1 

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 state inmate formerly incarcerated at the London 

Correctional Institution (“LoCI”) and currently incarcerated at the 

Marion Correctional Institution (“MCI”), 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 also asserts claims under 42 U.S.C. 

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

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

Court on Plaintiff’s Motion for Summary Judgment, Doc. No. 42 (“Motion 

for Summary Judgment”). 

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 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 1 of 31 PAGEID #: <pageID>
2 

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. Plaintiff was transferred from MCI to 

LoCI on August 17, 20121

 and began participating in LoCI’s “Kosher Meal 

Program” the next day. Affidavit of Joshua A. Copenhaver Nelson, Doc. 

No. 32-1, dated October 5, 2012, ¶¶ 3-4 (“Plaintiff’s October 5, 2012 

Affidavit”). 

According to plaintiff, he was served meat and dairy 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 ¶¶ 

5-6. Named as defendants in the action are William Gallaer, LoCI’s 

former Food Service Manager, 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. Amended Complaint, ¶¶ 10-16. 

Plaintiff seeks monetary and injunctive relief. Id. at ¶¶ 45-49. 

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 

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 

 

1 Plaintiff was later transferred back to MCI on or around August 12, 2013, 

which is where he currently resides. See Doc. No. 49. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 2 of 31 PAGEID #: <pageID>
3 

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. 

Plaintiff now moves for summary judgment on some or all of his 

remaining claims. Motion for Summary Judgment, pp. 4 (moving for 

summary judgment on “all or part of” his claims), 6 (seeking grant of 

“summary judgment or partial summary judgment”); Plaintiff’s Reply in 

Response to Memorandum in Opposition to Motion for Summary Judgment By 

Defendants, Doc. No. 78, p. 11 (“Reply”) (requesting that “at least 

partial summary judgment be entered upon the physical injury issue”). 

Defendants oppose the Motion for Summary Judgment, Defendants Wanza 

Jackson, Steven Cahill, and William Gallaer’s Memorandum in Opposition 

to Plaintiff’s Motion for Summary Judgment (Doc. 42), Doc. No. 76 

(“Memo. in Opp.”). 

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 

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

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 3 of 31 PAGEID #: <pageID>
4 

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 

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

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 4 of 31 PAGEID #: <pageID>
5 

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. CLAIMS FOR INJUNCTIVE RELIEF 

 The parties agree that plaintiff’s claims for injunctive relief 

are moot in light of his transfer back to MCI. Memo. in Opp., pp. 5-6 

(citing Doc. No. 49; Cardinal v. Metrish, 564 F.3d 794, 798 (6th Cir. 

2009)); Reply, p. 8. These claims, therefore, cannot proceed. Only 

plaintiff’s claims for monetary relief remain. 

IV. EQUAL PROTECTION CLAIMS 

 In moving for summary judgment, plaintiff complains that 

defendants discriminated against him “by not providing access to the 

same vegetables, fruits and desserts like other general population 

prisoners[.]” Motion for Summary Judgment, p. 5. Defendants construe 

this allegation, apparently combined with allegations in the Amended 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 5 of 31 PAGEID #: <pageID>
6 

Complaint, ¶ 31 (alleging that plaintiff “has been denied fresh fruit 

other than apples”), to amount to claims under the Equal Protection 

Clause. Memo. in Opp., p. 16. Defendants argue that the Motion for 

Summary Judgment must be denied on this claim because (1) the Court 

has already concluded that an alleged failure to provide fresh fruit 

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

violation and (2) plaintiff had access to the same fruit as all 

inmates at LoCI. Id. (citing 

 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 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, 107 S. Ct. 1756, 95 

L. Ed. 2d 262 (1987). However, a plaintiff does not establish “a 

violation of his equal protection rights simply by showing that other 

inmates were treated differently. He would have to 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). 

