delivered! it! to! the! prison! authorities!for!forwarding!to!the!court!clerk.”!Houston'v.'Lack,!487!U.S.!266,!276,!108!S.Ct.!2379,!101!L.Ed.2d!245!(1988).!“Under!

!

this!relaxed!filing!standard,!a!pro'se!prisoner’s!complaint!is!deemed!filed!when!it!is!handed!over!to!prison!officials!for!mailing!to!

the! court.! Cases! expand! the! understanding! of! this! handingOover! rule! with! an! assumption! that,! absent! contrary! evidence,! a! prisoner!does!so!on!the!date!he!or!she!signed!the!complaint.”!Brand'v.'Motley,!526!F.3d!921,!925!(6th!Cir.2008)!(internal!citations!

omitted).!

!

2
!

The! Court! may! address! the! issue! of! the! actual! calorie! count! of! the! Ramadan! 2013! meals! in! resolving! plaintiffs’! motion! for! contempt.! See! Plaintiffs’! Motion! for! contempt! (docket! no.! 23).! If! additional! evidence! comes! to! light! in! resolving! that! motion,! it!

!

may!be!necessary!to!revisit!plaintiffs’!claims.!

!

3
!

The!underlying!facts!of!the!case!are!discussed!at!length!in!Cunningham'v.'Jones,!567!F.2d!653!(6th!Cir.1977),!which!vacated!the!

district!court’s!judgment!and!remanded!for!further!proceedings.!

!

!

4
!

In!their!response!to!plaintiffs’!crossOmotion,!defendants’!Purves!and!Martin!contend!that!plaintiffs’!complaint!is!deficient!because!

it!fails!to!identify!any!personal!involvement!of!these!two!defendants.!Defendants!have!briefed!their!claims!as!a!motion!to!dismiss!

!

for!failure!to!state!a!claim!under!Fed.R.Civ.P.!12(b)(6).!See!Defendants’!Response!at!pp.!7–10.!

!
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!

8!

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 !

2014 WL 1347432 Only the Westlaw citation is currently available.
United States District Court, W.D. Michigan,
Southern Division.
Lamont HEARD, et al., Plaintiffs, v.
Tom FINCO, et al., Defendants.
No. 1:13–CV–373. |
Signed March 31, 2014.
Attorneys and Law Firms
Lamont Heard, Kincheloe, MI, pro se.
William Johnson, Kincheloe, MI, pro se.
Jamero T. Moses, Ionia, MI, pro se.
Anthony Nelson, Coldwater, MI, pro se.
Allan J. Soros, MI Dept. Attorney General, Lansing, MI, for Defendants.
MEMORANDUM ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION
GORDON J. QUIST, District Judge.
*1 Plaintiffs, Lamont Heard, William Johnson, Jamero Moses, and Anthony Nelson are prisoners incarcerated with the Michigan Department of Corrections (MDOC). Plaintiffs allege that they are Muslims and participate in the fast from dawn until sunset each day during the Islamic month of Ramadan. Plaintiffs have sued Defendants alleging that, during the 2011 and 2012 Ramadan fasts, they were not provided the 2,900 calories of food per day required by MDOC policy. Instead, they allege, their calories were reduced to approximately 1,000 to 1,500 calories per day. (Dkt. # 1 ¶¶ 23–26.) Plaintiffs allege that Defendants’ refusal to accommodate Plaintiffs’ requests for nutritionally-adequate meals violated their rights under the First and Eighth Amendments, as well as the Religious Land Use and Institutionalized Persons Act
1!
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(RLUIPA), 42 U.S.C. § 2000cc–1 et seq. Plaintiffs also sought a preliminary injunction requiring Defendants to provide 2,900 calories per day during the 2013 Ramadan fast.
The Court previously addressed Plaintiffs’ Motion for Preliminary Injunction relating to the 2013 Ramadan fast in its July 8, 2013 Memorandum Opinion and Order Denying Plaintiffs’ Motion for Preliminary Injunction. (Dkt.# 21.) On July 10, 2013, the Court issued an Order of Clarification (dkt.# 22), in which it clarified that its denial of injunctive relief was based on Defendant Purves’ representations in his affidavit that the 2013 Ramadan meal would provide observant prisoners between 2,350 and 2,594 calories per day. Therefore, the Court ordered Defendants to provide a minimum of 2,350 calories per day during the 2013 Ramadan observance.1
Defendants moved for summary judgment on various grounds, and Plaintiffs responded with their own motion for summary judgment. On February 25, 2014, Magistrate Judge Brenneman issued a Report and Recommendation (R & R) recommending that the Court grant Defendants’ motion, deny Plaintiffs’ motion, and dismiss the case. In particular, the magistrate judge concluded that: (1) Plaintiff Heard failed to properly exhaust his claims; (2) Plaintiff Heard’s claims are barred by the applicable statute of limitations; (3) Defendants are entitled to qualified immunity on Plaintiffs’ First Amendment claims; (4) Plaintiffs’ Eighth Amendment claims based on the 2013 Ramadan menu fail as a matter of law; (5) Plaintiffs’ Eighth Amendment claims against Defendants Purves and Martin fail for lack of personal involvement; (6) Defendants’ request for dismissal of Plaintiffs’ claim for damages under RLUIPA be denied because Plaintiffs do not request damages for the alleged RLUIPA violation; and (7) Plaintiffs’ claim for injunctive relief should be denied.
Plaintiffs have filed Objections to the R & R. Pursuant to 28 U.S .C. § 636(b)(1), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, Plaintiffs’ Objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted in part and rejected in part.
1. Defendants Fail to Demonstrate Lack of Exhaustion by Plaintiff Heard *2 Focusing on grievance MBP 09–08–01872–28c (1872

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grievance) that Plaintiff Heard filed on August 14, 2009, Defendants argue that Plaintiff Heard’s claims should be dismissed for failure to exhaust his available administrative remedies. As the magistrate judge observed, the 1872 grievance lists the date of the incident as July 21, 2009. (R & R at 7; dkt. # 14–1 at Page ID 111.) The magistrate judge concluded that Plaintiff Heard failed to properly exhaust the 1872 grievance because, although he appealed the grievance through Step III, the Step III respondent rejected the grievance on the procedural ground that it raised multiple separate issues that should have been addressed in separate grievances. (R & R at 7–8; dkt. # 14–1 at Page ID 110.)
In their response brief, however, Plaintiffs argued that their claims concerned the inadequacy of the 2011 and 2012 Ramadan menus. Plaintiffs attached more recent grievances filed by Plaintiff Heard-grievances LCF 2012– 08–0863–09B (863 grievance) and LCF 12–08–0864–20e (864 grievance)-as evidence that Plaintiff Heard properly exhausted his claims before filing his complaint in this case. The magistrate judge concluded that Plaintiff Heard did not show that he exhausted the 863 grievance because the copy of that grievance was illegible and it was impossible to determine the issue that Plaintiff Heard grieved. The magistrate judge further concluded that Plaintiff Heard failed to present evidence that he exhausted the grievance to Step III. (R & R at 8.) As for the 864 grievance, which is duplicative of the 863 grievance, the magistrate judge stated that Plaintiff Heard failed to present evidence of his Step I grievance.
In his Objections, Plaintiff Heard attaches a legible copy of his Step I 863 grievance, which shows that Plaintiff Heard grieved the issue of inadequate calories at Step I. (Dkt. # 57–1 at Page ID 683.) Plaintiff Heard also attaches a copy of the Step I response. In addition, Plaintiff notes that his Step II/Step III grievance form and the Step II response on the form was attached as Exhibit 13 to Plaintiffs’ response brief and indicated the nature of the Step I grievance. Finally, Plaintiff Heard attaches a copy of the Step III response to the 863 grievance.
In light of this evidence, the Court concludes that Defendants have failed to demonstrate that Heard did not exhaust his claims. First, Plaintiffs note that their claims concern the 2011 and 2012 Ramadan menus, so Plaintiff Heard’s failure to exhaust a claim pertaining to the 2009 Ramadan menu is immaterial to the claims in this case. Second, Plaintiff Heard’s evidence shows that he exhausted his grievance asserting inadequate calories for the 2012 Ramadan fast through all three steps of the MDOC’s grievance process. Moreover, at a minimum, the Step II/Step III grievance form that Plaintiffs attached to their brief in response to Defendants’ motion, (dkt. # 30–3
2!
!

at Page ID 424–25), sufficed to create an issue of fact as to whether Plaintiff Heard properly exhausted. Failure to exhaust in the context of the Prison Litigation Reform Act is an affirmative defense on which defendants bear the burden of proof. Jones v. Bock, 549 U.S. 199, 216,127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); Surles v. Andison, 678 F.3d 452, 456 (6th Cir.2012) (“A PLRA defendant bears the burden of proving that a PLRA plaintiff has not exhausted his administrative remedies.”). Plaintiff Heard presented some evidence that he exhausted the 863 grievance, but Defendants completely failed to address the 863 grievance. Thus, Defendants failed to carry their burden on their exhaustion defense, at least with regard to Plaintiff Heard’s claim arising out of the 2012 Ramadan fast.
2. Defendant Heard’s Claims are not Untimely *3 The magistrate judge recommended dismissal of Plaintiff Heard’s claims on the alternate ground that they are barred by the three-year statute of limitations applicable to § 1983 actions in Michigan. Plaintiffs clarify in their Objections, however, that their claims concern the 2011 and 2012 Ramadan fasts, not the 2009 Ramadan fast. Moreover, Plaintiff Heard’s exhausted claim based on the 2012 Ramadan fast was filed within the three-year limitations period. Thus, Defendants are not entitled to summary judgment on Plaintiff Heard’s claims on this basis.
3. Defendants are not Entitled to Qualified Immunity on Plaintiffs’ First Amendment Claims Qualified immunity protects government officials performing discretionary functions “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It is well established that prisoners retain their First Amendment right to the free exercise of their religion. Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir.1985). However, “the circumstances of prison life may require some restrictions on prisoners’ exercise of their religious beliefs,” requiring a court to “balance the prisoners’ constitutionally protected interest in the free exercise of their religious beliefs against the state’s legitimate interests in operating its prisons.” Id. at 546. In the context of religious meals, the Sixth Circuit has held that “prison administrators must provide an adequate diet without violating the inmate’s religious dietary restrictions.” Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.2010) (internal quotation marks omitted).

!

The magistrate judge concluded that Defendants are entitled to qualified immunity because Plaintiffs fail to show that they have a clearly established right to receive 2,900 calories per day during Ramadan. Plaintiffs do not contest this conclusion in their Objections. However, Plaintiffs contend that the magistrate judge failed to consider that their claims concern the 2011 and 2012 Ramadan menus, which Plaintiffs allege only provided 1,000 to 1,500 calories per day.
The task of determining qualified immunity in this case is somewhat complicated by the vague nature of Plaintiffs’ claims. Given certain allegations in Plaintiffs’ complaint, the magistrate judge reasonably concluded that Plaintiffs are alleging a constitutional right to 2,900 calories per day during Ramadan. (Compl.¶ 36.) Similarly, Defendants argue that the law was not clearly established that a prisoner fasting for Ramadan is entitled to the same number of calories as general population prisoners. To the extent Plaintiffs’ claims are based on such allegations, the Court agrees that Defendants are entitled to qualified immunity based on the absence of clearly established law supporting a constitutional violation. Because Plaintiffs are pro se, however, the Court is obligated to construe their complaint liberally, see Vandiver v. Prison Health Servs., Inc., 727 F.3d 560, 585 (6th Cir.2013), and doing so, the Court determines that Plaintiffs sufficiently allege that the 2011 and 2012 Ramadan menus violated their clearly established right to adequate nutrition while exercising their religious beliefs because the two meals served during that time provided only 1,000 to 1,500 calories per day.
*4 The question thus becomes whether a reasonable prison official would have known that a diet consisting of only 1,000 to 1,500 calories per day was constitutionally inadequate.2 The Court has found no case from the United States Supreme Court or the Sixth Circuit identifying a minimum number of calories that is constitutionally sufficient to maintain an inmate’s health. In Cunningham v. Jones, 667 F.2d 565 (6th Cir.1982) (per curiam), the Sixth Circuit affirmed the district court’s finding that the defendants did not violate the Plaintiff’s Eighth Amendment rights by serving him one meal per day for 15 consecutive days. The evidence, provided by the jail cook, was that the caloric content of the noon meals was between 2,000 and 2,500 calories. Id. at 566. In Hudson– Bey v. Martin, No. 1:00–CV–389 (W.D.Mich.) (5/23/02 Order & Partial J., dkt. # 51–1), Judge Enslen denied the defendant’s motion for summary judgment on the plaintiff’s claim that the defendants violated his Eighth Amendment rights by failing to provide him a sufficient diet during Ramadan. The defendant argued that the Ramadan meal provided 2,136 calories and was
3!
!

nutritionally sufficient. Judge Enslen concluded that summary judgment was improper because the MDOC policy provided that 2,900 calories was the “necessary caloric intake” for male inmates, and prisoners observing Ramadan were receiving 764 fewer calories, or 26.3 percent of the daily intake that MDOC itself recommended for male prisoners.3 Judge Enslen also found that there were factual disputes with regard to whether the plaintiff actually received 2,136 calories and whether that number of calories was nutritionally sufficient. Finally, Judge Enslen concluded that the defendant was not entitled to qualified immunity because, although Cunningham arguably provided a prison official a reasonable basis to conclude that a diet of between 2,000–2,500 calories was constitutionally sufficient, there were factual disputes that rendered qualified immunity inappropriate.
Taking as true Plaintiffs’ allegations that they received only between 1,000 and 1,500 calories per day during the 2011 and 2012 Ramadan fasts, the Court concludes that Defendants are not entitled to qualified immunity. As noted, Plaintiffs had a clearly established right to an adequate diet during Ramadan, and a reasonable prison official should have known that a diet consisting of only 1,000 to 1,500 calories per day–25 to 50 percent less than the low end of the range found to be sufficient in Cunningham-is not adequate to sustain normal health, especially for the thirty-day duration of the Ramadan fast. Cf. Carter v. Wash. Dep’t of Corr., No. C11–5626 RJB/KLS, 2013 WL 1090753, at *13 (W.D.Wash. Feb.27, 2013) (“The record reflects that Defendants acted with the intent to provide Mr. Carter and other Ramadan participants with the proper nutrition and calories during Ramadan in 2010. They corrected the caloric values of the Ramadan meals to ensure that the goal of 2700 average calories was met.”).
4. Defendants Are Entitled to Dismissal of Plaintiffs’ Eighth Amendment Claims *5 The magistrate judge recommended summary judgment on Plaintiffs’ Eighth Amendment claims because the Court previously concluded that the MDOC’s proposed 2013 Ramadan menu, consisting of between 2,350 and 2,594 calories per day, would be adequate. The magistrate judge also observed that this range of calories falls within the range set forth by the Sixth Circuit in Cunningham.
As noted above, Plaintiffs state that their claims concern the 2011 and 2012 Ramadan menus, which Plaintiffs allege provided substantially fewer calories than the 2013 menu. However, even

!

Case 1:13–cv–00373–GJQ–HWB Doc # 59 Filed 03/31/14 Page 8 of 9 Page ID# 709 considering Plaintiffs’ Eighth Amendment claims based on the 2011 and 2012 Ramadan menus, the Court concludes that Plaintiffs’ Eighth Amendment claims must be dismissed. The Eighth Amendment prohibits, among other things, “deprivations of essential food, medical care, or sanitation.” Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981). In Mobley v. Smith, No. 4:05–cv–153, 2007 WL 1650934 (W.D.Mich. June 4, 2007), the plaintiff alleged that the defendants violated the Eighth Amendment by serving him regular meals instead of kosher meals for several weeks after he changed his religious preference from Muslim to Judaism. The court concluded that such allegations failed to establish an Eighth Amendment claim because the plaintiff was not denied food:
[P]laintiff’s complaint does not allege that he was denied food, or that [sic] even that he was denied wholesome or nutritionally adequate food. Instead, plaintiff alleges that he ate only fruits and vegetables solely because of his religious preference for a kosher diet. Although such an allegation might state a claim for violation of the First Amendment’s free exercise clause, an allegation that a prisoner has elected not to consume the “whole meals” provided by the prison-solely and because of his religious preference-does not state a claim for violation of the Eighth Amendment.
Id. at 6. In the same vein, Plaintiffs in this case were not denied food. Plaintiffs do not allege that, had they elected not to participate in the Ramadan fast, they would have been denied the regular prison diet. Instead, as in Mobley, Plaintiffs were not denied a nutritionally-adequate diet required by the Eighth Amendment. Plaintiffs chose to eat from the Ramadan menu rather than the regular menu because of their religious practices. Thus, while Plaintiffs have sufficiently alleged a First Amendment claim, their allegations fail to establish an Eighth Amendment violation.4

5. Plaintiffs’ Request for Injunctive Relief Will be Dismissed The Court concurs with the magistrate judge that Plaintiff’s request for “a mandatory injunction requiring that Defendants accommodate Plaintiffs’ request for adequate meals during Ramadan,” (dkt. # 1 at Page ID 6), be dismissed. The Court previously addressed Plaintiff’s request for injunctive relief when it denied Plaintiffs’ motion for an injunction but subsequently directed Defendants to provide Plaintiffs at least 2,350 calories during the 2013 Ramadan observance. Because the 2013 Ramadan observance is now concluded, Plaintiffs’ request for injunctive relief is moot.
*6 Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation issued February 25, 2014 (dkt.# 56) is ADOPTED IN PART AND REJECTED IN PART.
IT IS FURTHER ORDERED that Defendants’ Motion For Summary Judgment (dkt # 24) is GRANTED IN PART AND DENIED IN PART. Defendants’ motion is granted with regard to: (1) Plaintiffs’ Eighth Amendment claims, which are dismissed with prejudice; (2) Plaintiffs’ request for injunctive relief; and (3) Plaintiffs’ claims against Defendants in their official capacities. Defendants’ motion is denied as to: (1) Defendants’ arguments that Plaintiff Heard failed to exhaust his administrative remedies and that his claims are timebarred; (2) Defendants’ assertion of qualified immunity from Plaintiffs’ First Amendment claims; and (3) Defendants’ request for dismissal of Plaintiffs’ RLUIPA claim.
IT IS FURTHER ORDERED that Plaintiffs’ Motion For Summary Judgment (dkt.# 29) is DENIED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1347432
!

Footnotes!

!

1!

A!hearing!is!currently!set!for!April!28,!2014!regarding!Plaintiffs’!motion!to!hold!Defendants!in!contempt!for!failing!to!provide!the!

minimum! of! 2,350! calories! per! day! during! the! 2013! Ramadan! fast.! (Dkt.! #! 58.)! The! contempt! hearing! is! a! separate! matter! that!

!

does!not!affect!Plaintiffs’!claims!concerning!the!2011!and!2012!Ramadan!fasts.!

4!
!

!

!

2!

Defendants! argue! the! following! in! their! brief:!“Having! a! reduction! in! calories! should! be! expected.! After! all,! that! is! what! a! fast!

entails.”! (Dkt.! #! 25! at! Page! ID! 222.)! This! argument! lacks! merit! and! continues! to! ignore! the! nature! of! the! Ramadan! fast.! As!

!

Plaintiffs! point! out! in! their! complaint,! the! fast! requires! observants! to! refrain! from! partaking! of! food! and! liquid! from! sunset! to!

sundown.!(Dkt.!#!1!¶¶!34–36.)!

!

3!

In! its! July! 8,! 2013! Memorandum! Opinion! and! Order! Denying! Plaintiffs’! Motion! for! Preliminary! Injunction! (dkt.#! 21),! the! Court! noted! that! current! MDOC! policy! does! not! specify! a! minimum! caloric! value.! (Id.! at! 3.)! It! appears! that! a! previous! version! of! the!

!

applicable!policy!actually!specified!a!2,900!calorie!intake.!

