United States District Court, E.D. Washington
GEOFFREY R. LAWSON, SR., Plaintiff,
BRENT CARNEY; JOSEPH LUCE; MARK MURPHY; JODY SABATINO; and PATRIC KNIE, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT is United States Magistrate Judge Mary K.
Dimke's August 4, 2017, Report and Recommendation, ECF
No. 127, to grant Defendants' Motion for Summary
Judgment, ECF No. 84, and to grant Defendant Sabatino's
Motion for Summary Judgment, ECF No. 87; Plaintiff's
August 18, 2017, Objections to the Report and Recommendation,
ECF No. 129; Defendant Sabatino's Response to Report and
Recommendations, ECF No. 130; and Plaintiff's Reply to
Defendant Sabatino's Response, ECF No. 131. The Court has
considered all the relevant documents in this case and is
a 42 U.S.C. § 1983 action in which Plaintiff, pleading
pro se, alleges violations of his rights protected
by the First, Eighth, and Fourteenth Amendments, and the
Religious Land Use and Institutionalized Persons Act
(RLUIPA). ECF No. 8 at 5. Plaintiff, Geoffrey R. Lawson, has
been in the custody of Washington Department of Correction
(DOC) since March 21, 2013, and is currently incarcerated at
Airway Heights Corrections Center (AHCC) in Airway Heights,
Washington. ECF No. 8 at 6. Mr. Lawson alleges that
Department of Corrections Chaplain Joseph Luce, Food Services
Manager Mark Murphy, Dietary Services Manager Brent Carney,
ARNP Jody Sabatino, and Assistant Supervisor Patric Knie
(collectively Defendants) temporarily denied him a kosher
diet and continue to deny him a soy-free diet. ECF No. 8 at
Lawson is Jewish and follows the kosher tradition of the
Jewish faith. ECF No. 8 at 6. Mr. Lawson began receiving the
DOC religious kosher diet at AHCC on April 17, 2013. ECF No.
41, ¶ 16. The DOC religious kosher diet contains soy
products and has contained kosher soy products since Mr.
Lawson began receiving it in April 2013. ECF No. 41, ¶
January 2015, DOC implemented a cold “breakfast
boat” that included powdered soy milk. ECF No. 8 at
6-7. After the implementation of the “breakfast boat,
” Mr. Lawson complained of headache, nausea, and
vomiting and saw Defendant Sabatino in the AHCC infirmary.
ECF Nos. 8 & 43. Defendant Sabatino found no objective
symptoms supporting Mr. Lawson's subjective complaint and
did not test Mr. Lawson for food allergies on February 2,
2015. EFC No. 43, ¶ 6; see ECF No. 41-3 (DOC
Policy 610.240 requires health providers to test only for
“main food allergies, ” see infra, and
Mr. Lawson did not complain of either of the recognized main
food allergies). On February 2, 2015, Defendant Sabatino
issued a Health Status Report (HSR) directing that Mr. Lawson
receive a special therapeutic diet containing no soy
products. EFC No. 43, ¶ 6.
Policy 610.240 provides guidelines regarding therapeutic
diets. ECF No. 41-3. DOC Policy 610.240 distinguishes between
therapeutic diets listed in the Therapeutic Diet Manual, ECF
No. 41-3 at 6-10, and other therapeutic diets, which it
classifies as Level II interventions that require
authorization “per the Offender Health Plan.”
Id. DOC Policy 610.240 also distinguishes between
“main food allergies” for which it provides
testing, which are tomato and peanut allergies, and other
food allergies. Id. DOC Policy 610.240 states that
offender-controlled dietary conditions, including food
allergies other than the recognized main food allergies,
“will be treated through offender self-selection of the
Mainline diet in order to achieve the desired goals.”
ECF No. 41-3 at 51. DOC Policy 610.240 “also provides
offenders with nutritional supplements and/or a
‘snack' when an offender needs to self-restrict
foods on the menu that adversely impact their health
resulting in weight loss.” ECF No. 41, ¶ 13.
February 9, 2015, Defendant Carney directed Defendant
Sabatino to rescind the HSR ordering a special no-soy diet
because DOC “does not offer such a diet, ” ECF
No. 84 at 2, and DOC policy does not permit providing a
soy-free diet without the medical provider following the
correct procedural protocols. ECF No. 41, ¶ 22. Under
DOC policy, a diet that accommodates a soy allergy qualifies
as an unlisted therapeutic diet, a Level II intervention that
requires authorization “per the Offender Health
Plan.” See ECF No. 41. Defendant Sabatino did
not follow the required DOC protocols in issuing the
“no soy” therapeutic diet on February 2, 2017,
leading Defendant Carney to rescind the February 2, 2017 HSR.
Id., ¶ 22.
Policy 560.200 states that “[i]f a therapeutic diet is
recommended, that diet will take precedence over the
religious diet.” ECF No. 41-2 at 39. DOC Policy 560.200
also states “[i]f the offender does not refuse the
therapeutic diet at th[e] time [that it is recommended], the
diet will remain in effect until its expiration date, at
which time the religious diet will resume.”
Offender Management Network Information (OMNI) system records
an offender's diet preferences or assignments, and that
information is encoded on each inmate's ID card. ECF No.
41, ¶ 23. Corrections officers scan each inmate's ID
card as the inmate goes through the dining hall to get
his/her meals. Id. DOC Policy 610.240 states that
health care providers enter therapeutic diets into the
Offender Management Network Information - Health Services
(OMNI-HS) system. ECF No. 41-3 at 53. DOC Policy 560.200
states that the Chaplain/designee ensures that the necessary
procedures are completed to allow an offender to receive a
religious diet. ECF No. 41-2 at 39.