 Here, there is no evidence that plaintiff was victimized because 

of his membership in a suspect class. As the moving party, plaintiff 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 6 of 31 PAGEID #: <pageID>
7 

bears the initial responsibility of identifying those portions of the 

record that demonstrate the absence of a genuine issue of material 

fact. See Catrett, 477 U.S. at 323. Nothing in the record supports 

plaintiff’s conclusory allegation that he was not provided the same 

access to fruits and vegetables as was the general population. 

Indeed, the record reflects the contrary. See Affidavit of William 

Gallaer, ¶ 13, attached as Exhibit 1 to Memo. in Opp. (“Gallaer 

Affidavit”) (“A variety of fruit was available to the inmates for 

kosher meals. Jewish inmates, including Plaintiff, were provided the 

same variety of fruits as non-Jewish inmates.”); Affidavit of Steven 

Cahill, ¶ 25, attached as Exhibit 3 to the Memo. in Opp. (“Cahill 

Affidavit”) (“Joshua Copenhaver Nelson was not served apples 

exclusively; a variety of fruit was available to all inmates. . . . 

Jewish inmates had the same variety of fruit available to them as nonJewish inmates. Kosher-keeping inmates had the same variety of fruit 

available to them as non-kosher-keeping inmates.”). Accordingly, 

plaintiff’s request for summary judgment on his claims under the Equal 

Protection Clause is not well-taken. 

V. 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. 

Plaintiff further alleges that defendant Cahill similarly violated 

plaintiff’s First Amendment rights by requiring plaintiff to cook or 

reheat meals on plaintiff’s Sabbath. Id. at ¶ 27. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 7 of 31 PAGEID #: <pageID>
8 

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 

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 polices [are] 

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

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 8 of 31 PAGEID #: <pageID>
9 

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 

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 purported belief 

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

purported belief in keeping Kosher are not sincerely held. Memo. in 

Opp., p. 9. In support, defendants first note that plaintiff admits 

that he uses a machine on the Sabbath in order to dispense hot water 

to heat Ramen noodles. Id. at 10 (citing Plaintiff’s Reply to 

Defendants’ Memorandum in Opposition of Plaintiff’s Motion for 

Preliminary Injunction, Doc. No. 25, p. 3). Defendants therefore 

contend that “[t]he act of dispensing water to re-heat noodles is no 

different than the act of dispensing microwaves to re-heat pre-cooked 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 9 of 31 PAGEID #: <pageID>
10 

meals.” Id. 

 Defendants also offer evidence that plaintiff chooses to eat nonKosher food from the LoCI commissary. For instance, on more than one 

occasion, plaintiff has purchased from LoCI’s commissary Maruchan 

Ramen Noodle Soup and Hospitality Mac & Cheese Dinners. Id. (citing 

Exhibit 1, Exhibits A1-A4 attached to Doc. No. 21 (commissary records 

showing these purchases on various dates in 2012)). Neither product 

bears a kosher symbol and, according to defendants, neither product is 

kosher. Id. (citing Affidavit of Vickey Justus, attached as Exhibit 

2 to Doc. No. 21 (“Justus Affidavit”) and Exhibits A1-B2 attached 

thereto (photographs of food items sold in the LoCI commissary, 

including Maruchan Ramen Noodle Soup and Hospitality Mac & Cheese). 

For example, the Hospitality Mac & Cheese contains “whey, which is 

produced using animal derived rennet” and is therefore not Kosher. 

Id. See also Exhibits A1-A3, attached to Justus Affidavit (photograph 

of Hospitality Mac & Cheese packaging, including ingredients). The 

Ramen Noodle Soup packaging warns that it was “manufactured in a 

facility that also processes shellfish and fish products[,]” which 

establishes that the product is not Kosher. Memo. in Opp., p. 11 

(quoting Exhibit B2, attached to Justus Affidavit). 