!

4!

In!light!of!the!dismissal!of!Plaintiffs’!Eighth!Amendment!claims,!the!Court!need!not!address!whether!Plaintiffs!sufficiently!alleged!

that!Defendants!Purves!and!Martin!were!personally!involved!in!the!alleged!Eighth!Amendment!violations.!

!

!

5!
!

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 21 filed 07/08/13 PageID.176 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs, v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _____________________________/

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Pro se Plaintiffs Lamont Heard, William Johnson, Jamero Moses, and Anthony Nelson are

prisoners incarcerated with the Michigan Department of Corrections (MDOC) at Lakeland Correctional

Facility. Plaintiffs allege that they are practicing Muslims and that, as part of their adherence to their

religion, they fast from dawn until sunset each day during the Islamic month of Ramadan, which lasts

for 29 to 30 days. (Compl. ¶¶ 15, 17, 41.) During the fasting hours, Muslims are required to refrain

from consuming food, drinking liquids, and engaging in certain activities. (Id. ¶ 21.) They may resume

eating and drinking after sunset until dawn the following day. (Id. ¶ 22.) Plaintiffs state that during

Ramadan, “Muslims seek spiritual bliss, brotherhood and read the entire Holy Qur’an throughout the

month. Muslims [sic] mind-set is of peace and oneness with Allah (GOD). There is no other alternative

for this once a year experience.” (Id. ¶ 20.)

Plaintiffs allege that during past Ramadan observances, the MDOC has provided Muslim

prisoners who choose to fast two meals per day—one before sunrise and one after sunset. (Id. ¶ 23.)

Plaintiffs allege that these meals, which are served either as bagged meals or in the dining hall, provide

only approximately 1,000 to 1,500 calories per day and therefore do not meet the MDOC’s mandated

2,900 calorie per day requirement for prisoners. (Id. ¶¶ 25, 26.) Plaintiffs claim that as a result of the

reduced caloric intake during Ramadan, they became physically weak, lost weight, experienced hunger

pains, and had a less fulfilling religious experience. (Id. ¶ 30.) Plaintiffs allege that they complained

Case 1:13-cv-00373-GJQ-RSK ECF No. 21 filed 07/08/13 PageID.177 Page 2 of 5
about the insufficient nutrition offered to Muslims during Ramadan, but prison officials rejected their grievances, stating that a fast is by definition a lower caloric intake and that Muslim prisoners who choose to fast elect to consume fewer calories. (Id. ¶¶ 31, 34.) Plaintiffs have sued MDOC Deputy Director Tom Finco, MDOC Special Activity Coordinator Mike Martin, and MDOC Food Service Manager Brad Purves, alleging that their refusal to accommodate Plaintiffs’ requests for adequate meals before the start and at the end of the daily fast during Ramadan violated their rights under the First and Eighth Amendments, as well as the Religious Land Use and Institutionalized Persons Act.
Plaintiffs have now filed a Motion for Preliminary Injunction (dkt. #14) seeking an order requiring Defendants to provide Plaintiffs adequate meals and nutrition during Ramadan 2013, which commences July 8, 2013 and concludes August 7, 2013. Pursuant to the Court’s June 19, 2013 Order, Defendants have filed a Response. For the following reasons, the Court will deny Plaintiffs’ motion.
“A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Moreover, because Plaintiffs seek injunctive relief against prison officials concerning a matter of prison administration, this Court is required to proceed with the utmost care and must recognize the unique nature of the prison setting. Kendrick v. Bland, 740 F.2d 432, 438 n.3 (6th Cir. 1984).
In ruling on a motion for a preliminary injunction, a court considers four factors: “(1) whether the plaintiffs are likely to succeed on the merits; (2) whether the plaintiffs will suffer irreparable harm in the absence of an injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) whether the issuance of the injunction is in the public interest.” Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). These are factors to be balanced, not prerequisites that must be met. See Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). A district court need not make
2

Case 1:13-cv-00373-GJQ-RSK ECF No. 21 filed 07/08/13 PageID.178 Page 3 of 5
specific findings on each of the four factors if fewer factors are dispositive of the issue. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).
In the instant case, Court need not address all of the factors because Plaintiffs have failed to demonstrate irreparable harm. The Supreme Court has emphasized that a plaintiff seeking injunctive relief must do more than show that irreparable harm is merely possible. Rather, “plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 375 (2008). In evaluating the harm that will occur depending on whether preliminary injunctive relief is granted, courts consider three factors: (1) the substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the moving party’s proof. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (citing Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987)). Moreover, “[w]hen courts consider irreparable harm, the key word . . . is irreparable, and the possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against [the] claim.” Brake Parts, Inc. v. Lewis, 443 F. App’x 27, 32 (6th Cir. 2011) (internal quotations and alterations omitted).
In their Response, Defendants note that, contrary to Plaintiff’s assertion, MDOC Policy Directive 04.07.100, titled “Offender Meals,” does not specify a minimum caloric meal value. Defendant Purves explains in his affidavit that the MDOC’s Statewide Standard Menu provides prisoners 2,600 calories per day. (Purves Aff. ¶ 4, Defs.’ Resp. to Pls.’ Mot. Ex. 2.) According to Purves, the MDOC sets its caloric intake level based on Dietary Reference intake values approved by the National Research Council (NRC). (Id. ¶ 3.) The NRC recommends a daily caloric intake of 2,600 to 2,800 for moderately active men in their 20s; a daily caloric intake of 2,400 to 2,600 for moderately active men in their 30s and 40s; and a daily caloric intake of 2,200 to 2,400 for moderately active men after 50. (Id.) The
3

Case 1:13-cv-00373-GJQ-RSK ECF No. 21 filed 07/08/13 PageID.179 Page 4 of 5
MDOC specifies 2,600 calories per day because that number meets the needs of 95% of male prisoners in the general population. (Id. ¶ 4.) Purves states that all Plaintiffs are between 36 and 46 years of age. (Id.) Thus, when Plaintiffs are moderately active, a daily caloric intake of between 2,400 to 2,600 calories meets their recommended caloric intake.
Purves also states that the Ramadan meal plan Plaintiffs attach to their Motion is not the meal plan that will be used for the 2013 Ramadan observance. Instead, the 2013 meal plan offers four different meal options to prisoners who choose to fast, and provides a daily caloric content ranging from 2,350 to 2,594 calories. (Id. ¶ 6.) Purves also confirms that a registered dietician with the MDOC has determined that a daily caloric intake of 2,350 to 2,594 calories will not pose a health risk to healthy, moderately active males. (Id. ¶ 7.)
In light of the information set forth in Purves’s affidavit, Plaintiffs have failed to demonstrate that they are likely to suffer irreparable harm absent injunctive relief. First, Plaintiffs’ motion is based on an out-of-date meal plan that will not apply to the 2013 Ramadan observance. Second, Defendants have shown that the meal plan for the 2013 Ramadan observance provides between 2,350 and 2,594 calories per day, which substantially meets the recommended calorie requirements for most moderately active prisoners—defined as “‘a lifestyle that includes physical activity equivalent to walking about 1.5 to 3 miles per day at 3 to 4 miles per hour, in addition to the light physical activity associated with typical day-to-day life.’” (Purves Aff. ¶ 3 (quoting 2010 Dietary Guidelines for Americans).) Third, Plaintiffs wholly fail to show that they will suffer any harm from a slight reduction in their daily caloric intake during the 30-day Ramadan observance. As Defendants note, because Ramadan is a time of constant prayer and reflection, it is questionable wether an observant Muslim would be deemed moderately active during Ramadan. Finally, to the extent Plaintiffs seek additional food during
4

Case 1:13-cv-00373-GJQ-RSK ECF No. 21 filed 07/08/13 PageID.180 Page 5 of 5

Ramadan, they may purchase it from the prison store, as they have done in the past. (Defs.’ Br. Resp. Pls.’ Mot. Ex. 3.)
For the foregoing reasons, Plaintiffs have failed to show that they will likely suffer irreparable harm absent injunctive relief. Therefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction and Motion to Post Security for Preliminary Injunction (docket no. 14) is DENIED.

Dated: July 8, 2013

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

5

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 70 filed 04/29/14 PageID.742 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs,

v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _____________________________/

ORDER OF CONTEMPT

For the reasons stated on the record following the hearing on Plaintiffs’ Motion to Hold

Defendants in Contempt, the Court concludes that:

1. Defendants violated this Court’s July 13, 2013 Order of Clarification on several occasions during the 2013 Ramadan observance by providing Plaintiffs with fewer than 2350 calories each day, contrary to Defendants’ own representations to the Court;

2. The Court’s May 13, 2010 was clear and unambiguous in requiring Defendants to provide Plaintiffs 2350 calories per day; and

3. Within thirty (30) days of the date of this Order, Defendants shall pay a total of $200 to each Plaintiff as compensation for damages caused by Defendants’ noncompliance with the July 13, 2013 Order of Clarification.

IT IS SO ORDERED.

Dated: April 29, 2014

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al., Plaintiffs,
v. TOM FINCO, et al.,
Defendants. ________________________/

Case No. 1:13-CV-373 HON. GORDON J. QUIST

OPINION REGARDING (1) PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION CONCERNING RAMADAN 2014 AND (2) DEFENDANTS’ MOTION FOR RELIEF FROM AN ORDER
PURSUANT TO FED. R. CIV. P. 60(b)(5) Background
Plaintiffs are prisoners incarcerated with the Michigan Department of Corrections (MDOC) at various facilities and are also practicing Muslims. Plaintiffs have sued Defendants, MDOC Deputy Director Thomas Finco, MDOC special Activity Director Michael Martin, and MDOC Food Service Manager Brad Purves, alleging that they violated Plaintiffs’ rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., by failing to provide them adequate nutrition during the Islamic month of Ramadan, which lasts for 29 to 30 days.1 (Dkt. # 1 at Page ID ## 2, 5.) “Observant Muslims fast between dawn and sunset during the thirty days of Ramadan.” Lovelace v. Lee, 472 F.3d 174, 182 (4th Cir. 2006). They may resume eating and drinking after sunset until dawn the following day. (Dkt. # 1 at Page ID # 3.) Plaintiffs’ claims concern the 2011 and 2012 Ramadan observances.

1Plaintiffs also alleged an Eighth Amendment claim, which the Court dismissed on March 31, 2014. (Dkt. # 59 at Page ID ## 708–09.) Plaintiffs have moved for reconsideration of the dismissal of their Eighth Amendment claim, which the Court will address in a separate order.

On June 14, 2013, Plaintiffs filed a Motion for Preliminary Injunction in which Plaintiffs
requested that the Court order Defendants to provide Plaintiffs adequate nutrition during the 2013
Ramadan observance. Plaintiffs argued that because MDOC policy requires that inmates be provided
2,900 calories per day, Defendants should be required to provide Plaintiffs 2,900 calories per day during
Ramadan. On July 8, 2013, the Court denied Plaintiffs’ motion on the basis that Defendants had shown
that the 2013 Ramadan menu would provide adequate nutrition to prisoners participating in the
Ramadan fast. The Court also found that, contrary to Plaintiffs’ assertions, current MDOC policy does
not specify a 2,900 daily calorie requirement for prisoners. In particular, the Court noted:
In their Response, Defendants note that, contrary to Plaintiff’s assertion, MDOC Policy Directive 04.07.100, titled “Offender Meals,” does not specify a minimum caloric meal value. Defendant Purves explains in his affidavit that the MDOC’s Statewide Standard Menu provides prisoners 2,600 calories per day. (Purves Aff. ¶ 4, Defs.’ Resp. to Pls.’ Mot. Ex. 2.) According to Purves, the MDOC sets its caloric intake level based on Dietary Reference intake values approved by the National Research Council (NRC). (Id. ¶ 3.) The NRC recommends a daily caloric intake of 2,600 to 2,800 for moderately active men in their 20s; a daily caloric intake of 2,400 to 2,600 for moderately active men in their 30s and 40s; and a daily caloric intake of 2,200 to 2,400 for moderately active men after 50. (Id.) The MDOC specifies 2,600 calories per day because that number meets the needs of 95% of male prisoners in the general population. (Id. ¶ 4.) Purves states that all Plaintiffs are between 36 and 46 years of age. (Id.) Thus, when Plaintiffs are moderately active, a daily caloric intake of between 2,400 to 2,600 calories meets their recommended caloric intake.
Purves also states that the Ramadan meal plan Plaintiffs attach to their Motion is not the meal plan that will be used for the 2013 Ramadan observance. Instead, the 2013 meal plan offers four different meal options to prisoners who choose to fast, and provides a daily caloric content ranging from 2,350 to 2,594 calories. (Id. ¶ 6.) Purves also confirms that a registered dietician with the MDOC has determined that a daily caloric intake of 2,350 to 2,594 calories will not pose a health risk to healthy, moderately active males. (Id. ¶ 7.)
In light of the information set forth in Purves’s affidavit, Plaintiffs have failed to demonstrate that they are likely to suffer irreparable harm absent injunctive relief. First, Plaintiffs’ motion is based on an out-of-date meal plan that will not apply to the 2013 Ramadan observance. Second, Defendants have shown that the meal plan for the 2013 Ramadan observance provides between 2,350 and 2,594 calories per day, which substantially meets the recommended calorie requirements for most moderately active prisoners—defined as “‘a lifestyle that includes physical activity equivalent to walking
2

about 1.5 to 3 miles per day at 3 to 4 miles per hour, in addition to the light physical activity associated with typical day-to-day life.’” (Purves Aff. ¶ 3 (quoting 2010 Dietary Guidelines for Americans).) Third, Plaintiffs wholly fail to show that they will suffer any harm from a slight reduction in their daily caloric intake during the 30-day Ramadan observance. . . . (Dkt. # 21 at Page ID ## 178–79.) On July 10, 2013, the Court issued an Order of Clarification Regarding Memorandum Opinion and Order Denying Plaintiffs’ Motion for Preliminary Injunction, which noted that, since the entry of the July 8, 2013 Memorandum Opinion and Order, Plaintiffs had submitted information that “appear[ed] to be reasonably accurate” and suggested that the facility in which Plaintiffs were incarcerated had or would be providing Ramadan meals averaging only approximately 1,149.2 calories per day. (Dkt. # 22 at Page ID # 182.) Because Plaintiffs’ evidence was contrary to Purves’ representations and, if true, would have sufficed to show irreparable harm, the Court ordered Defendants to provide Plaintiffs at least 2,350 calories per day during the 2013 Ramadan observance. (Id. at Page ID ## 182–83.) Subsequently, Plaintiffs moved to hold Defendants in contempt on the ground that the actual 2013 Ramadan meals provided approximately 600 fewer calories than Defendants had represented. (Dkt. # 23.) After reviewing the parties’ evidence pertaining to the contempt motion, the Court concluded that Defendants’ calorie figures were likely more accurate than Plaintiffs’ figures. Nonetheless, the Court noted that Defendants’ own evidence showed that, on several days, the meals Plaintiffs received provided less than the 2,350 calories specified in the July 10, 2013 Order. The Court rejected Defendants’ explanation that the 2013 Ramadan menu complied with the July 10, 2013 Order because it provided a daily average of 2,361.246 calories per day, on the basis that Purves had represented that the 2013 Ramadan meal plan would provide a minimum of 2,350 per day rather than a daily average of 2,350 calories. (Dkt. # 58 at Page ID # 698.) Accordingly, the Court found Defendants in contempt and awarded Plaintiffs compensation. (Dkt. # 70.)
3

Motions Before the Court The Court addresses two pending motions in this Opinion. First, Plaintiffs have filed a Motion for Preliminary Injunction, in which they request that the Court order Defendants to provide 2,900 calories per day during the 2014 Ramadan observance, as specified by MDOC policy. Citing Defendants’ failure to comply with the July 10, 2013 Order for the 2013 Ramadan observance, Plaintiffs also request that the Court appoint a monitor to ensure that Defendants comply with their legal obligation to provide Plaintiffs adequate nutrition during Ramadan. Plaintiffs state that a monitor is particularly appropriate for the current Ramadan observance because the MDOC has contracted with a private company, Aramark, to perform its food service operations. Defendants have filed a Motion for Relief from the July 10, 2013 Order, in which they request that the Court relieve them of any obligation to provide at least 2,350 calories per day and instead permit them to provide Plaintiffs an average of 2,350 calories, based on a two-week menu period. Defendants argue that such request is reasonable because the MDOC formulates its menus based on average calorie counts over a two-week cycle, and this practice is healthy and well-accepted. Finally, pursuant to 28 U.S.C. § 517, the United States has filed a Statement of Interest in furtherance of its enforcement authority under RLUIPA. See 42 U.S.C. § 2000cc-2(f). The United States advises that, through its Statement of Interest, it seeks to assist the Court in determining whether the Defendants have violated RLUIPA by failing to provide adequate nutrition to Muslim prisoners observing Ramadan. The United States recommends the appointment of a monitor in the event that the Court finds a RLUIPA violation and issues an injunction, to ensure that the injunctive relief is properly implemented.
Discussion “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v.
4

Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Moreover, because Plaintiffs seek injunctive relief against prison officials concerning a matter of prison administration, this Court is required to proceed with the utmost care and must recognize the unique nature of the prison setting. Kendrick v. Bland, 740 F.2d 432, 438 n.3 (6th Cir. 1984).
In ruling on a motion for a preliminary injunction, a court considers four factors: “(1) whether the plaintiffs are likely to succeed on the merits; (2) whether the plaintiffs will suffer irreparable harm in the absence of an injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) whether the issuance of the injunction is in the public interest.” Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). These are factors to be balanced, not prerequisites that must be met. See Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). A district court need not make specific findings on each of the four factors if fewer factors are dispositive of the issue. See In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
Section 3 of RLUIPA, which addresses prisoners’ religious beliefs, provides: No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, 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). “Courts entertaining complaints under § 3 should apply ‘due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.’” Coleman v. Governor of Mich., 413 F. App’x 866, 875 (6th Cir. 2011) (quoting Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 2123 (2005)). The Sixth Circuit has held that an action is a substantial burden if it “force[s] an individual to choose between ‘following the precepts
5

of [his] religion and forfeiting benefits,’ or when the action in question place[s] ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007) (quoting Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 1794 (1963), and Thomas v. Review Bd. of In. Emp’t Sec. Div., 450 U.S. 707, 718, 101 S. Ct. 1425, 1432 (1981)). “[A]t a minimum the substantial burden test requires that a RLUIPA plaintiff demonstrate that the government’s denial of a particular religious item or observance was more than an inconvenience to one’s religious practice.” Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 536 U.S. __, 131 S. Ct. 1651 (2011). Inadequate nutrition may impose a substantial burden on a prisoner’s religious practices. See Heard v. Caruso, 351 F. App’x 1, 13 (6th Cir. 2009).
Initially, the Court considers Plaintiffs’ assertion that MDOC policy provides that they are entitled to 2,900 calories per day. The Court previously addressed this issue in its July 8, 2013 Order denying Plaintiff s’ Motion for Preliminary Injunction, noting that MDOC Policy Directive 04.07.100 does not specify a particular number of calories, but instead relies on the Dietary Reference intake values approved by the National Research Council. (Dkt. # 21 at Page ID # 178.) The Court found that the MDOC has determined that based on those values, 2,600 calories per day is appropriate because that level of nutrition meets the dietary requirements of 95% of the male prisoner general population based on a moderately active lifestyle. (Id. at Page ID ## 178–79.) Thus, even if Plaintiffs were not participating in the Ramadan observance, MDOC policy would provide them only 2,600 calories, not 2,900 calories.
The Court previously concluded that a Ramadan menu that provided at least 2,350 calories per day—which Defendants state will be provided again for the 2014 Ramadan observance—substantially meets the calorie requirements set by the MDOC and appears to provided a nutritionally-adequate diet. While the Court did not expressly consider whether that level of nutrition substantially burdened
6

