UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICHARD L. QUINN, JR.,

Plaintiff,

 Civil Action 2:11-cv-268

v. Judge James L. Graham 

 Magistrate Judge Elizabeth P. Deavers

ROBIN KNAB, WARDEN, et al.,

Defendants.

OPINION AND ORDER

Plaintiff, Richard L. Quinn, Jr., an inmate in the custody of the Chillicothe Correctional

Institution (“CCI”) who is proceeding without the assistance of counsel, filed this civil rights

action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that Defendants impeded his

ability to exercise his religion in violation of the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) and the First Amendment. This matter is before the Court for

consideration of the January 18, 2013 Report and Recommendation of the United States

Magistrate Judge (ECF No. 48) and Defendants’ Objections to the Report and Recommendation

(ECF No. 51). 

Defendants timely filed their objections to the Report and Recommendation under

Federal Rule of Civil Procedure 72(b). If a party objects within the allotted time to a report and

recommendation, the Court “shall make a de novo determination of those portions of the report

or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or

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modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

In this case, the Magistrate Judge recommended that the Court deny Defendants’ First

Motion for Summary Judgment. In their First Motion for Summary Judgment, Defendants ask

the Court to dismiss Plaintiff’s remaining claims on the grounds that he had failed to properly

exhaust his administrative remedies as required under the Prison Litigation Reform Act of 1996

(“PLRA”), 42 U.S.C. § 1997e(a), prior to bringing suit. Within the Report and

Recommendation, the Magistrate Judge correctly sets forth the standards governing summary

judgment decisions under Federal Rule of Civil Procedure 56; the PLRA’s exhaustion

requirements; and Ohio’s grievance procedure for inmates seeking religious accommodations. 

(See Jan. 18, 2013 Report and Rec. 4–9, ECF No. 57.) The Court incorporates by reference the

Magistrate Judge’s recitation and discussion of the standards for consideration of motions for

summary judgment, the PLRA’s exhaustion requirements, and Ohio’s grievance procedure as it

relates to inmates seeking religious accommodations. 

In concluding that Defendants are not entitled to summary judgment on exhaustion

grounds, the Magistrate Judge reasoned as follows: 

The Undersigned concludes that Defendants have not satisfied their initial

burden to show that Plaintiff failed to fully exhaust his administrative remedies. 

Defendants argue that Plaintiff’s efforts were insufficient because he “failed to

submit the proper form and proper documentation to effectuate an appeal of the

January 25, 2011 denial of his December 20, 2012 request.” (Defs.’ Mot. 6, ECF No.

43.) Defendants maintain that Plaintiff’s [February 24, 2011] attempted

appeal/objection was deficient because it was untimely and submitted on the wrong

form. 

The flaw in Defendants’ position is that under ODRC Policy Number 72-

REG-02, CCI’s Warden did not have authority to issue a final, appealable decision. 

This is because Plaintiff’s religious accommodation, if granted, would require the

creation of a special diet and the recognition of a religious holiday. Indeed, his

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issuance of a final decision disapproving Plaintiff’s request on January 25, 2011,

violated ODRC Policy Number 72-REG-02(H)(10). (See Form DRC4327, ECF No.

43-1 (marking the box labeled “Disapproved” instead of the box labeled “Refer to

Reg. Religious Services Admin.”).) CCI’s Warden should have forwarded his

response (Form DRC4327) and all accompanying materials to the Religious Services

Administrator for a final decision. Upon receiving the CCI’s Warden’s decision (as

reflected on Form DRC4327 and accompanying materials) on January 26, 2011, the

Religious Services Administrator took no action to remedy the CCI’s Warden’s

violation of policy. Nor did the Religious Services Administrator take action upon

receipt of Plaintiff’s February 24, 2011 attempted appeal/objection wherein he

specifically complained that ODRC Policy Number 72-REG-02 was not followed. 

(See Feb. 24, 2011 Appeal/Objection, ECF No. 43-1.) 

Plaintiff, in properly filling out the requisite Request for Religious

Accommodation form (Form DRC4326) and submitting it to the chaplain, satisfied

his obligations under ODRC Policy Number 72-REG-02. Plaintiff was entitled to

interpret the Religious Services Administrator’s failure to remedy the policy

deviations and issue a final decision to be a denial of his request. See Risher v.