 Defendants go on to argue that plaintiff purchased this food for 

his own consumption. Id. Plaintiff has not alleged that he has 

traded or given away this food, which would, in any event, violate 

ODRC policy. Id. (citing Amended Complaint; Justus Affidavit, ¶ 6; 

Doc. No. 25, p. 13 (plaintiff’s unsworn denial that he traded or 

shared food)). Based on this evidence, defendants therefore take the 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 10 of 31 PAGEID #: <pageID>
11 

position that plaintiff’s purported beliefs about not using a 

microwave to re-heat food on the Sabbath and keeping Kosher are not 

sincerely held. 

 Plaintiff, however, notes that he was deemed a sincere Jewish 

practitioner on February 25, 2010. Reply, p. 2 (citing Exhibit A, 

attached to Amended Complaint). Plaintiff also contends, inter alia, 

that the “Court has already established the faith of the Plaintiff to 

be sincerely held, despite the purchase of Ramen Noodles or the 

Macaroni and Cheese Dinner.” Id. (citing Order and Report and 

Recommendation, Doc. No. 49, p. 13). Plaintiff denies that using a 

hot water spigot for noodles, which involves turning a knob, is 

equivalent to using a microwave, which uses an electrical flame in 

contravention of Jewish tenets. Reply, p. 9. Plaintiff goes on to 

allege that he ate only the “pasta section (not the flavoring packet) 

of the Ramen noodle.” Id. at 9 (no citations to evidence). Plaintiff 

also contends that he did not eat the macaroni and cheese and that 

“upon learning of its contents he disgarded [sic] it.” Id. at 10 

(citing Plaintiff’s Reply to Defendants’ Memorandum in Opposition of 

Plaintiff’s Motion for Preliminary Injunction, Doc. No. 25). 

 As an initial matter, plaintiff’s factual assertions in this 

regard are neither sworn nor made under penalty of perjury. Id. 

Under Rule 56, a party must support factual assertions with admissible 

evidence. Fed. R. Civ. P. 56(c), (e). Plaintiff’s pro se status does 

not relieve his of this obligation. See Viergutz v. Lucent Techs., 

No. 08-3626, 375 F. App’x. 482, at *485 (6th Cir. April 23, 2010). 

See also Johnson v. Stewart, No. 08-1521, 2010 U.S. App. LEXIS 27051, 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 11 of 31 PAGEID #: <pageID>
12 

at *6-7 (6th Cir. May 5, 2010) (“The liberal treatment of pro se 

pleadings does not require lenient treatment of substantive law . . . 

and the liberal standards that apply at the pleading stage do not 

apply after a case has progressed to the summary judgment stage[.]”) 

(internal citations omitted); United States v. Brown, 7 F. App’x. 353, 

at *354 (6th Cir. Mar. 19, 2001) (affirming grant of summary judgment 

where, inter alia, pro se litigant offered relevant factual 

allegations, but “did not file an affidavit to this effect nor did he 

sign any pleading under penalty of perjury”). Therefore, the Court 

cannot consider plaintiff’s unsworn assertions in considering his 

motion for summary judgment. See id. 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)). 

 Nevertheless, the Court concludes that there exists a genuine 

issue of material fact as to whether plaintiff’s alleged beliefs 

regarding the re-heating of food in a microwave on the Sabbath and 

keeping Kosher are sincerely held. Although it is true that the Court 

previously accepted “that plaintiff’s religious belief is sincerely 

held and that his practice of Judaism requires the observance of 

certain dietary restrictions[,]” Order and Report and Recommendation, 

Doc. No. 45, p. 13, that conclusion was drawn in connection with the 

Court’s consideration of defendants’ motion to dismiss and when 

defendants did not challenge the sincerity of plaintiff’s beliefs. 

Id. In addition, plaintiff was deemed sincerely Jewish in 2010, but 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 12 of 31 PAGEID #: <pageID>
13 

the present record reflects that plaintiff purchased food items in 

2012 that were not Kosher. Under these circumstances, the Court 

cannot say whether plaintiff’s alleged beliefs regarding re-heating 

his meal in a microwave on the Sabbath and keeping Kosher are 

currently sincerely held. 