Plaintiffs’ exercise of their religion in the context of RLUIPA, it now concludes that this level of calories does not substantially burden Plaintiffs’ participation in the Ramadan fast. At 2,350 calories, a prisoner participating in the Ramadan fast will receive 90% of the calories he would otherwise receive when not participating in the fast. While receiving 250 fewer calories—the approximate equivalent of an energy bar or two pieces of fruit—per day for 30 days might make Plaintiffs’ participation in the Ramadan fast more difficult or less enjoyable, there is no indication that a diet of 2,350 calories would force Plaintiffs to refrain from participating in, or abandon, the Ramadan fast. In fact, this daily number of calories is 150 more than the 2,200 calories the court ordered in Couch v. Jabe, No. 7:05-cv-642 (W.D. Va. Sept. 22, 2006) (dkt. # 6 at Page ID #513) (ordering “that the defendants, between sunset and dawn during the 2006 Ramadan period beginning September 23, shall daily provide Couch with food items containing approximately 2,200 calories”), which Plaintiffs cite in their brief.2 Moreover, although Plaintiffs complain about the ill effects they suffer during Ramadan—anger, headaches, decreased energy, dizziness, etc.—as a result of lack of proper food, it is questionable whether additional calories would alleviate them. After all, a Ramadan observant foregoes food and drink for substantial periods of time each day—as long as fifteen hours at a time when Ramadan occurs during the summer months. Thus, regardless of the amount of calories consumed between sunset and sunrise, it is unsurprising that Plaintiffs experience abnormal physical symptoms during the fast. See J. B. Leiper et al., Effects on Health of Fluid Restriction During Fasting in Ramadan, 57 European J. of Clinical Nutrition (2003), available at http://www.nature.com/ejcn/journal/v57/n2s/full/1601899a.html (noting that “[a] frequently cited problem of Ramadan fasting is an increased incidence of headaches”); French v. Md. Div. of Corr., CCB-11-2142, CCB-11-3301, 2013 WL 1104995, at *7 (D. Md. Mar. 15,
2The MDOC does not explain why it does not simply provide prisoners observing Ramadan the same 2,600 calories per day that it normally provides other prisoners. See Garnica v. Wash. Dep’t of Corr., 965 F. Supp. 2d 1250, 1262 (W.D. Wash. 2013) (“According to Mr. Carney, the calorie level for Ramadan was set at 2700 calories per day to stay within DOC guidelines of 2700 to 3000 calories per day, a range which is well above USDA Dietary Reference Intake recommendations.”).
7

2013) (“The court does not doubt that fasting, which includes the skipping of meals during the day, may lead to some weight loss or the intake of fewer calories relative to non-fasting inmates, but those are anticipated effects of the practice of fasting.”).
Defendants’ motion raises the question of whether it is sufficient to provide Plaintiffs with an average of 2,350 calories per two week cycle during Ramadan 2014, rather than with 2,350 on a daily basis. As a point of clarification, while the Court’s prior contempt order might suggest that the Court would answer no, the contempt was imposed because Defendants failed to do what they told the Court they would do (provide a minimum of 2,350 calories each day), and not because they provided an average of 2,350 calories.
In support of their motion, Defendants present an affidavit from Norma Killough, RD, a registered dietician employed by the MDOC. Ms. Killough states that all MDOC menus are designed to comply with the nutritional and caloric recommendations set forth in the Dietary Reference Intakes: The Essential Guide to Nutrient Requirements, which are “a common set of reference values for a healthy population based on the relationships between nutrient intakes and health or the prevention of disease.” (Dkt. # 95-1 at Page ID # 939.) Ms. Killough also states that the MDOC follows the current Dietary Guidelines for Americans, issued by the United States Departments of Health and Human Services and Agriculture, for menu planning. (Id.) Because the Dietary Guidelines recommends an eating pattern that meets nutrient needs over time at an appropriate calorie level, the MDOC plans its menus to meet nutrient and caloric needs over a two-week menu cycle rather than individual days. Thus, ordinarily, “[t]he nutritional and caloric content of the meals planned will fluctuate daily because the nutrient density of the food items will vary from day to day.” (Id. at Page ID ## 939–40.)
Based on the foregoing, the Court concludes that providing prisoners participating in the Ramadan fast an average of 2,350 calories over a two-week period is consistent with sound nutritional practices and will not adversely affect prisoners’ health. In fact, it is reasonable to assume that most
8

people do not consume a set number of calories per day, but vary the amount of calories each day. Thus, the Court will grant Defendants’ motion.
Based on the foregoing, the Court concludes that Plaintiffs have not shown irreparable harm, and therefore, are not entitled to a preliminary injunction. For the same reasons, the Court will not appoint a monitor. The Court does have some concerns, however, about Defendants’ follow-through on their representations, in light of the fact that the MDOC is using a private food service company to furnish prisoner meals. Accordingly, the Court will order Defendants to provide the Court a copy of the 2014 Ramadan menu and, on a weekly basis, a sworn statement from a representative at Plaintiffs’ facilities confirming that Plaintiffs were served the food items listed on the 2014 Ramadan menu and identifying any actual variations and the calorie content of such.
Conclusion For the foregoing reasons, the Court will deny Plaintiffs’ Motion for Preliminary Injunction and grant Defendants’ Motion for Relief From an Order. An Order consistent with this Opinion will enter.

Dated: June 27, 2014

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

9

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 122 filed 08/15/14 PageID.1109 Page 1 of 3
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs,

v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. ________________________/

ORDER GRANTING PLAINTIFFS’ MOTION FOR RECONSIDERATION

Plaintiffs request that the Court reconsider that portion of its March 31, 2014 Memorandum

Order Adopting in Part and Rejecting in Part Report and Recommendation (dkt. # 59) dismissing their

Eighth Amendment claim. To prevail on a motion for reconsideration, the movant must "not only

demonstrate a palpable defect by which the Court and the parties have been misled, but [must] also show

that a different disposition of the case must result from a correction thereof." See W.D. Mich. LCivR

7.4(a). Having reviewed Plaintiffs’ motion, the Court concludes that reconsideration is warranted.

In concluding that Plaintiffs failed to state an Eighth Amendment claim, the Court analogized

the circumstances in this case to those presented in Mobley v. Smith, No. 4:05-cv-153, 2007 WL

1650934 (W.D. Mich. June 4, 2007). The court in Mobley concluded that the plaintiff failed to state an

Eighth Amendment claim because the plaintiff was not denied food, but instead elected to eat only some

of the food that he was provided because of his religious preferences. See id. at *6. Applying Mobley’s

reasoning, this Court concluded that Plaintiffs’ Eighth Amendment claims fail because Plaintiffs were

denied a nutritionally-adequate diet only because they chose to participate in the Ramadan fast. In other

words, Defendants provided Plaintiffs an adequate diet though the regular prison diet, but Plaintiffs

chose not to eat it due to their religious practices. (Dkt. # 59 at Page ID#709.)

Case 1:13-cv-00373-GJQ-RSK ECF No. 122 filed 08/15/14 PageID.1110 Page 2 of 3
Plaintiffs contend that Mobley is distinguishable from this case because the plaintiff in Mobley rejected the nutritionally-adequate food that he was provided, whereas in this case Plaintiffs did not reject the food they were given; instead, Plaintiffs allege that Defendants failed to provide them adequate food as part of the Ramadan menu. The Court agrees. Mobley involved different circumstances because the plaintiff in Mobley declined to eat some of the food he was given, while in this case, Plaintiffs allege that they were not provided adequate food in the first instance. Assume, for example, that Plaintiffs suffered from a medical condition that required them to have a special medical diet. The availability of the regular prison diet would provide no defense to an Eighth Amendment claim for failing to provide a proper medical diet. See Byrd v. Wilson, 701 F.3d 592, 595 (6th Cir. 1983) (per curiam) (recognizing Eighth Amendment liability for failing to provide a prescribed medical diet). Plaintiffs’ circumstances are not materially different. Plaintiffs’ religious practices require that they refrain from eating and drinking from sunrise to sunset each day during Ramadan. Defendants may not defend an Eighth Amendment claim simply by pointing to the availability of the regular prison diet, because Plaintiffs would have been required to break the Ramadan fast, contrary to their religious practices, in order to eat the regular diet that was served during the day. Thus, just as a prisoner with a medical condition requiring a special diet should not be expected to consume a regular diet, a prisoner should not be expected to violate his religious beliefs or practices in order to obtain nutritionallyadequate food. Moreover, Plaintiffs’ allegation that they received only between 1,000 and 1,500 calories per day during the entire 2011 and 2012 Ramadan fasts alleges sufficiently serious deprivations of adequate food for purposes of an Eighth Amendment claim. Hudson-Bey v. Martin, No. 1:00-CV-389 (W.D. Mich.) (5/23/02 Order & Partial J., dkt. # 51-1.); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (“The Eighth Amendment requires that inmates be provided well-balanced meals, containing sufficient nutritional value to preserve health.”) (internal quotation marks and brackets omitted).
2

Case 1:13-cv-00373-GJQ-RSK ECF No. 122 filed 08/15/14 PageID.1111 Page 3 of 3

Therefore, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration and Relief From Memorandum Order Adopting in Part and Rejecting in Part Report and Recommendation (dkt. # 73) is GRANTED, and Plaintiffs’ Eighth Amendment claim is reinstated.

Dated: August 15, 2014

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

3

 
 Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 1 of 8 Page ID#1618

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAMONT HEARD, WILLIAM JOHNSON, JAMERO T. MOSES, and ANTHONY NELSON,
Plaintiffs,
v.

Case No. 1:13-cv-373 Hon. Gordon J. Quist

TOM FINCO, et al.,

Defendants. /

REPORT AND RECOMMENDATION

This is a pro se civil rights action brought by four state prisoners pursuant to 42

U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc-1 et seq. This matter is now before the court on a motion for partial summary judgment

filed by defendants Thomas Finco, Michael Martin and Brad Purves (docket no. 75).1

I. Plaintiffs’ complaint

The Court previously addressed the allegations in plaintiff’s complaint. See Report

and Recommendation (docket no. 56); Memorandum Order (docket no. 59). The Court will not re-

state plaintiff’s allegations other than to note that the complaint alleged that plaintiffs did not receive

adequate calories during Ramadan 2011 and 2012 in violation of the First Amendment, Eighth

AMendment and RLUIPA. Id. This matter is now before the Court on defendants’ motion for

1 This Report does not address plaintiffs’ claims for injunctive relief related to Ramadan 2014, which is being handled separately. See Opinion and Order (docket nos. 104 and 105).

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 2 of 8 Page ID#1619
partial summary judgment because plaintiffs did not exhaust all of their claims with respect to
Ramadan 2011 and Ramadan 2012.
II. Motion for partial summary judgment
A. Legal standard
“The 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.”
Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’
burden of proof in deciding a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party’s case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the
court views the factual evidence and draws all reasonable inferences in favor of the nonmoving
party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
2

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 3 of 8 Page ID#1620
B. Exhaustion requirement The PLRA provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court. Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record. Jones v. Bock, 549 U.S. 199, 204 (2007). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S. at 218. The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms:
3

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 4 of 8 Page ID#1621
The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included. Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.
C. Ramadan 2011 1. Plaintiff Heard In an affidavit, Richard D. Russell, Manager of the Grievance Section in the Office of Legal Affairs, Michigan Department of Corrections (MDOC), stated that the MDOC’s Grievance Tracking database contains only one grievance filed by plaintiff Heard in 2011 which was exhausted through Step III. Russell Aff. (docket no. 76-2 at pp. ID## 778-85). That grievance, SRF 11-050717-15b (“717”) involved a claim that staff at the Saginaw Correctional Facility (SRF) opened his legal mail in violation of MDOC policy. Id.; Grievance No. 717 (docket no. 76-2 at pp. ID## 78691). There is no evidence that Heard properly exhausted a grievance regarding Ramadan 2011. In his response, Heard contends that because he filed grievances related to Ramadan 2010 at SRF and the Chippewa Correctional Facility, he did not have to renew his grievances with respect to Ramadan 2011. See Response (docket no. 85 at pp. ID## 857-58).2 In short, Heard contends that
2 The Court notes that Heard did not include copies of any 2010 grievances with his response.
4

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 5 of 8 Page ID#1622
his grievances filed in 2010 serve as perpetual grievances against all MDOC employees for claims related to future Ramadan meals, regardless of who is responsible for the meals, where Heard is incarcerated, or the consistency of the meal. Heard’s contention is without merit. His claims in this action arise from a particular instance of alleged wrongdoing, i.e., individual MDOC defendants did not provide sufficient calories in the meals served to him during Ramadan 2011. If Heard wanted to dispute the adequacy of these meals on constitutional and statutory grounds, then he was required to file a grievance in 2011 addressing the meals, which named the particular MDOC employees who were responsible, the date of the occurrence and the nature of the alleged wrongful act. Policy Directive 03.02.130 ¶ R; Siggers v. Campbell, 652 F.3d 681, 691-93 (6th Cir. 2011) (under Michigan’s grievance scheme, a prisoner has to file separate grievances for discrete events). Accordingly, defendants are entitled to summary judgment with respect to Heard’s claims related to Ramadan 2011.
2. Plaintiff Johnson In a separate affidavit, Richard D. Russell stated that the MDOC’s Grievance Tracking database contains no grievances filed by plaintiff Johnson in 2011 which he exhausted through Step III. Russell Aff. (docket no. 76-3 at pp. ID## 793-98). In sum, there is no evidence that Johnson properly exhausted a grievance regarding Ramadan 2011. Furthermore, in his response, Johnson admitted that he did not exhaust a 2011 Ramadan grievance against defendants. See Response (docket no. 85 at p. ID# 857). Accordingly, defendants are entitled to summary judgment with respect to Johnson’s claims related to Ramadan 2011.
5

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 6 of 8 Page ID#1623
3. Plaintiff Moses In a separate affidavit, Richard D. Russell stated that the MDOC’s Grievance Tracking database contains no grievances filed by plaintiff Moses in 2011 which he exhausted through Step III. Russell Aff. (docket no. 76-4 at pp. ID## 800-04). Since there is no evidence that Moses properly exhausted a grievance regarding Ramadan 2011;3 defendants are also entitled to summary judgment with respect to Moses’ claims related to Ramadan 2011. 4. Plaintiff Nelson In a separate affidavit, Richard D. Russell stated that the MDOC’s Grievance Tracking database contains one grievance, SRF 2011-09-1270-09A (“1270”), filed by plaintiff Nelson regarding Ramadan 2011. Russell Aff. (docket no. 76-5 at pp. ID## 806-16). While Nelson exhausted grievance no. 1270 through Step III, this grievance did not name any of the defendants in this action. Id. Moreover, Russell stated in his affidavit that Nelson did not exhaust any other grievances through Step III from May 2009 through April 22, 2014. Id. Thus, there is no evidence that Nelson properly exhausted a grievance against defendants regarding Ramadan 2011.4 Accordingly, defendants are entitled to summary judgment with respect to Nelson’s claims related to Ramadan 2011.
3 The Court notes that in a response to defendants’ motion filed by plaintiffs Heard and Johnson, those two plaintiffs “admit” that plaintiff Moses did not exhaust a grievance against defendants regarding Ramadan 2011. See Response (docket no. 85 at p. ID# 857). However, because Moses did not join in this response, and neither Heard nor Johnson represent him in this matter, this alleged admission is irrelevant. See Order (docket no. 161) (the pro se plaintiffs in this action are not attorneys and cannot file papers on behalf of each other).
4 The Court notes that Heard and Johnson also provided a response on behalf of plaintiff Nelson, claiming that Nelson properly exhausted a grievance against defendants regarding Ramadan 2011. See Response (docket no. 85 at pp. ID## 858-59). Since Nelson did not join in this response, and neither Heard nor Johnson represent him in this matter, this alleged response is irrelevant. See Order (docket no. 161).
6

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 7 of 8 Page ID#1624
D. Ramadan 2012 1. Plaintiffs Heard, Johnson and Moses Defendants concede that plaintiffs Heard, Johnson and Moses exhausted their administrative remedies as to Ramadan 2012. Defendants’ Brief (docket no. 76 at p. ID# 774). 2. Plaintiff Nelson As discussed in § II.C.4., there is no evidence that plaintiff Nelson filed a grievance through Step III during 2012. Accordingly, defendants are entitled to summary judgment with respect to Nelson’s claims related to Ramadan 2012.5 III. Recommendation For the reasons set forth above, I respectfully recommend that defendants’ motion for partial summary judgment (docket no. 75) be GRANTED as to all of plaintiffs’ claims arising from Ramadan 2011 and as to plaintiff Nelson’s claims arising from Ramadan 2012.
5 T The Court notes that Heard and Johnson also provided a response on behalf of plaintiff Nelson, claiming that Nelson properly exhausted a grievance against defendants regarding Ramadan 2012. See Response (docket no. 85 at pp. ID## 859-60). However, because Nelson did not join in this response, and neither Heard nor Johnson represent him in this matter, this alleged response is irrelevant. See Order (docket no. 161).
7

Case 1:13-cv-00373-GJQ-HWB Doc #181 Filed 03/27/15 Page 8 of 8 Page ID#1625

I further recommend that plaintiff Nelson be DISMISSED from this action and that this action proceed only as to plaintiffs Heard, Johnson and Moses’ claims arising from Ramadan 2012.

Dated: March 27, 2015

/s/ Hugh W. Brenneman, Jr. HUGH W. BRENNEMAN, JR. United States Magistrate Judge

ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

8

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 191 filed 05/04/15 PageID.1720 Page 1 of 12
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs,

v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. ________________________/

MEMORANDUM ORDER: (1) GRANTING PLAINTIFFS HEARD’S AND JOHNSON’S MOTION TO HOLD DEFENDANTS IN CONTEMPT FOR VIOLATING THE COURT’S JUNE 27, 2014 ORDER (Dkt. # 124);
(2) DENYING PLAINTIFFS’ MOTIONS FOR RULE 11 SANCTIONS (Dkt. ## 169, 175, 178); (3) GRANTING PLAINTIFFS HEARD’S AND JOHNSON’S
MOTIONS TO SUPPLEMENT (Dkt. ## 158, 162); and (4) DISMISSING PLAINTIFFS’ OBJECTION TO SWORN STATEMENTS (Dkt. # 115)

BACKGROUND

Plaintiffs are prisoners incarcerated with the Michigan Department of Corrections (MDOC) at

various facilities and are also practicing Muslims. Plaintiffs have sued Defendants, alleging that they have violated Plaintiffs’ rights under the First Amendment, the Eighth Amendment1, and the Religious

Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. by failing to provide

them adequate nutrition during the Islamic month of Ramadan. Because the background of this case

is set forth in extensive detail in the Court’s prior opinions and orders, the Court will recount only those

facts that are pertinent to the instant motions.

On June 14, 2013, shortly after Plaintiffs filed this case, Plaintiffs filed a motion for preliminary

injunction requesting that the Court order Defendants to provide Plaintiffs adequate nutrition during the

2013 Ramadan observance. (Dkt. # 14.) The Court denied Plaintiffs’ motion on the basis that

Defendants had shown that the 2013 Ramadan menu would provide adequate nutrition to prisoners such

1The Eighth Amendment claim is currently on appeal to the Sixth Circuit.

