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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOSHUA COPENHAVER NELSON, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-1167 

 Judge Graham 

 Magistrate Judge King 

WANZA JACKSON, et al., 

 Defendants. 

REPORT AND RECOMMENDATION

 Plaintiff, a former inmate at the London Correctional Institution 

(“LoCI”) and current inmate at the Marion Correctional Institution 

(“MCI”),1

 brings this civil rights action under 42 U.S.C. § 1983 

claiming a denial of his rights under the First, Eighth and Fourteenth 

Amendments to the United States Constitution in connection with the 

alleged denial of Kosher meals, service of non-Kosher food products 

and other alleged service problems with his meals at LoCI. 

Plaintiff’s First Amended Complaint and Jury Demand, ECF 32 (“Amended 

Complaint”). Plaintiff also asserts violations under 42 U.S.C. §§ 

1985, 1988, 2000d and the Religious Land Use and Institutionalized 

Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”). Id. This matter is 

before the Court on Defendants Wanza Jackson, Steven Cahill, and 

William Gallaer’s Motion for Summary Judgment, Doc. No. 92 (“Motion 

for Summary Judgment”). For the reasons that follow, it is 

RECOMMENDED the Motion for Summary Judgment be GRANTED. 

 

1 See Notice of Change of Address, Doc. Nos. 47, 49. 

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I. BACKGROUND 

 Plaintiff has been deemed “sincerely Jewish” for purposes of 

participating in the Kosher meal program of the Ohio Department of 

Rehabilitation and Corrections (“ODRC”) since February 25, 2010. 

Exhibit A (“Response to Request for Religious Accommodation,” stating 

that “Mr. Copenhaver checks out as being sincerely Jewish. I talked 

with his Rabbi in Michigan.”) (emphasis in original)), attached to 

Amended Complaint, Doc. No. 32.2

 

Plaintiff alleges that he was served meat and dairy products 

during the same meal and was required to cook or reheat his meal in a 

microwave on the Sabbath, all in violation of his religious beliefs. 

Id. at ¶¶ 24-27. Named as defendants in the action are William 

Gallaer, LoCI’s former Food Service Manager,3

 Wanza Jackson, the 

Religious Services Administrator for the Ohio Department of 

Rehabilitation and Corrections (“ODRC”), and Steven Cahill, LoCI’s 

Chaplain, in their official and individual capacities. Id. at ¶¶ 10-

16. Plaintiff seeks monetary relief. Id. at ¶¶ 45-49.4

 

On August 20, 2013, the Court granted in part and denied in part 

defendants’ motion to dismiss. Order, Doc. No. 48. More 

specifically, the Court denied the motion to dismiss as to the 

following claims: (1) plaintiff’s claims against all defendants under 

 

2 Exhibit A is not authenticated. However, defendants do not challenge the 

authenticity of this document and in fact refer to it in their Motion for 

Summary Judgment, p. 2. Under these circumstances, and because the Court 

concludes that no gross miscarriage of justice will result, the Court will 

consider this exhibit in connection with the Motion for Summary Judgment. 

Cf. Johnson v. United States Postal Serv., 64 F.3d 233, 237 (6th Cir. 1995). 3 This defendant is variously referred to as “William Gallar” and “William 

Gallaer.” 

4 The Court previously dismissed as moot plaintiff’s claims for injunctive 

relief. Order, Doc. No. 88.

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the Equal Protection Clause and 42 U.S.C. §§ 1985, 1988 and 2000d; (2) 

plaintiff’s claims under the First and Eighth Amendments and RLUIPA 

against defendants Gallaer and Jackson based on the service of meat 

and dairy at the same meal and requiring plaintiff to cook his meal on 

the Sabbath; (3) plaintiff’s claims under the First and Eighth 

Amendments and RLUIPA against defendant Cahill based on requiring 

plaintiff to cook his meal on the Sabbath; and (4) claims against 

defendants in their official capacities for prospective injunctive 

relief. Id. at 2. The Court later denied plaintiff’s motion for 

summary judgment on these claims. Order, Doc. No. 88. 

Defendants now move for summary judgment on the remaining claims. 

Motion for Summary Judgment. Plaintiff opposes defendants’ motion. 

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment, 

Doc. No. 93 (“Plaintiff’s Opposition”). With the filing of Defendants 

Wanza Jackson, Steven Cahill, and William Gallaer’s Reply in Support 

of Motion for Summary Judgment, Doc. No. 94 (“Reply”), this matter is 

ripe for resolution. 

II. STANDARD 

 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 

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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 

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 

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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 

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

III. EQUAL PROTECTION CLAIMS 

 Plaintiff alleges that he “has been denied fresh fruit other than 

apples[.]” Amended Complaint, ¶ 31. Defendants construe this 

allegation to mean that defendants violated plaintiff’s rights under 

the Equal Protection Clause “because [plaintiff] was provided only 

apples to eat while other inmates were provided a variety of fresh 

fruit.” Motion for Summary Judgment, p. 23. Defendants argue that 

they are entitled to summary judgment on this claim because (1) the 

Court has previously found that “there is no evidence that plaintiff 

was victimized because of his membership in a suspect class[,]” id. 

(quoting Report and Recommendation, Doc. No. 81, p. 6); (2) the Court 

has already concluded that an alleged failure to provide fresh fruit 

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other than apples does not rise to the level of a constitutional 

violation, id. (citing Order and Report and Recommendation, Doc. No. 

45, p. 28); and (3) plaintiff had access to the same fruit as all 

inmates at LoCI, id. (citing Affidavit of William Gallaer, ¶ 13 

(“Gallaer Affidavit”); Affidavit of Steven Cahill, ¶ 25 (“Cahill 

Affidavit”), attached as Exhibits 1 and 3 to Motion for Summary 

Judgment). Plaintiff concedes that defendants are entitled to summary 

judgment on this claim. Plaintiff’s Opposition, p. 16. Accordingly, 

as it relates to plaintiff’s Equal Protection claim, the Motion for 

Summary Judgment is well-taken. 

IV. FIRST AMENDMENT CLAIMS 

Plaintiff alleges that defendants Gallaer and Jackson violated 

plaintiff’s rights under the First Amendment by serving him meat and 

dairy products at the same meal and by requiring plaintiff to cook or 

reheat meals on plaintiff’s Sabbath. Amended Complaint, ¶¶ 24-27. 

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 retain 

the First Amendment right to the free exercise of their religion.” 

