ROBERT J. JONKER, District Judge.
The Court has reviewed Magistrate Judge Brenneman's Report and Recommendation (docket # 48) concerning Plaintiffs' Motion for Preliminary Injunction
FED R. Civ. P. 72(b). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the Report and Recommendation itself; and Plaintiffs' objections. After its review, the Court finds that Magistrate Judge Brenneman's Report and Recommendation is factually sound and legally correct.
In their Motion for Preliminary Injunction (docket # 40), Plaintiffs seek to have the food service director at the facility in which they are incarcerated establish a partial Halal kitchen and provide specific Halal foods during Ramadan of 2010. Ramadan of 2010 ends on September 10, 2010. Therefore, the preliminary injunctive relief Plaintiffs seek is effectively moot. The Court notes that on this record, the Report and Recommendation points out multiple hurdles Plaintiffs will have to surmount to prevail on the merits in this case. (Report and Recommendation, docket # 48, 5-13.) The Report and Recommendation also points out weaknesses in Plaintiffs' contention that in the absence of injunctive relief they will suffer irreparable harm. (Id. at 13-14.) Even if the preliminary injunctive relief Plaintiffs seek were not moot, the Court would exercise its discretion to deny Plaintiffs' motion for emergent relief to allow a fuller development of facts, and resolution of procedural issues.
HUGH W. BRENNEMAN, JR., United States Magistrate Judge.
This matter is now before the court on "Plaintiffs' petition for preliminary injunction" (docket no. 40).
Plaintiffs have filed a nine-count civil rights action against defendants pursuant to 42 U.S.C. § 1983, The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"), and for conspiracy under 42 U.S.C. § 1986. The complaint alleges that defendants: failed to provide a halal food diet at the Lakeland Correctional Facility (LCF) which is consistent with Shari'ah; prohibited plaintiffs from obtaining prayer oil; interfered with plaintiffs' ability to perform the "Eid Celebration/Fast of Ramadan" and the mandatory "breaking the fast at the end of each day;" compelled plaintiffs
In their § 1983 claim, plaintiffs contend that defendants violated their "Fourteenth Amendment due process right to First Amendment protections" and their Fourteenth Amendment due process right to equal protection under the law. Specifically, plaintiffs' allege that they cannot practice their religion and that they are treated differently from other religious groups (i.e., Buddhist and Jewish prisoners). Plaintiffs also alleged that defendants violated RLUIPA, which prevents the government from placing a burden on prisoner's religious exercise:
42 U.S.C. § 2000cc-1. Finally, plaintiffs alleged that defendants violated § 1986 because they conspired to deprive plaintiffs of their federal constitutional rights.
In the present motion, plaintiffs seek a preliminary injunction against defendant James Kevin O'Brien, LCF's food service director, to:
Petition at p. 3 (docket no. 40).
"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). See, e.g., Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir.1976) ("[t]he general function of a preliminary injunction is to maintain the status quo pending determination of an action on its merits"). However, "[i]f the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, by the issuance of a mandatory injunction, or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury." Stenberg v. Cheker Oil Company, 573 F.2d 921, 925 (6th Cir.1978) (internal citations omitted).
A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his burden of proving that the circumstances clearly demand it. Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir.2002); Fort Wayne Women's Health Organization v. Brane, 734 F.Supp. 849,
In reviewing requests for injunctive relief, the court considers (1) whether the movant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether the preliminary injunction will cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. See Rock & Roll Hall of Fame v. Gentile Productions, 134 F.3d 749, 753 (6th Cir.1998). The four factors listed above are meant to be balanced as they guide the court in exercising its discretion; they are not due rigid application and need not be assigned equal weight. In re Eagle-Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir.1992). The court's discretion is directed at the weight to be given each factor, and the effect to be accorded their mix. While a court need not consider any single factor as either indispensable or dispositive, neither is it required to conclude that all four support its decision. However, it is well established that "a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. National Board of Medical Examiners, 225 F.3d 620, 625 (6th Cir.2000). Finally, the movant bears the burden of persuading the court that the factors weigh in favor of granting a preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 441, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974).
First, defendants have filed a motion for summary judgment on the ground that plaintiffs did not exhaust their administrative remedies. See docket nos. 31, 32 and 38. The record reflects that plaintiffs did not file grievances against defendants for the claims raised in this action.