Lappin, 639 F.3d 236, 240–41 (6th Cir. 2011) (holding that the inmate “was entitled

to consider the absence of a response to be a denial” of his grievance, explaining that

the inmate “was not required to make additional efforts beyond the scope of the

Bureau’s regulations” where the prison staff had failed to follow its own procedures);

Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004) (concluding that

“administrative remedies are exhausted when prison officials fail to timely respond

to a properly filed grievance); Hughes v. Lavender, No. 2:10-cv-674, 2011 WL

1337155, at *10 (S.D. Ohio Apr. 6, 2011) (denying the defendants’ motion for

summary judgment on the grounds of exhaustion where the plaintiff submitted

evidence indicating that the defendants had failed to timely respond to his

complaints); Nassar v. Warden, Butler Cnty. Jail, No. 1:10-cv-031, 2011 WL

7268004, at *5 (S.D. Ohio Sept. 1, 2011) (denying the defendants’ motion for

summary judgment on the grounds of exhaustion where the defendants failed to offer

evidence that the jail officials “properly responded to [the] plaintiff’s grievances in

accordance with their own policy”). As the Court of Appeals noted in Risher: 

“When pro se inmates are required to follow agency procedures to the letter in order

to preserve their federal claims, we see no reason to exempt the agency from similar

compliance with its own rules.” 639 F.3d at 241. 

In sum, Defendants have failed to demonstrate that Plaintiff’s efforts were

insufficient to exhaust his administrative remedies with regards to his request for a

religious accommodation. Because Defendants have failed to satisfy their burden,

the Undersigned recommends that their Motion be denied. 

(Id. at 9–11.)

Defendants object to the Report and Recommendation on two grounds. Defendants first

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assert that the Magistrate Judge was mistaken in determining that the Warden’s issuance of a

final decision was a deviation from the Ohio Department of Rehabilitation and Correction’s

(“ODRC”) Policy. Second, Defendants posit that the Magistrate Judge is “mistaken regarding

her finding that the Religious Service Administrator took no action upon receipt of Plaintiff’s

February 24, 2011 ‘complaint.’” (Defs.’ Obj. 2, ECF No. 51.) The Court has reviewed the

Report and Recommendation and Plaintiff’s Objections in accordance with 28 U.S.C. §

636(b)(1) and Rule 72(b) and concludes that both of these objections lack merit. 

Resolution of Defendants’ first objection turns on whether or not the Magistrate Judge

erred in concluding that “under ODRC Policy Number 72-REG-02, CCI’s Warden did not have

authority to issue a final, appealable decision.” (Jan. 18, 2013 Report and Rec. 4–9, ECF No.

57.) In support of their contention that the Warden retained the discretion to render a final,

appealable decision, Defendants rely upon ODRC Policy Number 72-REG-02(H)(1-3). In

pertinent part, this Section provides as follows: 

The following matters shall be referred to the Religious Services Administrator: 

1. New dietary requests: Requests that would require the creation of a special

diet, a religious “feast” menu, or that would require the purchase of special

foods (e.g. kosher, halal, etc.) not currently offered, or which would expand

access to such diets to different or additional religious groups must be

referred to the Religious Services Administrator for final decision. Decisions

to accommodate an individual inmate with existing dietary options (e.g.

meatless diet, etc.) can be made at the institution.

 

* * *

3. The recognition of any religious holiday not previously observed or

recognized. 

ODRC Policy Number 72-REG-02(H)(1-3). Citing Subsection (H)(1)’s exception for “existing

dietary options,” Defendants submit that the Warden retained discretion because Plaintiff

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requested a vegetarian diet. Conversely, the Magistrate Judge found that Subsections (H)(1) and

(H)(3) mandated referral of Plaintiff’s grievance to the Religious Services Administrator. The

Magistrate Judge reasoned that Plaintiff’s religious accommodation, if granted, would require

the creation of a special diet and the recognition of a religious holiday. In making this finding,

Magistrate Judge considered Plaintiff’s December 20, 2010 Request for Religious

Accommodation, specifically discussing Plaintiff’s requests relating to his diet and recognition

of religious holidays as follows: 

Plaintiff’s requested accommodation includes the following dietary

restrictions: no “wine or vinegar of the grape or vine”; no “unclean foods, strong

drink, or things of the vine”; no consumption of “[a]nything that chews cud but

divide not the hoof”; no “[s]wine - Jellotin-based products, no lard-butter product”;

“all medication [must be administered in] tablet form or Kosher cups”; no

consumption of animals with scales or fins; and no “animal-based oil, fungus, spores,

and the like.” [(Compl. 14–18, ECF No. 5.)] He also requests to “celebrate the

festival of Yahvah,” which he indicates begins “on the fifteenth day of the seventh

month” and includes “sacred rest” on the first and eighth day of the celebration. (Id.

at 16.)