Hayes v. Tennessee, No. 09-5529, 424 F. App’x. 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 

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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 F. App’x. 508, at *510 

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

(10th Cir. 2007)). “It 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)). Prisoners’ First 

Amendment rights are “not violated if the challenged policies [are] 

reasonably related to legitimate penological interests.” Id. (citing 

Turner v. Safley, 482 U.S. 78, 89 (1987); Harbin-Bey v. Rutter, 420 

F.3d 571, 578 (6th Cir. 2005)). Finally, 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.” Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002). 

A. Sincerely Held Beliefs 

In addressing defendants’ motion to dismiss, the Court previously 

noted that the defendants did not challenge plaintiff’s invocation of 

Judaism as his sincerely held belief or his claim that his practice of 

the Jewish faith requires that plaintiff keep Kosher. Order and 

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Report and Recommendation, Doc. No. 45, pp. 12-13. Under those 

circumstances, for purposes of that motion, the Court accepted that 

plaintiff’s religious belief was sincerely held and that his practice 

of Judaism requires the observance of certain dietary restrictions. 

Id. at 13. 

 Now, however, defendants argue that plaintiff’s claimed belief 

that he cannot heat his meals in a microwave on the Sabbath and his 

claimed belief in keeping Kosher are not sincerely held. Motion for 

Summary Judgment, p. 11. In support, defendants offer the same 

arguments and evidence previously submitted to the Court in opposing 

plaintiff’s motion for summary judgment. Compare id. at 11-13, with

Doc. No. 76, pp. 10-11. For the reasons previously detailed, see 

Report and Recommendation, Doc. No. 81, pp. 9-13, the Court concludes 

that there exists a genuine issue of material fact as to whether 

plaintiff’s claimed beliefs regarding the re-heating of food in a 

microwave on the Sabbath and keeping Kosher are sincerely held. 

B. Meat and Dairy Served Together 

 Assuming for present purposes only that these beliefs are 

sincerely held, the Court will proceed to consider plaintiff’s First 

Amendment claims, asserted against defendants Gallaer and Jackson,5

that these defendants served plaintiff meat and dairy at the same 

meal. Defendants argue that they are entitled to summary judgment on 

 

5 Plaintiff apparently believes that his First Amendment claim against 

defendant Cahill for allegedly serving meat and dairy together at the same 

meal remains pending. Plaintiff’s Opposition, pp. 6-7, 14. Plaintiff is 

mistaken. The Court previously dismissed this claim against defendant 

Cahill. See Order and Report and Recommendation, Doc. No. 45, pp. 32-33, 41; 

Order, Doc. No. 48 (adopting and affirming Report and Recommendation, Doc. 

No. 45). 

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these claims, denying that they violated plaintiff First Amendment 

rights and claiming qualified immunity. Motion for Summary Judgment, 

pp. 7-17. 

The doctrine of qualified immunity provides that, in civil suits 

for monetary damages, government officials performing discretionary 

functions are generally shielded from liability “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 (2011)). “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[,]” 

Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011) (citing Pearson v. 

Callahan, 555 U.S. 223 (2009)), such that a “‘reasonable official 

would understand that what he is doing violates that right.’” 

Simmonds v. Genesee County, 682 F.3d 438, 443-44 (6th Cir. 2012) 

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). “Plaintiff bears 

the burden of showing that defendants are not entitled to qualified 

immunity.” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 

2009). Stated differently, plaintiff must demonstrate that “a 

constitutional right was violated and that the right was clearly 

established at the time of the violation.” Id. A court may exercise 

discretion in determining which prong of the test it will first 

address in light of the circumstances of the case. Pearson, 555 U.S. 

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at 236. 

In the case presently before the Court, plaintiff offers evidence 

that he and other inmates were served meat and dairy together at the 

same meal. See Plaintiff’s Opposition, p. 13 (citing Affidavit of 

Joshua A. Copenhaver Nelson, ¶ 5 (“Upon beginning the Kosher Meal(s) I 

was served Meat and Dairy together, in violation of Kosher law. This 

is found within the laws of Kashruth, and the Torah at the Book of 

Leviticus.”), dated October 5, 2012, attached as Exhibit H to the 

Amended Complaint (“Plaintiff’s October 2012 Affidavit”). See also 

id. at 14 (citing Plaintiff’s October 2012 Affidavit; Affidavit of 

Joshua A. Copenhaver Nelson, dated February 25, 2013, attached as 

Exhibit Q to the Amended Complaint (“Plaintiff’s February 2013 

Affidavit”); Affidavit of Monroe Williams, attached as Exhibit J to 

the Amended Complaint (“Williams Affidavit”); Affidavit of Charles 

Mason, attached as Exhibit K to the Amended Complaint (“Mason 

Affidavit”); Affidavit of Antone Singletary, attached as Exhibit L to 

the Amended Complaint (“Singletary Affidavit”). 

However, defendants Gallaer and Jackson deny that they prepared 

meals for plaintiff, explaining that it was inmate staff who assembled 

the Kosher meals. Motion for Summary Judgment, p. 13 (citing Gallaer 

Affidavit, ¶¶ 12, 15-16, 18-19; Affidavit of Wanza Jackson, ¶¶ 5, 12, 

16-17, attached as Exhibit 2 to Motion for Summary Judgment (“Jackson 

Affidavit I”). Plaintiff nevertheless insists that defendants Gallaer 

and Jackson are responsible for serving meat and dairy together at the 

same meal. Plaintiff’s Opposition, pp. 2, 6-7, 12-15, 18. First, 

plaintiff contends that defendant Gallaer is responsible for this 

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violation because he supervised the kitchen and dining hall, id. at 2 

(quoting Gallaer Affidavit, ¶ 5), and because defendant Gallaer 

selected an inmate, “Offender Moore, #438521,” to prepare Kosher meals 

and that defendant Gallaer did nothing even when he knew that Inmate 

Moore served meat and dairy together in the same meal, id. at 2, 6, 

12-13. These arguments are unavailing. Plaintiff’s assertions 

regarding Inmate Moore are not made under penalty of perjury and are 

therefore not evidence to be considered on summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) 

(unsupported assertions are inadmissible and will not be considered on 

summary judgment). Moreover, absent active unconstitutional behavior, 

simply supervising the kitchen and dining hall cannot form a basis for 

finding a constitutional violation by the supervisor. See, e.g., 

Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002) (“Supervisory 

liability under § 1983 cannot be based upon a mere failure to act but 

must be based upon active unconstitutional behavior.”). 

In addition, although it is not immediately clear, plaintiff also 

apparently argues that defendant Jackson violated plaintiff’s rights 

in this regard because she recommended that Inmate Moore be placed on 

the Kosher diet line and that “Gallaer acted under direction of 

Jackson” when serving meat and dairy together. Plaintiff’s 

Opposition, pp. 2, 12, 14-15. Plaintiff’s factual assertions to this 

effect are not evidence; they are not made under penalty of perjury 

and will therefore not be considered at the summary judgment stage. 

