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Ewing v. Finco

United States District Court, W.D. Michigan, Southern Division

September 18, 2019

Darrell Ewing, # 623073, et al., Plaintiffs,
v.
Thomas Finco, et al., Defendants.

          Honorable Paul L. Maloney Judge

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is 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.

         Each plaintiff claims violation of his rights under the First Amendment's Free Exercise Clause, the Fourteenth Amendment's Equal Protection Clause, and statutory rights under RLUIPA.

• 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 with pork.
• Plaintiff Dykes alleges that, in November 2015, defendants denied his request to eat from URF's religious vegan diet line.[1]

         Plaintiffs 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.

         The matter is before the Court on defendants' motion for summary judgment. (ECF No. 45). Plaintiffs Ewing, Allen, Dykes, and King oppose the motion[2] (ECF No. 51- 52, 54-55, 57, 60) and defendants filed four separate reply briefs.[3] (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 claims.

         Summary Judgment Standards

         Summary 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 Cir. 2016).

         When 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).

         Qualified Immunity

         Defendants 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)).

         “A 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).

         A 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).

         In Brosseau v. Haugen, the Supreme Court examined the underlying purpose of the requirement that the law be clearly established:

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 (2014).

         The 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).

         Preliminary Matters

         Plaintiffs' 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. 2008).

         “[H]earsay 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.

         Plaintiff 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).

         “The 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”[4] (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. 2012).

         Relevant Facts

         Each plaintiff was an inmate at the Chippewa Correctional Facility (URF) during the period related to his claim. Defendants ...


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