Second, even if plaintiffs did met the exhaustion requirement, the record reflects
In his supporting affidavit, plaintiff Hudson states that plaintiffs must be granted an injunction "[o]rdering Defendants to immediately establish Halal Kitchens and Halal Food Diet Lines, so that effected [sic] persons can freely practice our religious beliefs to the least restrictive means without being compelled to consume and defile our bodies with any food that violates our sincerely held religious beliefs." 2nd Aff. of Grady Hudson at ¶ 2 (docket no. 42). Hudson further contends that there is no rational basis nor legitimate penological interest "in prohibiting Islamic religious diets" when defendants provide "similar religious belief accommodations" for sincere practitioners of the Jewish faith (i.e., a kosher menu) and Buddhists (i.e., a "strict vegetarian" menu). See docket nos. 42, 42-3 and 42-4.
Plaintiffs' ability to request a particular religious diet is set forth in the MDOC's policy directive regarding offender meals, which provides in pertinent part as follows:
Policy Directive 04.07.100 ¶ D.
Policy Directive 05.03.150 ¶¶ 00 and PP.
There does not appear to be universal agreement as to what constitutes a halal diet in the prison context. The court addressed the contours of this issue in Patel v. United States Bureau of Prisons, 515 F.3d 807 (8th Cir.2008):
Id. at 810-11.
In a similar vein, the court in Thompson v. Aviles, No. 06-cv-3490, 2008 WL 746666 at *4 (D.N.J. March 18, 2008) observed that "[w]hile it may be that not all vegetarian meals are Halal, they do avoid a vast portion of Haram (impermissible) food, such as pork products or the meat of animals not properly slaughtered." In this regard,
Id. at n. 4.
Here, plaintiffs have submitted a copy of the IFANCA (Islamic Food and Nutrition Council of America) "guidelines for Establishing a Partial Halel [sic] Kitchen in Prison System." Docket no. 42-2. This particular guideline identifies six categories of food that have been designated as prohibited food for Muslims, or "haram":
Docket no. 42-2.
These particular guidelines further state:
Id.
The MDOC's "Handbook of Religious Groups" summarizes Muslim dietary rules, similar to the rules discussed in the IFANCA article, by identifying four classes of food items which Muslims are forbidden to consume:
Docket no. 42-2.
In addition, the following requirements are noted for slaughtering "wholesome meat":
[* Muslims would eat meat slaughtered by Christians or Jews who also refrain from eating pork, i.e., Seventh Day Adventists, etc.; other Christians or Jews may not be careful of utensils.]
Id.
Consistent with these dietary rules, the MDOC Handbook provides the following "minimum requirements" for the diet of Muslim prisoners:
Id.
Defendant Brad Purves, is currently employed by the MDOC as the Food Service Manager, Correctional Facilities Administration (CFA). Purves Aff. at ¶ 2 (docket no. 46-2). Mr. Purves previously served as the Acting Food Service Program Manager, a position which included the responsibility for monitoring the food service operations for the MDOC, and he held positions as the Region II Food Service Director, and as the Food Service Director and Assistant Food Service Director at two correctional facilities. Id. at ¶¶ 3-4. Mr. Purves provided the following information regarding the menu available to the MDOC's Muslim prisoners:
See docket no. 46-2.
Debbie Lawrence, Assistant Food Service Director at LCF stated in her affidavit: that the LCF Food Service serves the regular statewide menu during Ramadan;
To the extent that plaintiffs assert that the MDOC's policy directives and handbook regulating halal food violate a constitutional right, the court will consider whether the policy directives and handbook are rationally related to a legitimate penological purpose. See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). "In Turner we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a `valid, rational connection' to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are `ready alternatives' to the regulation." Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003).
The affidavits of Mr. Purves and Ms. Lawrence would support a determination that the MDOC's policy directives and guidelines regarding the minimum requirements for the diet of Muslim prisoners withstand a constitutional challenge. With respect to the first and third Turner factors, defendants have demonstrated that the cost of halal entrees is four times as expensive as kosher entrees and ten times as expensive as vegetarian entrees. In addition, the MDOC would experience additional necessary costs to establish a separate food preparation area for halal entrees. With respect to the second Turner factor, defendants have demonstrated that Muslim prisoners have an alternative means to exercise their rights (i.e., a halal menu) by self-selecting the non-meat entree from the regular meal line. With respect to the fourth Turner factor, while plaintiffs apparently submit that a "ready alternative" exists to the regulation by establishing a halal kitchen, there is no evidence before the court as to the necessary costs associated with that alternative. Accordingly, at this juncture, it appears that the MDOC's policy directives and handbook are rationally related to a legitimate penological purpose and would withstand plaintiffs' constitutional challenge.
