UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL BEEBE,

Plaintiff,

Case No. 08-14995

v. Honorable David M. Lawson

Magistrate Judge Michael J. Hluchaniuk

THOMAS BIRKETT, TIM BEAVERS,

WILLIE O. SMITH, GERRY WYMA,

and DAVE BURNETT,

Defendants.

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OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION, OVERRULING IN PART DEFENDANTS’ OBJECTIONS

TO REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING

IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, OVERRULING

DEFENDANTS’ OBJECTION TO MAGISTRATE JUDGE’S DISCOVERY ORDER,

AND CONTINUING ORDER OF REFERENCE

The matter is before the Court on the objections by some of the defendants to the report and

recommendation filed by Magistrate Judge Michael J. Hluchaniuk recommending that the

defendants’ motion for summary judgment be granted in part and denied in part. The Court entered

a general order of reference to conduct all pretrial matters, after which the defendants filed their

motion. Judge Hluchaniuk filed his report on February 22 2010. The defendants filed timely

objections and the matter is before the Court for a de novo review. The plaintiff has not objected

to the report and recommendation, and the time for doing so has expired.

The facts of the case have been discussed thoroughly by the magistrate judge in his report.

The defendants have not objected to the factual recitations. For context, the case was brought by

plaintiff Michael Beebe, a former Michigan prisoner, who alleged that the defendants denied him

access to a Kosher Meal Program and to Jewish religious services in violation of his rights under
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the Free Exercise Clause of the First Amendment while he was incarcerated. Beebe served his

prison sentence at Carson City Correctional Facility (“DRF”), Ionia Maximum Correctional Facility

(“ICF”), and Standish Maximum Correctional Facility (“SMF”). The complaint states claims under

42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The

defendants are Thomas Birkett, the warden at SMF; Timothy Beavers, a prison chaplain at SMF;

Willie O. Smith, the warden at ICF; Gerry Wyma, a prison chaplain at ICF; and Dave Burnett,

retired Michigan Department of Corrections (“MDOC”) Facilities Special Activities Coordinator.

Beebe alleges that on March 25, 2002, while at DRF, he identified his religious preference

as Judaism. On April 2, 2002, Special Activities Coordinator Burnett denied Beebe’s kosher meal

request. Beebe re-applied to the Program as allowed one year later, and his request was approved.

Beebe kept kosher at DRF until he was paroled on May 19, 2004. He violated parole and on June

30, 2004 was sent to Charles Egeler Reception and Guidance Center, where he says his repeated

written requests for a kosher meal program were ignored. On August 18, 2004, Beebe was

transferred to ICF, where he was placed in Administrative Segregation for approximately one year.

He says he repeatedly wrote to Warden Smith and Chaplain Wyma for access to the Kosher Meal

Program, but Smith and Wyma claim no knowledge of these requests. On June 1, 2005, Beebe was

released from Administrative Segregation and contacted Special Activities Coordinator Burnett

about the Kosher Meal Program. Burnett claims, however, that his only correspondence with Beebe

occurred on October 8, 2004, when he wrote to Beebe to renew his request for the meal program.

Beebe renewed his request for kosher meals without success one more time in January 2008, and

then filed a grievance later that month. Eventually he was transferred to SMF in April 2008. 
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The plaintiff alleges that no Jewish group services were held at SMF between April 9, 2008

and October 10, 2008 for general population prisoners because the minimum number required by

prison regulations had not expressed interest. Weekly services were conducted thereafter except on

October 24, 2008, when Chaplain Beavers cancelled them due to a mistake.

The defendants moved for summary judgment on Beebe’s section 1983 claims. They argued

that 1) Beebe’s claims are not viable because the MDOC’s kosher meal regulation policy is facially

constitutional; 2) Beebe’s Kosher Meal Program claims are time-barred; 3) Beebe’s religious

services claims did not amount to a constitutional violation; 4) Wardens Birkett and Smith should

be dismissed from the suit because they were not personally involved in the claims alleged; 5) the

defendants are entitled to immunity under the Eleventh Amendment; and 6) the defendants are

entitled to qualified immunity. The defendants did not address the RLUIPA claim in their motion.

