ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Brenneman’s Report and Recommendation (docket # 48) concerning Plaintiffs’ Motion for Preliminary Injunction
The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
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.,
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.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (docket # 48) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction (docket # 40) is DENIED.
REPORT AND RECOMMENDATION
This matter is now before the court on “Plaintiffs’ petition for preliminary injunction” (docket no. 40).
I. Background
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:
(a) No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-l. 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:
1). Restrain from prohibiting Plaintiffs Halal food during the Islamic Holy Month of Ramadhan 1431, which shall be August 10, 2010 until September 10, 2010;
2). Establish a partial Halal kitchen
during the Islamic Holy Month of Ramadhan 1431, which shall be August 10, 2010 until September 10, 2010;
3). Provide Plaintiffs Halal food during
the Islamic Holy Month of Ramadhan 1431, which shall be August 10, 2010 until September 10, 2010[.] Petition at p. 3 (docket no. 40).
II. Discussion
“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,
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,
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,
A. Likelihood of success on the merits
1. Failure to exhaust administrative remedies
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. 1 For this reason, it is unlikely that the court will reach the merits of plaintiffs’ claims, and therefore that plaintiffs will prevail on the merits.
2. The Michigan Department of Corrections (MDOC) is currently meeting plaintiffs’ dietary needs
Second, even if plaintiffs did met the exhaustion requirement, the record re-
In his supporting affidavit, plaintiff Hudson states that plaintiffs must be granted an injunction “[ordering 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:
D. Offenders shall be permitted to abstain from any foods that violate their religious tenets. Religious menus shall be developed and religious meals provided as set forth in PD 05.03.150 “Religious Beliefs and Practices of Prisoners.”
Policy Directive 04.07.100 ¶ D. 2 That policy directive governing “Religious Beliefs and Practices of Prisoners” addresses religious menus in pertinent part as follows:
RELIGIOUS MENUS/MEALS
OO. The regular diet menu shall be posted a minimum of one week in advance in all facilities at which meals are provided to prisoners to permit observance of any religious dietary restrictions. Prisoners shall be permitted to abstain from any foods that violate their religious tenets.
Non-meat entrees shall be available as set forth in PD 04.07. 100 “Offender Meals.”
PP. Adequate menu substitutions shall be available to prisoners in all facilities at which meals are provided to meet necessary religious dietary restrictions. Any questions as to whether a menu substitution is required shall be referred to the CFA Special Activities Coordinator for resolution.
Policy Directive 05.03.150 ¶¶ OO 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,
Patel [the prisoner] converted to Islam while in prison and now believes that he must consume a halal (or “lawful”) diet, which prohibits the consumption of pork and other items deemed haram (or “unlawful”). Some forms of Islamic dietary restrictions are stricter than others. For instance, some schools of Muslim thought claim that the Qur’an permits the eating of kosher meat that is lawful to Jews, an interpretation of Sura 5:5 (“The food of those who have received the Scripture is lawful for you, and your food is lawful for them.”). Patel’s belief in a halal diet demands the strictest type of ceremonial and cleanliness requirements. His halal diet does not allow him to consume any meat unless the animal has been slaughtered during a prayer to Allah. Generally, vegetarian dishes are halal unless they have been otherwise contaminated, such as coming into contact with haram foods or being cooked or served in containers that have been in contact with haram foods without being properly cleaned.Such cross-contamination renders the halal foods haram.
In a similar vein, the court in
Thompson v. Aviles,
No. 06-cv-3490,
Whether any given item is Halal (or Kosher for that matter) for the purposes of the First Amendment is subjective, depending upon the individual’s personal beliefs. See generally Islamic Food & Nutrition Council of Am., What is Halal?, http://www.ifanca.org/halal (last visited March 4, 2008).
Id. at n. 4.
Here, plaintiffs have submitted a copy of the IF ANCA (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”:
1) meat of dead animals (carrion); 2) pork and all products derived from pigs; 3) blood; 4) food dedicated to false gods; 5) intoxicants; and 6) carnivorous animals with fangs and birds of prey. Eating these in any form is not permitted for Muslims, unless one is afraid of starvation and feels it is a necessity in order to survive.
Docket no. 42-2.
