Dawson v. Burnett

• Decision Date: 04 May 2009
• Docket Number: No. 1:08-cv-363.,1:08-cv-363.
• Citation: 631 F.Supp.2d 878
• Parties: Dion DAWSON, Plaintiff, v. Dave BURNETT, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

Page 878

631 F.Supp.2d 878

Dion DAWSON, Plaintiff, v. Dave BURNETT, et al., Defendants.

No. 1:08-cv-363.

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

May 4, 2009.

COPYRIGHT MATERIAL OMITTED

Dion Patrick Dawson, Kincheloe, MI, pro se.

Julia R. Bell, MI Dept. Attorney General, Lansing, MI, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS

PAUL L. MALONEY, Chief Judge.

This matter comes before the Court on a Report and Recommendation (Dkt. No. 29) issued by the Magistrate Judge. In the report, the Magistrate Judge recommends granting Defendants' motion for summary judgment in part and denying the motion in part. Defendants filed an objection. (Dkt. No. 31.) Plaintiff Dawson did not file any objection.

Plaintiff Dawson is a prisoner under the control of the Michigan Department of Corrections (MDOC). Plaintiff is a practicing Buddhist. The lawsuit arises from the denial of Plaintiff's request to eat a strict vegetarian (vegan) diet, one that omits all animal products including dairy products and eggs. His request was denied in December 2006 and December 2007 because the individuals who interviewed Plaintiff concluded his request was motivated by something other than a sincere desire to practice the Buddhist faith. More specifically, individuals concluded Plaintiff could provide a religious basis for not eating meat, because the animal would have to be killed, but could not provide a religious basis for not eating dairy products and eggs.

Plaintiff's lawsuit alleges violations of his constitutional right to freely exercise his religion under the First Amendment and violations of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Plaintiff seeks a declaratory judgment, an injunction, and damages. The complaint was referred to the Honorable Ellen S. Carmody, Magistrate Judge. Defendants filed a motion (Dkt. No. 13) for summary judgment. Magistrate Judge Carmody interprets the complaint to include allegations against the two individuals in both their official and individual capacities. She recommends granting the motion with regard to Plaintiff's claims for declaratory and injunctive relief and Plaintiff's claims under RLUIPA. She recommends granting the motion with regard to Plaintiff's claim for a violation of his First Amendment rights against Defendants in their official capacity. Magistrate Judge Carmody recommends denying Defendants' motion with regard to Plaintiff's First Amendment claims against Defendants in their personal capacity as well as Defendants' claim for qualified immunity. Defendants filed objections.

I. STANDARD OF REVIEW

After being served with a Report and Recommendation issued by a Magistrate Judge, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.2005). A district court judge reviews de novo the portions of the R & R to which objections have been filed. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.1986) (per curiam) (holding the district court need not provide de novo review where the objections are frivolous, conclusive or too general because the burden is on the parties to "pinpoint those portions of the magistrate's report that the district court must specifically consider"). The United States Supreme Court has held that the statute does not "positively require[] some lesser review by the district court when no objections are filed." Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Failure to file an objection results in a waiver of the issue and the issue cannot be appealed. Sullivan, 431 F.3d at 984. See also Arn, 474 U.S. at 155, 106 S.Ct. 466 (upholding the Sixth Circuit's practice). The district court judge 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)(C); FED. R. CIV. P. 72(b).