Judge Hluchaniuk read Beebe’s complaint to be an as-applied challenge to the kosher meal

policy directive and recommended that the defendants’ motion be denied because they failed to

address how the application of the policy affected Beebe specifically. Second, the magistrate judge

suggested that all of Beebe’s section 1983 claims accruing before December 2, 2005 are time-barred

under the applicable three-year statute of limitations. Third, concerning the religious services

claims, the defendants argued that any alleged violations were negligent and temporary only, such

that they did not constitute a constitutional violation under section 1983. The magistrate judge

agreed. The magistrate judge also agreed that Wardens Smith and Birkett should be dismissed from

this suit because they were not personally involved in the alleged violations, since section 1983

supervisory liability cannot be predicated on respondeat superior and there was no evidence that

these defendants were personally involved in the alleged constitutional violations. Finally, Judge
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Hluchaniuk suggested that the defendants sued in their official capacity are entitled to immunity

under the Eleventh Amendment, but they are not entitled to qualified immunity in their individual

capacity because the right of a prisoner to a kosher meal program is clearly established and facts

issues preclude summary judgment on that issue concerning the application of the MDOC’s policy

to the plaintiff. 

The defendants raise three objections. First, they argue that Beebe’s complaint was a facial

challenge to the kosher meal policy, not an as-applied challenge, and they accuse the magistrate

judge of impermissibly re-writing the complaint to “construct the plaintiff’s legal arguments for

him” and “conjure up unpled allegations,” assuming an advocacy role. Second, the defendants argue

that the recommendation that summary judgment be denied as to all defendants on the First

Amendment kosher meal claims that accrued after December 2, 2005 contradicts his recommended

dismissal of Wardens Smith and Birkett from the case. Third, the defendants contend that Beebe’s

claims are moot insofar as he seeks an injunction mandating his placement into the Kosher Meal

Program because Beebe is no longer in MDOC custody.

Objections to a report and recommendation are reviewed de novo. “A judge of 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. A judge of 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 parties’ failure to file objections to the report and recommendation waives any

further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.

1987). Likewise, the failure to object to the magistrate judge’s report releases the Court from its

duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149 (1985).
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The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection

requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be

clear enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the

magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are

too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file

specific objections to a magistrate’s report constitutes a waiver of those objections.” Cowherd v.

Million, 380 F.3d 909, 912 (6th Cir. 2004). 

As noted above, the plaintiff has not filed objections, so the Court will adopt that portion of

the recommendation that grants the motion for summary judgment as to all defendants in their

official capacity, as to defendants Smith and Birkett on all claims, and as to the plaintiff’s preDecember 2, 2005 kosher meal claims. The defendants’ objections do not address the denial of

qualified immunity, and the Court adopts that aspect of the report and recommendation as well.

The defendants’ first objection — that the magistrate judge read the complaint too

generously to include an as-applied challenge to the kosher meal policy — is untenable. “‘[A] pro

se complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). The complaint still

must plead facts sufficient to show a redressable legal wrong has been committed. Fed. R. Civ. P.

12(b); Dekoven v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich. 2001). Although “[t]he leniency

granted to pro se [litigants] . . . is not boundless,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir.

2004), and a court may not rewrite a complaint to include claims that were never presented, cf. Clark
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v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975), there can be little question that

the plaintiff’s complaint can be read reasonably to state an as-applied challenge to the policy.

“In an as-applied challenge, ‘the plaintiff contends that application of the statute in the

particular context in which he has acted, or in which he proposes to act, would be unconstitutional.’”

Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 194 (6th Cir. 1997) (quoting Ada v. Guam

Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting)). Beebe

requested the following relief in his complaint:

A. Ordering Defendants(s) to provide Plaintiff access to the Defendant’s

“Kosher Meal Program”.

B. Ordering Defendant(s) to provide Plaintiff access to the Standish

Maximum Correctional Facilities weekly Jewish services.

C. Ordering Defendant(s) to provide Plaintiff access to any and all recognized

Jewish holiday activities, (i.e., Passover and Seder).

D. Ordering Defendant(s) to stop violating Plaintiff’s Constitutionally

protected religious rights, by Ordering them to discontinue using their Policy

Directive 05.03.150, where the Policy directly violates Plaintiff’s rights by requiring

him to wait one year to re-apply for Kosher Meal Program if denied.