B. Meat and Dairy Served Together 

 However, 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, that these defendants served plaintiff meat and dairy at the 

same meal. Defendants oppose summary judgment on these claims, 

denying that they violated plaintiff First Amendment rights and 

claiming qualified immunity. Memo. in Opp., pp. 6-14. 

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 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 13 of 31 PAGEID #: <pageID>
14 

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)). 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. at 236. 

As an initial matter, defendants Gallaer and Jackson deny that 

they prepared meals for plaintiff, explaining that it was inmate staff 

that assembled the Kosher meals. Id. at 13 (citing Gallaer Affidavit, 

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

attached to Memo. in Opp. (“Jackson Affidavit”). Plaintiff, however, 

contends that “[a]ll of the meals were prepared by guidelines 

promulgated at the prison level by Gallaer.” Reply, p. 10 (citing 

Affidavit of Vivian Hawkins, ¶ 8, attached as Exhibit 4 to Memo. in 

Opp. (“Hawkins Affidavit”) (“Prior to the institution of the 

Procedure, each prison had its own kosher meal procedure (or no kosher 

meal procedure, if no inmates required or requested kosher meals).”)).2

 

Although his position in this regard is unclear, plaintiff also 

appears to assert that defendant Jackson “provided guidance” in the 

creation of Kosher meals. Reply, p. 11 (citing Cahill Affidavit, ¶ 21 

(“In making food decisions, Dr. Jackson consults with dieticians, food 

services, and ODRC lawyers.”)). Taking this evidence as a whole, the 

Court concludes that nothing offered by plaintiff contradicts 

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

 

2 Ms. Hawkins has been ODRC’s Food Services Administrator since 1993. Id. at ¶ 

4. Her duties include “ensur[ing] compliance with state and local food and 

safety laws.” Id. at ¶ 5. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 14 of 31 PAGEID #: <pageID>
15 

Gallaer and Jackson, who physically assembled Kosher meals. Instead, 

plaintiff’s assertions urge this Court to conclude that defendants 

created a formal policy designed to sabotage Kosher meals by ordering 

that meat and dairy be served together. There is no evidence in the 

record to support that assertion. 

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, ¶¶ 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 disagrees, representing that inmate Victor Moore, who 

understood the laws of Kosher, was assigned to work in the LoCI 

kitchen. Reply, p. 6. It follows, plaintiff argues, that “the 

actions taken to serve the meat and dairy together, were upon 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 15 of 31 PAGEID #: <pageID>
16 

directive of the defendants[.]” Id. Again, however, these unsworn 

factual assertions may not be 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 these incidents were 

“ongoing, and are supported by the grievances filed by the Plaintiff, 

affidavits of the Plaintiff and of Antone Singletary (Jewish person) 

and non-Jewish offenders Charles Mason and Monroe Williams.” Reply, 

p. 11. Plaintiff’s vague references to grievances and affidavits do 

not provide the Court with specific evidence that these incidents were 

either numerous or ongoing. Plaintiff has not provided grievances or 

affidavits of inmates Singletary, Mason and Williams. Rather, 

plaintiff has merely cited to several of his own affidavits in support 

of his motion for summary judgment, leaving the Court to guess which 

paragraphs in which affidavits might support these assertions. As 

discussed supra, this Court is not obligated to sift through the 

record in an effort to find support for plaintiff’s claims. Cf. 

Glover, 284 F.Supp.2d at 862. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 16 of 31 PAGEID #: <pageID>
17 

Nevertheless, to the extent that the Court has been able to 

locate some support in plaintiff’s evidentiary materials, plaintiff 

avers that he notified defendant Cahill “on more than a few occasions 

about problems with kosher meals. He told me there was nothing he 

could do.” Affidavit of Joshua Copenhaver Nelson, dated December 26, 

2013, ¶ 7, attached to Reply (“Plaintiff’s December 26, 2013 

Affidavit”). This vague and conclusory statement, although sworn, is 

insufficient to raise a material issue of fact relating to this claim. 

