Beebe v. Birkett

• Decision Date: 03 September 2010
• Docket Number: Case No. 08–14995.
• Citation: 749 F.Supp.2d 580
• Parties: Michael BEEBE, Plaintiff,v.Thomas BIRKETT, Tim Beavers, Willie O. Smith, Gerry Wyma, and Dave Burnett, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

749 F.Supp.2d 580

Michael BEEBE, Plaintiff,

v.Thomas BIRKETT, Tim Beavers, Willie O. Smith, Gerry Wyma, and Dave Burnett, Defendants.

Case No. 08–14995.

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

Sept. 3, 2010.

Michael Beebe, Dearborn, MI, pro se.Julia R. Bell, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING IN PART DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, OVERRULING DEFENDANTS' OBJECTION TO MAGISTRATE JUDGE'S DISCOVERY ORDER, AND CONTINUING ORDER OF REFERENCE

DAVID M. LAWSON, District Judge.

The matter is before the Court on the objections by some of the defendants to the report and recommendation filed by Magistrate Judge Michael J. Hluchaniuk recommending that the defendants' motion for summary judgment be granted in part and denied in part. The Court entered a general order of reference to conduct all pretrial matters, after which the defendants filed their motion. Judge Hluchaniuk filed his report on February 22 2010. The defendants filed timely objections and the matter is before the Court for a de novo review. The plaintiff has not objected to the report and recommendation, and the time for doing so has expired.

The facts of the case have been discussed thoroughly by the magistrate judge in his report. The defendants have not objected to the factual recitations. For context, the case was brought by plaintiff Michael Beebe, a former Michigan prisoner, who alleged that the defendants denied him access to a Kosher Meal Program and to Jewish religious services in violation of his rights under the Free Exercise Clause of the First Amendment while he was incarcerated. Beebe served his prison sentence at Carson City Correctional Facility (“DRF”), Ionia Maximum Correctional Facility (“ICF”), and Standish Maximum Correctional Facility (“SMF”). The complaint states claims under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA). The defendants are Thomas Birkett, the warden at SMF; Timothy Beavers, a prison chaplain at SMF; Willie O. Smith, the warden at ICF; Gerry Wyma, a prison chaplain at ICF; and Dave Burnett, retired Michigan Department of Corrections (“MDOC”) Facilities Special Activities Coordinator.

Beebe alleges that on March 25, 2002, while at DRF, he identified his religious preference as Judaism. On April 2, 2002, Special Activities Coordinator Burnett denied Beebe's kosher meal request. Beebe re-applied to the Program as allowed one year later, and his request was approved. Beebe kept kosher at DRF until he was paroled on May 19, 2004. He violated parole and on June 30, 2004 was sent to Charles Egeler Reception and Guidance Center, where he says his repeated written requests for a kosher meal program were ignored. On August 18, 2004, Beebe was transferred to ICF, where he was placed in Administrative Segregation for approximately one year. He says he repeatedly wrote to Warden Smith and Chaplain Wyma for access to the Kosher Meal Program, but Smith and Wyma claim no knowledge of these requests. On June 1, 2005, Beebe was released from Administrative Segregation and contacted Special Activities Coordinator Burnett about the Kosher Meal Program. Burnett claims, however, that his only correspondence with Beebe occurred on October 8, 2004, when he wrote to Beebe to renew his request for the meal program. Beebe renewed his request for kosher meals without success one more time in January 2008, and then filed a grievance later that month. Eventually he was transferred to SMF in April 2008.

The plaintiff alleges that no Jewish group services were held at SMF between April 9, 2008 and October 10, 2008 for general population prisoners because the minimum number required by prison regulations had not expressed interest. Weekly services were conducted thereafter except on October 24, 2008, when Chaplain Beavers cancelled them due to a mistake.

The defendants moved for summary judgment on Beebe's section 1983 claims. They argued that 1) Beebe's claims are not viable because the MDOC's kosher meal regulation policy is facially constitutional; 2) Beebe's Kosher Meal Program claims are time-barred; 3) Beebe's religious services claims did not amount to a constitutional violation; 4) Wardens Birkett and Smith should be dismissed from the suit because they were not personally involved in the claims alleged; 5) the defendants are entitled to immunity under the Eleventh Amendment; and 6) the defendants are entitled to qualified immunity. The defendants did not address the RLUIPA claim in their motion.

Judge Hluchaniuk read Beebe's complaint to be an as-applied challenge to the kosher meal policy directive and recommended that the defendants' motion be denied because they failed to address how the application of the policy affected Beebe specifically. Second, the magistrate judge suggested that all of Beebe's section 1983 claims accruing before December 2, 2005 are time-barred under the applicable three-year statute of limitations. Third, concerning the religious services claims, the defendants argued that any alleged violations were negligent and temporary only, such that they did not constitute a constitutional violation under section 1983. The magistrate judge agreed. The magistrate judge also agreed that Wardens Smith and Birkett should be dismissed from this suit because they were not personally involved in the alleged violations, since section 1983 supervisory liability cannot be predicated on respondeat superior and there was no evidence that these defendants were personally involved in the alleged constitutional violations. Finally, Judge Hluchaniuk suggested that the defendants sued in their official capacity are entitled to immunity under the Eleventh Amendment, but they are not entitled to qualified immunity in their individual capacity because the right of a prisoner to a kosher meal program is clearly established and facts issues preclude summary judgment on that issue concerning the application of the MDOC's policy to the plaintiff.

The defendants raise three objections. First, they argue that Beebe's complaint was a facial challenge to the kosher meal policy, not an as-applied challenge, and they accuse the magistrate judge of impermissibly re-writing the complaint to “construct the plaintiff's legal arguments for him” and “conjure up unpled allegations,” assuming an advocacy role. Second, the defendants argue that the recommendation that summary judgment be denied as to all defendants on the First Amendment kosher meal claims that accrued after December 2, 2005 contradicts his recommended dismissal of Wardens Smith and Birkett from the case. Third, the defendants contend that Beebe's claims are moot insofar as he seeks an injunction mandating his placement into the Kosher Meal Program because Beebe is no longer in MDOC custody.

Objections to a report and recommendation are reviewed de novo. “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The parties' failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Likewise, the failure to object to the magistrate judge's report releases the Court from its duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). “ ‘[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings ... believed [to be] in error’ are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file specific objections to a magistrate's report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir.2004).

As noted above, the plaintiff has not filed objections, so the Court will adopt that portion of the recommendation that grants the motion for summary judgment as to all defendants in their official capacity, as to defendants Smith and Birkett on all claims, and as to the plaintiff's pre-December 2, 2005 kosher meal claims. The defendants' objections do not address the denial of qualified immunity, and the Court adopts that aspect of the report and recommendation as well.

The defendants' first objection—that the magistrate judge read the complaint too generously to include an as-applied challenge to the kosher meal policy—is untenable. “ ‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The complaint still must plead facts sufficient to show a redressable legal wrong has been committed. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F.Supp.2d 748, 755 (E.D.Mich.2001). Although “[t]he leniency granted to pro se [litigants] ... is not boundless,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir.2004), and a court may not rewrite a complaint to include claims that were never presented, cf. Clark v. Nat'l...