UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DERRICK ALLISON,

Plaintiff, Case Number 08-15093-BC 

Honorable Thomas L. Ludington

 v.

MIKE MARTIN,

Defendants.

_______________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY, CANCELLING HEARING,

DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, AND

DENYING PLAINTIFF’S REMAINING MOTIONS AS MOOT

On February 22, 2008, Plaintiff began his sentence for armed robbery at the Egeler

Reception and Guidance Center. Plaintiff, a recent convert to Judiasm, alleges that on March 28,

2008, Chaplain Isa A. Basir administered the Kosher diet test to him, and Plaintiff claims that he

answered all of the questions correctly. Chaplain Bashir does not recall administering the Kosher

diet test to Plaintiff, nor is there any MDOC record showing that Chaplain Basir conducted a Kosher

diet interview with Plaintiff. Plaintiff was subsequently transferred to Gus Harrison Correctional

Facility, a non-Kosher facility.

While Plaintiff was at Gus Harrison Correctional Facility, on April 12, 2008, Chaplain James

Burrus administered the Kosher diet test to Plaintiff. Plaintiff complains that the Kosher diet test

administered by Chaplain Burrus was “too advanced for [him].” Compl. par. 3.

On May 1, 2008, Chaplain Michael Martin, the Special Activities Coordinator for the prison

system, denied Plaintiff’s request for participation in the Kosher diet program. In a letter to the

prison warden denying Plaintiff’s request, Chaplain Martin noted that Plaintiff “provided brief,

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incomplete and sometimes inaccurate explanations to the question asked” during his interview with

Chaplain Burrus. ECF No. 64 Ex. 1 at 19. Further, Chaplain Martin wrote that Plaintiff “was unable

to explain the major teachings of Judaism, or what a kosher diet does and does not consist of. His

responses do not show the breadth of understanding of his newfound religion that would suggest a

sincerity to follow its beliefs and practices.” Id. Also, Chaplain Burrus reported that he saw Plaintiff

use a “cheat sheet” during the written portion of the interview.

After Plaintiff was denied participation in the Kosher meal program, Plaintiff claims he

requested religious materials and his request was denied by Chaplain Burrus and James Armstrong,

the Manager of the Grievance and Appeals Section of the Michigan Department of Corrections.

Plaintiff further alleges Chaplain Burrus and Armstrong did not allow him to participate in religious

services. According to Chaplain Burrus, no Jewish religious materials were available at the time

Plaintiff requested them. Plaintiff was not allowed to attend religious services because Jewish group

services were not available at the prison due to the fact that there were fewer than five Jewish

prisoners within the same security level as Plaintiff. Armstrong states that he was not involved in

the decision to deny Plaintiff religious materials; his only role was to review and respond to

Plaintiff’s step III grievance. Following Defendants’ refusal to provide religious materials, Plaintiff

embarked on a hunger strike, which lasted until Plaintiff became ill.

On July 22, 2008, Plaintiff requested religious study materials from his property, while he

was in segregation. Plaintiff claims that Assistant Resident Unit Supervisor (ARUS) Sandra

Monahan refused to provide the religious study materials to him and Armstrong supported her

decision. ARUS Monahan issued Plaintiff’s legal materials, papers, a Bible, and magazines to him

on June 5, 2008. ARUS Monahan denies receiving a July 22, 2008 request from Plaintiff for

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additional materials. Armstrong’s only involvement was to respond to Plaintiff’s step III grievance

related to this incident.

On August 1, 2008, Plaintiff requested notary services and alleges that ARUS Monahan,

Suzanne Wayda-Slomski and Armstrong denied him access to the notary. ARUS Monahan avers that

she was absent from work on August 1, 2008 and, therefore, could not have denied Plaintiff access

to a notary. Wayda-Slomski does not recall Plaintiff asking her to notarize any document; rather,

she remembers Plaintiff asking her to pass a document to another prisoner, which she refused to do.

Armstrong avers that he was not involved in the decision to refuse Plaintiff notary services; his only

involvement was to respond to Plaintiff’s step III grievance. Plaintiff filed grievances related to all

of the incidents discussed above, and exhausted his administrative options.

On December 10, 2008, Plaintiff filed suit in this court. In his complaint, Plaintiff alleges that

Defendants prevented him from practicing his religion in violation of the Free Exercise Clause of

the United States Constitution pursuant to 42 U.S.C. § 1983 and the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. § 2000bb, by denying him participation in the Kosher Meals Program and

refusing to give him religious materials. Plaintiff seeks an injunction barring discrimination,

mandating his immediate placement in the Kosher meal program and forwarding any monetary

award he recovers to his personal bank account. Plaintiff seeks compensatory damages in the amount

of $50,000 and punitive damages.

On March 16, 2009, Defendants Martin, Armstrong, Bashir, Burrus, Monahan, and Slomski

filed a motion for summary judgment (ECF No. 16) and Plaintiff filed a response on April 20, 2009

(ECF No. 18). United States Magistrate Judge Virginia Morgan issued a report and recommendation

to grant Defendants’ motion for summary judgment (ECF No. 21) on November 5, 2009, and

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In denying Allison ’s request for the Kosher Meals Program, Defendants concluded that

Allison lacked sincerity in his religious beliefs regarding the need for a Kosher diet because he

provided incomplete and sometimes inaccurate explanations to the questions asked, he was unable

to explain the major teachings of Judaism, and he was unable to explain what is included and

excluded from a Kosher diet.

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Plaintiff filed an objection to the report and recommendation (ECF No. 22) on November 19. On

January 22, 2010, this Court issued an order adopting Judge Morgan’s report and recommendation.

ECF No. 23. The Court’s order overruled Plaintiff’s objections, granted Defendants’ motion for

summary judgment as to all claims, and dismissed Plaintiff’s complaint with prejudice. On February

18, 2010, Allison filed a notice of appeal (ECF No. 25) of the Court’s January 22, 2010 order.

Defendants filed an appearance but did not provide a response on appeal. Counsel for Defendants

instead noted that they believed the issues were without merit, and that “[d]ue to scarce resources

and current budget restraints, as well as the increasing workload, [the Michigan Attorney General’s

office did] not intend to file a brief unless requested to do so.” See Allison v. Martin, et al., No.

006110653547 10-1218 (6th Cir. June 14, 2010).

The United States Court of Appeals for the Sixth Circuit entered a decision on December 30,

2010, finding that Allison has explicitly abandoned his claims against defendants John Doe, Basir,

and Slomski and that Allison had also waived his claim that Monahan and Wayda-Slomski denied

him notary services. ECF No. 34. The Court of Appeals then affirmed this Court’s judgment as to

all claims raised in Allison’s complaint except his First Amendment claim that Chaplain Martin

denied his request to participate in the Kosher Meals Program. The Court of Appeals concluded that

a genuine dispute of fact had been demonstrated concerning “the sincerity of Allison’s religious

beliefs regarding the need for a Kosher diet” because Allison “attested that he passed the Kosher diet

test per MDOC policy and denied that he cheated on any examination.”1

 ECF No. 34 at 4. The Court

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of Appeals also vacated this Court’s conclusion that the defendants were entitled to qualified

immunity in order to provide an opportunity to address the qualified immunity issue in greater detail.

On January 21, 2011, the Court received a mandate from the Court of Appeals (ECF No. 36)

pursuant to the disposition entered on December 30, 2010. 

Now before the Court is Defendant Martin’s motion for summary judgment on the basis of

qualified immunity. ECF No. 62. Plaintiff filed a response, contending that Martin is not entitled to

qualified immunity because Plaintiff’s claim is not for denial of Kosher meals but for falsifying

Plaintiff’s records in order to disqualify him from the Kosher meal program. ECF No. 64. Plaintiff

previously filed a motion to amend his complaint to include a claim against Martin for falsifying his

records, but the Court denied this request. ECF No. 47. At this juncture, Plaintiff’s only remaining

claim is his claim concerning whether his First Amendment right was violated when Martin denied

his request to participate in the Kosher Meals Program. 

The Court has reviewed the parties’ submissions and finds that the facts and the law have

been sufficiently set forth in the motion papers. The Court concludes that oral argument will not aid

in the disposition of the motion. Accordingly, the motion will be decided on the papers submitted.

E.D. Mich. LR 7.1(f)(2). For the reasons provided herein, the Court will Defendant’s motion for

summary judgment on the basis of qualified immunity.

I. Standard of Review

A motion for summary judgment should be granted 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). A party asserting that a fact cannot be proven or is genuinely disputed must

support the assertion by “showing that the materials cited do not establish the absence or presence

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of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1)(B). The party seeking summary judgment has the initial burden of

informing the Court of the basis for its motion, and identifying where to look in the record for

relevant facts “which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party

who must “set out specific facts showing a genuine issue for trial.” Fed. R. Civ. Pro. 56(e)(2);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the opposing party fails to raise

genuine issues of fact and the record indicates the moving party is entitled to judgment as a matter

of law, the court shall grant summary judgment. Anderson, 477 U.S. at 250. 

The court must view the evidence and draw all reasonable inferences in favor of the nonmoving party and determine “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson, 477 U.S. at 251-52. The party opposing the motion may not “rely on the hope that the

trier of fact will disbelieve the movant’s denial of a disputed fact” but must make an affirmative

showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d

1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate

specific facts in affidavits, depositions, or other factual material showing “evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

II. Discussion

A. Qualified Immunity

To prevail on his § 1983 claim, Plaintiff must show that Martin deprived him of his First

Amendment right to practice his religion. See Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008)

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(“In order to prevail on a civil rights claim under 42 U.S.C. § 1983, plaintiffs must establish that a

person acting under the color of state law deprived them of a right secured by the Constitution or

laws of the United States.”). As a state employee, however, Martin is entitled to qualified immunity

if his “conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” See id. (citation omitted).

The doctrine of qualified immunity, “shields ‘governmental officials performing

discretionary functions . . . from civil damages liability as long as their actions could reasonably

have been thought consistent with the rights they are alleged to have violated.’ ” Solomon v. Auburn

Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635,

638 (1987)). Government officials are immune from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The Supreme Court instructs lower courts to perform a two-tiered inquiry to determine

whether a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).

Courts should first determine whether “the facts alleged show the officer’s conduct violated a

constitutional right[.]” Id. at 201. If the plaintiff establishes that a constitutional violation occurred,

a court must next consider “whether the right was clearly established.” Id. In order for a right

allegedly violated to be considered clearly defined, “the contours of the right must be sufficiently

clear that a reasonable officer would understand that what he is doing violates that right.” Id. The

Court is “free to consider [the two-part test] in whatever order is appropriate in light of the issues

before us,” and therefore need not decide whether there was a constitutional violation if it is

determined that an official in Martin’s position would reasonably believe that his actions were not

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in contravention of Plaintiff’s constitutional rights. See Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir.

2009) (citation omitted).

In inquiring whether a constitutional right is clearly established, a court “ ‘must look first

to decisions of the Supreme Court, then to decisions of [the Sixth Circuit] and other courts within

[the Sixth Circuit], and finally to decisions of other circuits.’ ” Baker v. City of Hamilton, 471 F.3d

601, 606 (6th Cir. 2006) (citing Champion v. Outlook Nashville, Inc, 380 F.3d 893, 902 (6th Cir.

2004) (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002)), cert denied sub nom,

Dickhaus v. Champion, 544 U.S. 975 (2005)). Those decisions must both point unmistakably to the

unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct

authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on

constitutional grounds, would be found wanting. Durham v. Nu’Man, 97 F.3d 862, 866 (6th Cir.

1996) (citation and quotation omitted). 

When a defendant raises a defense of qualified immunity, the plaintiff bears the burden of

demonstrating that the defendant is not entitled to qualified immunity. Saucier, 533 U.S. at 201. The

Sixth Circuit has occasionally added a third inquiry: “whether the plaintiff has offered sufficient

evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the

clearly established constitutional rights.’ ” Armstrong v. City of Melvindale, 432 F.3d 695, 699 (6th

Cir. 2006) (quoting Feathers v. Aey, 310 F.3d 843, 848 (6th Cir. 2003) (internal citation omitted));

see also Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996) (applying qualified

immunity analysis to the question of whether doctors’ actions violated the Eighth Amendment). The

Sixth Circuit has noted that this third inquiry may, in some cases, increase the clarity of the court’s

analysis. Armstrong, 432 F.3d at 699. Qualified immunity analysis “must be undertaken in light of

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the specific context of the case, not as a broad general proposition [.]” Saucier, 533 U.S. at 201. The

relevant, dispositive inquiry in determining whether a right is clearly established is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (quoting Saucier, 533 U.S. at 201-02).

To find a clearly established constitutional right, a district court must find binding precedent

by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for

the decisions of other courts to clearly establish a principle of law. Lavado v. Keohane, 992 F.2d

601, 606 (6th Cir. 1993). For the decisions of other courts to provide such “clearly established law,”

these decisions must both point unmistakably to the unconstitutionality of the conduct complained

of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind

of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found

wanting. Id. at 607. 

Furthermore, the right cannot be stated in too general of terms. The “right the official is

alleged to have violated must have been ‘clearly established’ in a more particularized, and hence

more relevant, sense.” Saucier, 533 U.S. at 202. When determining the objective legal

reasonableness portion of the qualified immunity standard, individual claims of immunity must be

analyzed on a fact-specific, case-by-case basis to determine whether the plaintiff’s constitutional

rights were so clearly established when the alleged misconduct was committed that any official in

the defendants’ position would understand that what he did violated those rights. O’Brien v. City of

Grand Rapids, 23 F.3d 990, 999 (6th Cir. 1994). Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.

2008) (citation and quotation omitted). 

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B

Prisoners do not lose the right to freely exercise their religion by virtue of their incarceration.

Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972). Generally speaking, a Jewish prisoner is entitled to have

kosher meals if his or her sincere beliefs so require. See Jackson v. Mann, 196 F.3d 316 (2d Cir.

1999); DeHart v. Horn, 227 F.3d 47, 52 n.3 (3d Cir. 2000) (“Prison officials are, of course, entitled

to both make a judgment about the sincerity and religious nature of an inmate’s belief when he or

she asks for different treatment and to act in accordance with that judgment.”). But the

circumstances of incarceration may require some restrictions on a prisoner’s exercise of his religious

beliefs. “The free exercise clause of the First Amendment embraces two concepts: the freedom to

believe and the freedom to act. ‘The first is absolute but, in the nature of things, the second cannot

be.’ ” Combs v. Corrections Corp. of America, 977 F. Supp. 779, 803 (W.D. La. 1997) (quoting

United States v. Ballard, 322 U.S. 78, 86 (1944)). Thus, the court must balance the prisoner’s

constitutionally protected right to freely exercise his religion against the state’s legitimate interest

in operating its prison. Brown v. Johnson, 743 F.2d 408, 411 (6th Cir. 1984), cert. denied, 469 U.S.

1215 (1985). As long as prison authorities present evidence that the challenged regulation is

reasonably related to legitimate penological interests, the court is not permitted to substitute its

judgment for theirs. O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Brown, 743 F.2d at

412-13.

“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78,

89 (1987). In determining the reasonableness of a challenged policy, there are four factors to be

considered: (1) whether there is a valid rational connection between the regulation and the legitimate

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governmental interest which it allegedly furthers; (2) whether there are alternative means by which

the inmate may exercise the right impinged; (3) what impact the accommodation of the inmate’s

constitutional right will have on guards, other inmates, or the allocation of prison resources

generally; and (4) the existence or absence of ready alternatives to the regulation in question.

Turner, 482 U.S. at 88-91; O’Lone, 482 U.S. at 349 (1987). The final factor “is not a ‘least

restrictive alternative’ test.” Turner, 482 U.S. at 90.

At the time of the events in the instant case, there was no clearly established law from the

Sixth Circuit or the United States Supreme Court holding unconstitutional the Michigan Department

of Corrections’ policy of questioning prospective Kosher diet participants about their religion in

order to test the prisoner’s sincerity to abide by Kosher law. Defendant notes, however, that

MDOC’s Kosher test policy has been upheld on numerous occasions. In Butts v. Riley, 2010 U.S.

Dist. LEXIS 17517 (W.D. Mich. 2010), the court concluded that the defendants’ determination of

lack of sincerity should not be disturbed by the courts and that there are compelling economic

interests necessitating the test. Id. at *16-17; see also Fuller v. Burnett, 2007 U.S. Dist. LEXIS

99557, at *14-15 (W.D. Mich. 2007) (holding that “a lack of the basic knowledge regarding why

specific food must be consumed for a religion is a strong indication of a lack of sincerity.”).

Similarly, in Blumenthal v. Armstrong, the court upheld a denial of kosher meals and the use of the

kosher test. 2010 U.S. Dist. LEXIS 30174 (W.D. Mich. 2010). “The prison must have some

standards to determine the sincerity of a religious belief before granting an accommodation request.

Accordingly, defendants’ determination that plaintiff showed a lack of sincerity should not be

disturbed by this Court.” Id. at *14-15. Defendant concedes that Blumenthal involved facts not

present here because the plaintiff was caught purchasing non-kosher food, but the court also

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considered that the plaintiff did not wear a yarmulke. Id. at *2, *14. As an illustration, however,

Defendant notes that in the instant case Plaintiff did not know what a yarmulke was at the time of

his Kosher test. ECF No. 16 Ex. 8 at 6.

Defendant asserts that the Michigan Department of Corrections’ policy is to restrict the

Kosher diet program to prisoners whose sincerity is evidenced by their basic knowledge of the

religion and the requirements of keeping kosher. A prisoner who does know the requirements to

keep kosher obviously cannot do so, and Defendant contends that a lack of such knowledge is a

strong indication of insincerity. Additionally, requiring that only sincere inmates participate serves

compelling prison interests. Defendant testified that allowing insincere prisoners to participate

offends sincere practitioners. This would engender strife in the prison, which undermines prison

security. Allowing insincere prisoners to manipulate their prison placement through Kosher meal

requests also undermines prison security as evidenced by the fact that, in the past, some prisoners

have found ways to manipulate transfers to a specific prison for purposes of escape. See Brian

Mockenhaupt, The Escape from Kinross Prison, http://www.esquire.com/features/kinross-prison0808 (last visited December 8, 2011). There are limited resources that allow only limited provision

of kosher meals, and allowing insincere prisoners to participate would result in less space available

for the sincere prisoners. In addition, the cost of providing kosher meals is two to three times the

cost of providing regular meals. Defendant has set forth sufficient reasons to demonstrate that the

regulation of the Kosher menu accommodation as set forth in MDOC Policy Directive 05.03.150

and Operating Procedure 05.03.150A is reasonably related to legitimate penological interests.

Moreover, Plaintiff states in his response that he does not challenge the constitutionality of the

MDOC policy. ECF No. 64. 

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Defendant thus argues that the policy of restricting Kosher diets to sincere inmates is

reasonably related to the compelling state interests of prison security and budget. The state prison

system must be free to maintain order and security and to control institutional costs. At the time of

the events alleged in this suit, there was no caselaw holding unconstitutional the Michigan

Department of Corrections’ policy of testing inmates for sincerity before making accommodations

but there were several cases upholding the use of the test. As a result, Defendant contends he is

entitled to qualified immunity and the burden shifts to Plaintiff to provide some clearly established

authority under which the Defendant would know his actions were unconstitutional. 

Plaintiff’s response provides extensive discussion regarding Martin’s alleged falsification

of statements in unspecified exhibits and acts committed by former defendant Burrus. The only

clarification Plaintiff offers for these allegations is that Martin falsified documents by “accusing”

Plaintiff of being insincere and lacking sufficient knowledge. ECF No. 64 at 30. Plaintiff does not

otherwise explain how Martin falsified any documents or statements. Plaintiff also challenges his

denial of Kosher meals because he contends Martin relied only on the three interview questions and

not on the written test Plaintiff believes he passed. Although this is not a claim properly before the

Court, Plaintiff’s general statements regarding falsification of unspecified statements is insufficient

evidence to demonstrate a genuine issue of material fact on the issue of whether Defendant Martin

falsified the results of Plaintiff’s interview responses or written test answers. Nothing in the record

supports the suggestion of intentional deception on Martin’s part, and nothing in RLUIPA or the

First Amendment requires a verbatim transcription of a prisoner’s oral responses to questions and

Plaintiff’s written answers do not appear to be altered. The decision of the prison officials as to

whether the prisoner has demonstrated an appropriate religious basis for a Kosher diet is a judgment

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call, and one that, in this instance, does not warrant being disturbed. 