See, e.g., Jihad v. Fabian, 680 F. Supp. 2d 1021, 1034 n.5 (D. Minn. 

2009).3

 

Finally, defendants suggest that mistakes in food service might 

also be attributable to plaintiff. 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 

 3

In any event, 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) (“Although [the plaintiff] Johnson argues that the defendants’ 

actions violated his First Amendment rights, he has, at most, set forth 

isolated instances of interference with prisoners’ mail and only one instance 

that affected him. This random and isolated interference with Johnson’s mail 

did not violate his constitutional rights.”); Rapier v. Harris, 172 F.3d 999, 

1006 n.4 (7th Cir. 1999) (concluding that “the unavailability of a non-pork 

tray for [plaintiff] at 3 meals out of 810 does not constitute more than a de 

minimis burden on [plaintiff's] free exercise of religion”). 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 17 of 31 PAGEID #: <pageID>
18 

served meat and dairy together when he worked in the LOCI kitchen, he 

did it himself.”); Exhibit 6, PAGEID#:659, attached to Memo. in Opp.

(memorandum dated March 5, 2013 from Captain H. Miller, Acting 

Correctional Food Service Manager London Correctional Institution, 

advising that plaintiff “will be working within the Diet Room, for the 

purposes of assisting within the preparation of items for the Kosher 

Meal line.”). Plaintiff, however, disputes that he worked with LoCI 

food services on the dates cited by defendants, averring instead that 

he worked with food services beginning on March 1, 2013 and was 

classified to work in LoCI’s Kosher kitchen on June 11, 2013. Reply, 

p. 6 (citing Plaintiff’s December 26, 2013 Affidavit). The Court need 

not resolve this dispute of fact because, taking the record as a 

whole, the Court cannot conclude that plaintiff is entitled to summary 

judgment on his First Amendment claims against defendants Gallaer and 

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

C. Cooking or Reheating Meal on the Sabbath 

 Defendants also oppose plaintiff’s request for summary judgment 

on his First Amendment claims against all three defendants based on 

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

Sabbath. According to defendants, all Kosher meals are either prepackaged and frozen or shelf-stable (i.e., neither frozen nor 

refrigerated). Gallaer Affidavit, ¶ 10; Jackson Affidavit, ¶ 11; 

Cahill Affidavit, ¶ 10; Hawkins Affidavit, ¶ 15. Pre-packaged frozen 

Kosher meals are pre-cooked and need only be re-heated in a microwave 

oven or a conventional oven. Id. Defendants advance two arguments 

against plaintiff’s request for summary judgment on this claim. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 18 of 31 PAGEID #: <pageID>
19 

First, defendants claim a valid, rational connection between the 

prison regulation (serving frozen Kosher meals on the Sabbath) and a 

legitimate governmental interest (LoCI’s need to maintain security and 

order within the prison). Memo. in Opp., p. 8 (citing Turner v. 

Safley, 482 U.S. 78 (1987)). According to defendants, the only 

alternative offered by plaintiff is the use of a Sabbath bag. Id. at 

8-9 (providing no citation to the record, but apparently referring to 

Exhibit B, attached to the Amended Complaint, which is an email from 

defendant Jackson that does not recommend the use of Sabbath bags). 

However, defendant Jackson explained why the use of Sabbath bags would 

pose problems at other 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, ¶ 14. Defendants argue that prison security is not 

only a legitimate governmental interest but in fact is a compelling 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 19 of 31 PAGEID #: <pageID>
20 

governmental interest. Memo. in Opp., p. 9 (citing Hoevenaar v. 

Lazaroff, 422 F.3d 366, 368 (6th Cir. 2005)). 

