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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

HENRY L. STEPLER, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-1209 

 Judge Sargus 

 Magistrate Judge King 

WARDEN, HOCKING CORRECTIONAL 

FACILITY, et al., 

 Defendants. 

ORDER AND 

REPORT AND RECOMMENDATION 

 This matter is before the Court on Plaintiff [sic] Motion for 

Summary Judgment, Doc. No. 65 (“Plaintiff’s Motion”), and Defendants 

Lucas Curry, Victor Marshall, and Tracy Grimm’s Motion for Summary 

Judgment, Doc. No. 75 (“Defendants’ Motion”). For the reasons that 

follow, it is recommended that Plaintiff [sic] Motion for Summary 

Judgment, Doc. No. 65, be DENIED and that Defendants Lucas Curry, 

Victor Marshall, and Tracy Grimm’s Motion for Summary Judgment, Doc. 

No. 75, be GRANTED. Plaintiff’s request for the appointment of 

counsel, Doc. No. 84, p. 3, is DENIED. 

I. BACKGROUND 

 At all times relevant to this action, plaintiff was incarcerated 

at the Hocking Correctional Facility (“HCF”).1

 See, e.g., Affidavit of 

Henry Stepler, attached to Plaintiff’s Motion, PAGEID#:510 - 

 

1 Plaintiff was released from custody in January or February 2014. Doc. Nos. 

72 and 73. 

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PAGEID#:511 (“Plaintiff’s 9/10/12 Affidavit”).2 As an adherent of the 

Jewish faith, plaintiff participated in the kosher meal program at 

HCF. See, e.g., Affidavit of Victor Marhsall [sic], ¶¶ 5, 13, 16 

(“Marshall Affidavit”), attached to Defendants’ Motion.3

 On January 2, 

2013, plaintiff filed this civil rights action naming as defendants 

Tracy Grimm (HCF’s former food service manager), Lucas Curry (former 

HCF kitchen staff member), Victor Marshall (chaplain at HCF), Samuel 

Tambi (HCF’s warden) and Carole Upchurch (HCF’s deputy warden),4

claiming a denial of his rights in connection with the alleged denial 

of kosher meals and the opportunity to observe his Jewish faith. 

Complaint. Plaintiff sues defendants in their individual and official 

capacities, seeking monetary damages and prospective injunctive 

relief. Id. at PAGEID#: 99, 102. 

 On August 16, 2013, the Court granted in part and denied in part 

the motion to dismiss filed on behalf of defendants Curry, Marshall 

and Grimm (“the moving defendants”). Opinion and Order, Doc. No. 52. 

In particular, the Court denied the motion to dismiss as to 

 

2 As with several other affidavits and additional submissions, Plaintiff’s 

9/10/12 Affidavit is offered three times in support of plaintiff’s request 

for summary judgment and in opposing Defendants’ Motion. See Doc. No. 65, 

PAGEID#:510 – PAGEID#:511; Doc. No. 77-1, PAGEID#:701 - PAGEID#:702; Doc. No. 

86, PAGEID#:793 - PAGEID#:794. 

3 The moving defendants also offer the Marshall Affidavit and several other 

affidavits in opposing Plaintiff’s Motion. See Defendants Lucas Curry, 

Victor Marshall, and Tracy Grimm’s Response to Plaintiff’s Motion for Summary 

Judgment (Doc. 65), Doc. No. 74 (“Moving Defendants’ Memo. Contra”). 4

 Although plaintiff named “Victor Marshull” and “Tracy Grims” as defendants, 

see, e.g., Complaint, Doc. No. 4, PAGEID#: 97, their proper names are Victor 

Marshall and Tracy Grimm. Marshall Affidavit; Affidavit of Tracy Grimm, 

attached to Defendants’ Motion (“Grimm Affidavit”). The Court previously 

dismissed plaintiff’s claims against defendant Alice Bartlett, institutional 

inspector. See Order, Doc. No. 18. The Court will address defendants Tambi 

and Upchurch by separate order. 

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plaintiff’s claims under the Free Exercise Clause of the First 

Amendment of the United States Constitution and under the Religious 

Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, et 

seq. (“RLUIPA”), against defendants Marshall and Grimm and as to 

plaintiff’s claims under the Equal Protection Clause of the Fourteenth 

Amendment against defendants Curry and Marshall. Id. The Court also 

denied the motion to dismiss as to plaintiff’s claims for monetary 

damages based on alleged Frist Amendment violations. Id. Plaintiff 

and the moving defendants seek summary judgment on these remaining 

claims. 

II. APPOINTMENT OF COUNSEL 

 In opposing Defendants’ Motion, plaintiff asks the Court to 

appoint counsel. Doc. No. 84, p. 3. This Court has previously 

denied, without prejudice to renewal, plaintiff’s requests for the 

appointment of counsel, explaining that the action had not yet 

progressed to the point that the Court was able to properly evaluate 

the merits of plaintiff’s claims. See Order, Doc. No. 9; Order, Doc. 

No. 17; Order, Doc. No. 49; Order, Doc. No. 60; Order, Doc. No. 80. 

Moreover, “[a]ppointment of counsel in a civil case is not a 

constitutional right” but “a privilege that is justified only by 

exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605-06 

(6th Cir. 1993). Plaintiff has not persuaded the Court that this case 

presents exceptional circumstances justifying the appointment of 

counsel. Id. at 606 (explaining that determining whether exceptional 

circumstances exist depend on the type of case, the ability of the 

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plaintiff to represent himself and the complexity of the factual and 

legal issues involved). See also Henry v. City of Detroit Manpower 

Dep’t, 763 F.2d 757, 760 (6th Cir. 1985)(en banc)(“[I]n considering an 

application for appointment of counsel, district courts should 

consider plaintiff’s financial resources, the efforts of plaintiff to 

obtain counsel, and whether plaintiff’s claim appears to have any 

merit.”). 

 Plaintiff also argues that, should the Court appoint counsel, he 

would be able to obtain certain information that plaintiff believes 

supports his claims. Doc. No. 84, pp. 1-3. However, as this Court 

previously explained, “[i]t does not presently appear that plaintiff 

requires the assistance of counsel in order to conduct discovery.” 

