TIMOTHY P. GREELEY, Magistrate Judge.
Plaintiff Willie Debardelaben filed this prisoner civil rights action. Trial is scheduled for April 8, 2014. The remaining claims are against Defendants Heidi Swajanen and Cherie Konrad for alleged retaliatory and religious First Amendment violations. Defendants filed a motion for judgment on the pleadings and/or a motion in limine claiming that Plaintiff's First Amendment free exercise claim should be dismissed, because the law regarding the Michigan Department of Corrections' "zero-tolerance" policy, which provided that inmates can be taken off a Kosher meal diet if they are found with non-Kosher food items, was not ruled unconstitutional until after Plaintiff was removed from his Kosher diet. Defendants argue that they are entitled to qualified immunity on the First Amendment free exercise claim. Plaintiff argues that because his claims involving retaliation and the impairment of the free exercise of his religion are intertwined and dependent on each other, dismissal of the claim regarding his removal from the Kosher meal program for his possession of a non-Kosher food item is inappropriate. Contrary to Plaintiff's argument, each of his claims are independent and stand on their own merit. Although both claims are based upon First Amendment violations involving his removal from his Kosher diet, one is for an alleged retaliation for the use of the grievance system and one is an alleged violation of his religious rights based upon the application of an unconstitutional "zero-tolerance" policy.
A party may move for judgment on the pleadings after the pleadings are closed, as long as the motion will not delay trial. Fed. R. Civ. P. 12(c). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading, requiring the court to determine whether the plaintiff would be entitled to relief if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must construe the complaint in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A judge may not dismiss the complaint simply because he disbelieves the complaint's factual allegations. Conley, 355 U.S. at 47.
Generally, a complaint need only give "fair notice of what the plaintiff's claim is and the grounds upon which it rests." In re Delorean Motor Co. v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (quoting Conley, 355. U.S. at 47). The fundamental purpose of pleadings under the Federal Rules of Civil Procedure is to give adequate notice to the parties of each side's claims and to allow cases to be decided on the merits after an adequate development of the facts. Mayer, 988 F.2d at 638. While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. Delorean, 991 F.2d at 1240. "In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (internal quote omitted).
Government officials, performing discretionary functions, generally are shielded 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. Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999); Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An "objective reasonableness" test is used to determine whether the official could reasonably have believed his conduct was lawful. Dietrich, 167 F.3d at 1012; Anderson v. Creighton, 483 U.S. 635, 641 (1987). "Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009).
In making a qualified immunity determination the court must decide whether the facts as alleged or shown make out a constitutional violation or whether the right that was allegedly violated was a clearly established right at the time of the alleged misconduct. Id. at 816. If the court can conclude that either no constitutional violation occurred or that the right was not clearly established, qualified immunity is warranted. The court may consider either approach without regard to sequence. Id. Defendants argue that they are entitled to the qualified immunity defense because the MDOC's "zero-tolerance" policy, providing that an inmate may be removed from the Kosher meal plan if he is in possession of a non-kosher item, was not definitely held in violation of the Constitution at the time Plaintiff was removed from his Kosher diet. Defendants argue that qualified immunity is appropriate because the law was not clearly established that the MDOC's "zero tolerance" policy violated the free exercise of religion.
On October 5, 2010, Plaintiff was interviewed by Defendant Swajanen on a Notice of Intent to remove him from the Kosher meal program because Plaintiff had purchased non-Kosher food from the prison store. Plaintiff claims that he was unaware that the items were non-Kosher. Following an administrative hearing on October 15, 2010, Defendant Konrad removed Plaintiff from the Kosher meal program.
On May 13, 2010, prior to Plaintiff's removal from the Kosher meal program, the Sixth Circuit issued an opinion in Colvin v. Caruso, 605 F.3d 282 (2010), questioning the constitutional validity of the MDOC's policy that provided that an inmate could be removed from the Kosher meal program for possession of a non-Kosher food item. The Sixth Circuit explained:
Id. at 296-297.
After remand, Judge Edgar issued an opinion on February 9, 2012, for the first time expressly finding that the MDOC's policy allowing for removal from the Kosher meal program simply because an inmate possessed a non-Kosher meal item was not constitutional. Colvin v. Caruso, 852 F. Supp. 2d. 863, 868 (2012). Judge Edgar, however, granted the defendants qualified immunity on this issue, explaining:
Id.
In this case, as in Colvin, Defendants relied upon on the Policy Directive that allowed them to remove Plaintiff from the Kosher meal program. Accordingly, it is recommended that the court dismiss Plaintiff's First Amendment claim that he was wrongfully removed from the Kosher meal program based upon the MDOC regulation relied upon by Defendants. In 2010, at the time of Plaintiff's removal, the MDOC policy was not considered definitively in violation of the Constitution. It is recommended that Defendants be granted qualified immunity on this issue.
Accordingly, it is recommended that the court grant Defendants' Motion for Judgment on the Pleadings (Docket #47) and dismiss Plaintiff's First Amendment free exercise claim involving his removal from the Kosher Meal Program. Plaintiff's retaliation claim should proceed to trial.