See, e.g., Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 n.1 

(6th Cir. 2010) (“‘[A] court may not consider unsworn statements when 

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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 directs the Court to an email exchange between 

defendants Cahill and Jackson dated August 28, 2012, apparently to 

establish that defendant Jackson purposely served meat and dairy 

together at the same meal. Plaintiff’s Opposition, pp. 14-15 (citing 

Exhibit B6

 (containing copy of email string containing two messages (1) 

an email dated August 28, 2012 from defendant Cahill to defendants 

Jackson and Gallaer and other individuals stating, inter alia, “A few 

of our Jewish and Sabbatarian inmates have said that meals are being 

served with both meat and dairy products which makes the meal nonkosher” and that “they say they are not allowed to eat food prepared 

on the Sabbath or microwaved on the Sabbath. To correct the Sabbath 

problem they are requesting a sack meal on Friday evening. Is there a 

problem with providing this sack meal in place of Saturday meals?” and 

(2) an email dated August 28, 2012 from defendant Jackson to defendant 

Cahill with copy to defendant Gallaer, responding that “Chaplain, 

Vivian Hawkins provided guidelines to the food service manager. Do 

not change your meal schedule for the Sabbath issue. It is not a 

recommended practice department-wide. Marion started this practice - 

but I do not recommend it!”), attached to Amended Complaint). This 

exchange, however, does not establish that defendant Jackson engaged 

in active unconstitutional behavior regarding serving meat and dairy 

 

6 Exhibit B is not authenticated. However, defendants again do not challenge 

the authenticity of this document and cite to it in their Motion for Summary 

Judgment, p. 14. The Court will therefore consider the exhibit in connection 

with the Motion for Summary Judgment. Cf. Johnson v. United States Postal 

Serv., 64 F.3d at 237. 

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together at the same meal. Therefore, taking the evidence as a whole, 

the Court concludes that nothing offered by plaintiff controverts 

defendants’ evidence that it was inmate staff, rather than defendants 

Gallaer and Jackson, who physically assembled Kosher meals. 

Second, defendants represent that meat and dairy were not 

purposely or even recklessly served together in Kosher meals. Gallaer 

Affidavit, ¶¶ 15-16, 18 (denying, inter alia, that he or anyone else 

purposely or recklessly served meat and dairy together); Jackson 

Affidavit I, ¶¶ 12, 15-17 (averring that she was unaware that 

plaintiff was served meat and dairy together and denying that she 

ordered or encouraged anyone else to do so); Cahill Affidavit, ¶ 13 

(denying that meat and dairy were purposely or recklessly served 

together at the same meal). According to defendants, “[s]ometimes a 

new inmate food service staff would put together the kosher meals and 

make a mistake. They put together a couple hundred meals a day, 

including medical meal bags, etc.” Gallaer Affidavit, ¶ 15. See also 

Cahill Affidavit, ¶ 14 (“This [serving the two foods together] might 

occur when a new inmate was substituted in for the regular inmate 

preparing kosher meals.”). Defendants therefore represent that, if 

meat and dairy were served together to plaintiff, that event was 

simply an accident. See Cahill Affidavit ¶ 13. 

Plaintiff apparently disagrees, representing that defendants 

Gallaer and Jackson permitted Inmate Moore, who understood the laws of 

Kosher, to work in the LoCI kitchen even after they learned that 

Inmate Moore served meat and dairy together. Plaintiff’s Opposition, 

pp. 2, 6. However, these unsworn factual assertions may not be 

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considered on summary judgment. See, e.g., Harris, 627 F.3d at 239 

n.1. Therefore, defendants’ evidence that meat and dairy were not 

recklessly or purposely served together in Kosher meals is 

uncontroverted. 

Third, defendants proffer that any instances of serving meat and 

dairy together were isolated mistakes, which were immediately 

rectified upon notification. Cahill Affidavit, ¶¶ 13 (representing 

that plaintiff complained about this happening “one or two times” and 

that it “occurred only a few times”), 14 (“Upon being notified that 

meat and dairy were served together in a kosher meal, employees of 

LoCI and I would immediately rectify the situation and stop that from 

happening.”). Plaintiff disagrees, arguing that he and other inmates 

were “routinely served meat and dairy together.” Plaintiff’s 

Opposition, p. 14. However, the evidence upon which plaintiff relies 

does not establish that he and other were “routinely served meat and 

dairy together”; instead, these cited sources simply show that at some 

point on at least one occasion meat and dairy were served together at 

LoCI on some unspecified occasion. See, e.g., Plaintiff’s October 

2012 Affidavit, ¶ 5 (“Upon beginning the Kosher Meal(s) I was served 

Meat and Dairy together, in violation of Kosher law.”); Williams 

Affidavit, ¶ 4 (“During the course of my being on the Kosher diet 

[since at least 2011], I have been served meat and dairy items 

together”); Mason Affidavit, ¶ 4 (“While on the Kosher meal program 

[since at least 2009], I have been served meat and dairy items 

together”); Singletary Affidavit, ¶ 6 (“During the course of my being 

active on the kosher diet [since at least April 2012]; I have been 

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served meat and dairy items together”). Moreover, plaintiff points to 

no evidence and cites to no authority in contesting defendant Cahill’s 

representation that isolated violations were rectified immediately,. 

See Plaintiff’s Opposition, p. 14. Accordingly, the Cahill Affidavit

is uncontroverted. 

Finally, defendants suggest that missteps in serving Kosher food 

might also be attributable to plaintiff himself. Gallaer Affidavit, ¶ 

17; Cahill Affidavit, ¶ 15; Exhibit 6, PAGEID#:659, attached to Memo. 

in Opp. According to defendants, “[a]round November or December 

2012, food services began using Joshua Copenhaver Nelson as a 

consultant to prepare and put together kosher meals; after that, he 

was hired by food services.” Cahill Affidavit, ¶ 15. See also 

Gallaer Affidavit, ¶ 17 (“Around December 2012, Plaintiff was given a 

job in the LOCI kitchen putting together kosher meals. Therefore, if 

Plaintiff was served meat and dairy together when he worked in the 

LOCI kitchen, he did it himself.”). Plaintiff, however, denies that 

he worked with LoCI food services on the dates cited by defendants, 

averring instead that he worked with food services from June 11, 2013 

through August 12, 2013. Affidavit of Plaintiff Joshua Copenhaver 

Nelson in Support of Plaintiff’s Opposition to Defendants’ Motion for 

Summary Judgment, ¶ 3, attached as Exhibit 2 to Plaintiff’s Opposition

(“Plaintiff’s March 21, 2014 Affidavit”). The Court need not address 

this dispute of fact because, taking the record as a whole, the Court 

concludes that defendants are entitled to summary judgment on 

plaintiff’s First Amendment claims against defendants Gallaer and 

Jackson based on the service of meat and dairy in the same meal. 