Order, Doc. No. 9, p. 1. Nothing in the record presently before the 

Court suggests that plaintiff was unable to conduct discovery without 

the assistance of counsel. Indeed, the record reflects that plaintiff 

served discovery requests on defendants. Order, Doc. No. 63 (granting 

defendants an extension of time to respond to plaintiff’s 

interrogatories and document requests). Moreover, plaintiff has 

offered no argument or evidence explaining why, in the more than seven 

months provided to the parties for the completion of discovery, 

Scheduling Order, Doc. No. 53; Order, Doc. No. 70, he was unable to 

obtain the information that he now argues will “show[] [that] 

defendants commited [sic] perjury and submitted false evidence to 

court” on summary judgment. Doc. No. 84, p. 3. For all these 

reasons, then, plaintiff’s most recent request for the appointment of 

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counsel, Doc. No. 84, is denied. 

III. SUMMARY JUDGMENT STANDARD 

Plaintiff and the moving defendants have filed motions for 

summary judgment. The standard for summary judgment is well 

established. This standard is found in Rule 56 of the Federal Rules 

of Civil Procedure, which provides in pertinent part: 

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). In making this determination, the evidence 

must be viewed in the light most favorable to the non-moving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment 

will not lie if the dispute about a material fact is genuine, “that 

is, if the evidence is such that a reasonable jury could return a 

verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986). However, summary judgment is appropriate if the 

opposing party fails to make a showing sufficient to establish the 

existence of an element essential to that party’s case and on which 

that party will bear the burden of proof at trial. Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla 

of evidence in support of the opposing party’s position will be 

insufficient; there must be evidence on which the jury could 

reasonably find for the opposing party. Anderson, 477 U.S. at 251. 

 The party moving for summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions of the record which demonstrate 

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the absence of a genuine issue of material fact. Catrett, 477 U.S. at 

323. Once the moving party has met its initial burden, the burden 

then shifts to the nonmoving party who “must set forth specific facts 

showing that there is a genuine issue for trial.” Anderson, 477 U.S. 

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino 

Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party 

must present evidence that creates a genuine issue of material fact 

making it necessary to resolve the difference at trial”). “Once the 

burden of production has so shifted, the party opposing summary 

judgment cannot rest on the pleadings or merely reassert the previous 

allegations. It is not sufficient to ‘simply show that there is some 

metaphysical doubt as to the material facts.’” Glover v. Speedway 

Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(citing 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 

(1986). Instead, the non-moving party must support the assertion that 

a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). 

 In ruling on a motion for summary judgment “[a] district court is 

not ... obligated to wade through and search the entire record for 

some specific facts that might support the nonmoving party’s claim.” 

Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller, 

889 F.2d 108, 111 (6th Cir. 1989)). Instead, a “court is entitled to 

rely, in determining whether a genuine issue of material fact exists 

on a particular issue, only upon those portions of the verified 

pleadings, depositions, answers to interrogatories and admissions on 

file, together with any affidavits submitted, specifically called to 

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its attention by the parties.” Id. See also Fed. R. Civ. P. 56(c)(3).

IV. DISCUSSION 

A. Claims for Injunctive Relief 

As noted supra, plaintiff seeks injunctive relief. However, 

plaintiff was released from custody in January or February 2014. See

Doc. Nos. 72 and 73. His claims for injunctive relief are therefore 

now moot. See, e.g., Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) 

(finding moot claims for declaratory and injunctive relief where 

prisoner plaintiff was no longer confined to the institution that 

allegedly violated his civil rights); Goar v. Civiletti, 688 F.2d 27, 

29 (6th Cir. 1982) (concluding that claims for injunctive relief were 

moot where prisoner plaintiff was no longer imprisoned). 

B. Claims under the Free Exercise Clause 

The moving defendants argue that they are entitled to qualified 

immunity on plaintiff’s claims against them in their individual 

capacities under Section 1983 and RLUIPA. Defendants’ Motion, pp. 7-

16. The doctrine of qualified immunity provides that, in civil suits 

for monetary damages, government officials performing discretionary 

functions are generally shielded from liability for monetary damages 

“unless the official violated a statutory or constitutional right that 

was clearly established at the time of the challenged conduct.” 

Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (citing Ashcroft v. 

al-Kidd, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011)). 

The United States Court of Appeals for the Sixth Circuit applies 

a two-step inquiry when reviewing claims for qualified immunity: “(1) 

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whether, considering the allegations in a light most favorable to the 

party injured, a constitutional right has been violated, and (2) 

whether that right was clearly established.” Hoover v. Walsh, 682 

F.3d 481, 492 (6th Cir. 2012) (quoting Smoak v. Hall, 460 F.3d 768, 

777 (6th Cir. 2006) (internal quotation marks omitted)).5

 A right is 

“clearly established” when the “contours of the right are sufficiently 

clear that a reasonable [government official] would understand that 

what he is doing violates that right.” Harris v. City of Circleville, 

583 F.3d 356, 366-67 (6th Cir. 2009). 

A court may address these steps in any order and either step may 

be dispositive. Id. See also Pearson v. Callahan, 555 U.S. 223, 236 

(2009) (“[W]hile the sequence set forth there [in the qualified 

immunity inquiry] is often appropriate, it should no longer be 

regarded as mandatory.”). 

Turning first to his First Amendment claims, plaintiff alleges 

that defendants Marshall and Grimm violated his rights under the Free 

Exercise Clause. The First Amendment, which is applicable to the 

states through the Fourteenth Amendment, provides that “Congress shall 

make no law respecting an establishment of religion, or prohibiting 

the free exercise thereof. . . .” U.S. Const., Amend. 1. “Prisoners 

 

5 In some cases, the Sixth Circuit uses a third step when analyzing claims for 

qualified immunity. Id. at 492 n.35. This step evaluates “whether the 

plaintiff has introduced sufficient evidence to support the inference that 

the official’s contested action ‘was objectively unreasonable in light of the 

clearly established constitutional rights.’” Id. (quoting Hills v. Kentucky, 

457 F.3d 583, 587 (6th Cir. 2006)). The Sixth Circuit collapses the second 

and third prongs in order to avoid duplicative analysis where the case at 

issue “is one of the many cases where, if the right is clearly established, 

the conduct at issue would also be objectively unreasonable.” Id. (citations 

and internal quotation marks omitted). 

