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Ewing v. Finco

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

December 3, 2019

Darrell Ewing, #623037, et al., Plaintiffs,
v.
Thomas Finco, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE

         This is a civil rights lawsuit brought by five state prisoners. Plaintiffs all complain about the denial of their requests to participate in a religious meal program. Defendants filed a motion for summary judgment. (ECF No. 45.) The magistrate judge issued a report recommending the motion be granted. (ECF No. 73.) Two of the five plaintiffs filed objections. (ECF Nos. 76 and 78.)

         I.

         After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam).

         II.

         A. Plaintiffs Allen, King and Bryant

         Plaintiffs Terico Allen, Ramon King, and Diarra Bryant did not file objections to the report and recommendation. As noted by the magistrate judge, each plaintiff must represent himself; one prisoner cannot act in a representative capacity for another. (R&R at 3 .n2 PageID.895.) Because Allen, King and Bryant did not object to the report, the recommendations of the magistrate judge for those three Plaintiffs are ADOPTED.

         B. Plaintiff Dykes

         Plaintiff Dykes advances seven objections, most of which rely on the same arguments. For the reasons that follow, Dykes' objections are OVERRULED.

         Objections 1, 2, 3 and 6 - commissary purchases. Dykes argues that his purchases at the prison commissary of food items that do not conform to the religious meal program he requested cannot be used as a basis for denying his application because he did not consume the food. He asserts his religion and his religious beliefs do not prohibit him from purchasing nonconforming food to use as barter. Defendants have explained why the purchase of food that is inconsistent with their religious dietary requests is a safety concern. (R&R at 18-20 PageID.910-12.) Dykes' objection does not address this rationale.

         Objection 1, part 3 - lack of notice. The denial of his application to use the religious meal program does not constitute “discipline” for which he might be entitled to notice.

         Objection 4 - other Turner factors. Dykes argues he cannot afford to purchase other items from the commissary that are consistent with his religious beliefs. This argument addresses only of the four Turner factors and, even if Dykes is correct, the balance of factors still weighs in favor of Defendants. Furthermore, if Dykes did not purchase nonconforming items from the commissary, his application would likely have been approved.

         Objection 5 - RLUIPA. Dykes asserts that he was not aware that his purchase of sausages could be used as a basis for denying his meal request. The basis of the magistrate judge's recommendation was that the denial of the request was not permanent. Indeed, Dykes' latest request to access the religious meal option was approved. (ECF No. 70-1 PageID.882.) Dykes' objection does not address the reasoning in the R&R. And, Dykes' objection still does not address the safety concerns identify by Defendants.

         Objection 6 - Equal Protection. In his response brief (ECF Nos. 51 and 52), Dykes did not separately address Defendants' arguments regarding the Equal Protection Claim. The Court has considered and rejected Dykes' argument that ...


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