Case 1:13-cv-00373-GJQ-RSK ECF No. 191 filed 05/04/15 PageID.1721 Page 2 of 12
as Plaintiffs, who planned to participate in the 2013 Ramadan fast. (Dkt. # 21.) On July 10, 2013, the Court issued an Order of Clarification ordering Defendants to provide Plaintiffs 2,350 calories per day during the 2013 Ramadan observance, as Defendants represented they would do. (Dkt. # 22.) Prior to the end of the Ramadan observance, Plaintiffs filed a motion to hold Defendants in contempt for failing to provide Plaintiffs at least 2,350 calories per day during Ramadan. Following a hearing on Plaintiffs’ motion, the Court entered an Order holding Defendants in contempt and ordering Defendants to pay each Plaintiff $200 as compensation for damages caused by Defendants’ noncompliance. (Dkt. # 70.) Although Defendants argued that they had complied with the Order of Clarification by giving Plaintiffs an average of 2,350 calories per day, the Court found that Defendants had represented that they would provide Plaintiffs a minimum of 2,350 calories per day and had not done so.
On May 28, 2014, Plaintiffs filed a second motion for a preliminary injunction, requesting that the Court order Defendants to provide Plaintiffs 2,900 calories per day during the 2014 Ramadan observance. (Dkt. # 87.) On June 16, 2014, Defendants filed a motion for relief from the Court’s July 10, 2013 Order of Clarification, requesting that they be permitted to provide Plaintiffs an average of 2,350 calories per day over a two-week period. (Dkt. # 94.) On June 27, 2014, the Court entered an Opinion and accompanying Order denying Plaintiffs’ motion for a preliminary injunction and granting Defendants’ motion for relief from the July 10, 2013 Order. (Dkt. ## 104, 105.) As part of its ruling, the Court determined that providing Plaintiffs an average of 2,350 calories per day would not substantially burden Plaintiffs’ exercise of their religion. (Dkt. # 104 at Page ID##994–95.) However, the Court was concerned “about Defendants’ follow-through on their representations [about the number of calories that Plaintiffs would receive]” and therefore required Defendants to submit sworn statements on a weekly basis confirming that Plaintiffs were actually served the food items listed on the 2014 Ramadan menu and identifying any actual variations and the calorie content of such. (Id. at Page ID#997.)
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Pursuant to the Court’s June 27, 2014 Order, Defendants submitted their first sworn statements on July 7, 2014. (Dkt. # 109.) Patricia Popoff provided an affidavit regarding Lakeland Correctional Facility, David Mastaw provided an affidavit for the Kinross Correctional Facility, and Robert Beaulieu provided an affidavit for the Chippewa Correctional Facility. Popoff said that from June 28, 2014 through July 5, 2014, all of meals were served as listed. Mastaw said that for the same period, no food items were omitted, although one was added on June 30. Beaulieu stated that all of the food items were served, except that a high fiber bran cake that was omitted from the breakfast on June 29, 2014 was provided in addition to the food served for breakfast the following day. According to all three affiants, the information recited was provided by Aramark, MDOC’s contract food service provider.
On July 14, 2014, Defendants submitted their next set of affidavits, all of which were based on information provided by Aramark. (Dkt. # 110.) Popoff stated that all meals were served as listed for the period of July 6 through July 12 at the Lakeland facility, except for four instances in which certain food items were substituted for listed items, resulting in a net increase of 502 calories. Mastaw stated that all of the listed items were served at the Kinross facility, and Beaulieu stated that all listed items were served at the Chippewa facility, except for one instance in which the replacement item resulted in a net increase of 50 calories.
Defendants submitted their third set of affidavits on July 21, 2014, based on information provided by Aramark. (Dkt. # 114.) Popoff stated that from July 13 through July 19, all items listed were served at the Lakeland facility except on five occasions, for which the substituted food items resulted in a net increase of 560 calories. Mastaw and Beaulieu stated that all of the listed food items were served, without exception, at the Kinross and Chippewa facilities.
On July 28, 2014, Defendants submitted their final set of affidavits, for the period of July 20, 2014 through July 27, 2014, based on information provided by Aramark. (Dkt. # 119.) Popoff and Kimberly Atkinson, representing the Kinross facility, stated that all of the items listed on the Ramadan
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menu were served, without exception, at the Kinross and Lakeland facilities. Beaulieu stated that all of the items listed on the menu were served at the Chippewa facility, except that on one occasion 3 diet jelly pouches were served in place of the regular jelly pouch, resulting in no net change in calories.
DISCUSSION I. Plaintiffs Heard’s and Johnson’s Motion for Contempt and Motions to Supplement
Plaintiffs Heard and Johnson have filed a motion to hold Defendants in contempt for violating the June 27, 2014 Order for failing to provide them a daily average of 2,350 calories during the 2014 Ramadan observance. In connection with their motion for contempt, Plaintiffs have filed two motions to submit supplemental supporting materials. Both motions to supplement, which Defendants have not opposed, will be granted.
It is well established that courts have the inherent power to manage and control proceedings before them. See Brown v. City of Upper Arlington, 637 F.3d 668, 671 (6th Cir. 2011) (“Federal courts have broad contempt power, which exists for the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts.” (internal quotations omitted)). “‘Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.’” Chambers v. Nasco, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132 (1991) (quoting Anderson v. Dunn, 6 wheat. 204, 227 (1821)); see also Shillitani v. United States, 384 U.S. 364, 370, 86 S. Ct. 1531, 1535 (1966) (“There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt.”).
In order to hold a litigant in civil contempt, the moving party must establish, through clear and convincing evidence, a prima facie case that the contemnor “violated a definite and specific order of the court requiring [it] to perform or refrain from performing a particular act or acts with knowledge of the court’s order.” Elec. Workers Pension Trust Fund of Local Union #58 v. Gary’s Elec. Serv. Co., 340
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F.3d 373, 378 (6th Cir. 2003) (citation omitted). “The order in question must be ‘definite and specific,’ and ‘ambiguities must be resolved in favor of persons charged with contempt.’” United States v. Conces, 507 F.3d 1028, 1042 (6th Cir. 2007) (quoting Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996)). Once the movant makes its prima facie showing, the burden shifts to the alleged contemnor to produce evidence that it was presently unable to comply with the court’s order. Elec. Workers Pension Trust Fund., 340 F. 3d at 379 (citing United States v. Rylander, 460 U.S. 752, 757, 103 S. Ct. 1548, 1552 (1983)). A defendant may satisfy this burden by showing “categorically and in detail why [it] is unable to comply with the court’s order.” Id. at 379 (citation omitted). “Good faith is not a defense in civil contempt proceedings. Likewise, wilfulness is not an element of civil contempt, but the state of mind of the contemnor is relevant only in the consideration of sanctions.” Gnesys, Inc. v. Greene, 437 F.3d 482, 493 (6th Cir. 2005) (citations omitted).
Plaintiffs Heard and Johnson have carried their initial burden of producing clear and convincing evidence that they were not provided certain items listed on the Ramadan menu and that substitute food items were not provided. (Dkt. # 154-1 at Page ID##1422–34.) In their response, Defendants argue that Plaintiffs dispute Defendants’ affidavits. Defendants provide an affidavit from Beaulieu and an affidavit from Robert Autore, Aramark’s food service director at the Chippewa facility, to explain the basis of the information Beaulieu included in his affidavits submitted to the Court and to explain the process that Aramark used to prepare and serve the Ramadan trays and bagged meals. Beaulieu explains that he “had no personal involvement in the preparation of meals provided to prisoners during Ramadan,” and that he obtained the information provided in his affidavits “through weekly meetings with Mr. Autore for the sole purpose of completing the affidavits [he] submitted.” (Dkt. # 145-2 at Page ID#1327.) In his affidavit, Autore explains that Aramark oversees prisoner workers who prepare the meals and deposit the appropriate food items into a sealed bag or place them on a styrofoam tray. (Dkt. # 145-3 at Page ID#1329.) The prisoner workers then load the food items onto carts, and Aramark inspects the
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bags/trays periodically to ensure that all of the appropriate food items are included in the bags and on the trays. Aramark also confirms that the appropriate number of bags and trays have been prepared. The meals are then secured in refrigerated coolers, and later distributed by prisoner workers supervised by corrections officers. (Id. at Page ID#1330.) Autore also states that on occasions when there was an insufficient supply of a particular food item, a substitute food item of the same or greater nutritional value would be provided. Finally, Autore states that when a prisoner complained of missing food, Aramark would attempt to replace the missing food item as quickly as possible. (Id.) Defendants contend that in light of the process Aramark used to distribute food, it was reasonable for them to be skeptical of Plaintiffs’ claims that they were missing food items. In addition, Defendants note that Aramark disputed several of Plaintiff Heard’s claims that he was missing food.
The June 27, 2014 Order acknowledged that there may be instances in which food items on the Ramadan menu would be unavailable and thus, not provided, but that Defendants (and those actually providing food services, including Aramark) would be expected to provide substitute food items of the same or greater nutritional value in those instances. It is therefore not unreasonable to expect that, on occasion, a specified food item would not be provided, and the Court recognizes that, from time to time, considering the number of meals being served, ordinary error or inmate deceit could occur. However, Plaintiffs’ filings show that food items were missing on more than a few occasions, and that substitute food items were not provided. In fact, Plaintiffs have presented, in addition to their own affidavits, step III grievance responses, issued after a complete investigation, concluding that Plaintiffs’ claims of missing food items (and in one instance, an entire meal) without substituted items were supported. Moreover, this appears to have been an ongoing problem during the 2014 Ramadan observance, at least at the Chippewa facility. The problem could have easily been addressed by providing substitute food items. Although Autore states in his affidavit that Aramark would attempt to replace missing items when they received notice that items were missing, the grievance responses that Plaintiffs have
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submitted show that this was not the case. For example, the October 2, 2014 step II grievance response to Plaintiff Heard’s grievance URF 14072393 09Z stated:
Findings: Staff has confirmed the prisoner was shorted two slices of whole wheat bread on 7/25/14. However, it appears no specific action was taken to provide the grievant with the shorted items. The grievant requested as resolution that the incident be reported in the Ramadan food service report. Conclusion: There is no Ramadan food service report, however, the shortage has been recorded as requested by the grievant and, therefore, this grievance is considered RESOLVED. In addition, MDOC staff and Aramark staff have been instructed that when any future food portions are confirmed as missing they must provide a make-up portion (or portions) to the prisoner at that time or as near to that time as is practicable (e.g., on the next meal tray or with a meal on the next day). (Dkt. # 158-2 at Page ID#1451.) This was not the only occasion a Plaintiff was shorted food without response from Aramark. (Dkt. # 154-1 at Page ID#1422 (“Clearly this prisoner [Heard] is missing several items in his food trays and the problem is not getting resolved. If a Aramark employee was present during the time Ramadon (sic) meals were being served these errors could be resolved on site.”); Dkt. # 154-1 at Page ID #1423 (“Clearly this prisoner [Heard] is missing several items in his food trays and the problem is not getting resolved. If a Aramark employee was present during the time Ramadon [sic] meals were being served these errors could be resolved on site.”); Dkt. # 154-1 at Page ID#1424 (“The grievant should have received his aloted [sic] meal noted on the menu. This grievance will be forwarded to Aramark food service satff (sic) to correct for future purposes. Prsisoner (sic) Johnson wishes to go to step Two on this complaint.”); Dkt. # 154-2 (“This prisoner should have received the 2 pieces of glazed coffee cake as the menu stated. This will be forwarded to the Aramark food service staff to correct for future purposes. Prisoner Heard wants to go to step II.”); Dkt. # 154-2 at Page ID# 1426 (“The grievant should have received his aloted (sic) meal noted on the menu. This grievance will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Heard wishes to go to step Two on this complaint.”); Dkt. # 154-2 at Page ID# 1427 (“Prisoner states that he was not given the regular beverages on his evening Ramadan tray. I spoke with prisoner Johnson. I didn’t receive a
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statement from Aramark. I find merit in prisoner Johnsons (sic) grievance.”); Dkt. #154-3 at Page ID# 1428 (“Prisoner states that he was not given the 2 slices of bread on his evening Ramadan tray. I spoke with prisoner Johnson. I didn’t receive a statement from Aramark. I find merit in prisoner Johnsons (sic) grievance.”); Dkt. # 154-3 at Page ID#1429 (“The prisoner should have received the 2 pieces of glazed coffee cake as the menu stated on 7/15 and 7/17/2014. This will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Heard wants to go to step II.”); Dkt. # 154-3 at Page ID#1430 (“The grievant should have received his aloted (sic) meal noted on the menu. This grievance will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Johnson wishes to go to step Two on this complaint.”); Dkt. # 154-4 at Page ID#1431 (“The grievant should have received his aloted (sic) meal noted on the menu. This grievance will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Johnson wishes to go to step Two on this complaint.”); Dkt. # 154-4 at Page ID#1432 (“The grievant should have received his aloted (sic) meal noted on the menu. This grievance will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Johnson wishes to go to step Two on this complaint.”); Dkt. # 154-4 at Page ID# 1434 (“This grievant should have received his aloted (sic) meal noted on the menu. This grievance will be forwarded to Aramark food service staff to correct for future purposes. Prisoner Johnson wishes to go to step Two on this complaint.”).) Defendants do not dispute any of this. In this Court’s judgment, Plaintiffs’ evidence of favorable step III grievance findings constitutes clear and convincing evidence.
Based on the foregoing, the Court concludes that Defendants should be held in civil contempt of the June 27, 2014 Order. Given that Plaintiffs received most of their food items, the Court finds that a substantial award of compensation is not warranted. Accordingly, the Court will award Plaintiffs Heard and Johnson $250 each for damages resulting from Defendants’ contempt. In addition, although Plaintiffs Nelson and Moses have not moved for contempt, the Court has reviewed their affidavits and
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concludes that they also constitute clear and convincing evidence that Defendants failed to comply with the June 27, 2014 Order as to Plaintiffs Nelson and Moses. In their affidavits, Plaintiffs Nelson and Moses describe several instances in which they did not receive listed food items and were not given substitute items. (Dkt. # 111 at Page ID#1051; Dkt. # 115-1 at Page ID#1086.) Although Defendants argue that the affidavits they submitted create a question of fact, Defendants are mistaken. As noted above, the information from Aramark, which the Popoff and Mastaw affidavits recite, does not provide a credible basis to dispute Plaintiffs’ assertions, because there is no indication that the Aramark representatives who provided the information to Popoff and Mastaw had personal knowledge of the food items that Plaintiffs actually received. Thus, the Court will also award Plaintiffs Nelson and Moses each $250.2 II. Plaintiffs’ Motions for Rule 11 Sanctions
Plaintiffs have filed motions for sanctions pursuant to Federal Rule of Civil Procedure 11(c) against Defendants’ counsel, the Michigan Attorney General’s Office, and non-parties Beaulieu, Mastaw, and Popoff for filing and refusing to withdraw false affidavits. Plaintiffs contend that the Beaulieu, Mastaw, and Popoff affidavits were false because they failed to disclose that on many occasions, Plaintiffs did not receive food items and no substitutions were provided, and Defendants’ counsel refused to withdraw the affidavits after being informed of their deficiencies.3
Rule 11 provides that by signing, filing, or submitting a pleading, written motion, or other paper, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” that, among other things, “the factual contentions have
2The Court recognizes that there could be a difference between what was put on a tray and what was actually “provided” to Plaintiffs. The Court’s concern in this regard, however, is satisfied by the favorable step III grievance findings. Furthermore, Defendants did not raise this issue in their briefs to the Court. See n. 4, infra..
3The Court concludes that Plaintiffs properly complied with the notice and safe harbor provisions of Rule 11(c)(1) and (2).
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evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3). The rule “authorizes a court to impose sanctions if papers are filed containing statements that are not wellgrounded in fact.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 332 (6th Cir. 2007) (citing 16 Moore’s Federal Practice § 107.30[2][a][ii][A]). The Court’s focus, therefore, is whether the conduct was “objectively unreasonable” or whether Defendants’ counsel lacked a reasonable basis for the facts asserted in the submitted affidavits. Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 510 (6th Cir. 2014). “Rule 11 sanctions are warranted if the attorney’s conduct was unreasonable under the circumstances.” Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 833 (6th Cir. 2005).
Initially, the Court notes that to the extent Plaintiffs seek sanctions under Rule 11 against Beaulieu, Mastaw, and Popoff based on the affidavits they submitted, their motion is without merit because Rule 11 “applies only to attorneys and unrepresented parties.” Manez v. Bridgestone Firestone N. Am. Tire, LLC, 533 F.3d 578, 591 (7th Cir. 2008) (citing Fed. R. Civ. 11(a) and (c)); Stephens v. Jones, No. CIV-10-166-D, 2011 WL 4588909, at *2 (W.D. Okla. June 3, 2011) (holding that Rule 11 did not apply to the filer of a special report because it was not a party to the litigation). Because Beaulieu and Mastaw are not parties to the instant litigation, they are not subject to sanctions under Rule 11.
With regard to Defendants’ counsel and the Michigan Attorney General’s office, Plaintiffs argue that the Beaulieu, Mastaw, and Popoff affidavits were fraudulent because they omitted information showing that, on numerous occasions, the meals that Plaintiffs received were missing food items listed on the Ramadan menu, for which substitute food items were not provided. Plaintiffs further argue that even after they notified Defendants’ counsel through affidavits and other court filings that the affidavits were false and/or inaccurate, Defendants’ counsel refused to withdraw the affidavits. Plaintiffs contend that Defendants’ counsel failed to conduct a reasonable pre-filing inquiry before filing the July 7, 14,
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21, and 28, 2014 submissions and affidavits because counsel should have gone beyond the information provided by Aramark and consulted grievance coordinators and others to determine whether Plaintiffs actually received the listed food items or appropriate substitutes.
Although Plaintiffs’ submissions have shown that the information contained in the Beaulieu, Mastaw, and Popoff affidavits was incomplete and inaccurate, the Court concludes that Defendants’ counsel’s reliance on the affidavits was not objectively unreasonable at the time they were filed. In other words, Defendants’ counsel could have reasonably believed that information furnished by prison officials located at the particular facilities, which was in turn supplied by the Aramark food service directors at the facilities, would be reasonably accurate. The information and documents Plaintiffs have provided—some of which were generated after Defendants filed the Beaulieu, Mastaw, and Popoff affidavits—now shows that the information provided by Aramark was not a reliable means of verifying that Plaintiffs received the listed food items or acceptable substitutes satisfying the caloric minimum that the Court ordered. In hindsight, Defendant’s counsel could have done more to ensure that the representations to the Court were accurate. However, in the Court’s judgment, Plaintiffs have not shown that Defendants’ counsel’s filing of the Beaulieu, Mastaw, and Popoff affidavits was unreasonable under the circumstanced.4 Thus, the Court will deny Plaintiffs’ motions for Rule 11 sanctions.
Therefore, for the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Heard’s and Johnson’s Motion to Hold Defendants in Contempt for Violating the Court’s June 27, 2014 Order (dkt. # 124) is GRANTED. Within thirty
4Counsel’s future reliance on information from Aramark, alone, would be unreasonable because a disconnect exists between the information Aramark provided and what actually occurred. Plaintiffs’ evidence shows that for some reason—perhaps carelessness by prisoner workers in preparing the Ramadan bags/trays—Plaintiffs did not receive all of the items of food on the Ramadan menu or adequate replacement items. It seems that these problems could have been easily handled by, for example, providing a supply of food items that corrections officers could have given to Plaintiffs if a food item was determined to be missing. If a “reserve” supply were available and a prisoner could simply show that an item was missing and obtain a replacement, a prisoner would have a difficult time showing that he was shorted in his meal.
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(30) days of the date of this Order, Defendants shall pay a total of $250 to each Plaintiff as compensation for damages caused by Defendants’ noncompliance with the June 27, 2014 Order. Although Plaintiffs Nelson and Heard did not file a separate motion to hold Defendants in contempt, the Court includes an award of damages in favor of Plaintiffs Nelson and Moses because their affidavits provide clear and convincing evidence that Defendants also failed to comply with the Court’s June 27, 2014 Order as to Plaintiffs Nelson and Moses.
IT IS FURTHER ORDERED that Plaintiffs’ Heard’s and Johnson’s Motions to Supplement (dkt. ## 158, 162) are GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motions for Rule 11 Sanctions (dkt. ## 169, 175, and 178) are DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Objection to Defendants’ Verification Regarding Ramadan Meals (dkt. # 115) is DISMISSED AS MOOT.