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retain the First Amendment right to the free exercise of their 

religion.” Hayes v. Tennessee, No. 09-5529, 424 Fed. Appx. 546, 549 

(6th Cir. June 1, 2011) (citing Walker v. Mintzes, 771 F.2d 920, 929 

(6th Cir. 1985)). Under § 1983, “[a] prisoner alleging that the 

actions of prison officials violate his religious beliefs must [first] 

show that the belief or practice asserted is religious in the person’s 

own scheme of things and is sincerely held.” Flagner v. Wilkinson, 

241 F.3d 475, 481 (6th Cir. 2001) (citation and internal quotation 

marks omitted). 

“Only after a prison inmate shows a sincere belief that his or 

her religion requires the practice at issue does the court move on to 

determining whether the prison’s actions restricting the practice are 

valid.” Barhite v. Caruso, No. 09-1312, 377 Fed. Appx. 508, at *510 

(6th Cir. May 14, 2010) (citing Boles v. Neet, 486 F.3d 1177, 1182 

(10th Cir. 2007)). The inmate must show that the regulation or 

practice substantially burdens the inmate’s exercise of religion. 

See, e.g., Living Water Church of God v. Charter Twp. Meridian, 258 

Fed. Appx. 729, at *733-734 (6th Cir. Dec. 10, 2007) (citing 42 U.S.C. 

§ 2000cc-2(b)), cert. denied, 553 U.S. 1093 (2008). However, “[i]t is 

well-settled that prisoners’ rights under the Free Exercise Clause [of 

the First Amendment] may be subject to reasonable restrictions.” 

Weinberger v. Grimes, No. 07-6461, 2009 U.S. App. LEXIS 2693, at *9 

(6th Cir. Feb. 10, 2009) (citing O'Lone v. Estate of Shabazz, 482 U.S. 

342, 352 (1987); Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 

491 (6th Cir. 1995)). A prison’s action constitutes a substantial 

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burden on an individual’s free exercise of religion when that action 

forces an individual to choose between “following the precepts of 

h[is] religion and forfeiting benefits” or when the action in question 

places “substantial pressure on an adherent to modify his behavior and 

to violate his beliefs.” Marsh v. Granholm, No. 07-2450, 2008 U.S. 

App. LEXIS 28078, at *6 (6th Cir. July 31, 2008) (quoting Living 

Water, 258 Fed. Appx. 729, at *734) (internal quotation marks 

omitted). 

Courts accord prison administrators “wide-ranging deference in 

the adoption and execution of policies and practices that in their 

judgment are needed to preserve internal order and discipline and to 

maintain institutional security.” Turner v. Safley, 482 U.S. 78, 89 

(1987). Therefore, even if a restriction imposes a substantial burden 

on an inmate’s right to the free exercise of religion, the restriction 

is “valid if it is reasonably related to legitimate penological 

interests.” Id. 

Here, it does not appear that the moving defendants challenge 

plaintiff’s invocation of Judaism as his sincerely held belief or that 

his practice of the Jewish faith requires that plaintiff eat kosher 

foods. Although the moving defendants argue that plaintiff has failed 

to allege that “he has been approved to participate in the kosher meal 

program by ODRC[,]” Defendants’ Motion, p. 2, they also submit 

evidence establishing that plaintiff has in fact participated in the 

kosher meal program. See Marshall Affidavit, ¶ 16. Moreover, the 

moving defendants point to no evidence that reflects a prison 

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official’s challenge to plaintiff’s right to participate in the kosher 

meal program at HCF or otherwise establishes that plaintiff’s Jewish 

faith is not sincerely held. Under these circumstances, the Court 

accepts that plaintiff’s religious belief is sincerely held and that 

his practice of Judaism requires that plaintiff eat kosher foods. 

Accordingly, the Court will address plaintiff’s claims under the Free 

Exercise Clause against defendants Marshall and Grimm. 

1. Defendant Marshall 

Plaintiff alleges that defendant Marshall, chaplain at HCF, 

violated plaintiff’s right to practice his Jewish faith by not 

providing a room in which to pray each week “as other religious groups 

get[,]” and instead providing a room on only two holidays, i.e., 

Passover and Chanukah. Complaint, PAGEID#: 100-101. See also 

Plaintiff’s Motion, p. 4. In support, plaintiff avers that he was not 

provided a room for special services on several occasions, including 

Rosh Hashanah, Yom Kippur, Sukkot, Shemini Atzeres, Simchas Torah and 

for Shabbat services. Affidavit of Henry L. Stepler, Doc. No. 65, 

PAGEID#:479; Doc. No. 77, PAGEID#:699 – PAGEID#:700 (“Plaintiff’s 

9/27/13 Affidavit”). See also Affidavit of David Carr, dated December 

12, 2012, Doc. No. 65, PAGEID#:512; Doc. No. 77, PAGEID#:682; Doc. No. 

86, PAGEID#:775 (“Carr 12/12/12 Affidavit”). 

The moving defendants, however, argue that plaintiff has never 

been denied the opportunity to practice his religion, offering in 

support the Marshall Affidavit. Moving Defendants’ Memo. Contra, p. 

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10.6

 More specifically, defendant Marshall avers that plaintiff has 

always been permitted to pray with whomever he chooses in his living 

space / bunk area and, in fact, has prayed at his bunk area on the 

Jewish Sabbath. Marshall Affidavit, ¶¶ 7-8. In addition, plaintiff 

received religious items at no cost from the Aleph Institute, 

including reading materials, study guides, a Hannukah menorah and 

holiday treats. Id. at ¶ 14. HCF “strive[s] to accommodate weekly 

congregant services if a faith group’s numbers rise to five or more 

adherents and if there is an outside volunteer available to lead such 

services.” Id. at ¶ 9. While there have been more than five 

Christian inmates who choose to congregate each week and who had an 

outside volunteer available to lead a study group since January 2011, 

there have never been five or more Jewish inmates at HCF at the same 

time. Id. at ¶¶ 9, 11. Moreover, plaintiff “refuses to congregate 

with the Messianic Jews and non-Orthodox Jews.” Id. at ¶ 15. 