Third, plaintiffs cite no constitutional or statutory authority to support the claim that the MDOC must provide them with halal meat entrees. Based upon plaintiffs' submissions, the court will assume that a Muslim prisoner's religious beliefs require him to eat only halal and to avoid haram. These dietary restrictions do not require the MDOC to provide that prisoner with halal meat entrees. On the contrary, courts have determined that a correctional facility need only provide Muslim prisoners with food that is not haram. See Abdullah v. Fard, No. 97-3935, 1999 WL 98529 at *1 (6th Cir. Jan. 28, 1999) (where
Plaintiffs will need to clear a significant procedural hurdle to avoid dismissal of this action for lack of exhaustion of administrative remedies. Even if plaintiffs can demonstrate exhaustion, they have failed to demonstrate that the MDOC must provide them with halal entrees (i.e., meat) and a halal kitchen, both of which are part of the ultimate relief sought by plaintiffs in this action. Plaintiffs have failed to demonstrate a strong or substantial likelihood or probability of success on the merits. Accordingly, the court concludes that this factor strongly favors defendants.
The "key word" in determining the extent of an injury sufficient to support the award of injunctive relief is "irreparable." Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir.1991). Mere injuries, however substantial, are not enough. Id. Rather, "the harm alleged must be both certain and immediate, rather than speculative or theoretical." Id. "In order to substantiate a claim that irreparable injury is likely to occur, a movant must provide some evidence that the harm has occurred in the past and is likely to occur again." Id. (internal citations omitted).
Neither Hudson's affidavit, nor the other documents filed by plaintiffs, have presented credible evidence that they are being denied the ability to participate in the 2010 Ramadan fast or are being forced to eat haram food during the fast. The June 17, 2010 memorandum from Michael Martin, Special Activities Coordinator, CFA: outlined the basic requirements for Ramadan; advised the wardens that both a predawn and post-sunset meal should be provided to fasting prisoners; advised the wardens that prisoners who receive these sack meal bags should not appear in the meal line for regularly scheduled meals; advised the wardens that prisoners who wish to fast during Ramadan should be accommodated regardless of their specific Islamic religious group membership; and
Defendants point out that the four plaintiffs are serving life sentences (Hudson since 1998, Hunter since 1991, Thomas since 2004 and Koss since 1994). See docket nos. 44-2, 44-3, 44-4 and 44-5. Assuming these four plaintiffs have been Muslim since their incarceration, they have eaten the halal alternative meals for approximately 12, 19, 6 and 16 years, respectively. By utilizing the MDOC's vegetarian option, plaintiffs can avoid eating haram food during Ramadan (as they apparently have in the past). While plaintiffs may desire to receive halal meat during Ramadan, their failure to receive this particular type of food does not result in irreparable harm sufficient to support injunctive relief. LCF has presented evidence that halal food in the form of a vegetarian menu is available for the 2010 Ramadan Fast. This evidence strongly suggests that plaintiffs' religious dietary needs are being met and that they are not suffering from irreparable injury. Accordingly, this factor favors defendants.
There is no specific evidence before the court that the requested injunctive relief will, or will not, cause substantial harm to others, although it may increase costs. Accordingly, this factor is neutral.
Plaintiffs do not seek a court order to maintain the status quo. Rather, plaintiffs seek to have this court direct the LCF food service to prepare and distribute food to Muslim prisoners during Ramadan in a different manner than prescribed in the MDOC policy directives and handbook. Plaintiffs' requested relief would require this court to intervene in the day-to-day operation of LCF's food service which could include: defining "halal food" as that term would apply in the context of a correctional facility; monitoring the purchase of halal food (e.g., whether such food is available from vendors and whether the facility has sufficient funds to purchase it); monitoring the preparation of halal food; and monitoring the process by which LCF would construct, adapt and/or maintain a separate kitchen for preparing halal food.
The court agrees with defendants that the public interest does not favor this court managing the LCF prison food service. The issue of addressing such a basic concern as feeding a prison population is a matter that is best left to the state's prison officials.
Bell v. Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The issuance of a preliminary injunction in this case would unnecessarily intrude into the dayto-day operation of LCF. The record does not suggest that defendants' operation of the facility poses such a threat to plaintiffs that this court must intervene and exercise its judgment in place of defendants' professional judgment. Accordingly, this factor favors defendants.
After reviewing the four factors relevant to issuing injunctive relief, the court concludes
I respectfully recommend that plaintiffs motion for a preliminary injunction (docket no. 40) be