These particular guidelines further state:
Halal products contaminated with any of the Haram items during production, processing, preparation and/or serving food also become Haram, when one is aware of such contamination. Additionally, there are strict requirements for making the meat of permitted animals Halal. The animals have to be slaughtered by a Muslim in a prescribed Islamic manner.
Id.
The MDOC’s “Handbook of Religious Groups” summarizes Muslim dietary rules, similar to the rules discussed in the IF AN-CA article, by identifying four classes of food items which Muslims are forbidden to consume:
a. Pork, pork by-products and pork derivatives, including bacon, ham, pork chops, spare ribs and lard/shortening.
b. All types of blood, except in the liver and ■ spleen, and insignificant amounts of blood that are impossible to drain even in proper slaughtering.
c. The meat of any animal that has: died naturally, been killed by strangling, been killed by a violent blow, been killed by a headlong fall, been gored to death, been partly eaten by a wild animal unless it can be slaughtered (in the prescribed manner) before it is dead or been sacrificed as an offering to idols.
Docket no. 42-2.
In addition, the following requirements are noted for slaughtering “wholesome meat”:
a. The animal should be inspected by an Imam before it is slaughtered, and found to be healthy.
b. The animal should be slaughtered in such a way as to allow its blood to flow out freely and completely, i.e., with a sharp tool cutting the main veins and the throat.
c. No other than the name of Allah is to be invoked at the time of slaughtering. The name of Allah should be invoked over the animal at the time
d. The meat should be inspected to ensure that it is wholesome and does not contain any matter injurious to human health.
e. The person who slaughters the animal may be a Muslim, Jew, or certain Christians*, but not an atheist, pagan, or polytheist.
[* 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:
Pork and all its derivatives, intoxicating liquors and harmful drugs are prohibited. Utensils with which pork products are prepared should not be used to prepare Muslim food.
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:
5.The MDOC has denied requests for a halal menu plain because the primary focus of a halal menu is the total abstention from pork and pork products. Prisoner [sic] requesting a halal menu can avoid pork byproducts by self-selecting the non-meat entree from the regular meal line, as stated in PD 05.07.100, paragraph H (Attachment 1), and PD 05.03.150, paragraph OO (Attachment 2).
6. Plaintiffs can avoid “food that dies of itself, and blood and flesh of swine and that on which any other name than that of Allah has been invoked ...” by not eating meats, and by self-selecting the non-meat entrees that are offered at each meal where a meat entree is being served, as stated in MDOC policy.
7. In order to prevent cross-contamination, the MDOC follows the HACCP plan (Hazard Analysis and Critical Control Point plan) (Attachment 3). This is a comprehensive prevention-based food safety system that identifies and monitors specific food safety hazards that can adversely affect the safety of food products.
8. The MDOC cooks and serves meat and non-meat entrees separately. See PD 04.07. 100 (Attachment 1).
9. I recently reviewed information on the internet from halal vendors. The information that I reviewed indicates that halal entrees cost 10 times the amount of our daily per-meal cost for out Strict Vegetarian meals, and 4 times more than our kosher meals. Per-meal costs associated with halal entrees do not include the additional costs that would be necessary to establish a separate food preparation area for halal entrees.
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,
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.
3. The MDOC is not required to provide halal meat entrees
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 vrith food that is not haram.
See Abdullah v. Fard,
No. 97-3935,
4. Summary
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.
B. Irreparable Injury
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,
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.
C. Substantial harm to others
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.
D. Public interest
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.
[Jjudicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.
Bell v. Wolfish,
E.Evaluation of the four factors
After reviewing the four factors relevant to issuing injunctive relief, the court con-
III. Recommendation
I respectfully recommend that plaintiffs motion for a preliminary injunction (docket no. 40) be DENIED.
Notes
. The court notes that plaintiffs characterize their claims as “non-grievable” under the applicable Michigan Department of Corrections Policy Directives.
. In their response, defendants erroneously
. While Rhodes involved an Eighth Amendment claim, the court's reasoning, i.e., that "persons convicted of serious crimes, cannot be free of discomfort” is applicable here. Plaintiffs inability to obtain a specific type of food is one of the "discomforts” they endure when they are incarcerated for committing crimes.