According to defendant Marshall, HCF is a small institution that has 

one multipurpose room that also serves as a chapel and one primary 

classroom that is used for worship and study purposes. Id. at ¶ 10. 

Because of the lack of space, “it is impossible to provide a room to 

 

6 Plaintiff complains that the moving defendants served affidavits that “were 

missing pages[.]” Doc. No. 77, p. 1 (citing “Docket number 74-74.6” and 

attaching pages of the purportedly offending affidavits). The Court accepts 

as true plaintiff’s representation that pages were missing from the 

affidavits of defendants Marshall, Curry and Grimm and from the affidavits of 

Kelly Sanders, Angie Ryan and Brian McKinley. See Doc. No. 77-1, PAGEID#:729 

- PAGEID#:741. However, the moving defendants offered these same affidavits 

in support of their own motion summary judgment, see Doc. No. 75-1 – Doc. No. 

75-6, to which plaintiff responded. See Doc. Nos. 84, 86 (sur-reply, filed 

without leave of Court). Under these circumstances, the Court concludes that 

plaintiff had the benefit of reviewing full copies of the affidavits. 

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pray in each week for the numerous different religions that exist at 

HCF.” Id. at ¶ 12. Defendant Marshall further avers that HCF 

provided plaintiff a room in which to observe the major and minor 

Jewish festivals that call for such an observance, including, but not 

limited to, Passover and Hannukah. Id. at ¶ 13. The moving 

defendants go on to contend that plaintiff bears the burden of showing 

that a reasonable method exists by which religious rights can be 

accommodated without creating bona fide security problems. 

Defendants’ Motion, p. 12 (citing O’Lone v. Estate of Shabazz, 482 

U.S. 342, 351 (1987); Ha’Min v. Montgomery Cty. Sheriff’s Dep’t, 440 

F. Supp.2d 715, 719 (M.D. Tenn. 2006)). 

This Court agrees that defendant Marshall’s failure to provide a 

weekly prayer room did not unconstitutionally infringe plaintiff’s 

free exercise of religion. Plaintiff complains that a private room 

was not made available to him and other Jewish inmates on multiple 

occasions,7

 but the uncontroverted record establishes that HCF had only 

two rooms available for worship. See Marshall Affidavit, ¶ 10. 

Stated differently, the limited space makes it impossible to provide 

to all the numerous religions at HCF a room in which to pray every 

 

7 Plaintiff offers what appears to be a calendar, purportedly documenting 

“religious holy days and accomendation [sic] put out by the O.D.R.C. Note, 

the dates may change but not the allowed holy days.” Plaintiff’s Motion, 

PAGEID#:473, PAGEID#:505. As an initial matter, the calendar submitted by 

plaintiff is mostly illegible with large black marks through several entries. 

See PAGEID#:505. Moreover, even if it were completely legible, this calendar 

is not certified and therefore cannot be considered at the summary judgment 

stage. See, e.g., Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 

1994) (“Rule 56(e) further requires the party to attach sworn or certified 

copies of all documents referred to in the affidavit. Furthermore, hearsay 

evidence cannot be considered on a motion for summary judgment.”). 

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week. Id. at ¶ 12. Although HCF attempts to accommodate a faith’s 

group with five or more adherents and an outside volunteer service 

leader, there have never been five or more Jewish inmates at HCF at 

the same time; plaintiff apparently concedes that there is no outside 

rabbi volunteer to lead a service. Id. at ¶¶ 9, 11-12; Affidavit of 

Henry Stepler, attached to Plaintiff’s Motion, PAGEID#:511 

(“Plaintiff’s 9/10/12 Affidavit”). In addition, plaintiff “refuses to 

congregate with the Messianic Jews and non-Orthodox Jews.” Marshall 

Affidavit, ¶ 15. Nevertheless, HCF has provided plaintiff a room in 

which to observe major and minor Jewish festivals that call for such 

an observance. Id. at ¶ 13. Additionally, HCF permitted plaintiff, 

who received religious items at no cost from the Aleph Institute, to 

pray in his bunk space on the Jewish Sabbath. Id. at ¶¶ 7-8, 14; 

Plaintiff’s 9/27/13 Affidavit, p. 2. Indeed, plaintiff has prayed in 

this area. Marshall Affidavit, ¶ 8. Moreover, plaintiff has not 

shown that there were “ready alternatives” available that accommodate 

his right to freely practice his religion that have a de minimis

impact on defendants’ valid penological interests. O’Lone, 482 U.S. 

at 350; Ha’Min, 440 F. Supp.2d at 719-20. Where HCF permitted 

plaintiff to practice his religion at his bunk space and provided a 

separate room on certain occasions, the Court cannot say that HCF’s 

failure to provide a private prayer room to plaintiff on a weekly 

basis substantially burdens, and therefore violates, plaintiff’s 

rights under the Free Exercise Clause. See, e.g., Thompson v. 

Kentucky, 712 F.2d 1078, 1082 (6th Cir. 1983) (stating that where 

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there are reasonable opportunities provided to exercise religious 

freedom, “[a] special chapel or place of worship need not be provided 

for every faith regardless of size; nor must a chaplain, priest, or 

minister be provided without regard to the extent of the demand.”). 

2. Defendant Grimm 

Plaintiff alleges that defendant Grimm violated plaintiff’s right 

to practice his Jewish faith by failing to provide kosher meals 

containing sufficient daily calories. Complaint, PAGEID#: 100. In 

moving for summary judgment, plaintiff takes the position that he has 

“repeated[ly]” been given “non sealed non kosher food in violations 

[sic] of his religious practices.” Plaintiff’s Motion, p. 2. See 

also Plaintiff’s 9/10/12 Affidavit, PAGEID#:510 (“My religious diet of 

kosher is being violated; repeatedly.”). The moving defendants 

disagree, contending that there was no First Amendment violation 

because HCF served plaintiff pre-sealed meals with sufficient calories 

that were not cross-contaminated by non-kosher foods. Defendants’ 

Motion, pp. 12-15. See also Doc. No. 74, pp. 12-15. In support, the 

moving defendants offer the affidavits of defendants Curry and Grimm. 