 Plaintiff disagrees and points to a new ODRC Kosher meal 

procedure which “provides for not cooking or serving such items on the 

Sabbath[.]” Reply, p. 8 (citing Hawkins Affidavit, ¶ 6 (averring 

that, since 2008, ODRC has consulted with members of the Jewish 

community and, based on those discussions, the “Kosher Meal 

Accommodation Procedure” was developed and distributed statewide on 

July 19, 2012 “as guidance to institutions with and without kosher 

meal procedures in place”)). Plaintiff also argues that Sabbath bags 

are used in most prisons and represents, without evidentiary support, 

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

another correctional facility. Id. at 9. Cf. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 256-57 (1986)(unsupported assertions are 

inadmissible and will not be considered on summary judgment). 

 Although neither party directs the Court to the terms of a “new” 

ODRC Kosher meal program, the Court notes that the Amended Complaint

attaches a copy of ODRC’s “Kosher Meal Guideline,” which apparently 

became effective February 1, 2013. See Amended Complaint, 

PAGEID#:358; Exhibit G, attached thereto. See also Fed. R. Civ. P. 

56(c)(3).4

 Pursuant to this guideline, Sabbath bags are provided in at 

least some instances in some institutions. See Exhibit G, at 

PAGEID#:374, attached to Amended Complaint (describing contents of a 

Sabbath bag and providing that “[w]hen no Sabbath bag is in practice, 

the inmates will pick up meals from the dining hall on Friday 

 

4 Defendants do not appear to dispute the authenticity of this document. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 20 of 31 PAGEID #: <pageID>
21 

evening”). In light of this evidence, the Court concludes that a 

genuine issue of material fact exists as to whether or not maintaining 

security by prohibiting Sabbath bags is a legitimate governmental 

interest. 

Defendants also argue that plaintiff has not established a 

clearly established right to Kosher meals that need not be warmed in 

the microwave. Memo. in Opp., pp. 11-12. Arguing that such a right 

is not clearly established, 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 12. 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.”); 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, ¶ 10; Cahill Affidavit, ¶ 9; Hawkins Affidavit, ¶ 

13. 

In response, plaintiff insists that the frozen pre-cooked Kosher 

meals must actually be cooked in a microwave on the Sabbath, a task 

that is strictly prohibited by the Orthodox Jewish faith. Reply, p. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 21 of 31 PAGEID #: <pageID>
22 

10. Again, plaintiff’s unsworn assertions cannot be considered on 

summary judgment. Therefore, based on this record, the Court 

concludes that the grant of summary judgment in plaintiff’s failure on 

these claims is inappropriate. 

VI. RLUIPA CLAIMS 

 In an abundance of caution, the Court assumes that the Motion for 

Summary Judgment includes 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. 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 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 22 of 31 PAGEID #: <pageID>
23 

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. App'x at 511). 

A plaintiff bears the initial burden of establishing 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. 

 As an initial matter, defendants argue that the United States 

Court of Appeals for the Sixth Circuit does not authorize a claim for 

damages against defendants in their individual capacities under 

RLUIPA. Memo. in Opp., p. 14. Defendants, however, cite to no 

authority for this proposition. See id. Moreover, it does not appear 

that the Sixth Circuit has ruled on this issue. See, e.g., Selby v. 

Caruso, 734 F.3d 554, 561 (6th Cir. 2013) (“Finally, our court has not 

ruled on whether RLUIPA authorizes a prisoner to pursue damages 

against prison officials who are sued in their individual capacities, 

see Heard v. Caruso, [Nos. 08-1710/08-1779/08-1820,] 351 F. App’x 1, 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 23 of 31 PAGEID #: <pageID>
24 

13 n.5 (6th Cir. [Aug. 27,] 2009), but we need not resolve that issue 

here.”). Accordingly, defendants’ opposition to the Motion for 

Summary Judgment on this basis is not well-taken. 