Dated: May 4, 2015

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs, v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _____________________________/

ORDER ADOPTING IN PART AND REJECTING IN IN PART 3/27/15 REPORT AND RECOMMENDATION On March 27, 2015, Magistrate Judge Hugh Brenneman issued a Report and Recommendation (R & R) recommending that the Court grant Defendants’ motion for partial summary judgment based on lack of exhaustion. In particular, the magistrate judge recommended that the Court dismiss all Plaintiffs’ Ramadan 2011 claims and Plaintiff Nelson’s Ramadan 2012 claim for lack of exhaustion. With regard to Plaintiff Heard’s Ramadan 2011 claim, the magistrate judge rejected Heard’s argument that his 2010 grievance concerning Ramadan 2010 also exhausted his Ramadan 2011 claim. (R & R at 4–5.) With regard to Plaintiff Johnson, the magistrate judge noted that Defendants established that Johnson failed to exhaust a grievance for Ramadan 2011, and Johnson admitted such fact. Plaintiffs Moses and Nelson were in a different position than Plaintiffs Heard and Johnson because Moses and Nelson had not signed the response. (Dkt. # 85 at Page ID#860.) Therefore, the magistrate judge refused to consider the statements that Plaintiffs Heard and Johnson made on behalf of Plaintiffs Moses and Nelson. (R & R at 6 nn. 3, 4.) The magistrate judge found that Moses failed to exhaust a grievance for Ramadan 2011 and that, while Nelson exhausted a grievance through Step III for Ramadan 2011, he did not name any Defendant in this action in his grievance. (Id.)

Finally, with regard to Ramadan 2012, the magistrate judge concluded that Plaintiffs Heard, Johnson, and Moses had exhausted their claims, but Plaintiff Nelson did not exhaust his claim.
In response to the R & R, Plaintiffs have filed a motion pursuant to Federal Rules of Civil Procedure 11(a) and 15(c) to resubmit their response to Defendant’s motion for partial summary judgment, which all Plaintiffs have now signed. In addition, all Plaintiffs have signed and submitted a partial Objection to the R & R. Finally, Plaintiff Nelson has filed his own Objection to the R & R with regard to his Ramadan 2011 claim.
Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, Plaintiffs’ Objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted in part and rejected in part. In addition, the Court will grant Plaintiffs’ motion to resubmit their fully-signed response to Defendants’ motion for partial summary judgment.
Plaintiffs’ Motion to Resubmit Their Response Having reviewed Plaintiffs’ motion to resubmit their response to Defendants’ motion for partial summary judgment, that is now signed by all Plaintiffs, the Court concludes that the motion should be granted. In their response, Plaintiffs concede that Plaintiffs Johnson and Moses did not exhaust a grievance through Step III for Ramadan 2011 and that such claims should be dismissed. Therefore, Johnson’s and Moses’s Ramadan 2011 claims will be dismissed.
Plaintiffs’ Objections I. Ramadan 2011—Plaintiff Heard
Plaintiff Heard contends that, although he did not exhaust a grievance for Ramadan 2011, the magistrate judge erred in concluding that Heard’s grievance for Ramadan 2010 did not exhaust his claim
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for Ramadan 2011. The magistrate judge concluded that Heard’s Ramadan 2010 grievance could not have exhausted his claim for Ramadan 2011 because the violation that occurred during Ramadan 2011 was a discrete event that required Heard to identify the particular MDOC employees responsible for the violation, the date of the occurrence, and the alleged wrongful conduct. Heard contends that the 2011 Ramadan violation resulted from a continuation of the same policy (providing Ramadan observants significantly fewer calories than what they received on the regular diet) that caused the violation for Ramadan 2010. Heard thus contends that because the Ramadan 2011 violation resulted from the application of the same unconstitutional policy, he was not required to file a new grievance. In support of his contention, Heard relies on Ellis v. Vadlamudi, 568 F. Supp. 2d 778 (E.D. Mich. 2008), and Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), both of which the Sixth Circuit discussed in Siggers v. Campbell, 652 F.3d 681 (6th Cir. 2011).
In Siggers, the plaintiff alleged that the defendants violated his First Amendment rights by improperly rejecting his incoming mail on several occasions. The Sixth Circuit held that the plaintiff’s filing of a single September 16, 2006 grievance was insufficient to exhaust claims relating to several previous mail rejections that occurred many months before the grievance was filed and that the grievance was also insufficient to exhaust mail rejections that occurred after the plaintiff filed the grievance. Siggers, 652 F.3d at 690. Citing both Ellis and Johnson, the plaintiff argued that his grievance put the defendants on notice of a continuing violation. The Sixth Circuit distinguished both cases. It noted that the plaintiff in Ellis complained of the defendants’ deliberate indifference in failing to treat his chronic medical condition that caused pain, and that the defendants’ alleged failure to treat the plaintiff’s “ongoing medical condition” was not “one discrete harm-causing act by the government.” Id. at 692–93. In contrast to Ellis, the Sixth Circuit said that each of the mail rejections of which Siggers complained was a discrete event that required a separate grievance. Id. at 693. The Sixth Circuit noted
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that the Fifth Circuit’s decision in Johnson was distinguishable because the plaintiff in that case alleged that the defendants failed to protect him from repeated sexual assaults that occurred over the course of eighteen months. The Sixth Circuit noted that the plaintiff in Johnson complained of a single government failure (to protect the plaintiff) and that his grievance “properly sufficed to exhaust subsequent harms because the government was put on notice of its failure, and any subsequent grievance filed would have complained of the exact same government failing.” Id. The Sixth Circuit found that the subsequent violations that Siggers alleged were not based on a single government failure, because two of the three subsequent violations were based on different MDOC policy directives than the violation alleged in the plaintiff’s sole grievance. Id.
In the Court’s judgment, Plaintiffs’ claims in this case are not based on discrete events, but instead upon Defendants’ alleged policy of providing Ramadan observers significantly fewer calories in the Ramadan diet than they would have received in the regular diet. In other words, as the Court understands Plaintiffs’ claims, the injury they claim resulted from an MDOC-wide policy that significantly reduced the calories that Ramadan observers received rather than from discrete deviations that occurred from prison to prison. This fact renders the instant case more like Johnson rather than Siggers, because Plaintiffs’ claims for each Ramadan celebration arise from “a single government failure.” Siggers, 652 F.3d at 693; see also Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“In order to exhaust their remedies, prisoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.”).
Although the Court disagrees with the magistrate judge that Heard’s 2010 grievance could not have exhausted his 2011 claim, the Court nonetheless concludes that the magistrate judge did not err in recommending dismissal. As the party opposing Defendants’ motion for partial summary judgment, Heard was obligated to produce evidence showing that he actually exhausted a grievance for Ramadan
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2010. See Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000) (noting that after the moving party carries its initial burden on summary judgment, “[t]he burden then shifts to the nonmoving party to come forward with evidence showing that there is a genuine issue [of material fact].”). Heard failed to attach copies of his 2010 grievance through Step III to Plaintiffs’ initial response, to Plaintiffs’ motion to resubmit their response, or to Plaintiffs’ partial Objection. Moreover, although not obligated to do so, the Court searched the record for evidence pertaining to Heard’s 2010 grievance, but it found no such evidence. Accordingly, Heard failed to meet his burden of demonstrating a genuine issue of material fact that he exhausted his Ramadan 2011 claim. II. Ramadan 2011 and 2012—Plaintiff Nelson
Plaintiff Nelson contends that the magistrate judge erred in concluding that Nelson failed to exhaust his claims for Ramadan 2011 and 2012. The Court agrees.
With regard to Ramadan 2011, the magistrate judge noted that while Nelson did exhaust a grievance through Step III for Ramadan 2013, he did not name any Defendant in this case in the grievance. While such failure would normally be a basis for concluding that the prison failed to properly exhaust his claim, Nelson notes that prison officials addressed his grievance through all steps without enforcing the rule requiring the grievant to identify the individuals involved in the issue. As the Sixth Circuit has observed, “[w]hen prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we.” Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). Thus, because the MDOC failed to enforce its own rules in considering Nelson’s grievance and instead ruled on the merits, Defendants may not now claim that Nelson failed to properly exhaust.
Following Heard’s lead, Nelson argues that his 2011 grievance properly exhausted his 2012 Ramadan claim. For the reasons set forth above, the Court concludes that a grievance for Ramadan
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2011 would exhaust a claim for Ramadan 2012. In contrast to Heard, however, Nelson has attached copies of his 2011 grievance to Plaintiffs’ partial Objection. Therefore, Nelson has carried his burden of producing evidence that he actually exhausted his Ramadan 2011 claim. Therefore, Nelson’s Ramadan 2012 claim may proceed.
Therefore, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation issued March 27, 2015 (dkt. # 181) is ADOPTED IN PART AND REJECTED IN PART. IT IS FURTHER ORDERED that Defendants’ Motion For Partial Summary Judgment (dkt # 75) is GRANTED IN PART AND DENIED IN PART. Defendants’ motion is granted with regard to Plaintiffs Heard’s, Moses’s, and Johnson’s claims based on Ramadan 2011. The motion is denied with regard to Plaintiff Nelson’s claims for Ramadan 2011 and 2012. Therefore, the case will proceed on Plaintiff Nelson’s Ramadan 2011 claim and on Plaintiff Heard’s Moses’s, Johnson’s, and Nelson’s claims for Ramadan 2012. IT IS FURTHER ORDERED that Plaintiffs’ Motion to Re-Submit Signed Plaintiffs’ Response Partially Opposing Motion for Partial Summary Judgment (dkt. # 188) is GRANTED.

Dated: June 26, 2015

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

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 Case 1:13-cv-00373-GJQ-RSK ECF No. 212 filed 08/04/15 PageID.1819 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs, v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _____________________________/

ORDER GRANTING PLAINTIFF HEARD’S MOTION TO RECONSIDER JUNE 26, 2015 ORDER ADOPTING IN PART AND REJECTING IN PART MARCH 27, 2015 REPORT AND RECOMMENDATION Plaintiff Lamont Heard has filed a motion for reconsideration of the portion of the Court’s June 26, 2015 Order Adopting in Part and Rejecting in Part 3/27/15 Report and Recommendation pertaining to Heard’s Ramadan 2011 claim. Regarding that claim, the Court stated that it disagreed with the magistrate judge’s conclusion that Heard’s 2010 grievance could not have exhausted Heard’s 2011 claim, but it concluded that the magistrate judge did not err in recommending dismissal of Heard’s 2011 claim because Heard failed to attach copies of his 2010 grievance to his response to Defendants’ motion for summary judgment. (Dkt. # 204 at Page ID##1774–75.) Pursuant to Federal Rule of Civil Procedure 54(b), an order that disposes of fewer than all claims or parties to an action “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” To prevail on a motion for reconsideration, the movant must “not only demonstrate a palpable defect by which the Court and the parties have been misled, but [must] also show that a different disposition of the case must result from a correction thereof.” See W.D. Mich. LCivR 7.4(a).

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Plaintiff Heard suggests that, in requiring him to support his response to Defendants’ motion with evidence, the Court improperly shifted the burden of proof to Heard on the issue of exhaustion. The Court disagrees. Defendants bore the burden of proving that Heard failed to exhaust his Ramadan 2011 and 2012 claims. Heard conceded that he did not exhaust a grievance for his Ramadan 2011 claim, but he argued that his grievance concerning Ramadan 2010 served to exhaust his Ramadan 2011 claim. As the Court noted in its June 26, 2015 Order, as the party responding to a motion for summary judgment, Heard was obligated to come forward with evidence showing that a genuine issue of fact remained with regard to exhaustion. This was Heard’s burden. Nonetheless, the Court concludes that Heard is entitled to reconsideration of the dismissal of his Ramadan 2011 claim because, as Heard correctly points out, while Defendants disputed the effect of Heard’s grievance for Ramadan 2010, they did not dispute the fact that Heard exhausted a grievance for Ramadan 2010. In addition, Heard has supported his instant motion with evidence demonstrating that he exhausted a grievance for Ramadan 2010. Accordingly, the Court concludes that Heard has shown that his exhausted grievance for Ramadan 2010 properly exhausted his Ramadan 2011 claim.
Therefore, IT IS HEREBY ORDERED that the Plaintiff Heard’s Motion to Alter or Amend and Reconsider Part of June 26, 2015 Order Dismissing His 2011 Ramadan Claim (dkt. # 208) is GRANTED. Plaintiff Heard’s Ramadan 2011 claim is reinstated.

Dated: August 4, 2015

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

2

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 215 filed 09/21/15 PageID.1824 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAMONT HEARD, et al., Plaintiffs,
vs.

Case No. 1:13-cv-373 Hon. Gordon J. Quist

TIM FINCO, et al.,

Defendants. /

ORDER This is a civil rights action brought by four state prisoners.1 This matter is now before

the Court on plaintiffs’ “Renewed motion for a declaration of the minimum number of calories that

is constitutionally sufficient to maintain an inmate’s health during Ramadan” (docket no. 167). In

their motion, plaintiffs ask the Court to enter a declaratory judgment “of the minimum number of

calories that is constitutionally sufficient to maintain an inmate’s health during Ramadan.” See

Renewed motion, PageID #1521.

First, plaintiff’s request for relief falls outside of the scope of this action. Plaintiffs’

complaint does not seek this type of sweeping declaratory relief. Rather, the only declaratory relief

sought in the complaint is that the Court enter a judgment “Declaring that Defendants’ [sic] refused

to accommodate Plaintiff’s [sic] request for adequate meals during Ramadan violates the 1st & 8th

Amendments and RLUIPA.” Compl. (docket no. 1, PageID #6).

Second, this motion is redundant. The Court has addressed the issue of a

constitutionally sufficient number of calories on two previous occasions. In its July 10, 2013 Order,

1 The Court notes that plaintiffs filed this pro se motion prior to the appointment of counsel.

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the Court determined that “the 2013 Ramadan meal plan will provide prisoners between 2,350 and 2,594 calories per day” and that this amount of calories was sufficient to satisfy defendants’ constitutional obligation to provide plaintiffs “with a diet nutritionally adequate for the maintenance of normal health.” See Order of Clarification (docket no. 22, PageID #182), citing Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977). Then, in its June 27, 2014 Opinion, the Court concluded “that providing prisoners participating in the Ramadan fast an average of 2,350 calories over a two-week period is consistent with sound nutritional practices and will not adversely affect prisoners’ health.” See Opinion (docket no. 104, PageID #996). Accordingly, plaintiff’s renewed motion (docket no. 167) is DENIED.
IT IS SO ORDERED.

Dated: September 21, 2015

/s/ Ray Kent Ray Kent United States Magistrate Judge

2

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 229 filed 12/21/15 PageID.1917 Page 1 of 5 (1 of 5)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 21, 2015

Mr. Daniel E. Manville Law Office P.O. Box 20321 Ferndale, MI 48220
Mr. John L. Thurber Office of the Attorney General of Michigan P.O. Box 30736 Lansing, MI 48909
Re: Case No. 14-2195, Lamont Heard, et al v. Tom Finco, et al Originating Case No. : 1:13-cv-00373
Dear Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Ms. Tracey Cordes Enclosure Mandate to issue

s/Linda M. Niesen Case Manager Direct Dial No. 513-564-7038

Case 1:13-cv-00373-GJQ-RSK ECF No. 229 filed 12/21/15 PageID.1918 Page 2 of 5 (2 of 5)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 14-2195

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LAMONT BERNARD HEARD, et al., Plaintiffs-Appellees,
v. TOM FINCO, Deputy Director of Michigan Department of Corrections, et al.,
Defendants-Appellants.

FILED

)

Dec 21, 2015

)

DEBORAH S. HUNT, Clerk

)

)

) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

) THE WESTERN DISTRICT OF

) MICHIGAN

)

)

)

O R D E R

Before: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.

Defendants Tom Finco, Deputy Director of the Michigan Department of Corrections (MDOC); Mike Martin, Special Activity Coordinator of MDOC; and Brad Purves, Dietician and Food Service Manager, filed this interlocutory appeal from the district court’s August 15, 2014 order reinstating the plaintiffs’ Eighth Amendment claim that was filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
Plaintiffs Lamont Bernard Heard, William M. Johnson, Jamero T. Moses, and Anthony Lee Nelson, Muslim prisoners proceeding pro se, filed this civil rights action alleging, in part, that the defendants violated their First and Eighth Amendment rights by depriving them of adequate nutrition during their 2011 and 2012 Ramadan fasts by serving them a total of 1,000 to 1,500 calories per day. The defendants moved to dismiss the complaint or for summary judgment. A magistrate judge recommended granting the defendants’ motion for summary

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judgment, reasoning, in part, that the plaintiffs’ First Amendment claims were barred by qualified immunity because there was no clearly established federal law that entitled the plaintiffs to the 2,900 calories a day allegedly mandated by MDOC policy. The magistrate judge did not address whether the defendants were entitled to qualified immunity on the plaintiffs’ Eighth Amendment claim arising from the 2011 and 2012 Ramadan fasts, where they allegedly received only 1,000 to 1,500 calories per day.
The district court adopted in part and rejected in part the report and recommendation. It determined that the defendants were not entitled to qualified immunity on the plaintiffs’ First Amendment claim because a reasonable prison official should have known that a diet consisting of 1,000 to 1,500 calories a day was inadequate to sustain a prisoner’s health over a thirty-day period. And it dismissed the plaintiffs’ Eighth Amendment claim because the plaintiffs were offered the same nutritionally adequate diet as the general prison population but chose to participate in the Ramadan fast.
The plaintiffs moved for reconsideration of their Eighth Amendment claim, arguing that they were deprived of adequate nutrition based on their participation in the Ramadan fasts and that they never chose to give up adequate meals but were deprived of them when they were not allowed to take a mid-day meal from the cafeteria to eat after sunset. The district court granted the plaintiffs’ motion, concluding that the plaintiffs could only obtain adequate nutrition by violating their religious beliefs. It thus reinstated the plaintiffs’ Eighth Amendment claims.
The defendants filed this interlocutory appeal, arguing that they are entitled to qualified immunity on the plaintiffs’ Eighth Amendment claim, that the district court defined the constitutional issue too generally, and that there is no clearly established law dictating the number of calories that a prisoner must have per day during a thirty-day period. The defendants do not appeal the denial of qualified immunity on the plaintiffs’ First Amendment claims, asking us only to reverse and “remand with instructions to dismiss Plaintiffs’ Eighth Amendment claim.” Appellants’ Br. 16. The plaintiffs contend that the defendants did not raise a qualifiedimmunity argument below and that their clearly established Eighth Amendment rights were violated by the denial of adequate nutrition during the 2011 and 2012 Ramadan fasts. The

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plaintiffs also move to dismiss the appeal for lack of subject-matter jurisdiction and for the appointment of counsel.
The plaintiffs move to dismiss this appeal for lack of subject-matter jurisdiction, arguing that the district court never ruled on whether the defendants were immune from suit on their Eighth Amendment claim. Qualified immunity shields government officials from civil damages so long as their conduct does not violate a clearly established statutory or constitutional right of which a reasonable person would have known. Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam). A district court’s denial of qualified immunity on purely legal grounds is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 526–27, 530 (1985). This is so even when the denial of qualified immunity is implicit. See, e.g., Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004); In re Montgomery Cty., 215 F.3d 367, 370, 374 (3d Cir. 2000); Heggs v. Grant, 73 F.3d 317, 321 (11th Cir. 1996); Musso v. Hourigan, 836 F.2d 736, 740–41 (2d Cir. 1988). Here, the defendants moved for summary judgment or dismissal claiming that they were shielded by qualified immunity. The district court reinstated the plaintiffs’ Eighth Amendment claim without expressly deciding the issue of qualified immunity. Because the district court allowed the claim to proceed, it implicitly rejected the defendants’ qualified-immunity argument. See Summers, 368 F.3d at 887. Thus, we have jurisdiction to decide whether the facts alleged by the plaintiffs establish a prima facie violation of their clearly established Eighth Amendment rights.
We review de novo a district court’s order denying qualified immunity. Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014). To determine whether government officials are shielded by qualified immunity, a court must decide (1) whether the facts as alleged by the plaintiff establish that a constitutional violation occurred and (2) whether the right was clearly established at the time of the violation. Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). A right is clearly established when its contours are sufficiently clear that a reasonable official would have understood that what he was doing violated that right. Id. at 2023. Clearly established law should not be defined at a high level of generality. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011). The focus should be on whether the law provided fair warning.

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The defendants argue that there is no clearly established law requiring that prisoners receive a specific number of calories per day, here between 1,000 and 1,500 calories. But it is clear that a prisoner has the clearly established right to a nutritionally adequate diet. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). And it is clear that a diet consisting of 1,000 to 1,500 calories per day can violate that right. Welch v. Spaulding, No. 14-2050, 2015 WL 5729466, at *4–5 (6th Cir. Sept. 30, 2015). For reasons of their own, the defendants did not submit evidence about the 2011 and 2012 Ramadan fasts, instead accepting that the prisoners were only given between 1,000 and 1,500 calories per day during those years. That number of calories, the prisoners allege, caused dizziness, weakness, dehydration, hunger pains, and loss of weight. These allegations establish a genuine issue of material fact regarding whether the plaintiffs’ restricted diets during the Ramadan fasts violated a clearly established right of which a reasonable officer would have known. Id.; see Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983) (per curiam). While it is not clear to us whether the plaintiffs can receive relief on both their First and Eighth Amendment claims, at this point both can go forward.
The plaintiffs also move for the appointment of counsel. The appointment of counsel in a civil proceeding is a privilege––not a right––that is warranted only in exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993). Since the filing of the plaintiffs’ motion and after merits briefing was completed, counsel has entered an appearance and filed pleadings on the plaintiffs’ behalf. Counsel has not requested appointment, and that request is now moot.
Accordingly, the district court’s order is AFFIRMED, the plaintiffs’ motions to dismiss and for the appointment of counsel are DENIED, and this case is REMANDED to the district court.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 244 filed 04/14/16 PageID.2013 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs, v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _____________________________/

ORDER GRANTING PLAINTIFFS’ APPEAL OF MAGISTRATE JUDGE’S DECEMBER 28, 2015 ORDER (ECF NO. 231)
Plaintiffs have filed Objections to the magistrate judge’s December 28, 2015 Order denying Plaintiffs’ motion for leave to file a supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d), in which Plaintiffs sought to add claims relating to Ramadan 2013 and 2014. Plaintiffs’ Objections are properly construed as an appeal of a pretrial order pursuant to 28 U.S.C. § 636(b)(1)(a), subject to the “clearly erroneous or contrary to law” standard. For the following reasons, the Court will grant Plaintiffs’ appeal and reverse the December 28, 2015 Order.
Background On January 12, 2015, Plaintiffs, while proceeding pro se, filed a Renewed Motion for Leave to File Their First Verified Amended Civil Complaint and Supplemental Pleading pursuant to Federal Rule of Civil Procedure 15(a)(2), 15(c)(1)(A)–(C), and 15(d). (ECF No. 216.) In their pro se motion, Plaintiffs sought to add additional claims relating to Ramadan 2011 and 2012 (violation of the Equal Protection Clause and conspiracy), as well as entirely new claims relating to Ramadan 2009 and 2010—which preceded the date Plaintiffs filed their initial complaint—and Ramadan 2013 and 2014—which arose after Plaintiffs filed their initial complaint.

Case 1:13-cv-00373-GJQ-RSK ECF No. 244 filed 04/14/16 PageID.2014 Page 2 of 8
On July 2, 2015, the Court entered an order appointing counsel for Plaintiffs. (ECF No. 207.) On September 25, 2015, Magistrate Judge Kent entered an order denying Plaintiffs’ pending pro se motion for leave to file a first amended verified complaint and to file a supplemental complaint. (ECF No. 216.) The magistrate judge concluded that, because Plaintiffs had since been appointed counsel, “[a]llowing plaintiffs to file the proposed amended complaint would defeat the assistance of counsel.” (Id. at PageID.1827.) Alternatively, the magistrate judge noted that Plaintiffs failed to explain why they waited two years to seek to add claims arising from Ramadan 2009 and 2010, and he opined that Plaintiffs’ request to add the new claims arising from Ramadan 2013 and 2014 was essentially an attempt to circumvent the exhaustion requirement. (Id. at Page ID.1827–28.)
On November 6, 2015, Plaintiffs, through counsel, filed a Motion for Leave to File a Supplemental Complaint pursuant to Federal Rule of Civil Procedure 15(d). (ECF No. 224.) In support of their motion, Plaintiffs argued that they should be granted leave to supplement their complaint pursuant to Rule 15(d) because their claims arose after the date they filed their original complaint and they properly exhausted their 2013 and 2014 Ramadan claims, as required by the Prison Litigation Reform Act (PLRA), prior to filing their motion to supplement. (Id. at PageID.1858.) Plaintiffs further argued that Defendants would not be prejudiced by the supplemental complaint. (Id. at PageID.1858–59.) On December 28, 2015, Magistrate Judge Kent issued an order denying the motion. (ECF No. 231.) The magistrate judge concluded that denial was proper because Plaintiffs failed to appeal the September 25, 2015 Order denying their pro se motion to add claims for Ramadan 2013 and 2014, as authorized by Federal Rule of Civil Procedure 72(a), and therefore Plaintiffs waived any alleged error in the September 25, 2015 Order. The magistrate judge alternatively concluded that Plaintiffs sought the same relief they sought in their prior motion, and he had previously concluded that Plaintiffs’ request circumvented the exhaustion requirement.
2

Case 1:13-cv-00373-GJQ-RSK ECF No. 244 filed 04/14/16 PageID.2015 Page 3 of 8
Discussion First, the Court rejects the magistrate judge’s waiver analysis because the September 25, 2015 Order denying Plaintiffs’ pro se motion for leave to file a first amended complaint and supplemental pleading did not unequivocally indicate that Plaintiffs’ request to amend and/or supplement their pleading was forever foreclosed. While the magistrate judge cited alternate grounds for denying the motion, his primary basis was that, being represented by counsel, justice did not require that Plaintiffs’ pro se amended pleading be allowed. Given that no Case Management Order had been issued setting a deadline for amendment of pleadings, Plaintiff’s counsel could have reasonably understood that the magistrate judge’s statement suggested that Plaintiffs were free to seek leave to amend or supplement through counsel. Thus, in the Court’s judgment, Plaintiffs’ failure to appeal the September 25, 2015 Order did not result in a waiver of any arguments regarding exhaustion. The Court also rejects the magistrate judge’s alternative basis for denying the motion—that Plaintiffs’ motion was an attempt to circumvent the exhaustion requirement by adding claims that had not been exhausted prior to the filing of the original complaint. The PLRA provides that: No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and applies to all suits by prisoners regarding prison conditions, regardless of the nature of the wrong or the type of relief sought. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 738–39, 121 S. Ct. 1819, 1823–24 (2001). In addition, “exhaustion” under the PLRA means “proper exhaustion,” i.e., “compliance with an agency’s deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378, 2385–86 (2006).
3

Case 1:13-cv-00373-GJQ-RSK ECF No. 244 filed 04/14/16 PageID.2016 Page 4 of 8
Plaintiffs requested leave to supplement their complaint pursuant to Federal Rule of Civil Procedure 15(d), which provides that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). “The purpose of a supplemental pleading is to set out claims arising from transactions or events that happened after the date of the original pleading.” Eidam v. Bailey, No. 1:10-CV-34, 2011 WL 2600678, at *4 (W.D. Mich. June 29, 2011). To the extent Plaintiffs seek to supplement their claims based on events that occurred during Ramadan 2013 and 2014—after they filed their original complaint—their motion was authorized under Rule 15(d). The magistrate judge concluded, however, that Plaintiffs’ request should be denied because it would allow Plaintiffs to circumvent the exhaustion requirement. In light of Plaintiffs’ allegation in their motion that they properly exhausted Ramadan 2013 and 2014 claims prior to filing their motion to supplement, it is difficult to see how Plaintiffs’ motion could have circumvented the exhaustion requirement. Moreover, Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999), which the magistrate judge cited, is inapplicable to the instant case. The prisoner plaintiff in Freeman filed his initial complaint before fully exhausting his administrative remedies as to the claims he asserted in his initial complaint. The court held that because “[t]he plain language of the statute makes exhaustion a precondition to filing an action in federal court[,] [t]he prisoner may not exhaust administrative remedies during the pendency of the federal suit.” Id. at 645 (citation omitted). In the instant case, because the claims that Plaintiffs seek to assert by way of a supplemental pleading had not arisen at the time Plaintiffs filed their initial complaint, Plaintiffs could not have exhausted those claims prior to filing suit.
The issue Plaintiffs’ motion presents is whether 42 U.S.C. § 1997e(a) bars a prisoner from asserting a claim in a supplemental pleading that arose after the date of the original complaint if the
4

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prisoner exhausts such claim before the supplement is filed. The Sixth Circuit has not addressed this precise issue, although it has implicitly suggested that § 1997e(a) does not preclude supplementation under Rule 15(d) in prisoner cases. See Spies v. Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002) (noting that the district court abused its discretion by failing to address the plaintiff-prisoner’s motion to supplement to add a claim based on post-complaint retaliation). In Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the Ninth Circuit considered the interplay between supplemental pleadings and the exhaustion requirement under § 1997e(a) and concluded that new claims asserted in a supplemental pleading are “brought’ within the meaning of § 1997e(a) at the time the supplemental pleading is filed and that the exhaustion requirement is satisfied so long as the prisoner exhausts the claims prior to filing the supplemental pleading. Id. at 1005. The court observed that “Congress has never indicated . . . that it intended to do away with Rule 15(d) and supplemental pleadings in PLRA actions,” id. at 1007, and it noted that in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007), the Supreme Court “held that the PLRA ‘does not—explicitly or implicitly—justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself.’” Id. at 1005 (quoting Jones, 549 U.S. at 214, 127 S. Ct. at 920). The Rhodes court cited a “closely analogous” case from the Seventh Circuit, Barnes v. Briley, 420 F.3d 73 (7th Cir. 2005), as supporting its conclusion. In Barnes, the plaintiff, a federal prisoner, initially brought claims under the Federal Tort Claims Act (FTCA) based on his conditions of confinement. The district court concluded that the plaintiff properly exhausted his FTCA claims and thereafter appointed counsel. Subsequently, the plaintiff’s counsel determined that the plaintiff’s claims were proper under § 1983 and filed a motion for leave to amend to substitute a claim under § 1983. The district court granted the motion, but subsequently dismissed the plaintiff’s § 1983 claims as unexhausted at the time the plaintiff filed his original complaint, even though the plaintiff had exhausted his claims before seeking leave to amend. On appeal, the Seventh Circuit reversed, concluding that the
5

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plaintiff “complied with the purpose and letter of the PLRA.” Barnes, 420 F.3d at 678. The court reasoned that by completing the grievance process before seeking to amend to add his § 1983 claims, the plaintiff satisfied the PLRA by affording the defendants an opportunity to address his grievance prior to filing suit. Id. Moreover, the court found that the district court’s rationale (requiring exhaustion prior to the filing of the original complaint) required the plaintiff to “shoulder an impossible task—to exhaust remedies not yet pertinent to the allegations of the filed complaint.” Id. Accord Boone v. Nose, 530 F. App’x 112, 113 n.1 (3d Cir. 2013) (stating that prisoners may file supplemental pleadings under the PLRA “if the claims in question 1) have truly accrued since the beginning of the suit and 2) are exhausted per 42 U.S.C. § 1997e(a) before the supplement is filed”).
District courts within the Sixth Circuit and elsewhere have also concluded that prisoners may supplement their pleadings under Rule 15(d) so long as the new claims have been properly exhausted prior to the amendment or supplementation. See Robbins v. Payne, No. 11-15140, 2012 WL 4812495, at *3 (E.D. Mich. Oct. 10, 2012) (noting that “case law from this district and elsewhere supports the conclusion that 1997e(a) does not bar supplemental claims pertaining to events occurring after the action was filed”); Romano v. Sec’y, DOC, No. 2:06-cv-375-FtM-29DNF, 2011 WL 1790125, at *4 (M.D. Fla. May 10, 2011) (finding that the PLRA only required exhaustion of the plaintiff’s new claims at the time he filed his amended complaint); Hoyt v. Rogers, No. 10-CV-10262, 2011 WL 940350, at *4–6 (E.D. Mich. Mar. 16, 2011) (concluding that Rule 15(d) allowed the plaintiff to supplement his complaint to add new retaliation claims but denying the motion to supplement because the plaintiff failed to exhaust his administrative remedies). The Court finds these cases, as well as the Ninth Circuit’s decision in
6

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Rhodes and the Seventh Circuit’s decision in Barnes, persuasive and concludes that the PLRA does not preclude supplementation under Rule 15(d) of properly exhausted claims.1
Having concluded that the PLRA does not preclude Plaintiff’s motion to supplement, the Court
next considers whether other considerations justify denial of Plaintiffs’ motions. The standards
applicable to motions to amend also apply to motions to supplement. See Spies v. Voinovich, 48 F.
App’x 520, 527 (6th Cir. 2002).
Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not a sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted.
Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458–59 (6th Cir. 2001) (citation and internal quotation
marks omitted). In their response, Defendants argued that Plaintiffs’ motion should be denied because
it is untimely, was filed in bad faith, and is unduly prejudicial to Defendants. Defendants’ arguments
are unpersuasive. Plaintiffs did not delay in seeking to add their Ramadan 2013 and 2014 claims. Their
first motion was denied without prejudice because it was signed by fewer than all Plaintiffs, (ECF. No.
161), and their second motion was denied because Plaintiffs were represented by counsel. Plaintiffs
have thus been diligent in seeking to add their new claims. Moreover, Defendants have not shown bad
faith. Plaintiffs are seeking to add claims that arose after they filed their initial complaint. Nothing
indicates that Plaintiffs are seeking to circumvent the Court’s prior rulings. Defendants also fail to show
1The Court in Mattox v. Edelman, No. 12-13762, 2016 WL 398242 (E.D. Mich. Jan. 12, 2006), report and recommendation adopted, 2016 WL 945340 (E.D. Mich. Mar. 14, 2016), reached the opposite conclusion, based largely on the Sixth Circuit’s decision in Cox v. Mayer, 332 F.3d 422 (6th Cir. 2003). However, Cox, which addressed the Rule 15(d) issue in dicta, does not address the present circumstances. After filing his complaint, the plaintiff in Cox was paroled. The plaintiff failed to properly exhaust his claims but argued that he could cure his failure to exhaust by supplementing his pleadings to allege that exhaustion did not apply to him because he was no longer a prisoner. Cox, 332 F.3d at 428. The court stated that the plaintiff could not use Rule 15(d) to avoid § 1997e(a)’s exhaustion requirement. Unlike Cox, Plaintiffs in the instant case properly exhausted most of their claims in their initial complaint. Thus, there was no need to cure failure to exhaust through supplementation.
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substantial prejudice. Plaintiffs’ claims for 2013 and 2014 essentially mirror their claim for prior years, and ample time remains under the Case Management Order for Defendants to conduct discovery and file dispositive motions on these claims.
Conclusion For the foregoing reasons, the Court will sustain Plaintiffs’ Objections to (appeal of) the December 28, 2015 Order and grant Plaintiffs leave to file their supplemental complaint. Therefore, IT IS HEREBY ORDERED that the magistrate judge’s December 28, 2015 Order (ECF No. 231) denying Plaintiffs’ Motion for Leave to File a Supplemental Complaint is REVERSED. The Clerk shall file Plaintiffs’ proposed Supplemental Complaint attached to their Motion for Leave to File a Supplemental Complaint.

Dated: April 14, 2016

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

8

 
 Case 1:13-cv-00373-GJQ-RSK ECF No. 302 filed 11/04/16 PageID.2384 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAMONT HEARD, WILLIAM JOHNSON, JAMERO T. MOSES, and ANTHONY NELSON,
Plaintiffs,
v.

Case No. 1:13-cv-373 Hon. Gordon J. Quist

TOM FINCO, et al.,

Defendants. /

REPORT AND RECOMMENDATION

I. Background

In their original complaint, plaintiffs alleged that defendants violated their rights

under the First and Eighth Amendments and the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq., by failing to provide plaintiffs and other Muslim

prisoners with 2,900 calories of food per day during Ramadan 2011 and 2012, as required by MDOC

policy, and instead reducing their calories to approximately 1,000 to 1,500 calories per day. See

Compl. (docket no. 1). The Court previously denied defendants’ claim of qualified immunity with

respect to the First Amendment claim and granted defendants’ motion for summary judgment on the

Eighth Amendment claim. See Order (docket no. 59). However, on reconsideration, the Court

reinstated the Eighth Amendment claim. See Order (docket no. 122).