See Affidavit of Lucas Curry, Doc. Nos. 74-2 and 75-2 (“Curry 

Affidavit”), and Affidavit of Tracy Grimm, Doc. Nos. 74-3 and 75-3 

(“Grimm Affidavit”). 

 a. Kosher food 

Turning first to the issue of whether plaintiff was served kosher 

food, the moving defendants’ arguments are well-taken. Defendant 

Grimm worked as HCF’s Food Service Manager II from 1992 until 

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September 7, 2013. Grimm Affidavit, ¶ 4.8

 In this capacity, defendant 

Grimm, inter alia, oversaw the kitchen and ordered food and supplies. 

Id. at ¶ 5. According to defendant Grimm, a kosher kitchen is cost 

prohibitive. Id. at ¶ 13. Although she met plaintiff when he was an 

inmate at HCF, she did not select the food served to him. Id. at ¶¶ 

6, 11. Instead, officials at the Ohio Department of Rehabilitation 

and Correction select the food served to inmates who keep kosher. Id. 

at ¶ 11; Affidavit of Kelly M. Sanders, ¶¶ 5-6, Doc. Nos. 74-4, 75-4 

(“Sanders Affidavit”), and Doc. No. 75-4, PAGEID#:641 (“Kosher Menu”). 

 Plaintiff was served pre-packaged kosher meals. Grimm Affidavit, 

¶¶ 8, 14-15, 19; Curry Affidavit, ¶ 10. The kosher food, which was 

kept in locked storage on a separate shelf away from non-kosher food, 

was not cross-contaminated with non-kosher food. Grimm Affidavit, ¶¶ 

16, 18, 20; Curry Affidavit, ¶¶ 10-11. In addition, beginning in 

approximately March 2013, HCF permitted plaintiff to prepare sack 

meals on holidays (which required such meals) in a special prep area 

in the kitchen. Marshall Affidavit, ¶ 18; Curry Affidavit, ¶ 10. 

Moreover, when serving additional food items, HCF permitted inmates 

who kept kosher, like plaintiff, to have the first serving out of a 

can or package. Grimm Affidavit, ¶ 20; Curry Affidavit, ¶ 11. 

Finally, HCF provided plaintiff with a locked kosher microwave in 

which to cook his kosher meals. Grimm Affidavit, ¶ 18; Curry 

Affidavit, ¶ 11. 

In response, plaintiff argues, inter alia, that the moving 

 

8 ODRC now employs defendant Grimm as a lieutenant. Id. at ¶ 4. 

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defendants’ various affidavits and the Kosher Menu “can NOT BE TRUE” 

and amount to “PERJURY” and “PERJURED TESTOMONY” [sic]. Doc. No. 77, 

p. 1; Doc. No. 84, p. 2 (emphasis in original); Doc. No. 86, pp. 1-2 

(emphasis in original). More specifically, plaintiff insists that HCF 

did not give him sealed kosher meals and that he “never got the food 

in the menue [sic] presented by defendants.” Doc. No. 84, pp. 1-2. 

However, these conclusory assertions are not made under oath and the 

Court may not consider unsworn, inadmissible statements at the summary 

judgment stage. Fed. R. Civ. P. 56(c). See also Harris v. J.B. 

Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010) (“‘[A] court 

may not consider unsworn statements when ruling on a motion for 

summary judgment.’”) (quoting Dole v. Elliott Travel & Tours, Inc., 

942 F.2d 962, 968-69 (6th Cir. 1991)). Plaintiff also submits a menu 

that purports to represent the food that HCF provided to plaintiff. 

See Doc. No. 77, PAGEID#:674; Doc. No. 86, PAGEID#:767. However, 

documents offered in support of (or against) summary judgment must be 

admissible, i.e., authenticated by affidavit. Fed. R. Civ. P. 

56(c)(2). See also David A. Flynn, Inc. v. GMAC, No. 08-3815, 345 

Fed. Appx. 974, at *978-79 (6th Cir. Sept. 24, 2009) 

(“[U]nauthenticated documents do not meet the requirements of Rule 

56(e).”); Fox v. Mich. State Police Dep’t, No. 04-2078, 173 Fed. Appx. 

372, at *375 (6th Cir. 2006) (affirming decision to disregard 

documents that “were neither sworn nor certified, were not properly 

authenticated and were therefore inadmissible in evidence”). Here, 

plaintiff’s menu is not authenticated and therefore must be 

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disregarded on summary judgment.9

 

Plaintiff also offers the affidavits of other allegedly Jewish 

inmates incarcerated at some point at HCF. See Affidavit of Michael 

Paul Baker, Doc. No. 65, PAGEID#:506; Doc. No. 77-1, PAGEID#:698; Doc. 

No. 86, PAGEID#:791 (“Baker Affidavit”); Affidavit of David Carr, 

dated June 28, 2012, Doc. No. 65, PAGEID#:507- PAGEID#:508; Doc. No. 

77, PAGEID#:683 - PAGEID#:684; Doc. No. 86, PAGEID#:776 - PAGEID#:777 

(“Carr 6/28/12 Affidavit”). The Baker Affidavit, however, does 

nothing to establish that HCF served plaintiff non-kosher food. Mr. 

Bakers avers that “[t]he Kosher meal program is horrible here. . . . 

Several of us do not participate in the program because there is no 

way to know that the food is Kosher or how it has been stored ect 

[sic].” Baker Affidavit. Stated differently, Mr. Baker simply does 

not know whether certain food is kosher. In this regard, the Grimm 

Affidavit and Curry Affidavit, which aver that inmates keeping kosher 

received pre-sealed kosher meals that were not cross-contaminated, are 

uncontroverted. 

Plaintiff’s reliance on the Carr Affidavit is similarly 

unavailing. Mr. Carr worked in the kitchen shortly after arriving at 

HCF on June 27, 2011. Carr 6/28/12 Affidavit, p. 1. On the one hand, 

Mr. Carr avers that “[t]he Kosher meals were not balanced or Kosher 

because they took the food from non-Kosher pans. I would watch them 

 

9 Moreover, even if the Court considered plaintiff’s proffered menu, it is 

undated, making it impossible to know when this purported menu was allegedly 

in effect. Conversely, the moving defendants’ Kosher Menu represents food 

served as of September 13, 2013. Sanders Affidavit, ¶¶ 5-6; Kosher Menu, 

attached thereto.