 Plaintiff alleges that defendants Gallaer and Jackson violated 

his rights under RLUIPA by serving him meat and dairy at the same meal 

and that all defendants violated these rights by requiring plaintiff 

to cook his meal on the Sabbath. For the reasons that follow, 

however, plaintiff’s request for summary judgment on these claims is 

not well-taken. As discussed supra, a genuine issue of fact remains 

as to the sincerity of plaintiff’s professed religious beliefs in this 

regard. Even assuming this sincerity, however, in moving for summary 

judgment, plaintiff does not specifically explain how these actions 

substantially burden the exercise of his Jewish faith. 

Moreover, the present record establishes, at most, only that 

plaintiff was served meat and dairy together on “more than a few 

occasions” since February 2010. Even accepting plaintiff’s vague 

allegations in this regard, it appears that plaintiff was served the 

combined meat and dairy on only random occasions in the last three or 

four years. However, isolated or sporadic instances over the course 

of years do not qualify as a “substantial burden” for purposes of 

RLUIPA. See, e.g., Taylor v. Bay, No. C 07-639, 2010 U.S. Dist. LEXIS 

65996, at *21-22 (July 2, 2010) (stating, inter alia, that “relatively 

short-term and sporadic intrusions” do not constitute a substantial 

burden under the First Amendment or RLUIPA) (citations and internal 

quotation marks omitted); Jihad, 680 F. Supp. 2d at 1033 (finding that 

the “occasional cancellation” of religious services did not violate 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 24 of 31 PAGEID #: <pageID>
25 

RLUIPA); Greenberg v. Hill, No. 2:07-CV-1076, 2009 U.S. Dist. LEXIS 

28027, at *20 (S.D. Ohio Mar. 31, 2009) (“However, isolated or 

sporadic government action or omission is de minimis and does not 

constitute a ‘substantial burden.’”). 

In addition, as discussed supra, there is evidence in the record 

that serving meat and dairy together during the same meal was an 

accident and that the named defendants were unaware that requiring 

plaintiff to use a microwave oven on the Sabbath violated plaintiff’s 

religious beliefs. Accidental, unintentional or negligent actions 

that may intrude on religious beliefs are not actionable under RLUIPA. 

See, e.g., Lovelace v. Lee, 472 F.3d 174, 194 (4th Cir. 2006) 

(“[S]imple negligence, the ‘lowest common denominator of customary 

tort liability,’ does not suffice to meet the fault requirement under 

section 3 of RLUIPA.”) (quoting County of Sacramento v. Lewis, 523 

U.S. 833, 848-49 (1998)); Carter v. Wash. Dep’t of Corr., No. C11-

5626, 2013 U.S. Dist. LEXIS 36367, at *40 (W.D. Wa. Feb. 27, 2013) 

(“Officials’ accidental or negligent actions that impinge to some 

degree on an inmate’s religious practice are insufficient to support 

an actionable constitutional claim or RLUIPA claim.”); Greenberg, 2009 

U.S. Dist. LEXIS 28027, at *21 (“[N]egligence is not actionable under 

RLUIPA.”) (citing Lovelace, 472 F.3d at 194)); Odom v. Dixion, 04-CV889F, 2008 U.S. Dist. LEXIS 11748, at *35-36 (W.D. N.Y. Feb. 15, 2008) 

(stating that an “unintentional deprivation” was not actionable under 

the First Amendment or RLUIPA). For all these reasons, then, summary 

judgment in plaintiff’s favor on these claims is not appropriate. 

 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 25 of 31 PAGEID #: <pageID>
26 

VII. 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 

United States Court of Appeals for 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). 

A deprivation satisfies the objective component if it is “sufficiently 

serious.” Id. at 834. 

“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 

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. 