Defendants filed an interlocutory appeal with respect to reinstatement of the Eighth

Amendment claim. The Sixth Circuit affirmed, stating in pertinent part:

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The defendants argue that there is no clearly established law requiring that prisoners receive a specific number of calories per day, here between 1,000 and 1,500 calories. But it is clear that a prisoner has the clearly established right to a nutritionally adequate diet. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). And it is clear that a diet consisting of 1,000 to 1,500 calories per day can violate that right. Welch v. Spaulding, No. 14-2050, 2015 WL 5729466, at *4-5 (6th Cir. Sept. 30, 2015). For reasons of their own, the defendants did not submit evidence about the 2011 and 2012 Ramadan fasts, instead accepting that the prisoners were only given between 1,000 and 1,500 calories per day during those years. That number of calories, the prisoners allege, caused dizziness, weakness, dehydration, hunger pains, and loss of weight. These allegations establish a genuine issue of material fact regarding whether the plaintiffs’ restricted diets during the Ramadan fasts violated a clearly established right of which a reasonable officer would have known. Id.; see Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983) (per curiam). While it is not clear to us whether the plaintiffs can receive relief on both their First and Eighth Amendment claims, at this point both can go forward.
Heard v. Finco, No. 14-2195 (6th Cir. Dec. 21, 2015), slip op. at p. 4 (docket no. 229, PageID.1921).
The Court later allowed plaintiffs to file a supplemental complaint, which expanded
their cause of action to include additional claims for Ramadan 2013 and 2014 for violations of the
First Amendment, the Eighth Amendment, the Equal Protection Clause of the Fourteenth
Amendment, and Civil Conspiracy. See Supplemental Compl. (docket no. 245); Order (docket no.
244). Finally, the RLUIPA claims have been dismissed. See Order of partial dismissal (docket no.
287). This matter is now before the Court on plaintiffs’ motion for summary judgment (docket no.
281) and defendant Tom Finco and Brad Purves’ motion for partial summary judgment (docket no.
288).
II. Legal standard
“The 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.”
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Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties’ burden of proof in a motion for summary judgment:
The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party’s case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
III. Plaintiffs’ motion for summary judgment A. Eighth Amendment and First Amendment claims In their complaint, plaintiffs seek relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett
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Case 1:13-cv-00373-GJQ-RSK ECF No. 302 filed 11/04/16 PageID.2387 Page 4 of 20
v. Grattan, 468 U.S. 42, 45 n. 3 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
In the context of prison conditions, the Eighth Amendment’s Cruel and Unusual Punishment Clause “forbids conditions that involve the ‘wanton and unnecessary infliction of pain,’ or are ‘grossly disproportionate to the severity of the crime.’” Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004), citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “To succeed in an Eighth Amendment challenge, [p]laintiff must establish that (1) a single, identifiable necessity of civilized human existence is being denied (objective prong) and (2) the defendant prison official acted with a sufficiently culpable state of mind.” Hadix, 367 F.3d at 525, citing Wilson v. Seiter, 501 U.S. 294, 298 (1991).
With respect to the objective prong, “[t]he contemporary standards of civilized decency that currently prevail in society determine whether conditions of confinement are cruel and unusual.” Hadix, 367 F.3d at 525, citing Rhodes, 452 U.S. at 346. Extreme deprivations are required and only deprivations denying “the minimal civilized measure of life’s necessities” are grave enough to create a violation of the Cruel and Unusual Punishment Clause. Hadix, citing Hudson v. McMcillian, 503 U.S. 1, 9 (1992) and quoting Rhodes, 452 U.S. at 347. “Harsh and uncomfortable prison conditions do not automatically create such a violation.” Hadix, 367 F.3d at 525. To establish an Eighth Amendment claim based upon an alleged inadequate diet, plaintiffs must demonstrate that they were denied “the minimal civilized measure of life’s necessities.” Sims
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v. Michigan Department of Corrections, 23 Fed. Appx. 214, 216 (6th Cir. 2001), citing Rhodes, 452 U.S. at 347 and Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir.1982).
The subjective prong requires that the defendant acted with deliberate indifference to an inmate’s health or safety. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). To establish the subjective component, the plaintiff must show that “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Mere negligence does not constitute an Eighth Amendment violation. Id. at 835. “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
The First Amendment “prohibits governments from ‘abridging the freedom of speech’ and ‘prohibiting the free exercise’ of ‘religion.’” Ward v. Polite, 667 F.3d 727, 732 (6th Cir. 2012). The core of the guarantee of the First Amendment right to freely exercise one’s religious beliefs is the right to practice any religion privately. See Walker v. Mintzes, 771 F.2d 920, 930 (6th Cir. 1985). “[T]he circumstances of prison life may require some restriction on prisoners’ exercise of their religious beliefs.” Id. at 929. Nevertheless, prisoners have both “a constitutional right to meals that meet their nutritional needs” and “a constitutional right to be served meals that do not violate their sincerely-held religious beliefs.” Robinson v. Jackson, 615 Fed. Appx. 310, 314 (6th Cir. 2015), citing Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.2010).
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B. Discussion The gist of plaintiffs’ motion is that they are entitled to summary judgment on their Eighth and First Amendment claims because: (1) they had a constitutional right to receive more than 1,500 calories per day during the Ramadan fast in 2011 and 2012; (2) based on previous rulings in docket nos. 22, 59 and 122, “this Court found that the Sixth Circuit had established that the minimum calories to be provided to prisoners were between 2,400 to 2,600 calories”; (3) this Court previously deemed 2,350 to 2,594 calories per day to be sufficient; and, (4) plaintiffs are entitled to summary judgment on both their constitutional claims because they received only about 1,600 calories per day during Ramadan 2011 and 2012. Plaintiffs’ motion for summary judgment should be denied. As an initial matter, the Sixth Circuit has not established a minimum number of calories to be served to a prisoner, explaining in Colvin, 605 F.3d 282 that: 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 Fed.Appx. 176, 179 (6th Cir.2002). “If the prisoner's diet . . . is sufficient to sustain the prisoner in good health, no constitutional right has been violated.” Id. Colvin, 605 F.3d at 290. Rather than adopting a specific number of calories, the Sixth Circuit has recognized that the adequacy of a religious diet presents a multi-faceted issue of fact: In Colvin, we held that it was clearly established in the First Amendment context that “prison administrators must provide an adequate diet without violating the inmate's religious dietary restrictions.” 605 F.3d at 290 (quoting Alexander v. Carrick, 31 Fed.Appx. 176, 179 (6th Cir.2002)). A number of other circuits have similarly recognized that “[i]nmates . . . have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987); see also Nelson v.
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Miller, 570 F.3d 868, 879-80 (7th Cir.2009); Kind v. Frank, 329 F.3d 979, 981 (8th Cir.2003). In Colvin, a prison chaplain mistakenly refused the plaintiff's application for a kosher diet; as a result, the prisoner was limited to eating only fruit for 16 days. Colvin, 605 F.3d at 291. While noting that the case “presents a clos[e] call regarding whether Colvin received food sufficient to sustain him in good health,” we ultimately granted the chaplain qualified immunity because Colvin failed to point to any evidence that the chaplain acted unreasonably or knowingly, and the chaplain “worked as quickly as possible to ensure that Colvin received kosher meals” once the mistake was discovered. Id. (alteration and internal quotation marks omitted).
In Cunningham I [Cunningham v. Jones, 567 F.2d 653, 656-59 (6th Cir. 1977)], a prisoner in solitary confinement was given only one meal per day for 15 days. In the absence of any proof as to the calorie count of that meal, we could not determine whether this one meal per day “was sufficient to maintain normal health” so as to comply with the Eighth Amendment, and remanded the case to the trial court to determine the nutritional content of that meal. Cunningham I, 567 F.2d at 660. Although Judge Edwards's opinion observed that “sedentary men on the average need 2000 calories or more to maintain continued health,” id. at 657, it did not clearly establish a minimum caloric requirement. On appeal after remand, the jail cook estimated that the caloric content of the single meals was between 2,000 and 2,500 calories. Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir.1982) (Cunningham II). On that evidence, we affirmed the district court's dismissal of the claim, finding that 2,000 to 2,500 calories per day “was sufficient to maintain normal health for the 15 days involved.” Id.
[Plaintiff prisoner] had a clearly established right to a nutritious diet during Ramadan. While we should avoid “defin[ing] clearly established law at a high level of generality,” Plumhoff, 134 S.Ct. at 2023, we also decline to define nutritional adequacy in the First Amendment context in terms of specific daily caloric requirements. This is because nutritional adequacy is a multi-factored concept. Accordingly, the question of whether a prison official has knowingly provided a nutritionally inadequate diet is a fact-specific inquiry that requires consideration of, inter alia, daily caloric content, duration of the diet, and the nutritional needs of the prisoner.
Welch v. Spaulding, 627 Fed. Appx. 479, 482-83 (6th Cir. 2015), cert. denied (U.S. Oct. 3, 2016).
As discussed, plaintiffs previously alleged that they received 1,000 to 1,500 calories
per day during Ramadan 2011 and 2012. In support of their motion, plaintiffs rely on their
allegations and the Sixth Circuit’s statement that based on these allegations, “[I]t is clear that a
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prisoner has the clearly established right to a nutritionally adequate diet. . . And it is clear that a diet consisting of 1,000 to 1,500 calories per day can violate that right.” Heard, No. 14-2195, slip op. at p. 4 (emphasis added). Plaintiffs also rely on the deposition of defendant Purves, in which he stated that prisoners were being provided “the equivalent of two meals worth of calories” per day (docket no. 282, PageID.2231), that lunch calories were not being provided to prisoners fasting for Ramadan (id.), and that the average daily calorie intake at the MDOC was roughly 2,600 calories (id.). In addition, plaintiffs rely on the deposition testimony of MDOC dietician Barbara Anderson. Although Dietician Anderson never calculated how many calories were on the breakfast and dinner menus for Ramadan, she did testify that from 2010 through 2014, prisoners participating in Ramadan “were required to get the same calorie intake as a general population inmate.” Anderson Dep. (docket no. 281-5, PageID.2214-2215).
In response to this motion, defendants rely on the affidavit of another dietician, Patricia Willard, and other deposition testimony of Dietician Anderson. In her affidavit, Ms. Willard stated that she has been a registered dietician for the MDOC for 30 years, and that her responsibilities include “evaluating prisoners with medical nutritional concerns, recommending and counseling prisoners in nutritional care plans, writing therapeutic diet menus, recommending and evaluating the medical necessity of a therapeutic diet order and providing technical assistance to the MDOC Food, Service program and Health Care staff in the area of medical nutritional therapy.” Willard Aff. (docket no. 294-5, PageID.2322-2323). In 2011 and 2012, the MDOC used a tool known as “Nutrionist Pro™” [sic] software to assist in menu development. Id. at PageID.2323. According to Dietician Willard, this software, which was developed in 1982, provides “a thorough analysis of diets, menus and recipes,” and is used in several states to assist in planning nutritional
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(including Ohio, Kentucky, Tennessee, New York and Illinois). Id. Dietician Willard further stated that:
I have evaluated the 2011and 2012 Statewide Standard Ramadan Menus and determined the menus failed to meet the estimated caloric needs per the 2010 Dietary Guidelines for Americans. The 2010 Dietary Guidelines indicate an estimated calorie need of 2000 calories to 2800 calories for sedentary to moderately active men, 19 years to 51+ years of age. The 2011 Ramadan menu provided a range of 1767 to 1810 calories per day, based on a two-week average. The 2012 Ramadan menu provided an average of 1756 calories per day, based on a two-week average. Id. Defendants also refer to other deposition testimony by Dietician Anderson that the daily number of calories the MDOC reportedly provided during Ramadan 2011 (i.e., 1803 calories for 30 days) “would be sufficient for many prisoners” and provided during Ramadan 2012 (i.e., 1756 calories for 28 to 30 days) would not be harmful to “[m]ost people eating that number of calories.” Anderson Dep. (docket no. 294-6, PageID.2326).
In order to prevail on a motion for summary judgment, each of the four plaintiffs must demonstrate that defendants Finco and Purves knowingly provided them a nutritionally inadequate diet. See Welch, 627 Fed. Appx. at 483. While plaintiffs have presented some evidence with respect to meals provided during Ramadan 2011 and 2012, questions of fact exist with respect to each plaintiff’s daily caloric content, the duration of the diet, and their nutritional needs during that time. Id. In this regard, the Court notes that plaintiffs have not established the threshold issue of the calories they received during Ramadan 2011 and 2012. Accordingly, plaintiffs’ motion for summary judgment should be denied.
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IV. Defendants’ motion for partial summary judgment Defendants’ motion for partial summary judgment is limited to the allegations in plaintiffs’ supplemental complaint regarding Ramadan 2013 and 2014. See Defendants’ Brief (docket no. 289, PageID.2254). A. Qualified immunity Defendants contend that they are entitled to summary judgment on the affirmative defense of qualified immunity. Under this affirmative defense, “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The dispositive question is whether the violative nature of the particular conduct at issue in the lawsuit is clearly established. See Mullenix v. Luna, -- U.S. --, 136 S. Ct. 305, 308 (2015). “A right is clearly established only if its contours are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Carroll v. Carman, -- U.S. --, 135 S. Ct. 348, 350 (2014). “In other words, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. Thus, the doctrine of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Carroll, 135 S. Ct. at 350. When a defendant raises the issue of qualified immunity on summary judgment, “[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity.” Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000). Although the plaintiff bears the ultimate burden, “[t]he defendant bears the initial burden of coming forward with
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facts to suggest that he acted within the scope of his discretionary authority during the incident in question.” Id. Once this is accomplished, “the burden shifts to the plaintiff to establish that the defendant’s conduct violated a right so clearly established that any official in his position would have clearly understood that he was under an affirmative duty to refrain from such conduct.” Id. To meet his burden on summary judgment, a plaintiff must show (1) that a constitutional right was violated, and (2) that the right was clearly established at the time of the violation. Chappell v. City Of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009). The court may exercise its discretion to decide which prong of the test to address first in light of the circumstances of the case. Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir 2011), citing Pearson v. Callahan, 555 U.S. 223, 232-33 (2009).
1. Plaintiffs’ claims under the Eighth and First Amendments
Defendants contend that they are entitled to qualified immunity because the law was not clearly established such that reasonable officials in defendants’ positions would believe that providing prisoners with 2,350 calories a day for 30 days violated their First and Eighth Amendment rights during Ramadan 2013 and 2014. As discussed in § III.B., supra, the Constitution does not mandate a minimum daily caloric content for inmates. However, this Court did conclude that the 2013 Ramadan meal plan which provided prisoners “between 2,350 and 2,594 calories per day” was “sufficient to satisfy Defendants’ constitutional obligation to provide Plaintiffs with a diet nutritionally adequate for the maintenance of normal health.” Order of Clarification (docket no. 22). Defendants have provided an affidavit from Dietician Willard that the 2013 Ramadan menu “provided a range of 2361 to 2618 calories per day, based on a two-week average,” and that the 2014
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Ramadan menu “provided a range of 2711 to 2721 calories per day, based on a two-week average.” Willard Aff. at PageID.2283.
Plaintiffs contend that there is an issue of fact regarding the sufficiency of the calories they received. Heard testified that he lost weight during Ramadan 2013, and that he had “similar symptoms” as described during Ramadan 2011 and 2012 of dizziness, feeling lethargic and hunger pains. Heard Dep. (docket no. 298-1, PageID.2357). Heard experienced the same symptoms during Ramadan 2014. Id. at PageID.60. Johnson testified that during Ramadan 2013, he suffered from “[h]eadaches, dizziness . . . faint, weakness, and not being able to work out.” Johnson Dep. (docket no. 298-1, PageID.2362). Johnson also stated that he lost ten pounds during Ramadan 2014, and suffered from “headaches, dizziness, weakness, [and] a lack of energy.” Id. at PageID.2363. Moses testified that during Ramadan 2013 he lost 18 pounds since the last time he had been weighed in February 2013, and suffered from dizziness and headaches. Moses Dep. (docket no. 298-1, PageID.2365, 2368). Moses also testified that during Ramadan 2014 he suffered from weight loss and dizziness. Id. at PageID.2366. Nelson testified that during Ramadan 2013 he lost 10 to 15 pounds and suffered from dizziness. Nelson Dep. (docket no. 298-1, PageID.2371). Finally, Nelson testified that in Ramadan 2014, he lost “close to 30 pounds,” apparently due to the amount of fruits and vegetables in the menu, and that he suffered from hunger pains, “headaches, nausea, dizziness, [and] lacking a pleasant experience that came with Ramadan . . .” Id. at PageID.2373-2375. Based on this testimony, plaintiffs claim their symptoms during Ramadan 2013 and 2014 were similar to their symptoms experienced during Ramadan 2011 and 2012, even though they were receiving, on average, significantly more calories per day in 2013 and 2014. Whether the amount of calories provided in 2013 and 2014 was sufficient presents an issue of fact to be decided by the jury.
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Defendants’ qualified immunity claim is based upon the fact that the calories provided in 2013 and 2014 exceeded the amount of calories found to be sufficient in the Court’s July 13, 2013 Order of Clarification. The undersigned disagrees. The Court’s Order of Clarification referred to a minimum number of calories to be provided per day. In this regard, the Court’s April 29, 2014 Order for contempt stated in pertinent part:
1. Defendants violated this Court’s July 13, 2013 Order of Clarification on several occasions during the 2013 Ramadan observance by providing Plaintiffs with fewer than 2350 calories each day, contrary to Defendants’ own representations to the Court;
2. The Court’s May 13, 2010 was clear and unambiguous in requiring Defendants to provide Plaintiffs 2350 calories per day[.]
Order of Contempt (docket no. 70). In an affidavit executed prior to the contempt order, Mr. Purves stated that during
Ramadan 2013, “[t]he calorie counts provided by Nutritionist Pro™ show an average daily count of 2,361.246 calories per day.” Purves Aff. (docket no. 25-3, PageID.234). The Court notes that this is consistent with the Menu Template Report, which states that the “Avg. Daily Kcals” was 2361.246. Menu Template Report (docket no. 25-3, PageID.235). While the average daily calorie count exceeded the 2,350 calories per day deemed sufficient by the Court, the actual calorie count for certain days fell below that minimum amount (see, e.g., Tuesday Week 1 (2146.785 calories), Thursday Week 1 (2243.915 calories), and Saturday Week 1 (2160.465 calories)). Id. at PageID.237-238. Given this record, defendants cannot rely on the daily amount of calories cited in the Court’s Order of Clarification, because the evidence presented by defendants did not establish that they provided at least 2,350 calories during each day of Ramadan 2013 and 2014. Rather, defendants’ evidence presented for Ramadan 2013 and 2014 established that the MDOC provided,
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on average, at least 2,350 calories per day as calculated over a two-week period. See Willard Aff. at PageID.2283.
Genuine disputes of material fact preclude an entry of summary judgment on a defense of qualified immunity. King v. Taylor, 694 F.3d 650, 664 (6th Cir. 2012). See Bletz v. Gribble, 641 F.3d 743, 749 (6th Cir. 2011) (“if genuine issues of material fact exist as to whether the officer committed acts that would violate a clearly established right, then summary judgment is improper”). Accordingly, defendants’ motion should be denied with respect to plaintiffs’ Eighth and First Amendment claims arising from Ramadan 2013 and 2014.
2. Plaintiffs’ claim under the Equal Protection Clause Defendants also contend that they are entitled to qualified immunity because the law was not clearly established such that reasonable officials in defendants’ positions would believe that providing prisoners with 2,350 calories a day for 30 days would violate their rights under the Equal Protection Clause of the Fourteenth Amendment. Based on this record, the Court concludes that defendants are entitled to qualified immunity with respect to the Equal Protection claim, because no constitutional right was violated. The Equal Protection Clause provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “The Equal Protection Clause prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” Loesel v. City of Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2012) (internal quotation marks omitted). Here, plaintiffs’ Equal Protection claim is based upon allegations that they were treated differently than similarly situated Jewish prisoners:
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85. During Jewish Passover and Seder, prisoner participants receive adequate meals that are prepared in accordance with their dietary regimen.
86. Defendants did not reduce Jewish fast participants’ menu below civilized norms.
87. Defendants discriminated against Plaintiffs because Plaintiffs are Muslim, in violation of the 14th Amendment of the U.S. Constitution during the 2013 and 2014 Ramadan.
Plaintiffs’ Supplemental Compl. (docket no. 245, PageID.2030).
In Small v. Secretary Pennsylvania Department of Corrections, 592 Fed. Appx. 62
(3d Cir. 2014), the Court rejected a similar Equal Protection claim raised by a Muslim prisoner,
concluding in that case that the plaintiff (Small) failed to demonstrate that Muslim inmates observing
Ramadan were similarly situated to Jewish inmates observing two one-day fasts:
“The Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). As such, we found no equal protection violation in DeHart v. Horn, 390 F.3d 262, 272 (3d Cir.2004), because the plaintiff, a Buddhist inmate, failed to prove that he was similarly situated to Muslim and Jewish inmates regarding his religious dietary restrictions. DeHart was not similarly situated because his proposed diet imposed a greater burden on the prison than Muslim and Jewish inmates' diets. Id. Thus, although the prison treated DeHart differently, it did not violate the Equal Protection Clause.
The same is true here. The two Jewish fasting days Small identified are not comparable to Ramadan. As the Magistrate Judge noted, Ramadan is much longer, involves more logistical challenges, and ends with a communal feast. Therefore, inmates seeking to participate in Ramadan are not similarly situated to inmates seeking to participate in the Jewish fasting days, and the prison did not violate the Equal Protection Clause by treating such inmates differently. Under DeHart, summary judgment for the defendants was appropriate.
Small, 592 Fed. Appx. at 64 (3d Cir. 2014).
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The reasoning in Small is applicable here. In their supplemental complaint, plaintiffs allege that Ramadan “is not a fast in the sense of not eating for 30 consecutive days,” that they “fast during daylight hours of the Arabic Lunar month of Ramadan,” that they “abstain[] from food and liquid during daylight hours,” and that the “[o]nce the sun sets, Muslims consume an adequate meal that meets the Dietary Guidelines for Americans.” Suppl. Civil Compl. at PageID.2022-2023. As an initial matter, Passover does not involve this type of fast. The dietary restriction for an observant Jew during Passover involves not eating khametz (e.g., breads, cakes and pasta) for seven days.1 With respect to fasting, Judaism includes two major fast days2 and additional minor fast days.3 The fact that both Jews and Muslims observe fast days does not make them similarly situated. As the district court in Small aptly noted, “[t]o say that the two observances are similarly situated because both involve fasts is simplistic.” Small v. Wetzel, No. 3:12-CV-83, 2014 WL 295714 at *2 (W.D. Pa. Jan. 24, 2014), affirmed 592 Fed. Appx. 62 (3d Cir.). Other courts have concluded that Muslim inmates and Jewish inmates were not similarly situated for purposes of Equal Protection claims simply because they had distinctive religious diets which involved fasting or dietary restrictions. See, e.g., Robinson v. Jackson, No. 1:14-CV-115, 2014 WL 4988152 at *5 (S.D. Ohio Oct. 6, 2014),
1 “Bread products [khametz] are forbidden during all eight days of the holiday (seven days in Israel). . . Khametz is any foodstuff containing flour that has fermented (such as breads, cakes, and pasta), and dough made from wheat, barley, rye, spelt, and oats.” Rabbi Joseph Telushkin, Jewish Literacy at 642 (1991).
2 “On the ‘major’ fast days, Yom Kippur and Tisha Be-Av . . ., food is forbidden from the eve of the fast day to the following evening.” Telushkin, supra, at 657-58.
3 “The minor fast days do not commemorate ‘minor’ events in Jewish history. They are called minor because they are only halfday fasts; food is forbidden only from dawn till evening.” Telushkin, supra, at 657-659. “[T]he three minor fasts associated with the Temple’s destruction are kept only by very observant Jews.” Id. at 658-59. “Another minor fast falls on the day preceding Purim.” Id. at 659. “A final fast is obligatory for only a small percentage of Jews, firstborn children who are males. . . This day is called, logically enough, the Fast of the First-born, and it is observed the day before Passover.” Id.
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affirmed 615 Fed. Appx. 310 (6th Cir. 2015) (where plaintiff prisoner alleged that the defendant violated the Equal Protection Clause “by granting kosher meals to Jewish inmates while denying Halal meals to Muslim inmates,” the court rejected the claim in part stating “these classes of inmates (Jewish v. Muslim) are not similarly situated because they differ greatly in number”) (emphasis in original); Hearn v. Kennell, No. 07-1235, 2009 WL 3460455 at *6 (C.D. Ill. Oct. 22, 2009), affirmed, 433 Fed. Appx. 483 (7th Cir. 2011) (“[T]he plaintiff [a Muslim inmate] is not similarly situated to the Jewish inmates. The dietary restrictions of Muslims are not the same as those of the Kosher diet for Jewish inmates. Accordingly, different steps must be taken to accommodate the various dietary restrictions.”).
Furthermore, plaintiffs do not present any reasoned argument to support their claim that a Muslim inmate observing Ramadan is similarly situated to a Jewish inmate observing Passover or a fast day. Rather, plaintiffs present cursory arguments which refer to the calories which they believe are provided to “the regular prison population, including Jewish prisoners” during Ramadan:
Using the rational basis test, there is no legitimate reason to provide the regular prison population, including Jewish prisoners, 2,600 calories daily while Plaintiffs received approximately 2,350 calories daily or less during Ramadan 2013 and 2014. It would not have burdened Defendants to provide the same 2,600 calories daily to Plaintiffs during Ramadan 2013 and 2014. Furthermore, Defendants have failed to state a legitimate reason as to why Plaintiffs should have received 2,350 calories daily or less instead of the 2,600 calories provided to all other prisoners. Plaintiffs’ Response (docket no. 298, PageID.2346). In summary, plaintiffs have not demonstrated that defendants violated the Equal Protection Clause. The absence of a constitutional violation entitles defendants to qualified immunity on this claim. See Pearson, 555 U.S. at 232-33; Bishop, 636 F.3d at 765.
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Case 1:13-cv-00373-GJQ-RSK ECF No. 302 filed 11/04/16 PageID.2401 Page 18 of 20
3. Plaintiffs’ claims against defendant Purves for Ramadan 2014
Defendant Purves seeks qualified immunity with respect to plaintiffs’ claims for Ramadan 2014 because he did not have the requisite personal involvement to be liable under 42 U.S.C. § 1983. Although defendants have raised this claim in the context of qualified immunity, it appears to the Court that the doctrine of qualified immunity does not address Mr. Purves’ claim that he lacked personal involvement in Ramadan 2014. By its very nature, the doctrine of qualified immunity involves personal involvement because the doctrine “gives government officials breathing room to make reasonable but mistaken judgments,” Carroll, 135 S. Ct. at 350, while “performing discretionary functions,” Harlow, 457 U.S. at 818. Nevertheless, Mr. Purves is entitled to summary judgment for any claims arising in Ramadan 2014 due to his lack of personal involvement.
“Personal involvement is necessary to establish section 1983 liability.” Murphy v. Grenier, 406 Fed. Appx. 972, 974 (6th Cir. 2011). “It is axiomatic that the liability of persons sued in their individual capacities under section 1983 must be gauged in terms of their own actions.” Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Here, there is no evidence that Mr. Purves was involved in any decisions made with respect to Ramadan 2014. At his deposition, Purves testified that his position as Food Service Program Manager was eliminated on December 7, 2013. Purves Dep. (docket no. 289-3, 2275). Since that time, he has been employed as the administrative assistant to the chief medical officer for the Bureau of Health Care Services. Id. at PageID.2274. There is no evidence that Mr. Purves played any role in the meals provided in Ramadan 2014, which began on June 28, 2014, more than six months after his position of Food Service Program Manager was eliminated See Plaintiff’s Notice to correct error (docket no. 89); Purves Dep. at PageID.2275.
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Case 1:13-cv-00373-GJQ-RSK ECF No. 302 filed 11/04/16 PageID.2402 Page 19 of 20
Accordingly, defendant Purves is entitled to summary judgment with respect to all claims arising from Ramadan 2014.
B. Civil conspiracy claim Finally, defendants seek summary judgment on plaintiffs’ civil conspiracy claim. “A civil conspiracy under § 1983 is an agreement between two or more persons to injure another by unlawful action.” Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Express agreement among all the conspirators is not necessary to find the existence of a civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all of the participants involved. All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant. Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Conclusory allegations of a conspiracy are not sufficient to state a claim under § 1983. See Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987). Defendants contend that “[t]he Plaintiff [sic] failed to make any specific allegations against the Defendants in either 2013 or 2014.” Defendants’ Brief (docket no. 289, PageID.2265). See Guitierrez, 826 F.2d at 1538. However, defendants do not address the allegedly defective allegations or point out how those allegations fail to meet the pleading requirements for a civil conspiracy claim. In their reply brief, defendants present conclusory statements (e.g., “[t]he Plaintiffs utterly failed to show that the Defendants engaged in a civil conspiracy,” “[t]he Plaintiffs must plead a civil conspiracy with particularity,” and “[t]he Plaintiffs have done nothing more than make vague allegations as to the alleged civil conspiracy”). Defendants’ cursory briefing fails to address the legal issue of whether plaintiffs alleged the necessary elements of a civil conspiracy
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Case 1:13-cv-00373-GJQ-RSK ECF No. 302 filed 11/04/16 PageID.2403 Page 20 of 20