(Jan. 18, 2013 Report and Rec. 2, ECF No. 57.) 

The Court finds no error with the Magistrate Judge’s finding. Review of Plaintiff’s

Request for Religious Accommodation, in which he seeks a dietary accommodation to exclude

grapes or other “things of the vine,” reveals that he is not simply seeking a vegetarian diet. (Id.) 

Thus, the exception within ODRC Policy Number 72-REG-02(H)(1) upon which Defendants

rely is inapplicable. Regardless, as the Magistrate Judge correctly found, Plaintiff’s request to

recognize a religious holiday, namely, the festival of Yahvah, falls within the ambit of ODRC

Policy Number 72-REG-02(H)(3) such that the Religious Services Administrator, not the

Warden, must render the final decision. Plaintiff’s first objection is, therefore, overruled. 

Defendants’ second objection is equally unavailing. Defendants challenge the Magistrate

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Judge’s finding that the Religious Services Administrator did not take action upon receipt of

Plaintiff’s February 24, 2011 attempted appeal/objection. Defendants point out that the

Religious Services Administrator directed Plaintiff to submit a particular appeal form and

attachments. In making this argument, Defendants have mischaracterized the Magistrate Judge’s

findings and the significance of those findings. As explained above, because Plaintiff’s

requested accommodations fell within the scope of ODRC Policy Number 72-REG-02(H)(1) and

(3), the Religious Services Administrator was required to render a final decision with regards to

his December 20, 2010 Request for Religious Accommodation. The record evidence

demonstrates that the Religious Services Administrator failed to do so, which was likely due to

the Warden and Chaplain’s deviations from policy. In Plaintiff’s February 24, 2011 attempted

appeal/objection and the accompanying correspondence, Plaintiff alerted the Religious Services

Administrator that the Warden and Chaplain failed to adhere to ODRC Policy Number 72-REG02 with regards to his December 20, 2010 Request for Religious Accommodation. After noting

that the Religious Services Administrator took no action to remedy the violation of policy upon

receipt of the Warden’s decision on January 26, 2011, the Magistrate Judge then stated, “[n]or

did the Religious Services Administrator take action upon receipt of Plaintiff’s February 24,

2011 attempted appeal/objection wherein he specifically complained that ODRC Policy Number

72-REG-02 was not followed.” (Jan. 18, 2013 Report and Rec. 9, ECF No. 57 (citing Feb. 24,

2011 Appeal/Objection, ECF No. 43-1).) The Magistrate Judge went on to conclude that

“Plaintiff was entitled to interpret the Religious Services Administrator’s failure to remedy the

policy deviations and issue a final decision to be a denial of his request.” (Id.) Thus, contrary to

Plaintiff’s assertion, the Magistrate Judge did not find that the Religious Services Administrator

had failed to issue a response. Rather, the Magistrate Judge stated, explicitly, that the Religious

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Services Administrator failed to remedy the policy deviations and issue a final decision even

after Plaintiff specifically alerted him to the deviations. Defendants have offered no evidence

that would undermine the Magistrate Judge’s finding that the Religious Services Administrator

failed to render a final decision concerning Plaintiff’s December 20, 2010 Request for Religious

Accommodation. Plaintiff’s second objection is, therefore, overruled.

In sum, the Court has reviewed the Report and Recommendation and Defendants’

Objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b) and concludes that

Plaintiff’s objections lack merit. Accordingly, Defendants’ Objections (ECF No. 51) are

OVERRULED; the January 18, 2013 Report and Recommendation (ECF No. 48) is

ADOPTED; and Defendants’ First Motion for Summary Judgment (ECF No. 43) is DENIED. 

IT IS SO ORDERED.

S/ James L. Graham 

James L. Graham

United States District Judge

Date: March 7, 2013

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