E. Ordering Defendant(s) to stop violating Plaintiff’s Constitutionally

protected religious rights, by Ordering them to discontinue using their Operating

Procedure 05.03.150-A, where the Procedure directly violates Plaintiff’s rights by

forcing him to submit to questioning to obtain approval, where the fact that he

submitted a “Declaration of Religion Preference form” should be sufficient enough

to prove that he is Jewish and therefore proof enough that he needs access to the

“Kosher Meal Program”.

Compl. at 14. These statements constitute a claim that the manner in which the defendants applied

the policy to the plaintiff violated his constitutional rights, as the magistrate judge correctly

observed. The defendants’ argument that the plaintiffs’ section 1983 claim is confined to a facial

challenge to the prison policy directive is meritless.
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In addition, the First, Third, and Seventh Circuits have held that RLUIPA claims are

necessarily as-applied challenges because the RLUIPA itself states that prisons cannot “impose a

substantial burden on the religious exercise of a person residing in . . . an institution . . . even if the

burden results from a rule of general applicability.” 42 U.S.C. § 2000cc-1(a) (emphasis added).

See Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 39, 40 n.9, 41 (1st Cir. 2007) (rejecting the prison’s

“all or nothing” argument and finding that the prison “must . . . establish that prison security is

furthered by barring [the individual] from engaging in” the disputed conduct); Washington v. Klem,

497 F.3d 272, 285 (3d Cir. 2007) (noting that RLUIPA requires an assessment of whether the

government action is the least restrictive means as applied to the individual); Koger v. Bryan, 523

F.3d 789, 796 (7th Cir. 2008) (noting that RLUIPA, unlike the Free Exercise Clause, requires

individualized review); see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 430-31 (2006) (determining that RFRA, RLUIPA’s predecessor, requires individualized

review). The defendants have the burden of demonstrating that the policy directive is the least

restrictive means to achieve security as applied to Beebe. Beebe’s complaint is therefore an asapplied challenge under RLUIPA.

The defendants’ second objection is that the report and recommendation contradicts itself

with respect to the claims against defendants Smith and Birkett. It does not. The magistrate judge

plainly recommends “that defendants Smith and Birkett be DISMISSED from the matter with

prejudice.” R&R at 29. As noted earlier, the plaintiff did not object to that recommendation, and

the Court adopts it.

The defendants’ third objection has merit. Injunctive and declaratory relief is moot when

a prisoner is released from a correctional facility. Dellis v. Corrs. Corp of Am., 257 F.3d 508, 510
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n.1 (6th Cir. 2001). Beebe is no longer in MDOC custody; he was paroled on November 5, 2009.

Therefore, his request for injunctive and declaratory relief is moot. However, he seeks

compensatory and punitive damages against the remaining defendants, and those claims endure.

Also before the Court is the defendants’ objection to the magistrate judge’s order denying

in part the defendants’ motion to stay discovery until the summary judgment motion has been

adjudicated. The Court finds that the magistrate judge’s order is not clearly erroneous, and the entry

of the present order moots those objections in any event.

Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt

#36] is ADOPTED.

It is further ORDERED that the defendants’ objections to the magistrate judge’s report and

recommendation [dkt #37] are OVERRULED IN PART. 

It is further ORDERED that the defendants’ motion for summary judgment [dkt #17] is

GRANTED IN PART AND DENIED IN PART.

It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE as to

defendants Thomas Birkett and Willie O. Smith on all claims against them, and as to the remaining

defendants as to the plaintiffs’ claims involving religious services and the Kosher Meals Program

against them in their official capacity, ONLY.

It is further ORDERED that the plaintiff’s claims under 42 U.S.C. § 1983 and the Religious

Land Use and Institutionalized Persons Act involving the Kosher Meal Program accruing before

December 2, 2005 are DISMISSED WITH PREJUDICE.

It is further ORDERED that the defendants’ motion for summary judgment [dkt #17] is

DENIED in all other respects.
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It is further ORDERED that the defendants’ objections to the magistrate judge’s order

denying in part the defendants’ motion to stay discovery [dkt #33] are OVERRULED. 

It is further ORDERED that the matter is referred to Magistrate Judge Michael J.

Hluchaniuk under the previous reference order [dkt #5] to ready the matter for trial and to conduct

a trial if the parties consent under 28 U.S.C. § 636(c)(1).

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: September 3, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on September 3, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO