United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by five state prisoners under
42 U.S.C. § 1983 and the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. § 2000cc-1(a)(1)-(2). The plaintiffs are
prisoners Darrell Ewing, Terico Allen, Ramon King, Diarra
Bryant, and Robert Dykes. Plaintiffs' complaint arises
out of conditions of their confinement in 2014 and 2015 at
the Chippewa Correctional Facility (URF). The defendants are
three former employees of the Michigan Department of
Corrections: Deputy Director Thomas Finco, Special Activities
Coordinator Michael Martin, and his successor as Special
Activities Coordinator, David Leach.
plaintiff claims violation of his rights under the First
Amendment's Free Exercise Clause, the Fourteenth
Amendment's Equal Protection Clause, and statutory rights
• Plaintiff Ewing alleges that, in August or September
2015, defendants Leach and Martin denied his request to eat
from URF's vegan meal line.
• Plaintiff Allen alleges that, in November 2014,
defendants denied his request for a soy-free religious diet,
and in August 2014, they denied his request to eat from the
vegan meal line.
• Plaintiff King alleges that, in November 2014,
defendants denied his request for a soy-free religious diet,
and he claims that his September 29, 2014, meal was
cross-contaminated with pork because URF food service workers
were handling multiple meal lines without changing gloves.
• Plaintiff Bryant alleges that, in October 2014,
defendant Leach denied his request for a soy-free diet and
interfered with his ability to access URF's
religiously-approved vegan meal line, and that his meals on
August 11 and September 22, 2014, were cross-contaminated
• Plaintiff Dykes alleges that, in November 2015,
defendants denied his request to eat from URF's religious
vegan diet line.
seek an award of damages against defendants in their
individual capacities for alleged constitutional violations
and injunctive relief against defendants Finco and Leach
under RULIPA against defendants in their official capacities.
matter is before the Court on defendants' motion for
summary judgment. (ECF No. 45). Plaintiffs Ewing, Allen,
Dykes, and King oppose the motion (ECF No. 51- 52, 54-55,
57, 60) and defendants filed four separate reply
briefs. (ECF No. 59, 62-64). For the reasons
set forth herein, I recommend that that the Court grant
defendants' motion for summary judgment and enter
judgment in defendants' favor on all plaintiff's
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d
862, 866 (6th Cir. 2016). The standard for determining
whether summary judgment is appropriate is “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.' ”
Rocheleau v. Elder Living Const., LLC, 814 F.3d 398,
400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)). The Court must
consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in
favor of the party opposing the motion. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials “negating” the
opponent's claim. See Morris v. Oldham Cty. Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party's case,
” the nonmoving party has the burden of coming forward
with evidence raising a triable issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain
this burden, the nonmoving party may not rest on the mere
allegations of his pleadings. See Huff v. TeleCheck
Servs., Inc., 923 F.3d 458, 462 (6th Cir. 2019). The
motion for summary judgment forces the nonmoving party to
present evidence sufficient to create a genuine issue of fact
for trial. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1478 (6th Cir. 1990); see AES-Apex Employer
Servs., Inc. v. Rotondo, 924 F.3d 857, 866 (6th Cir.
2019) (“[C]asting only [a] ‘metaphysical
doubt' is insufficient to survive summary
judgment.”) (quoting Matsushita, 475 U.S. at
586). “A mere scintilla of evidence is insufficient;
‘there must be evidence on which a jury could
reasonably find for the [non-movant].' ”
Dominguez v. Correctional Med. Servs., 555
F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at
252)); see Lossia v. Flagstar Bancorp, Inc., 895
F.3d 423, 428 (6th Cir. 2018).
also argue that they are entitled to summary judgment on the
basis of qualified immunity. “Once [an] official[ ]
raise[s] the qualified immunity defense, the plaintiff bears
the burden to ‘demonstrate that the official [is] not
entitled to qualified immunity.' ” LeFever v.
Ferguson, 645 Fed.Appx. 438, 442 (6th Cir. 2016)
(quoting Silberstein v. City of Dayton, 440
F.3d 306, 311 (6th Cir. 2006)).
government official sued under section 1983 is entitled to
qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the
time of the challenged conduct.” Carroll v.
Carman, 135 S.Ct. 348, 350 (2014); see Taylor v.
Barkes, 135 S.Ct. 2042, 2044 (2015). The first prong of
qualified immunity analysis is whether the plaintiff has
alleged facts showing that defendant's conduct violated a
constitutional or statutory right. See Saucier v.
Katz, 533 U.S. 194, 201 (2001). The second prong is
whether the right was “clearly established” at
the time of the defendant's alleged misconduct.
Id. Trial courts are permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
qualified immunity defense can be asserted at various stages
of the litigation, including the summary judgment stage.
See English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). The qualified immunity inquiry at the summary judgment
stage is distinguished from the Rule 12(b)(6) stage in that
generalized notice pleading no longer suffices, and the
broader summary judgment record provides the framework within
which the actions of each individual defendant must be
evaluated. At the summary judgment stage, “the
plaintiff must, at a minimum, offer sufficient evidence to
create a ‘genuine issue of fact,' that is,
‘evidence on which a jury could reasonably find for the
plaintiff.' ” Thompson v. City of Lebanon,
Tenn., 831 F.3d 366, 370 (6th Cir. 2016).
Brosseau v. Haugen, the Supreme Court examined the
underlying purpose of the requirement that the law be clearly
Qualified immunity shields an officer from suit when he
makes a decision that, even if constitutionally deficient,
misapprehends the law governing the circumstances she
confronted. . . . Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of the
conduct. If the law at the time did not clearly establish
that the officer's conduct would violate the
Constitution, the officer should not be subject to liability
or, indeed, even the burdens of litigation.
543 U.S. 194, 198 (2004); see also Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) (“The dispositive question is
whether the violative nature of the particular conduct is
clearly established.”) (citation and quotation
omitted); City & County of San Francisco, Calif v.
Sheehan, 135 S.Ct. 1765, 1774 (2015) (“An officer
cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite
that any reasonable official in his shoes would have
understood that he was violating it, meaning that existing
precedent placed the statutory or constitutional question
beyond debate.”) (citations and quotations omitted).
“This demanding standard protects all but the plainly
incompetent or those who knowingly violate the law.”
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (citation and quotation omitted). Qualified immunity
is an immunity from suit rather than a mere defense to
liability. Plumhoff v. Rickard, 134 S.Ct. 2012, 2019
Supreme Court has repeatedly held that the second prong of
the qualified immunity analysis “ ‘must be
undertaken in light of the specific context of the case, not
as a broad general proposition.' ” Brosseau, 543
U.S. at 198 (quoting Saucier v. Katz, 533 U.S. at
201); see City of Escondido, Calif. v. Emmons, 139
S.Ct. 500, 502-03 (2019). “The burden of convincing a
court that the law was clearly established ‘rests
squarely with the plaintiff.' ” Key v.
Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (quoting
Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir. 1997)); see
Stevens-Rucker v. City of Columbus, Ohio, 739 Fed.Appx.
834, 839 (6th Cir. 2018) (“Plaintiff bears the burden
of showing that defendants are not entitled to qualified
immunity.”). The burden applies to each claim. See
Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015).
complaint is verified under penalty of perjury. (Compl., 8,
ECF No. 1, PageID.8). It is considered as an affidavit in
opposition to defendants' motion for summary judgment.
See El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.
evidence generally cannot be considered on a motion for
summary judgment.” See Bluegrass Dutch Trust
Morehead, LLC v. Rowan Cty. Fiscal Ct., 734 Fed.Appx.
322, 327 (6th Cir. 2018). The newspaper articles attached to
defendants' reply brief (ECF No. 62-2, PageID.850-53) are
disregarded because defendants offer no explanation how the
Court could consider the articles without committing error.
Ewing's declaration is not being considered because he
has interjected that his statements are true “to the
best of [his] knowledge, information, and belief.” (ECF
No. 54-1, PageID.783). “[S]tatements made on belief or
on information and belief, cannot be utilized on a
summary-judgment motion.” Ondo v. City of
Cleveland, 795 F.3d 597, 605 (6th Cir. 2015).
probative force of a declaration subscribed under penalty of
perjury derives from the signature of the declarant. Without
the declarant's signature, a declaration is completely
robbed of any evidentiary value.” Al-Zerjawi v.
Kline, No. 4:15-cv-2512, 2018 WL 1553768, at *5 (N.D.
Ohio Mar. 29, 2018) (citation and quotation omitted).
Accordingly, the unsigned declaration of “Tameez
Rabbaanee # 192751” (ECF No. 54-1, PageID.791-92) is
disregarded because it is not evidence. See Sfakianos v.
Shelby Cty. Gov't, 481 Fed.Appx. 244, 245 (6th Cir.
plaintiff was an inmate at the Chippewa Correctional Facility
(URF) during the period related to his claim. Defendants ...