605 F.3d 282 (6th Cir. 2010), 08-2441, Colvin v. Caruso

Docket Nº:08-2441.
Citation:605 F.3d 282
Opinion Judge:RONALD LEE GILMAN, Circuit Judge.
Party Name:Kenneth COLVIN, Jr., Plaintiff-Appellant, v. Patricia L. CARUSO, MDOC Director, in her official and personal capacities; Dave Burnett, MDOC Special Activities Coordinator, in his official and personal capacities; Wayne DeShambo, LMF Food Service Director, in his official and personal capacities; Gerald Anderson, LMF Assistant Food Service Director,
Attorney:Kevin Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. Kenneth Colvin, Jr., Ionia, Michigan, pro se.
Judge Panel:Before COLE, GILMAN, and WHITE, Circuit Judges.
Case Date:May 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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605 F.3d 282 (6th Cir. 2010)

Kenneth COLVIN, Jr., Plaintiff-Appellant,


Patricia L. CARUSO, MDOC Director, in her official and personal capacities; Dave Burnett, MDOC Special Activities Coordinator, in his official and personal capacities; Wayne DeShambo, LMF Food Service Director, in his official and personal capacities; Gerald Anderson, LMF Assistant Food Service Director, in his official and personal capacities; Gerald Riley, LMF Chaplain, in his official and personal capacities, Defendants-Appellees.

No. 08-2441.

United States Court of Appeals, Sixth Circuit.

May 13, 2010

Submitted: March 10, 2010.

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Kevin Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.

Kenneth Colvin, Jr., Ionia, Michigan, pro se.

Before COLE, GILMAN, and WHITE, Circuit Judges.



Upon being transferred from one Michigan prison facility to another, inmate Kenneth Colvin, Jr. was mistakenly denied kosher meals for 16 days. The prison to which he was transferred, once it realized its mistake, immediately placed Colvin in the kosher-meal program, but on various occasions thereafter inadvertently served Colvin nonkosher food items. Although he was later transferred to a third prison facility, Colvin sued multiple officials associated with the interim prison in question, alleging that its food-service errors, as well as the prison's lack of Jewish services and literature, violated his constitutional rights.

The district court granted summary judgment in favor of the defendants. It also denied Colvin's motions for a preliminary injunction, for discovery, and to amend his complaint. Colvin appeals each of these determinations. For the following reasons, we AFFIRM the district court's grant of summary judgment with regard to the claims in Colvin's original complaint, its denial of his motion for discovery, and its denial of his motion for a preliminary injunction based on his original complaint. We VACATE, however, the district court's denial of Colvin's motion to amend and its denial of his second motion for a preliminary injunction. Finally, we REMAND the case for further proceedings consistent with this opinion.


A. Factual background

Colvin, an inmate within the Michigan Department of Corrections (MDOC) system, was transferred to the Alger Maximum Correctional Facility (commonly referred to as LMF) on February 28, 2006. He had been placed in a kosher-meal program pursuant to a 2003 settlement agreement and court order from a prior lawsuit and, upon being notified of his transfer, he requested that he maintain the same status while he was at LMF. But LMF officials initially denied Colvin kosher-meal status, erroneously believing that Colvin was not approved for the program and that he was a Muslim.

In response, Colvin wrote the officials to notify them of his prior approved status, and he filed two grievances. The LMF officials finally placed Colvin on the kosher-meal program as of March 15, 2006, and noted in a response to one of Colvin's grievances that the " initial denial was incorrect" and that the kitchen staff should " accommodate him as quickly as possible." All told, Colvin was mistakenly denied kosher-meal status for 16 days.

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Even after being placed on the program, Colvin inadvertently received nonkosher food on various occasions. In October 2006, for example, the prison kitchen sent Colvin nonkosher orange juice and a nonkosher vegetarian burger and, in November 2006, similarly sent him a nonkosher bagged meal. Colvin filed a grievance following each of these incidents and, in their responses, LMF officials admitted to making mistakes and stated that they had instructed the kitchen staff regarding proper kosher-food service.

In addition, from September through December 2006, Colvin filed various grievances asserting that he was served nonkosher lasagna, bread, milk, powdered milk, eggs, and muffins. Colvin further alleged in his complaint that his meals were not securely wrapped and were served on trays carrying nonkosher foods, and he objected to there being no " Jewish practicing prisoners" to prepare his meals. Finally, Colvin accused the prison of using a vegetarian kosher menu distinct from that required under MDOC's policies. LMF officials denied all of Colvin's allegations that they were violating kosher food-preparation and serving protocols.