II. ANALYSIS

A. OBJECTION 1—Plaintiff failed to establish that a vegan diet was required for his exercise of the Buddhist religion.

To establish a violation of the right of free exercise of religion under the First Amendment, a prisoner must show (1) his belief or practice is religious in his own scheme of things and (2) the belief is sincerely held. Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir.2001); Kent v. Johnson, 821 F.2d 1220, 1224-1225 (6th Cir.1987). In their summary judgment motion, Defendants argued Plaintiff failed to show a vegan diet is central or indispensable to the practice of Buddhism. (Defendants' Brief in Support at 4-6.) The Magistrate Judge concluded "[w]hile a reasonable juror could perhaps conclude that such is the case, the evidence of record more than supports the conclusion that Plaintiff's religious beliefs are sincerely (and intensely) held." (R & R at 894.) Defendants object, arguing whether a belief is sincerely held is a distinct issue from whether the belief is central to the practice of a religious faith. Defendants reassert that Plaintiff has not established that his request for a vegan diet is central to the practice of his religious faith. See Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir.1980) (holding the plaintiffs failed to establish the centrality or indispensability to their religious observances of the location at issue) (citing Wisconsin v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), Frank v. Alaska, 604 P.2d 1068 (Alaska 1979) and People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964)).

The requirement that a practice or belief be religious, not secular, is captured in the first element of a claim under the Free Exercise Clause. Yoder (objection to mandatory public school attendance for Amish children), Frank (the use of moose meat as part of a native funeral ceremony), and Woody (use of peyote in native religious ceremony) were all concerned with distinguishing between religious and non-religious motivations of the non-governmental parties. Similarly, in Sequoyah, the Sixth Circuit concluded the plaintiffs could not establish their desire to worship at a particular location in the Tennessee Valley was religiously motivated. 620 F.2d at 1164-1165. The court found the evidence presented by the plaintiffs established the location was important to their cultural development and the loss of the location would damage the plaintiffs' tribal and family traditions, but not any particular religious observances. Id.

Whether the practice or belief is central or indispensable to a particular religion is an altogether different question from whether the practice or belief is based in or required by religion. Although in dicta and in response to a proposal in the dissent, the majority in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 456-458, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) rejected the "centrality test" on which Defendants here rely. In Lyng, the Court held timber harvesting and the construction of a road would not violate the Free Exercise Clause simply because such activities would undermine the sacredness of the area and create distractions that would interfere with the religious experiences of individuals. Id. at 448, 108 S.Ct. 1319. The dissent noted several courts of appeals had created tests that required Native Americans to show disputed land was central or indispensable to their religious practices. Id. at 473-474, 108 S.Ct. 1319 (Brennan, J. dissenting) (citing, inter alia, Sequoyah v. TVA). The dissent proposed requiring plaintiffs to establish some sort of centrality of the land to their religious faith before the Government need to put forth a compelling justification for its proposed action. Id. at 474-475, 108 S.Ct. 1319. The majority explicitly rejected the proposed test as inconsistent with the Constitution, prior precedent and because such an approach would force the Judiciary to rule some religious adherents misunderstood their own religious beliefs. Id. at 457-458, 108 S.Ct. 1319.

Defendants' objection is OVERRULED. Defendants are correct that the portion of the Report and Recommendation quoted in their objection focuses on whether the belief is sincerely held, rather than on whether the belief is religious. However, the Report and Recommendation also concluded "there is a legitimate fact question as to whether Plaintiff's religious beliefs require that he participate in a strict vegetarian diet." (R & R at 894-95.) Furthermore, Defendants are incorrect that Plaintiff must establish that his dietary preference is central or indispensable to the practice of his religion. Plaintiff need only establish his requested diet is based upon or required by his religious beliefs. The record provides more than sufficient evidence to create a genuine issue of material fact as to whether Plaintiff's desire to eat a vegan diet is based upon or required by his religious beliefs. See Plaintiff's Response to Motion for Summary Judgment at 7-15.

B. OBJECTION 2—The Magistrate Judge improperly challenged Defendant Burnett's capacity to testify regarding the cost of accommodating an inmate's dietary request.

Defendant Burnett submitted an affidavit in which he averred that supplying vegan meals would be more expensive than supplying vegetarian meals. The Magistrate Judge found Defendant Burnett did not show how his averments were based on personal knowledge as there was no indication he worked in food services and no explanation of how he would have such firsthand knowledge. (R & R at 894-95.) Without such support, the Magistrate Judge noted the statement at issue constitutes hearsay, which could not be considered on summary judgment.

Defendants object. Defendants first argue a witness' competency to testify under ...