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prepare the meals while working in the kitchen.” Id. On the other 

hand, however, Mr. Carr avers that he prepared and consumed kosher 

meals at HCF with no complaints. Id. (“While working and being on 

Kosher meals, I was constantly being harassed for eating food which I 

was legal to eat as an employee in the kitchen”; “I only ate what 

would be considered Kosher or coming from the same place the Kosher 

meals came from” and “We had to cook our own Kosher meals”; “While on 

Passover I was given prepared Kosher meals which I was allowed to 

microwave and other things related to the Passover. I have no 

complaint as to what I received during this time”). In other words, 

the Carr 6/28/12 Affidavit offers conflicting evidence on whether or 

not HCF served kosher meals cross-contaminated by non-kosher food. 

Even assuming that there may have been some occasions on unidentified 

dates where kosher food was contaminated, such isolated or sporadic 

incidents do not rise to the level of constitutional violations. See, 

e.g., Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010) (affirming, 

inter alia, summary judgment against certain defendants where the 

plaintiff “has asserted only isolated incidents of [defendants] 

DeShambo and Anderson serving him nonkosher food”); Johnson v. 

Wilkinson, No. 98-3866, 2000 U.S. App. LEXIS 21036, at *6-7 (6th Cir. 

Aug. 11, 2000) (finding that the offending “isolated instances” did 

not violate the plaintiff’s constitutional rights). For all these 

reasons, plaintiff’s allegations that his rights under the Free 

Exercise Clause were violated because defendant Grimm served nonkosher food are not well-taken. 

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 b. Sufficient calories 

The Court next considers whether the kosher meals provided 

sufficient calories to plaintiff. See Complaint, PAGEID#: 100. As an 

initial matter, the parties dispute whether or not the sealed kosher 

meals were supplemented by fresh fruit and/or side dishes. In moving 

for summary judgment, plaintiff avers that “[t]here has been problems 

in the past with providing enoff [sic] calories to kosher meals[.]” 

Declaration of Henry L. Stepler, Doc. No. 65, PAGEID#:474, ¶ 4 

(“Plaintiff’s 11/15/13 Declaration”). To that end, plaintiff avers 

that, as of November 15, 2013, “there has been no fresh fruit nor side 

dishies [sic] with every meal.” Id. at ¶ 5. See also id. at ¶ 7. 

The moving defendants, however, present evidence that HCF did 

provide fresh fruit and side dishes with the sealed kosher meals. 

More specifically, defendant Grimm avers that plaintiff was provided 

with “additional food items such as fruit, bread, vegetables and 

salad. All of the kosher meals with the supplemental food provided to 

Stepler were nutritionally adequate.” Grimm Affidavit, ¶ 8. See also 

id. at ¶ 20 (stating that plaintiff was given the first serving of the 

additional food items that were provided with his pre-packaged kosher 

meals); Marshall Affidavit, ¶ 16 (“Mr. Stepler receives pre-packed and 

sealed kosher meals. He is provided with extra food to supplement 

those meals such as fruit, canned vegetables, etc.”); Curry Affidavit, 

¶ 11 (“For example, if a bag of vegetables or a jar of salad dressing 

was opened, that food would first be prepared for the kosher-keeping 

inmates in order to avoid cross contamination.”). In addition, 

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plaintiff “was allowed to bag his own meals in the kitchen from about 

March 2013 through November 2013. He figured out his own calories and 

got more in two bags than most inmates.” Grimm Affidavit, ¶ 12. 

Moreover, after Aramark assumed food service at HCF in March or April 

2013, it supplied the food, supervised the inmates, kept track of food 

usage, waste, and recorded temperatures in the HCF kitchen. Curry 

Affidavit, ¶¶ 4, 6. For example, HCF’s kosher menu as of September 

13, 2013, was nutritionally adequate. Sanders Affidavit, ¶ 5; Doc. 

No. 75-4, PAGEID#:641 (Kosher Menu containing “Dietician’s Signature 

of Nutritional Adequacy”). According to this Kosher Menu, each kosher 

meal includes an entrée and additional food such as fresh fruit, 

bread, and garden salad. Doc. No. 75-4, PAGEID#:641 (“This menu meets 

the nutritional guidelines of the American Correctional Association 

which are based upon the current DRI’s for males and females 19 to 50 

years as established by the Food and Nutrition Board of the Institute 

of Medicine, National Academy of Sciences.”). 

As discussed supra, summary judgment is appropriate if there is 

“no genuine dispute as to any material fact[.]” Fed. R. Civ. P. 

56(a). “When opposing parties tell two different stories, one of 

which is blatantly contradicted by the record, so that no reasonable 

jury could believe it, a court should not adopt that version of the 

facts for purposes of ruling on a motion for summary judgment.” Scott 

v. Harris, 550 U.S. 372, 380 (2007). Here, other evidence in the 

record contradicts plaintiff’s assertion that the kosher meals were 

not nutritionally adequate and that he was not provided fresh fruit or 

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side dishes at every meal. See Grimm Affidavit, ¶¶ 8, 12; Curry 

Affidavit, ¶ 11; Marshall Affidavit, ¶ 16; Sanders Affidavit, ¶ 5; 

Doc. No. 75-4, PAGEID#:641. Moreover, the record reflects that 

plaintiff wanted pre-sealed kosher meals that equaled 2500 calories 

per day, Grimm Affidavit, ¶ 7, and plaintiff admits that he threw 

away additional food that was not pre-packaged. Plaintiff’s Motion, 

PAGEID#:525 - PAGEID#:526 (letter dated July 12, 2012 from plaintiff 

addressed to ODRC “Religious Director”).10 Further, plaintiff chose 

not to eat breakfast because he did not want to get up early. Grimm 

Affidavit, ¶ 9. It appears that plaintiff therefore wanted his entire 

day’s calories served to him in two meals. Id. Where all of this 

evidence blatantly contradicts Plaintiff’s 11/15/13 Declaration, ¶ 4, 

so that no reasonable jury could believe it, the Court will disregard 

plaintiff’s averment that he did not receive fresh fruit and other 

food items to supplement his pre-sealed kosher meals. See Scott, 550 

U.S. at 380. The Court, then, is left with a record establishing that 

plaintiff was served kosher meals that were nutritionally adequate. 