Here, defendants contend that any weight loss experienced by 

plaintiff is de minimis and insufficient to constitute the physical 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 26 of 31 PAGEID #: <pageID>
27 

injury necessary to an Eighth Amendment claim. Memo. in Opp., pp. 18-

20. 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 18 (collecting cases). Defendants go on to chronicle 

plaintiff’s weight: 

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

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 lbs (3/18/13 amended complt. filed) 

Id. at 19 (citing Exhibit 5, prison medical records Bates Numbers 001 

through 023, attached thereto).5

 Defendants go on to argue that 

“Plaintiff lied about his weight as of March 9, 2013: he did not weigh 

192 pounds,6

 he weighed 222 pounds.” Id. Defendants therefore 

 

5 Robin Murphy, ODRC’s Health Care Administrator at LoCI, authenticated the 

attached records. Affidavit of Robin Murphy, ¶¶ 2-3 (“Murphy Affidavit”), 

attached as Exhibit 5 to Reply. 6 The Amended Complaint, which is not verified, alleges that plaintiff weighed 

192 pounds as of March 9, 2013. Amended Complaint, ¶ 42. 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 27 of 31 PAGEID #: <pageID>
28 

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 

Exhibit 5, attached thereto). Defendants suggest that plaintiff’s 

weight loss was a matter of choice when he decided to become a 

vegetarian and refused to eat meat. Id. at 19-20 (citing Exhibit 6

attached thereto; Cahill Affidavit, ¶ 19). 

 Plaintiff, however, argues that his weight loss satisfies the 

physical injury requirement because he lost 62 pounds in six months. 

Reply, pp. 4-5 (citing cases and Murphy Affidavit, ¶ 4). In support, 

plaintiff agrees that he weighed 254 pounds upon entering LoCI on 

August 17, 2012. Id. at 6 (citing Exhibit 5, attached to Memo. in 

Opp.). Plaintiff, however, argues that the record supports his 

allegation that he weighed 192 pounds on March 19, 2013. Id. (citing 

Murphy Affidavit, ¶ 4). Plaintiff denies that the weight loss was due 

to a vegan diet, noting that he did not request a vegan accommodation 

until May 23, 2013. Id. (citing Exhibit 6, prison records, attached 

to Memo. in Opp.). 

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

physical injury before recovering monetary damages in a federal civil 

action. 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 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 28 of 31 PAGEID #: <pageID>
29 

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 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). 

Here, the record is unclear as to plaintiff’s weight in March 

2013. See Murphy Affidavit, ¶ 4 (averring that plaintiff weighed 192 

pounds on March 19, 2013); Exhibit 5, Bates Number 022 (stating that 

plaintiff weighed 222 pounds on March 10, 2013). The Court cannot, 

therefore, reliably determine how much weight plaintiff lost while at 

LoCI. It follows, then, that the Court cannot, on this record, 

conclude that plaintiff has suffered an actionable physical injury 

under the Eighth Amendment. Because there remain genuine issues of 

material fact on this claim, the Court concludes that the grant of 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 29 of 31 PAGEID #: <pageID>
30 

summary judgment on this record is inappropriate.7

VIII. REMAINING CLAIMS 

 Although plaintiff also asserts violations under 42 U.S.C. §§ 

1985, 1988, 2000d, the Motion for Summary Judgment does not address 

these claims. Those claims therefore also remain pending. 

WHEREUPON, it is RECOMMENDED that Plaintiff’s Motion for Summary 

Judgment, Doc. No. 42, be DENIED. It is FURTHER RECOMMENDED that, 

based upon the agreement of the parties, that plaintiff’s claims for 

injunctive relief be DISMISSED as moot. 

 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 

 

7 On January 14, 2014, defendants moved to file under seal a corrected 

affidavit of Robin Murphy, representing that paragraph 4 of Ms. Murphy’s 

previously filed affidavit contained an error regarding plaintiff’s weight 

and height. Doc. No. 80. That motion is not yet ripe for resolution.

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 30 of 31 PAGEID #: <pageID>
31 

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

January 15, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:12-cv-01167-JLG-NMK Doc #: 81 Filed: 01/15/14 Page: 31 of 31 PAGEID #: <pageID>