IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joshua Copenhaver Nelson,

Plaintiff,

v. Case NO. 2:12-cv-1167

Wanza Jackson, et al.,

Defendants.

ORDER

This matter is before the court for consideration of the

report and recommendation of the magistrate judge filed on January

17, 2014. The magistrate judge recommended that plaintiff’s motion

for summary judgment be denied, and that plaintiff’s claims for

injunctive relief be dismissed as moot due to plaintiff’s transfer

to another institution. On January 23, 2014, plaintiff timely

filed objections to the report and recommendation under Federal

Rule of Civil Procedure 72(b). Defendants filed a response to

plaintiff’s objections on February 6, 2014.

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed R. Civ. P. 72(b). Upon review, the court “may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

The claims remaining in this case include: (1) claims for

monetary damages against defendants Wanza Jackson, William Gallaer

and Steven Cahill in their individual capacities under the Equal

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Protection Clause and 42 U.S.C. §§1985, 1988 and 2000d, alleging

that Jewish inmates were not served the same variety of fruits and

vegetables as non-Jewish inmates; (2) claims for monetary damages

under the First and Eight Amendment and the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. §2000cc (“RLUIPA”) against

Gallaer and Jackson in their individual capacities based on

plaintiff’s allegations that he was served meat and dairy together

at the same meal and was required to cook his meal on the Sabbath,

in violation of the Jewish religion; (3) claims for monetary

damages under the First and Eight Amendment and RLUIPA against

Cahill in his individual capacity based on allegations that

plaintiff was required to cook his meal on the Sabbath; and (4)

claims against defendants in their official capacities for

prospective injunctive relief. Plaintiff’s motion for summary

judgment did not address his claims under §§1985, 1988 and 2000d.

The magistrate judge recommended that plaintiff’s claims for

prospective injunctive relief be dismissed as moot due to

plaintiff’s transfer from London Correctional Institution to Marion

Correctional Institution. No party has objected to this

recommendation, and the court agrees with this recommendation.

In regard to plaintiff’s equal protection claim, the

magistrate judge noted that the record included affidavits stating

that Jewish inmates were provided the same variety of fruit as

other inmates, and that plaintiff was not served apples

exclusively. The magistrate judge further noted that plaintiff had

pointed to no evidence in the record to support his conclusory

allegation that he was treated differently. The magistrate judge

recommended that plaintiff’s motion for summary judgment on his

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equal protection claim be denied. No party has objected to this

recommendation, and the court agrees with the recommendation.

The magistrate judge next addressed plaintiff’s claims under

the First Amendment and RLUIPA. Those claims concern plaintiff’s

allegations that he was served dairy and meat in the same meal, and

was required to heat his precooked Kosher meal in a microwave oven

on the Sabbath. In his objections to the magistrate judge’s

discussion of these claims, plaintiff argues that the affidavit of

Vickey Justus, an assistant to the warden, authenticating the

commissary records of plaintiff’s purchases, which allegedly

included non-Kosher items, should not be considered because Justus

was not shown to be the custodian of the commissary records. 

Plaintiff further disputes Justus’s statement that the only Kosher

item sold at the commissary was a pasta meal. Plaintiff also

contends that, contrary to statements in affidavits submitted by

defendants, he was not employed by Food Services at London in

December, 2012. However, in his objections, plaintiff agreed that

his claims regarding the serving of meat and dairy in the same meal

and using the microwave “require additional proceedings to

establish a more complete record” and that “summary judgment on

these claims would not be appropriate at this time.” Doc. 83, p.

2. Thus, plaintiff’s objections to these claims are moot, and the

court need not address the issue of whether the Justus affidavit

was proper. This court agrees with the recommendation of the

magistrate judge that plaintiff’s motion for summary judgment

should be denied as to plaintiff’s First Amendment and RLUIPA

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claims.1

In regard to plaintiff’s claim under the Eighth Amendment, the

magistrate judge noted that this claim was based on plaintiff’s

allegations that defendants’ failure to provide him with proper

Kosher meals caused him to lose weight, thereby jeopardizing his

health. Plaintiff asserted that from the date of his transfer to

London Correctional Institution in August of 2012 to March 19,

2013, he lost sixty-two pounds. Plaintiff claims that on March 19,

2013, he weighed one hundred and ninety-two pounds, and he argues

that the defendants have presented no evidence to the contrary. 

Defendants claim that plaintiff weighed two hundred and twenty-two

pounds on that date. Defendants state that they have submitted for

filing an amended affidavit of Robin Murphy which corrects a

typographical error and establishes plaintiff’s weight at the

higher amount. The court concludes that the magistrate judge

correctly found that genuine issues of fact remain as to this

claim, precluding an award of summary judgment on plaintiff’s

Eighth Amendment claim.2

The court has reviewed the report and recommendation and

plaintiff’s objections in accordance with 28 U.S.C. §636(b)(1) and

Rule 72(b) and concludes that plaintiff’s objections (Doc. 83) lack

merit. The court adopts the report and recommendation (Doc. 81)

and plaintiff’s motion for summary judgment (Doc. 42) is denied. 

1 Defendants urge this court to hold that RLUIPA bars a claim for damages

against defendants in their individual and official capacities. This issue would

best be brought before this court in a motion for summary judgment filed by

defendants. 

2

 In their response to the report and recommendation, defendants invite

this court to “find that Plaintiff weighed 222 pounds on March 10, 2013.” Doc.

85, p. 3. However, fact-finding is not the role of this court in summary

judgment proceedings.

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Plaintiff’s claims for injunctive relief are dismissed as moot.

It is so ordered.

Date: February 13, 2014 s/James L. Graham 

 James L. Graham

 United States District Judge

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