under § 1983. “ It is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). This being said, the Court concludes that there could be no civil conspiracy between defendants Finco and Purves related to Ramadan 2014 because, as discussed in § IV.A.3, Mr. Purves was not the Food Service Program Manager during Ramadan 2014. Accordingly, defendants’ motion should be denied with respect to Ramadan 2013 and granted with respect to Ramadan 2014.
V. Recommendation For the reasons set forth above, I respectfully recommend that plaintiffs’ motion for summary judgment (docket no. 281) be DENIED. I further recommend that defendants’ motion for partial summary judgment (docket no. 288) be GRANTED with respect to plaintiffs’ Eighth and Fourteenth Amendment claims against defendant Purves arising from Ramadan 2014, GRANTED with respect to plaintiffs’ Fourteenth Amendment Equal Protection claims arising from Ramadan 2013 and 2014, GRANTED with respect to plaintiffs’ civil conspiracy claim arising from Ramadan 2014, and DENIED in all other respects.

Dated: November 4, 2016

/s/ Ray Kent RAY KENT United States Magistrate Judge

ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

LAMONT HEARD, et al.,

Plaintiffs, v.

Case No. 1:13-CV-373

TOM FINCO, et al.,

HON. GORDON J. QUIST

Defendants. _________________________/

ORDER ADOPTING IN PART AND REJECTING IN IN PART11/04/2016 REPORT AND RECOMMENDATION Plaintiffs and Defendants have filed Objections to Magistrate Judge Ray Kent’s November 4, 2016, Report and Recommendation (R & R), which addressed Plaintiffs’ motion for summary judgment against Defendants Finco and Purves on Plaintiffs’ First and Eighth Amendment claims for Ramadan 2011 and 2012, and Defendants’ motion for summary judgment on Plaintiffs’ claims based on Ramadan 2013 and 2014. The magistrate judge recommended that the Court: (1) deny Plaintiffs’ motion as to both the First and Eighth Amendment claims for 2011 and 2012 because issues of fact remain “with respect to each plaintiff’s daily caloric content, the duration of the diet, and their nutritional needs during that time” (ECF No. 302 at PageID.2392); (2) deny Defendants’ motion as to the First and Eighth Amendment claims for Ramadan 2013 and 2014 based on qualified immunity because issues of fact remain as to the amount of calories Plaintiffs received in 2013 and 2014 (id. at PageID.2395); (3) grant Defendants’ motion as to Plaintiffs’ equal protection claim (id. at PageID.2399-2400); (4) grant Defendants’ motion as to Plaintiffs’ 2014 Ramadan claims against Defendant Purves based on Purves’ lack of personal involvement (id. at PageID. 2401–02); and (5) deny Defendants’ motion with regard to Plaintiffs’ Ramadan 2013 conspiracy claim, but grant the motion with regard to the 2014 Ramadan conspiracy claim (id. at PageID.2402–03).

Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, the parties’ Objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted in part and rejected in part. The Court will reject the R & R with regard to its recommendation that Defendants are not entitlement to qualified immunity on Plaintiffs’ First and Eighth Amendment claims for Ramadan 2013 and 2014 and with regard to its recommendation to deny summary judgment on Plaintiffs’ Ramadan 2013 conspiracy claim.1 The Court will adopt the R & R in all other respects.
Plaintiffs’ Objections Plaintiffs argue that the magistrate judge erred in his analysis of their First and Eighth Amendment claims for Ramadan 2011 and 2012. First, Plaintiffs argue that the magistrate judge failed to properly analyze their First Amendment claims that the amount of calories they were provided during 2011 and 2012 diminished the spiritual experience they otherwise would have had if Defendants had served them the full amount of calories they would have received had they not participated in Ramadan. Plaintiffs note that they presented evidence of the effects that the reduced calories had on their health during the month of Ramadan, and Defendants failed to provide any evidence to rebut Plaintiffs’ evidence. Plaintiffs argue that such evidence shows that the substantial reduction of calories in both years substantially burdened their exercise of their religion. Regarding their Eighth Amendment claims, Plaintiffs argue that the magistrate judge’s analysis is contrary to case law, the established facts in the
1Defendants brought their motion as a motion for summary judgment under Fed. R. Civ. P. 56. However, their argument concerning the conspiracy claim was based on the sufficiency of Plaintiffs’ complaint, under the Twombly pleading standard.
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record, and previous rulings by this Court. In spite of Plaintiffs’ Objections, the Court concurs with the magistrate judge’s analysis.
“‘[W]here the moving party has the burden—the plaintiff on a claim for relief or defendant on an affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.’” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487–88 (1984) (emphasis in original)). “[I]f the moving party also bears the burden of persuasion at trial, the moving party’s initial summary judgment burden is ‘higher in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.’” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002) (quoting 11 James Wm. Moore, et al., Moore’s Federal Practice § 56.13[1], at 56-138 (3d ed. 2000)).
As for Plaintiffs’ First Amendment claim, in Welch v. Spaulding, 627 F. App’x 479 (6th Cir. 2015), the Sixth Circuit said that the plaintiff, who alleged receiving only 1300 calories per day during Ramadan, “had a clearly established right to a nutritious diet during Ramadan.” Id. at 483. The court declined to define nutritional adequacy in terms of calories, however, holding instead that whether a prisoner received a nutritionally-adequate diet “is a fact-specific inquiry that requires consideration of, inter alia, daily caloric content, duration of the diet, and the nutritional needs of the prisoner.” Id. As the magistrate judge noted in the instant case, Defendants provided evidence that the caloric content of the Ramadan diet for 2011 ranged from 1,767 to 1,810 calories per day, and that the caloric content of the Ramadan diet for 2012 averaged 1,756 calories per day, (ECF No. 294-5 at PageID.2323)—substantially below the average 2,600 calories the regular general population diet provides. However, Defendants also provided evidence that 1,800 calories per day would be sufficient
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“for many prisoners to be on for 30 days,” and that “[m]ost people eating [an average of 1,756 calories per day for 28-30 days] would not be harmed by it.” (ECF No. 294-6 at PageID.2326.) Although Plaintiffs allege that they suffered adverse effects from this reduction of calories during Ramadan, in light of Defendants’ evidence, the Court cannot conclude that Plaintiffs have met their burden of showing that no reasonable trier of fact could find other than for Plaintiffs. In fact, in its Order rejecting Defendants’ interlocutory appeal in this case, the Sixth Circuit said that “it is clear that a diet consisting of 1,000 to 1,500 calories per day can violate [the] right [to a nutritionally adequate diet.” (ECF No. 229 at PageID.1921.) Thus, contrary to Plaintiffs’ argument, whether Plaintiffs were provided adequate nutrition during Ramadan 2011 and 2012 remains an issue for the jury.
As for Plaintiffs’ Eighth Amendment claim, Plaintiffs’s argument that the Court has previously determined that Plaintiffs need an average of 2,350 calories during the month of Ramadan is inaccurate. As the Court will explain in more detail below, the Court’s orders regarding Defendants’ proposed diets providing 2,350 calories per day did not purport to set a minimum number of calories that Ramadan observants require. Thus, for the reasons stated above, genuine issues of material fact remain as to Plaintiffs’ Eighth Amendment claims.
Defendants’ Objections Defendants argue that the magistrate judge erred in concluding that they are not entitled to qualified immunity on Plaintiffs’ claims based on Ramadan 2013 and 2014. The Court agrees. “The doctrine of qualified immunity shields government officials performing discretionary functions from civil liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). A right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable
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official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). Although the Supreme Court has recognized that the Eighth Amendment requires prison officials to provide prisoners “humane conditions of confinement,” including adequate food, Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994), neither the Supreme Court nor the Sixth Circuit have specified a minimum number of calories required for a nutritionally-adequate diet. See Welch, 627 F. App’x at 482. However, in Cunningham v. Jones, 667 F.2d 565 (6th Cir. 1982) (per curiam), the Sixth Circuit affirmed a district court’s finding that a daily diet of 2,000 to 2,500 calories for fifteen days sufficed to maintain normal health.
On July 8, 2013, this Court entered an order denying Plaintiffs’ motion for a preliminary injunction to require Defendants to provide Plaintiffs 2,900 calories per day during Ramadan 2013. (ECF No. 21.) The Court denied the motion, in part, because Defendants represented that the 2013 Ramadan diet would provide a daily caloric content ranging from 2,350 to 2,594 calories, which would not pose a risk to healthy, moderately active males. (Id. at PageID.179.) On July 10, 2013, the Court issued an Order of Clarification (ECF No. 22), in which it notified Defendants that, per their representations, they would be required to provide Plaintiffs at least 2,350 calories per day during the 2013 Ramadan observance. Subsequently, on April 29, 2014, the Court entered an Order of Contempt holding Defendants in contempt for providing Plaintiffs fewer than 2,350 calories each day during Ramadan 2013. (ECF No. 70.) In an Opinion entered on June 27, 2014, the Court explained that it issued the April 29, 2014 Order of Contempt, even though Defendants represented that they provided an average of 2,361 calories per day during Ramadan 2013, because Defendants had represented that they would provide a minimum of 2,350 calories each day, and Defendants’ use of an average number of calories meant that, on some days, Plaintiffs were receiving several hundred fewer calories, i.e., 2,148 calories. (ECF No. 104 at PageID.996; see also ECF No. 58 at PageID.698.) In the same Opinion and
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accompanying Order, however, the Court also concluded that provision of an average of 2,350 calories per day during Ramadan 2014 would not harm Ramadan observants because the practice of providing a diet that varied in calories each day was “consistent with sound nutritional practices.” (ECF No. 104 at PageID.996.) To ensure that Plaintiffs received the calories Defendants said they would provide, the Court ordered Defendants to file sworn statements on a weekly basis verifying that the food items listed on the 2014 Ramadan menu were actually served. (Id. at PageID.997.) Finally, on May 4, 2015, the Court issued a second contempt order, concluding that, contrary to the affidavits Defendants submitted, Plaintiffs submitted credible evidence (favorable grievance findings) that they had not been given various food items. (ECF No. 191.)
The magistrate judge concluded that an issue of fact remains as to whether Plaintiffs received sufficient calories for Ramadan 2013 and 2014. The magistrate judge found that Defendants could not rely on the 2,350 daily calories listed in the Court’s Order of Clarification because Defendants’ own evidence did not establish that Defendants provided at least 2,350 calories each day. (ECF No. 302 at PageID.2396–97.) However, the magistrate judge may have overlooked this Court’s June 27, 2014 Opinion and Order approving Defendants’ request to provide an average of 2,350 calories per day for Ramadan 2014. (ECF Nos. 104, 105.) Had Defendants made the same request for Ramadan 2013, the Court likely would have approved it.
In 2013 and 2014, it was not clearly established that 2,350 calories or more per day, or even an average of 2,350 calories per day, was required for prisoners fasting for the 28–30 days of Ramadan to maintain normal health. There was scant case law from the Sixth Circuit, and Cunningham v. Jones, 667 F.3d 565 (6th Cir. 1982) (per curiam), one of the most cited cases on the issue, said that between 2,000 and 2,500 calories per day for 15 days did not violate the Eighth Amendment. Although Plaintiffs dispute that they actually received all the calories in 2013 and 2014 that Defendants said they would
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provide, it is undisputed that Defendants created Ramadan diets for 2013 to provide an average of 2,350 calories per day. Moreover, it appears that any shortage of food items occurred because or errors or mismanagement at the local facility level and not because the MDOC’s Ramadan diet was inadequate. In any event, there is no indication that Plaintiffs received substantially less than a daily average of 2,350 calories in either 2013 or 2014 or that such average fell below the 2,000 calorie floor cited in Cunningham.
Accordingly, the Court concludes that Defendants are entitled to summary judgment based on qualified immunity on Plaintiffs’ First and Eighth Amendment claims for Ramadan 2013 and 2014. In addition, because the Court concludes that Defendants are entitled to qualified immunity on Plaintiffs’ claims based on Ramadan 2013 and 2014, Plaintiffs’ conspiracy claims fail as a matter of law. See Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995) (concluding that the plaintiff’s “conspiracy claim [wa]s not actionable” because all of the defendants were entitled to qualified immunity on the plaintiff’s First Amendment claim); Dorlett v. Butkiewicus, No. 11-cv-1461 (TLM), 2013 WL 4760943, at *17 (D. Conn. Sept. 4, 2013) (“The Court will . . . grant summary judgment against Plaintiff sua sponte on his conspiracy claim and dismiss that claim . . . as the Court has dismissed all of the underlying § 1983 claims upon which the conspiracy claim is based.”).
Therefore, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation issued November 4, 2016 (ECF No. 302) is ADOPTED IN PART AND REJECTED IN PART. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 281) is DENIED.
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IT IS FURTHER ORDERED that Defendants’ Motion For Partial Summary Judgment (ECF No. 288) is GRANTED. Plaintiffs’ claims based on Ramadan 2013 and 2014 are DISMISSED WITH PREJUDICE.
The case will continue on Plaintiffs’ First and Eighth Amendment claims based on Ramadan 2011 and 2012.

Dated: February 16, 2017

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

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