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C. Cooking or Reheating Meal on the Sabbath 

Defendants also seek summary judgment on plaintiff’s First 

Amendment claims against defendants Gallaer, Jackson and Cahill based 

on plaintiff’s assertion that he was required to cook his meal on the 

Sabbath. According to defendants, all Kosher meals are either prepackaged, pre-cooked and frozen or shelf-stable. Gallaer Affidavit, ¶ 

10; Jackson Affidavit I, ¶ 11; Cahill Affidavit, ¶ 10; Affidavit of 

Vivian Hawkins, ¶ 15, attached as Exhibit 4 to Motion for Summary 

Judgment (“Hawkins Affidavit”).7

 The pre-packaged frozen Kosher meals 

are pre-cooked and need only be re-heated in a microwave oven or a 

conventional oven. Id. 

In moving for summary judgment on this claim, defendants advance 

two arguments. First, defendants contend that plaintiff has not 

demonstrated a clearly established right to Kosher meals that need not 

be warmed in the microwave. Motion for Summary Judgment, pp. 13-14. 

Defendants first represent that “no court has determined, or even 

discussed, whether an inmate has the right to receive kosher meals 

that need not be cooked or warmed in a microwave.” Id. at 14. 

Moreover, defendants argue, “there [i]s no consensus among Rabbis as 

to whether warming frozen kosher meals in a microwave on the Sabbath 

violates the tenets of the Jewish religion.” Id. (citing Hawkins 

Affidavit, ¶ 13 (“ODRC spoke with many representatives of the Jewish 

community, including Rabbis, concerning this issue, and there was no 

consensus on whether re-heating frozen Kosher meals in a microwave on 

the Jewish Sabbath violates the tenets of the Jewish religion.”); 

 

7 Ms. Hawkins is ODRC’s Food Service Administrator. Hawkins Affidavit, ¶ 4. 

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Cahill Affidavit, ¶ 9 (same)). Under these circumstances, defendants 

represent that neither they nor Ms. Hawkins were aware that warming 

frozen Kosher meals in a microwave oven violated plaintiff’s religious 

beliefs. Gallaer Affidavit, ¶ 9; Jackson Affidavit I, ¶ 10; Cahill 

Affidavit, ¶ 9; Hawkins Affidavit, ¶ 13. 

In response, plaintiff insists that his Orthodox Jewish faith 

prohibits using a microwave on the Sabbath to warm the frozen precooked Kosher meals. Plaintiff’s Opposition, pp. 3, 6, 16 (citing 

Plaintiff’s March 21, 2014 Affidavit). More specifically, plaintiff 

does not dispute that the meals were pre-cooked or Kosher, but he 

complains that the meals were frozen: 

3. I was employed in the LOCI Food Service Area from June 

11, 2013 through August 12, 2013. 

 * * * * 

6. Entrees when they were delivered to London from the 

Central Warehouse, were stored in the “Manager’s Cooler” in 

the rear of the London facility food service area. The 

temperature of this cooler is routinely between 27 and 33 

degree Fahrenheit. The entrees were frozen or close to it, 

when shipped or stored. 

7. When the kosher meals were packaged together (all 

meals with the side dishes) these are then stored in a 

walk-in cooler generally for about 12 hours, prior to 

service to general population offenders. The temperature 

of this is roughly thirty-five degrees, because it is 

utilized to store milk. 

Plaintiff’s March 21, 2014 Affidavit, ¶¶ 3, 6-7. According to 

plaintiff, “cooking with a flame (electric or gas) is a clearly 

established practice prohibited by his religion.” Plaintiff’s 

Opposition, p. 3. See also id. at 6 (citing, generally “Shulchan 

Orech”). See also id. at 16 (“[T]here is an inherent necessity to not 

cook items on the Sabbath.”) (no citation to authority). These 

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assertions, however, are not sworn. As discussed supra, an unsworn 

factual assertion may not be considered on summary judgment. See, 

e.g., Harris, 627 F.3d at 239 n.1. 

 Moreover, the Court is not persuaded that the right to a Kosher 

meal that need not be warmed in a microwave is a clearly established 

right. As discussed supra, plaintiff has the burden of showing, inter 

alia, that the constitutional right purportedly violated was “clearly 

established at the time of the violation.” Chappell v. City of 

Cleveland, 585 F.3d at 907. “To determine whether a right was clearly 

established for purposes of qualified immunity, this court ‘looks 

first to decisions of the Supreme Court, then to decisions of this 

court and other courts within our circuit, and finally to decisions of 

other circuits.’” Key v. Grayson, 179 F.3d 996, 999-1000 (quoting 

Chappel v. Montgomery County Fire Protection Dist. No. 1, 131 F.3d 

564, 579 (6th Cir. 1997)). “If reasonable officials could disagree on 

the issue, immunity should be recognized.” Id. at 1000. “‘For 

qualified immunity to be surrendered, pre-existing law must dictate, 

that is, truly compel (not just suggest or allow to raise a question 

about), the conclusion for every like-situated, reasonable government 

agent that what defendant is doing violates federal law in the 

circumstances.’” Id. (quoting Saylor v. Board of Educ., 118 F.3d 507, 

515 (6th Cir. 1997)). 

 In the present case, the Court, like defendants, see Motion for 

Summary Judgment, p. 14, has not located any federal court decision 

that concludes that - or even addressed - whether an inmate has a 

clearly established right to receive pre-cooked Kosher meals that need 

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not be warmed in the microwave. Instead, alleged violations involving 

Kosher meals in the prison context do not reflect a problem with the 

fact that the meals are frozen, but instead relate to some other 

alleged deficiency with the meal. See, e.g., Yoshiyah v. Norris, No. 

5:09-cv-00117, 2010 U.S. Dist. LEXIS 14386, at *7, 17-18 (E.D. Ark. 

Jan. 28, 2010)(noting plaintiff’s evidence that the Kosher meals were 

frozen vegetarian or soy-based meals, but rejecting plaintiff’s 

constitutional complaints that the meals were vegetarian). Because 

the case authority does not establish that an inmate’s right to a 

Kosher meal that does not need to be warmed in a microwave was so 

clearly established that an official reasonably would believe that not 

providing such a meal is unconstitutional, plaintiff has failed to 

meet his burden in this regard. 

 Defendants go on to reject plaintiff’s contention that they must 

supply him with a “Sabbath bag” in place of the prepackaged Kosher 

meals on the Sabbath, claiming a valid, rational connection between 

the prison regulation or practice (serving frozen Kosher meals on the 

Sabbath) and a legitimate governmental interest (ODRC’s interest in a 

simplified food service operation as well as LoCI’s need to maintain 

security and order within the prison). Motion for Summary Judgment, 

pp. 14-15 (citing, inter alia, Turner v. Safley, 482 U.S. 78 (1987)). 

According to defendant Jackson, “[c]oordinating special Sabbath Bags 

for Jewish inmates and the expected converts would create a logistical 

nightmare.” Affidavit of Wanza Jackson, ¶ 8, Doc. No. 92-8 (“Second 

Jackson Affidavit”). Defendant Jackson explains that “providing an 

identifiable religious group with what will be perceived as a special 

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meal will create this ‘have/have not’ situation.” Id. at ¶ 10. This 

situation creates tension that often leads to violence: 

Any time an inmate, or group of inmates, is accorded 

special status, or is perceived by other inmates to be 

accorded such status, other inmates will also want that 

status. This creates what prison administrators call a 

‘have/have not’ situation, which breeds resentment within 

the population and adversely impacts prison morale. The 

‘have/have not’ situation inevitably creates tension 

amongst the inmates and theft, and frequently leads to 

extortion and violence. 

Id. at ¶ 9. Defendant Jackson goes on to explain why the use of 

Sabbath bags would pose problems at prisons: 

I recommended against the Sabbath bag accommodation request 

for a legitimate penological interest – prison security. 

First, the prisons held a mistaken belief that the Jewish 

inmates needed a Sabbath Bag because they fasted from 

sundown on Friday until sundown on Saturday. After 

consulting with Rabbis, it was understood that the Jewish 

inmates merely could not work on the Sabbath (sundown on 

Friday to sundown on Saturday); no meal fast requirement 

exists. Thus, providing the kosher-keeping Jewish inmates 

with a “final meal” bag on Friday was not necessary. 

Further, the reason Marion [Correctional Institution] 

started the Sabbath Bag practice was so that the Jewish 

inmates working in food services and preparing kosher meals 

would not be required to work on Saturday; those inmates 

would prepare a final meal on Friday that would carry the 

kosher-keeping Jewish inmates through Saturday at sundown. 

The Sabbath Bag caused several major security problems at 

the prisons: the inmates receiving the Sabbath bags would 

have an abundance of food at one time, which they would 

take back to their housing unit, and then, in violation of 

the prison rules, trade the food for goods or services with 

other inmates. In my e-mail response [apparently Exhibit 

B, attached to the Amended Complaint], I did not encourage 

or participate in any decision regarding, or even address 

the issue of, serving meat and dairy products together or 

the use of a microwave on the Sabbath. 

Jackson Affidavit I, ¶ 14. Defendants argue that prison security is 

not only a legitimate governmental interest but is in fact a 

compelling governmental interest. Motion for Summary Judgment, p. 15 

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(citing, inter alia, Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th 

Cir. 2005)). 

 Plaintiff disagrees, representing, without evidentiary support, 

that defendant Jackson permitted such bags when she was the warden at 

another correctional facility. Plaintiff’s Opposition, p. 10. 

Plaintiff also asserts that the Sabbath bag practice “has been 

utilized at all prisons in Ohio since February 1, 2013” and that the 

“logistical nightmare” anticipated by defendant Jackson has not 

resulted. Id. at 10-12 (citing Exhibit G, attached to the Amended 

Complaint). Defendants, however, apparently contest the authenticity 

of Exhibit G, arguing that plaintiff’s contentions cannot be 

considered at the summary judgment stage. See Reply, p. 3 (arguing, 

inter alia, that they have set forth a valid, rational connection 

between the prison regulation and a legitimate government interest and 

that “[t]he rest of Plaintiff’s allegations are unsupported, 

inadmissible, and cannot be considered on summary judgment”). This 

Court agrees. See Harris, 627 F.3d at 239 n.1. Moreover, even if 

Exhibit G had been authenticated, consideration of this document does 

not support plaintiff’s assertions. This exhibit is an undated, 2-

page document entitled, “Ohio Department of Rehabilitation and 

Correction Kosher Menu.” Exhibit G, at PAGEID#:373. Although the 

exhibit details the contents of a Sabbath bag, id. at PAGEID#:374, the 

document says nothing regarding the logistical burden of administering 

these bags or otherwise establishes that no problems or security risks 

are created by distributing these bags. In short, plaintiff has 

offered nothing to controvert defendant Jackson’s sworn affidavits. 

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 For all of these reasons, as it relates to plaintiff’s First 

Amendment claim based on heating his Kosher meal in the microwaves on 

his Sabbath, defendants are entitled to summary judgment. 

V. RLUIPA CLAIMS 

 Although it is not immediately clear, it appears that plaintiff 

asserts claims under RLUIPA. See, e.g., Amended Complaint, ¶¶ 11-16. 

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. However, in determining whether or not an 

accommodation is entitled to protection under RLUIPA, “‘the sincerity 

of a prisoner’s professed religiosity’” should be considered. Colvin, 

605 F.3d at 298 (quoting Cutter, 544 U.S. at 725 n.13). 

“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 F. App’x. 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 

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

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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. App'x at 511). 

A plaintiff must initially establish that the challenged action 

“substantially burdens the plaintiff’s exercise of religion.” 42 

U.S.C. § 2000cc-2(b); Hayes, 424 Fed. Appx. 546, at *554 (“An inmate 

asserting a claim under the RLUIPA must first produce prima facie 

evidence demonstrating that his religious exercise was substantially 

burdened.”). If the plaintiff carries this burden, the government 

must then establish that that substantial burden is the least 

restrictive means of furthering a compelling governmental interest. 

42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b). See also Hayes, 424 Fed. Appx. 

546, at *555. 

 The United States Court of Appeals for the Sixth Circuit recently 

concluded that RLUIPA does not authorize an award of monetary damages 

against defendants in their individual capacities: 

Congress’s failure to speak so clearly here renders any 

putative individual-capacity, money-damages condition in 

RLUIPA inappropriate. . . . We have considerable company in 

reaching this conclusion. Every circuit to consider the 

question, whether before Sossamon [v. Texas, 131 S. Ct. 

1651, 1655 (2011)] or after, has held that RLUIPA does not 

permit money damages against state prison officials, even 

when the lawsuit targets the defendants in their individual 

capacities. 

Haight v. Thompson, No. 13-6005, 2014 U.S. App. LEXIS 15703, at *34 

(6th Cir. Aug. 15, 2014) (citations omitted). Accordingly, as to 

defendants’ request for summary judgment on the RLUIPA claim because 

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of the unavailability of money damages against defendants in their 

individual capacities, the Motion for Summary Judgment is well-taken. 

VI. EIGHTH AMENDMENT CLAIMS 

 Plaintiff alleges that defendants Gallaer and Jackson violated 

his Eighth Amendment rights by serving him meat and dairy together in 

the same meal and when all the defendants required plaintiff to cook 

his meal on the Sabbath, resulting in weight loss for plaintiff. The 

Sixth Circuit has previously held that “the deliberate and unnecessary 

withholding of food that is essential to normal health can constitute 

the deliberate indifference to medical needs that violates the Eighth 

Amendment.” Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009) 

(citing Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977)). 

Deliberate indifference in violation of the Eighth Amendment contains 

both a subjective and an objective component. Farmer v. Brennan, 511 

U.S. 825, 835-57 (1994). Plaintiff bears the burden of demonstrating 

these components. See, e.g., Meier v. County of Presque Isle, Nos. 

09-1318, 09-1350, 376 Fed. Appx. 524, at *528 (6th Cir. May 6, 2010) 

(citing Phillips v. Roane County, 534 F.3d 531, 539 (6th Cir. 2008); 

Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th Cir. 

2001)). 

“To satisfy the subjective component, the plaintiff must allege 

facts which, if true, would show that the official being sued 

subjectively perceived facts from which to infer substantial risk to 

the prisoner, that he did in fact draw the inference, and that he then 

disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th 

Cir. 2001). “[A]n official’s failure to alleviate a significant risk 

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that he should have perceived but did not, while no cause for 

commendation, cannot under our cases be condemned as the infliction of 

punishment.” Farmer, 511 U.S. at 838. See also Comstock, 273 F.3d at 

703 (“‘[D]eliberate indifference to a substantial risk of serious harm 

to a prisoner is the equivalent of recklessly disregarding that 

risk.’”) (quoting Farmer, 511 U.S. at 836). 

 In the case presently before the Court, defendants contend that 

LoCI prison staff may have accidentally served meat and dairy on some 

occasions, but that any mistake in this regard was immediately 

corrected. Motion for Summary Judgment, p. 21. Defendants also take 

the position that they were unaware that causing plaintiff to warm his 

pre-cooked frozen Kosher meals on the Sabbath violated plaintiff’s 

religious beliefs. Id. Defendants’ arguments are well-taken. As set 

forth in detail supra, the record reflects that defendants Gallaer and 

Jackson did not personally serve meat and dairy together at the same 

meal and that any occasion on which LoCI prison staff may have done so 

was isolated and promptly rectified. See, e.g., Gallaer Affidavit, ¶¶ 

12, 15-16, 18-19; Jackson Affidavit, ¶¶ 5, 12, 16-17; Cahill 

Affidavit, ¶¶ 13-14. Moreover, there is no evidence that any of the 

defendants was aware that re-heating frozen Kosher meals in a 

microwave on the Jewish Sabbath violated plaintiff’s religion. 

Gallaer Affidavit, ¶ 9; Jackson Affidavit, ¶ 10; Cahill Affidavit, ¶ 

9. Under these circumstances, plaintiff has not met his burden in 

establishing the subjective prong of his claims. See, e.g., Farmer, 

511 U.S. at 838. See also Comstock, 273 F.3d at 703. 

Even if plaintiff could establish the subjective component, he 

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has not satisfied the objective component, which requires that a 

deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834. 

Defendants contend that any weight loss experienced by plaintiff is de 

minimis and insufficient to constitute the physical injury necessary 

to an Eighth Amendment claim. Motion for Summary Judgment, pp. 22-23. 

Noting that the Prison Litigation Reform Act (“PLRA”) requires inmates 

to have suffered a physical injury before recovering monetary damages, 

defendants argue that courts have held that weight loss in the prison 

setting is generally not considered an actionable physical injury. 

Id. at 22 (collecting cases). In support of the argument that 

plaintiff’s weight loss was de minimis, defendants previously 

submitted the affidavit of Robin Murphy, ODRC’s Health Care 

Administrator at LoCI. See Affidavit of Robin Murphy, Doc. No. 76-5 

(“First Murphy Affidavit”). In that affidavit, Ms. Murphy averred 

that medical records reflected that, on March 19, 2013, plaintiff 

weighed 192 pounds. Id. at ¶ 4. Thereafter, defendants were granted 

leave to file a corrected affidavit with attached medical records. 

See Doc. Nos. 80, 86, 95.8

 Ms. Murphy’s revised affidavit avers that 

attached medical records establish that plaintiff’s weight was 222 

pounds on March 10, 2013. Affidavit of Robin Murphy, ¶ 4, Doc. No. 96 

(“Revised Murphy Affidavit”). With the Revised Murphy Affidavit, 

defendants go on to chronicle plaintiff’s weight: 

12/31/09 – 216.2 lbs (upon entering prison) 

 

8 Defendants filed Ms. Murphy’s “revised” affidavit when moving for summary 

judgment. See Doc. No. 92-5. However, that affidavit failed to attach the 

referenced medical records. Id. Upon the Court’s Order, Doc. No. 95, 

defendants filed the affidavit under seal with the referenced medical 

records. Doc. No. 96. 

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4/31/10 – 216.2 lbs 

8/21/11 – 226 lbs 

1/16/12 – 222 lbs 

3/30/12 – 233 lbs 

5/17/12 – 255.5 lbs 

6/20/12 – 247 lbs 

8/17/12 – 254 lbs (transfer to LOCI) 

9/25/12 – 238 lbs 

11/26/12 – 225 lbs 

12/10/12 – 224.4 lbs 

3/10/13 – 222 lbs9

 

Motion for Summary Judgment, p. 23 (citing Revised Murphy Affidavit

and medical records attached thereto). Defendants therefore argue 

that plaintiff’s allegation – made in the unverified Amended 

Complaint, ¶ 42 - that he weighed 192 pounds as of March 9, 2013 is 

unfounded and incorrect because the medical records reflect that 

plaintiff weight 222 pounds on March 10, 2013. Motion for Summary 

Judgment, p. 23 (citing Second Murphy Affidavit and exhibits attached 

thereto). Defendants therefore calculate that plaintiff lost 32 

pounds between August 17, 2012 and March 9, 2012. Id. Defendants 

also point out that plaintiff’s weight as of March 2013 (222 pounds) 

is still greater than his weight when he entered prison (216.2 pounds) 

and that his body mass index (23.6%) is within normal range and 

proportionate to his height. Id. (citing Revised Murphy Affidavit, ¶ 

4). Defendants go on to suggest that plaintiff’s weight loss was a 

 

9 The Amended Complaint was filed on March 18, 2013. 

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matter of choice when he decided to become a vegetarian and refused to 

eat meat. Id. at 23 (citing Exhibit 6 attached the response in 

opposition to plaintiff’s motion for summary judgment, Doc. No. 76; 

Cahill Affidavit, ¶ 19). 

 In response, plaintiff contends that no medical records support 

the Revised Murphy Affidavit and that, in any event, plaintiff 

previously pled in his Amended Complaint that he weighed 192 pounds on 

March 9, 2013 and that he weighed even less, 189 pounds, as of April 

3, 2013. Plaintiff’s Opposition, pp. 4, 17 (citing Amended Complaint, 

¶ 42; the First Murphy Affidavit; Affidavit of Joshua Copenhaver 

Nelson, ¶¶ 3-4, attached as Exhibit 3 to Plaintiff’s Opposition

(“Plaintiff’s April 5, 2013 Affidavit”)). 

 As noted supra, the PLRA requires that a prisoner have suffered a 

physical injury before recovering monetary damages in a federal civil 

action under the Eighth Amendment. Yaacov v. Collins, No. 09-4148, 

2010 U.S. App. LEXIS 27719, at *10 (6th Cir. Dec. 1, 2010) (citing 42 

U.S.C. § 1997e(e)). Although the required physical injury “need not 

be significant, it must be more than de minimis for an Eighth 

Amendment claim to go forward.” See, e.g., Jarriett v. Wilson, 414 

F.3d 634, 640 (6th Cir. 2005). An inmate’s diet and weight loss may, 

under some circumstances, constitute an actionable physical injury. 

Cf. Colvin, 605 F.3d at 290 (“‘[P]rison administrators must provide an 

adequate diet without violating the inmate’s religious dietary 

restrictions.’”) (quoting Alexander v. Carrick, No. 00-1261, 31 F. 

App’x 176, at *179 (6th Cir. Mar. 19, 2002)); Alexander, 31 Fed. Appx. 

176, at *179 (“For the inmate, this is essentially a constitutional 

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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.”); Ward v. Gooch, 5:07-CV-389, 

2010 U.S. Dist. LEXIS 118566 (E.D. Ky. Nov. 5, 2010) (finding that 

evidence that inmate lost 68 pounds over 10 month period and received 

200-700 calories a day for almost a year was sufficient to raise 

genuine issue of material fact on the plaintiff’s Eighth Amendment 

claim). 

In the case presently before the Court, plaintiff argues that his 

weight was 192 pounds in March 2013, by relying on allegations in the 

Amended Complaint, the First Murphy Affidavit and Plaintiff’s April 5, 

2013 Affidavit. Plaintiff’s reliance on unsworn allegations in the 

Amended Complaint, however, will not be considered at the summary 

judgment stage for the reasons stated supra. While the First Murphy 

Affidavit, ¶ 4, averred that “[t]he attached records indicated that on 

March 19, 2013, inmate Copenhaver-Nelson’s weight was 192 pounds[,]” 

Ms. Murphy later explained that this statement was inaccurate and 

unsupported by the medical records. Revised Murphy Affidavit, ¶ 5. 

Instead, Ms. Murphy clarified that plaintiff weighed 222 pounds on 

March 10, 2013. Id. at ¶ 4. Plaintiff nevertheless insists that he 

weighed 189 pounds in April 2013, as “recorded within my medical 

records maintained by the Ohio Department of Rehabilitation and 

Correction.” Plaintiff’s April 5, 2013 Affidavit, ¶ 4. This 

statement, although sworn, is contradicted by the objective medical 

records upon which plaintiff relies and is insufficient to raise a 

material issue of fact relating to this issue. Cf. medical record, 

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PAGEID#: 866, attached to the Revised Murphy Affidavit (stating that 

plaintiff weighed 222 pounds on March 10, 2013); Hoffner v. Bradshaw, 

622 F.3d 487, 500 (6th Cir. 2010) (“This self-serving affidavit 

carries little weight, especially in light of the copious evidence in 

the record to contradict it.”); Whitley v. Spencer County Police 

Dep’t, No. 97-5904, 1999 U.S. App. LEXIS 5862, at *7 (6th Cir. Mar. 

26, 1999) (“However, the objective medical evidence contradicts 

plaintiff's self-serving affidavits and conclusory allegations.”). 

The record establishes that plaintiff weighed 222 pounds on March 

10, 2013. Revised Murphy Affidavit; medical record, PAGEID#: 866, 

attached thereto. Accordingly, with a beginning weight of 216 pounds 

when he entered prison, see medical record, PAGEID#: 846, attached to 

Revised Murphy Affidavit, plaintiff lost 32 pounds between August 17, 

2012 and March 9, 2013. Id. As defendants highlight, the March 2013 

weight (222 pounds) is still greater than plaintiff’s weight when he 

entered prison (216.2 pounds). Moreover, the Revised Murphy Affidavit

explains that plaintiff’s body mass index (23.6%) is within normal 

range and is proportionate to plaintiff’s height, and this assertion 

is uncontroverted. See Revised Murphy Affidavit, ¶ 4. Based on these 

facts, the Court cannot say that plaintiff suffered more than a de 

minimis injury. Accordingly, the Court concludes that plaintiff has 

failed to meet the objective prong of his Eighth Amendment claims. 

For these reasons, as it relates to plaintiff’s Eighth Amendment 

claims, the Motion for Summary Judgment is well-taken. 

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VII. SECTION 1985 CLAIMS 

 Plaintiff asserts a claim under 42 U.S.C. § 1985. Amended 

Complaint, ¶ 2. Section 1985, which is composed of three subsections, 

“prohibits conspiracies interfering with civil rights.” Watkins v. 

New Albany Plain Local Sch., 711 F. Supp. 2d 817, 834 (S.D. Ohio 

2010). The first subsection prohibits a conspiracy to prevent a 

person from accepting or holding any office; from discharging duties 

of such office; inducing a person to leave any office; or injuring a 

person or that person’s property because of the lawful discharge of 

official duties. 42 U.S.C. § 1985(1). The second subsection 

addresses conspiracies to deter or obstruct justice or to intimidate a 

party, witness or juror. Id. at § 1985(2). Finally, the third 

subsection forbids conspiracies to deprive a person or class of 

persons of the equal protection of the law or of equal privileges and 

immunities under the law. Id. at § 1985(3). 