Plaintiff also contends that Defendant has not proven him insincere; this, however, is also

not the issue before the Court. Plaintiff’s sincerity, as discussed by the Sixth Circuit’s December

30, 2010 opinion, presents an issue of fact for a jury and is unrelated to the instant qualified

immunity analysis. Plaintiff notes that he sent a letter that Martin allegedly did not consider with

regard to Plaintiff’s sincerity, but the MDOC Operating Procedure requires Martin to review only

the information provided in the report from the interview. Operating Procedure 05.03.150A ¶ M.

Plaintiff also argues that Martin, by virtue of his position with the MDOC, is required to know the

law and thus knowingly violated Plaintiff’s clearly established constitutional right. Plaintiff offers

no legal authority for this contention. The remainder of Plaintiff’s response is vague allegations of

falsified documents, fabricated affidavits, evidence with regard to his sincerity, and his believe that

the standard for denial of a Kosher diet should be absolute lack of knowledge or being proven

insincere. 

Martin noted in his letter to the prison warden that Plaintiff “provided brief, incomplete and

sometimes inaccurate explanations to the question asked” during his interview with Chaplain Burrus.

ECF No. # 16 Ex. D. Further, Martin wrote that Plaintiff “was unable to explain the major teachings

of Judaism, or what a kosher diet does and does not consist of. His responses do not show the

breadth of understanding of his newfound religion that would suggest a sincerity to follow its beliefs

and practices.” Id. Martin ultimately denied Plaintiff’s request because of his general lack of

understanding of Judaism and of Kosher diet requirements. In making this determination, Martin did

not violate any clearly established constitutional right and is thus entitled to qualified immunity as

to Plaintiff’s First Amendment claim. Martin’s denial was based on the applicable Policy Directive

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and Operating Procedure 05.03.150A ¶ L because Plaintiff could not: (1) explain the major teachings

of his designated religion (Judaism); or (2) explain what kosher does or does not consist of.

Moreover, there does not appear to be any authority that suggests that the First Amendment imposes

liability on prison officials for conscientiously applying reasonable policies designed to implement

legitimate prison management interests or that absolute lack of knowledge is the standard for denial

of a religious meal program with the MDOC.

C

Plaintiff has also filed a motion for appointment of counsel. ECF No. 59. “Appointment of

counsel in a civil case is not a constitutional right. It is a privilege that is justified only by

exceptional circumstances.” Lavado, 992 F.2d at 605-06 (citations and internal quotation marks

omitted). “In determining whether ‘exceptional circumstances’ exist, courts have examined ‘the type

of case and the abilities of the plaintiff to represent himself.’ ” Id. (citing Archie v. Christian, 812

F.2d 250, 253 (5th Cir. 1987)). “This generally involves a determination of the ‘complexity of the

factual and legal issues involved.’ ” Id. (citing Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir.

1986)). Counsel should not be appointed pursuant to 28 U.S.C. § 1915(d) where a pro se litigant’s

claims are frivolous, Henry, 739 F.2d at 1119, or when the chances of success are extremely slim,

Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir. 1983). 

After careful consideration of Plaintiff’s motion, including the type and nature of the case,

its complexity, and Plaintiff’s ability to prosecute his claim, it is quite apparent that counsel is not

necessary at this time to insure that Plaintiff’s claims are fairly heard. Plaintiff’s motion for

appointment of counsel will thus be denied.

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III

Accordingly, it is ORDERED that Defendant’s motion for summary judgment on the basis

of qualified immunity (ECF No. 62) is GRANTED.

It is further ORDERED that Plaintiff’s motion for appointment of counsel (ECF No. 59) is

DENIED.

It is further ORDERED that Plaintiff’s First Amendment claim is DISMISSED WITH

PREJUDICE.

It is further ORDERED that Plaintiff’s remaining pending motions (ECF Nos. 54, 55, 56,

57, 58) are DENIED AS MOOT.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: December 14, 2011

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 and

upon Derrick Allison, # 416330, at Marquette Branch Prison, 1960 U.S.

Hwy 41 South, Marquette, MI 49855 by first class U.S. mail on

December 14, 2011.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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