Finally, the Prison Litigation Reform Act (“PLRA”) precludes an 

award of monetary damages on First Amendment claims where an inmate 

does not suffer a physical injury. See, e.g., Yaacov v. Collins, No. 

09-4148, 2010 U.S. App. LEXIS 27719, *10 (6th Cir. Dec. 1, 2010) 

(stating that the PLRA provision requiring that a prisoner suffer a 

 

10 Although this letter has not been verified by plaintiff, the moving 

defendants also rely on it in connection with their motion for summary 

judgment. See Defendants’ Motion, p. 14; Doc. No. 74, p. 14. Under these 

circumstances, the Court concludes that no “gross miscarriage of justice” 

will result from its consideration of this letter on summary judgment. See

Johnson v. U.S. Postal Serv., 64 F.3d 233, 237 (6th Cir. 1995). 

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physical injury in order to recover monetary damages “applies to all 

federal civil actions — even those alleging violations of the First 

Amendment or other constitutional provisions”). For all of these 

reasons, to the extent that plaintiff alleges that his rights under 

the Free Exercise Clause were violated because defendant Grimm failed 

to provide kosher food containing sufficient calories, Plaintiff’s 

Motion is not well-taken. 

B. RLUIPA 

Plaintiff and the moving defendants also seek summary judgment on 

plaintiff’s claims under RLUIPA. RLUIPA prohibits the governmental 

imposition of a “substantial burden on the religious exercise” of an 

inmate unless the government establishes that the burden furthers a 

“compelling governmental interest” through the “least restrictive 

means[.]” 42 U.S.C. § 2000cc-1(a). See also Cutter v. Wilkinson, 544 

U.S. 709 (2005) (upholding constitutionality of RLUIPA). “RLUIPA thus 

protects institutionalized persons who are unable freely to attend to 

their religious needs and are therefore dependent on the government’s 

permission and accommodation for exercise of their religion.” Cutter, 

544 U.S. at 721. 

“The threshold inquiry under RLUIPA is whether the challenged 

governmental action substantially burdens the exercise of religion.” 

Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007). See also 

Barhite v. Caruso, No. 09-1312, 377 Fed. Appx. 508, at *511 (6th Cir. 

May 14, 2010) (“RLUIPA [ ] requires an inmate to show that his or her 

religious exercise [is] substantially burdened.”). A “substantial 

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burden” “force[s] an individual to choose between ‘following the 

precepts of [his] religion and forfeiting benefits’ or when the action 

in question placed ‘substantial pressure on an adherent to modify his 

behavior and to violate his beliefs.’” Hayes v. Tennessee, No. 09-

5529, 424 Fed. Appx. 546, at *555 (6th Cir. June 1, 2011) (quoting 

Barhite, 377 F. Appx. at 511). 

1. Defendant Marshall 

Plaintiff contends that defendant Marshall violated his rights 

under RLUIPA by failing to provide a weekly prayer room. Complaint, 

PAGEID#: 100-101. See also Plaintiff’s Motion, p. 4. As discussed 

supra, the uncontroverted record establishes that HCF had only two 

rooms available for worship, making it impossible to provide to every 

one of the numerous religions at HCF a room in which to pray every 

week. Marshall Affidavit, ¶¶ 10, 12. Although HCF could not provide 

a room to plaintiff on a weekly basis because there have never been 

five or more Jewish inmates at HCF at one time, id. at ¶¶ 9, 11-12, 

plaintiff was provided with a room in which to observe certain Jewish 

festivals that call for such an observance. Id. at ¶ 13. 

Additionally, HCF permitted plaintiff, who received religious items at 

no cost from the Aleph Institute, to pray in his bunk space on the 

Jewish Sabbath. Id. at ¶¶ 7-8, 14; Plaintiff’s 9/27/13 Affidavit, p. 

2. Indeed, plaintiff continued to follow his faith by praying in his 

bunk space on the Jewish Sabbath. See Marshall Affidavit, ¶ 8. 

Based on this record, there is no evidence that defendant Marshall’s 

failure to provide plaintiff a prayer room on a weekly basis 

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substantially burdened plaintiff’s rights under RLUIPA. 

2. Defendant Grimm 

 As set forth above, this Court has already concluded that 

plaintiff was offered nutritious pre-sealed kosher meals and 

additional food items that were not cross-contaminated by non-kosher 

foods. See, e.g., Grimm Affidavit, ¶¶ 8, 20; Marshall Affidavit, ¶ 

16; Curry Affidavit, ¶ 11; Sanders Affidavit, ¶¶ 5-6; Kosher Menu, 

Doc. No. 75-4, PAGEID#:641. Moreover, the record reflects that any 

deficiency in calories resulted from plaintiff’s choice not to avail 

himself of breakfast, Grimm Affidavit, ¶ 9, or from plaintiff’s 

discard of additional food items that were not pre-packaged, 

Plaintiff’s Motion, PAGEID#:525 - PAGEID#:526. Under these 

circumstances, defendant Grimm did not substantially burden 

plaintiff’s rights under RLUIPA by failing to provide kosher meals 

containing sufficient calories. 

C. Equal Protection 

Plaintiff complains that defendants Marshall and Curry violated 

his rights under the Equal Protection Clause of the Fourteenth 

Amendment. See Complaint, PAGEID#:100 - PAGEID#:101; Plaintiff’s 

Motion, PAGEID:470 – PAGEID#:472. See also Order and Report and 

Recommendation, p. 5 (construing allegations to include claims under 

the Equal Protection Clause). The Equal Protection Clause applies to 

the states and requires “that all persons similarly situated should be 

treated alike.” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 

(1985); U.S. Const. amend. XIV. To state an equal protection claim in 

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the prison context, a plaintiff must allege that he was treated 

differently than other similarly situated prisoners. See McCleskey v. 

Kemp, Supt. Ga. Diagnostic and Class. Ctr., 481 U.S. 279, 292-93 

(1987). However, a plaintiff does not establish “a violation of his 

equal protection rights simply by showing that other inmates were 

treated differently. He must show that he ‘was victimized because of 

some suspect classification, which is an essential element of an equal 

protection claim.’” Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 

1992) (quoting Booher v. United States Postal Serv., 843 F.2d 943, 944 

(6th Cir. 1988)). Suspect classes include those based on race, 

religion and national origin. Wilson v. Yaklich, 148 F.3d 596, 604 

(6th Cir. 1998). 