Colvin asserted one additional claim unrelated to his kosher diet, alleging that he was denied the ability to practice his religious beliefs while incarcerated at LMF. He claimed that the prison has only four Jewish books and that, despite his complaints regarding the lack of Jewish materials and the need for funds to purchase additional books, the prison denied his requests. LMF responded to this assertion by presenting evidence that it has at least twelve Jewish books in its library. Colvin also objected to the lack of Jewish services and notes that he was told on multiple occasions that such services were not available because he was the only inmate requesting them.

In May 2007, Colvin was removed from the kosher-meal program after he was found to have nonkosher protein powder in his possession. Colvin refiled for kosher status two months later, but was denied reentry after being interviewed by Gerald Riley, the chaplain at LMF. During the interview, Chaplain Riley asked Colvin to briefly explain (1) the teachings of Judaism, (2) why a kosher diet is required by Judaism, and (3) what a kosher diet is and how it differs from food otherwise provided by the prison. In a memo to the LMF warden at that time, Riley concluded that Colvin did " not have any sincerely held religious belief in Judaism." He added that Colvin provided " only minimal information in response to my questioning about his faith's major teachings." Riley further asserted that Colvin had declared " Muslim" as his religious preference in February 2002 and described Colvin as a " self-identifying Muslim."

MDOC Special Activities Coordinator Dave Burnett echoed Chaplain Riley's conclusions in a separate memo to the LMF warden shortly thereafter. Relying on Riley's questioning of Colvin, Burnett reported that Colvin " interviewed as if he were Jewish" but that his " faith of preference is Al Islam." Burnett observed that Colvin " provided nothing that suggests his request for the Kosher meal program is motivated by a sincere desire to pursue religious practice," and thus recommended denying Colvin reentry into the kosher-meal program. In July 2007, sometime between the warden's receipt of the separate memos from Riley and Burnett, Colvin was transferred to the Marquette Branch Prison.

B. Procedural background

Colvin filed his complaint pro se in March 2007, asserting that the 16-day denial of kosher food, the multiple mistakes

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in administering the kosher-meal program, and the lack of Jewish services and literature violated his constitutional rights under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1. He named as defendants MDOC Director Patricia Caruso, MDOC Special Activities Coordinator Dave Burnett, LMF Food Service Director Wayne DeShambo, LMF Assistant Food Service Director Gerald Anderson, and Chaplain Gerald Riley, all of whom were sued in both their individual and official capacities. In addition to requesting injunctive relief to rectify the alleged errors in LMF's kosher-meal program, library, and religious services, Colvin sought $750,000 in damages. Shortly after filing his complaint, Colvin also filed a motion for a preliminary injunction, which the district court denied by adopting the conclusion of the magistrate judge's Report and Recommendation (R & R) that Colvin had not demonstrated a likelihood of success on the merits.

The prison officials then moved for summary judgment. In a second R & R, the magistrate judge rejected the prison officials' claim that Colvin had not properly exhausted his grievances, but nonetheless recommended granting the motion on other grounds. First, the magistrate judge concluded that Chaplain Riley was entitled to qualified immunity regarding the 16-day delay in placing Colvin in the kosher-meal program. The magistrate judge next found that although Caruso and Burnett had not joined in the motion for summary judgment, the claims against them should similarly be dismissed because they were not personally involved in the denial of kosher meals to Colvin. Finally, the magistrate judge dismissed the claims against DeShambo and Anderson because any errors in the preparation of Colvin's kosher meals were inadvertent and isolated.

In addition, the magistrate judge recommended granting summary judgment to all of the defendants on Colvin's remaining claims under RLUIPA and § 1983. The magistrate judge reasoned that the failure to provide Jewish services was reasonable because Colvin was the only prisoner requesting them and that the prison never prevented Colvin from practicing his religious beliefs. Colvin's motions to amend his complaint and to conduct discovery were also denied by the magistrate judge, who concluded that neither action would have cured the defects in Colvin's claims.

Adopting the second R & R in full without further analysis, the district court granted the defendants' motion for summary judgment and denied all three of Colvin's motions. This timely pro se appeal followed.


A. Summary judgment

Colvin appeals the district court's grant of summary judgment to the prison officials as to both his RLUIPA claim and his § 1983 claim. We review de novo a district court's grant of summary judgment. ACLU of Ky. v. Grayson County, 591 F.3d 837, 843 (6th Cir.2010)....

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