 In the case presently before the Court, plaintiff does not 

specify which subsection he intends to pursue. However, the Amended 

Complaint alleges that the defendants “acted in concert” to violate 

plaintiff’s rights: 

Defendants Jackson, Gallaer and Cahill, directly acted in 

concert to knowingly violate applicable laws of the United 

States and State of Ohio, which provide for free exercise 

of religion, through promulgation of a maliciously-based 

policy predicated upon attacking the Plaintiff since he is 

Jewish, and other observants of the Kosher diet at the 

London facility, to attempt to cause the Plaintiff and 

others observing the Kosher diet to cease taking part 

within the religious observance due imposition of 

conditions of which a reasonable person would have known 

was obstructive to the practice of the Plaintiff’s and 

other parties religions. 

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Amended Complaint, ¶ 41 [sic]. In opposing the Motion for Summary 

Judgment, plaintiff further contends that the Amended Complaint

“alleges that the defendants conspired for the purpose of depriving 

the Plaintiff and other Jewish offenders or other adherents at the 

London facility the protection of law, and that Defendant Jackson 

issued orders (Doc, 32, Exhibit B) and conspirators committed acts in 

furtherance of the conspiracy[.]” Plaintiff’s Opposition, p. 17. The 

Court construes these allegations as asserting a claim under § 

1985(3). 

To prevail on a § 1985(3) claim, one must prove (1) a 

conspiracy; (2) for the purpose of depriving, either 

directly or indirectly, any person or class of persons of 

the equal protection of the laws, or of equal privileges or 

immunities of the laws; (3) an act in furtherance of the 

conspiracy; (4) whereby a person is either injured in his 

person or property or deprived of any right or privilege of 

a citizen of the United States. 

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005) 

(internal quotation marks omitted). 

 Plaintiff argues that summary judgment on this claim is not 

appropriate because defendants served him meat and dairy together at 

the same meal and required him to cook on his Sabbath. Plaintiff’s 

Opposition, pp. 17-18. These arguments, however, are based on the 

same allegations and evidence previously considered supra in 

connection with plaintiff’s other claims. See id. For the reasons 

already stated, the Court therefore finds that there is no evidence of 

purposeful deprivation of plaintiff’s protected rights. As it relates 

to plaintiff’s Section 1985(3) claims, summary judgment in defendants’ 

favor is warranted. 

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VIII. SECTION 1997e(e) CLAIMS

 Plaintiff asserts a claim under 42 U.S.C. § 1997e(e). Amended 

Complaint, ¶¶ 2, 49; Plaintiff’s Opposition, p. 19. This statute, 

part of the Prison Litigation Reform Act, provides that “[n]o Federal 

civil action may be brought by a prisoner confined in a jail, prison, 

or other correctional facility, for mental or emotional injury 

suffered while in custody without a prior showing of physical injury 

or the commission of a sexual act[.]” 42 U.S.C. § 1997e(e). In 

support of this claim, plaintiff insists that his alleged weight loss 

constitutes an actionable injury. In opposing defendants’ request for 

summary judgment, plaintiff argues that defendants’ evidence in this 

regard is contradictory and that summary judgment is therefore 

unwarranted. Plaintiff’s Opposition, p. 19. However, for the reasons 

stated supra, this Court disagrees. Taking the record as a whole, the 

Court concludes that defendants are entitled to summary judgment on 

plaintiff’s Section 1997e(e) claims. 

IX. SECTION 2000(d) CLAIMS 

 Plaintiff also asserts a claim under 42 U.S.C. § 2000(d). 

Amended Complaint, ¶ 2. Section 2000d provides that “[n]o person in 

the United States shall, on the ground of race, color, or national 

origin, be excluded from participation in, be denied the benefits of, 

or be subjected to discrimination under any program or activity 

receiving Federal financial assistance.” As defendants point out, 

Motion for Summary Judgment, p. 27, plaintiff has not asserted a claim 

based on race, color, or national origin; his claim is based on 

religion. Plaintiff apparently agrees. Plaintiff’s Opposition, p. 19 

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(“Plaintiff’s claims are not grounded in discrimination in race, color 

or national origin.”). Plaintiff, however, later contradicts himself, 

insisting that defendants violated Section 2000d for the following 

reasons: “The ideal of being Jewish is sound is a religion, culture, 

and race. Therefore, denial of adherence to the Jewish religion is 

subjugation of the Jewish race, because one is Jewish.” Id.[sic]. 

Even assuming, arguendo, that plaintiff has properly asserted a claim 

under Section 2000d, there is no evidence before the Court that 

defendants discriminated against plaintiff because of his Jewish race. 

Accordingly, as it relates to his claim under 42 U.S.C. § 2000d, the 

Motion for Summary Judgment is meritorious. 

X. SECTION 1988 CLAIMS 

 Finally, the Amended Complaint asserts a claim under 42 U.S.C. § 

1988. Amended Complaint, ¶¶ 2, 49. Section 1988 confers upon courts 

the discretion to award reasonable attorney’s fees to a prevailing 

party in, inter alia, a § 1983 or § 1985 action. See 42 U.S.C. § 

1988(b). 

 In the present case, plaintiff is not a prevailing party nor has 

he retained counsel. To qualify as a prevailing party, a plaintiff 

must obtain either “a judgment on the merits or a court-ordered 

consent decree.” Toms v. Taft, 338 F.3d 519, 528 (6th Cir. 2003) 

(quoting Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health 

and Human Resources, 532 U.S. 598, 600 (2001)) (internal quotation 

marks omitted). Plaintiff has obtained neither form of relief and is 

therefore not entitled to fees under § 1988. Additionally, plaintiff 

is proceeding pro se. See, e.g., Order, Doc. No. 65 (denying without 

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prejudice to renewal plaintiff’s motion for appointment of counsel); 

Plaintiff’s Opposition (signed by plaintiff). “[P]ro se litigants are 

not eligible for attorney’s fees under 42 U.S.C. § 1988[.]” Chute v. 

Odom, No. 3:12-0607, 2013 U.S. Dist. LEXIS 122607, at *9 (M.D. Tenn. 

Aug. 28, 2013). For these reasons, the Motion for Summary Judgment as 

to plaintiff’s request for fees under § 1988 is well-taken. 

WHEREUPON, it is RECOMMENDED that Defendants Wanza Jackson, 

Steven Cahill, and William Gallaer’s Motion for Summary Judgment, Doc. 

No. 92, 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). 

August 19, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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