1. Defendant Marshall 

Plaintiff contends that defendant Marshall violated his rights 

under the Equal Protection Clause by refusing to provide a weekly 

prayer room to plaintiff and other Jewish inmates, when inmates of 

other religions were provided a room on a weekly basis. Complaint, 

PAGEID#:100 - PAGEID#:101; Plaintiff’s Motion, PAGEID:470 – 

PAGEID#:472; Stepler 9/10/12 Affidavit; Carr 12/12/12 Affidavit. As 

noted, however, HCF had only two rooms for worship, making it 

impossible to provide to every one of the numerous religions at HCF a 

room in which to pray every week. Marshall Affidavit, ¶¶ 10, 12. 

Therefore, according to defendant Marshall, HCF “strive[s] to 

accommodate weekly congregant services if a faith group’s numbers rise 

to five or more adherents and if there is an outside volunteer 

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available to lead such services.” Id. at ¶ 9. For example, while 

there have been more than five Christian inmates who choose to 

congregate each week and who had an outside volunteer available to 

lead a study group since January 2011, there have never been five or 

more Jewish inmates at HCF at the same time. Id. at ¶¶ 9, 11. 

Further, plaintiff “refuses to congregate with the Messianic Jews and 

non-Orthodox Jews,” id. at ¶ 15, and he concedes that there is no 

outside rabbi to lead weekly services. Plaintiff’s 9/10/12 Affidavit, 

at PAGEID#:511. Under these circumstances, the Court cannot conclude 

that plaintiff, who belonged to a faith with fewer than five adherents 

and who had no outside volunteer to lead weekly services, was 

similarly situated to other inmates of different faiths who received a 

weekly prayer room. 

Although adherents of minority religions must be afforded “a 

reasonable opportunity of pursuing [their] faith comparable to the 

opportunity afforded fellow prisoners who adhere to conventional 

religious precepts,” Looker v. Ohio, 1998 U.S. App. LEXIS 28428, at 

*5-6 (6th Cir. Nov. 9, 1998) (quoting Cruz v. Beto, 405 U.S. 319, 322 

(1972)), HCF need not provide identical accommodations to such 

inmates. Id. (citations omitted). Rather, prisons must make a “good 

faith accommodation of the [prisoner’s] rights in light of practical 

considerations.” Id. (quoting Allen v. Toombs, 827 F.2d 563, 569 (9th 

Cir. 1987)). 

Here, defendant Marshall made a good faith accommodation of 

plaintiff’s rights in light of the limited space available at HCF. 

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Plaintiff was provided a room in which to observe cetain Jewish 

festivals that call for such an observance. Marshall Affidavit, ¶ 13. 

Additionally, HCF permitted plaintiff, who received religious items at 

no cost from the Aleph Institute, to pray in his bunk space on the 

Jewish Sabbath. Id. at ¶¶ 7-8, 14; Plaintiff’s 9/27/13 Affidavit. 

Indeed, plaintiff has taken advantage of this opportunity. Marshall 

Affidavit, ¶ 8. Accordingly, there is no evidence that defendant 

Marshall violated plaintiff’s rights under the Equal Protection 

Clause. 

2. Defendant Curry 

Plaintiff next alleges that defendant Curry violated plaintiff’s 

right to practice his Jewish faith by issuing conduct reports to 

Jewish inmates, but not to non-Jewish inmates. Complaint, PAGEID#: 

100. The moving defendants disagree, arguing that defendant Curry is 

entitled to summary judgment on this claim. Defendants’ Motion, pp. 

17-18. Based on the following uncontroverted record, defendants’ 

arguments are well-taken. Defendant Curry began working in food 

service at HCF in 1997. Curry Affidavit, ¶ 4. After working as a HCF 

corrections officer for six or seven years, he returned to food 

service in 2006 or 2007. Id. There, he worked as food service 

coordinator until approximately March or April 2013. Id.11 Defendant 

Curry’s duties as food service coordinator included maintaining 

safety, sanitation, meal production and supervision of inmates who 

cooked meals, and issuing conduct reports “for rule violations and 

 

11 Defendant Curry currently works as a corrections officer at HCF. Id. 

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situations that arose in the kitchen.” Id. at ¶ 5. Defendant Curry 

denies that he issued conduct reports only to Jewish inmates, but 

avers that he issued conduct reports to those inmates who violated HCF 

rules, regardless of the inmates’ religious affiliation. Id. at 8. 

Indeed, defendant Curry did not know the religious affiliation of the 

inmates to whom he issued reports. Id. (citing list of inmates to 

whom he issued reports, attached thereto at Doc. No. 75-2, PAGEID#:634 

- PAGEID#:635). See also Affidavit of Angie Ryan, Doc. No. 75-5 

(“Ryan Affidavit”) (authenticating list of inmates to whom defendant 

Curry issued reports); Affidavit of Chaplain Brian McKinley, Doc. No. 

75-6, ¶ 3 (“McKinley Affidavit”) (attaching list of religious 

affiliations of inmates to whom defendant Curry issued conduct 

reports). On June 24, 2013, defendant Curry issued a conduct report 

to plaintiff because he tried to steal food, not because of 

plaintiff’s religious affiliation. Id. at ¶ 7. In short, the 

uncontroverted evidence establishes that defendant Curry did not know 

inmates’ religious affiliations and did not issue conduct reports to 

plaintiff or other inmates based on those affiliations. Based on this 

record, the moving defendants’ request for summary judgment on 

plaintiff’s Equal Protection claims against defendant Curry is welltaken. 

WHEREUPON, plaintiff’s request for the appointment of counsel, 

Doc. No. 84, p. 3, is DENIED. It is RECOMMENDED that Plaintiff [sic] 

Motion for Summary Judgment, Doc. No. 65, be DENIED and that 

Defendants Lucas Curry, Victor Marshall, and Tracy Grimm’s Motion for 

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Summary Judgment, Doc. No. 75, be GRANTED. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

July 10, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge

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