Lawson alleges and Defendants concede that Plaintiff's
kosher diet was suspended from April 12, 2015, to June 28,
2015. ECF No. 8 at 10; ECF No. 84 at 2. Mr. Lawson filed a
grievance form dated April 24, 2015, seeking a soy-free
kosher diet. ECF No. 8-1 at 2. The responding DOC official
stated that “DOC does not recognize a ‘no
soy' diet, ” but did not address Mr. Lawson's
request regarding the kosher diet. Id. Mr. Lawson
filed a grievance form dated May 13, 2015, seeking immediate
return to the kosher diet and seeking a list containing the
ingredients of DOC meals that contain soy. Id. at 8.
The responding DOC officials stated that the State does not
offer a no soy option and again denied Mr. Lawson's
request for a no-soy kosher diet. Id. The DOC
response to Mr. Lawson's May 13, 2015, grievance did not
directly address Mr. Lawson's specific request to return
to a kosher diet. See Id. DOC did not restore Mr.
Lawson to the kosher diet until June 28, 2015. ECF No. 8 at
10; ECF No. 84 at 2.
Lawson submitted to two food allergy tests that both tested
for soy allergy. ECF No. 127 at 11. The results from both
tests were negative. Id. Mr. Lawson created a log
describing the physical symptoms he experienced during the
period from May 12, 2016, to June 19, 2016, as nausea,
vomiting, stomach pain, diarrhea, headache, and throat pain.
ECF No. 119 at 18-37. He attributed these symptoms to the soy
products in the DOC kosher diet. Id. The only
evidence that Mr. Lawson has offered exhibiting weight loss
as a result of his diet at AHCC dates to April and May of
2013, when Mr. Lawson sent two messages to Health Services
stating that he was suffering “extreme weight
loss.” ECF 62-4 at 2-3.
Carney, Knie, Luce, and Murphy filed this Renewed Motion for
Summary Judgment, see ECF No. 84, and Defendant
Sabatino filed a separate Motion for Summary Judgment.
See ECF No. 87. United States Magistrate Judge Mary
K. Dimke issued a Report and Recommendation to Grant
Defendants' Motion for Summary Judgment and to Grant
Defendant Sabatino's Motion for Summary Judgment.
See ECF No. 127.
the Report and Recommendation, Mr. Lawson filed his
objections. See ECF No. 129. Mr. Lawson raises
eleven objections: (1) that the Magistrate Judge improperly
ruled on Defendants' motion for summary judgment; (2)
that the Magistrate Judge issued improper orders regarding
pretrial matters which must be reviewed by the Court; (3)
that the Magistrate Judge improperly denied Mr. Lawson's
motions for a preliminary injunction; (4) that the Report and
Recommendation's statement of facts omits details of Mr.
Lawson's allegations regarding the physical harm he
suffered and unsatisfactorily describes Defendant
Sabatino's examination of Mr. Lawson; (5) that the Report
and Recommendation adopts Defendants' theory regarding
Mr. Lawson's removal from the kosher diet; (6) that the
Report and Recommendation recommends granting Defendants'
Motions for Summary Judgment with regard to Mr. Lawson's
Religious Land Use and Institutionalized Persons Act (RLUIPA)
claim; (7) that the Report and Recommendation recommends
granting Defendants' Motions for Summary Judgment with
regard to Mr. Lawson's First Amendment claim; (8) that
the Report and Recommendation recommends granting
Defendants' Motions for Summary Judgment with regard to
Mr. Lawson's Eighth Amendment claim; (9) that the Report
and Recommendation recommends granting Defendants'
Motions for Summary Judgment with regard to Mr. Lawson's
Fourteenth Amendment claim; (10) that the Report and
Recommendation finds discovery sufficient; and (11) that the
Magistrate Judge denied Mr. Lawson the opportunity to amend
Legal Standard for District Court Review of Magistrate
Judge's Report and Recommendation
judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 18 U.S.C. § 636(b)(1). In
considering the report and recommendation of a magistrate
judge, the judge of the court has discretion “to give
the magistrate's recommendation whatever weight the judge
decides it merits.” Mathews v. Weber, 423 U.S.
261, 275 (1976). However, the Court must reconsider de
novo any part of the Magistrate Judge's Report and
Recommendation that has been properly objected to and may
accept, reject, or modify the recommended disposition.
Id.; see also Fed. R. Civ. P. 72(b)(3).
“A proper objection under Rule 72(b) requires the
prisoner to make ‘specific written objections to the
proposed findings and recommendations.'” Berger
v. Ryan, 2011 U.S. Dist. LEXIS 99526, at *5 (D. Ariz.
Sept. 2, 2011) (citing Fed. R. Civ. P. 72(b)(3)).
Lawson raised timely written objections specific to each
finding of the Report and Recommendation. See ECF
No. 129. Mr. Lawson objects to the magistrate judge's
recommendation to grant each of Defendants' Motions for
Summary Judgment with regard to each of the alleged
constitutional and statutory violations alleged by Mr.
Lawson. This Court accordingly considers de novo
each of the dispositive recommendations of the Magistrate
Legal Standard for Summary Judgment
may grant summary judgment where “there is no genuine
dispute as to any material fact” and the moving party
is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-33 (1986); see
also Fed. R. Civ. P. 56(c). A genuine issue of material
fact exists if “sufficient evidence supports the
claimed factual dispute, requiring ‘a jury or judge to
resolve the parties' differing version of the truth at
trial.'” Kirwin v. Teamsters Local Union No.
609, 2012 WL 553988, at *1 (E.D. Wash. Feb. 21, 2012)
(quoting T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)). “A
key purpose of summary judgment ‘is to isolate and
dispose of factually unsupported claims.'”
Id. (citing Celotex, 477 U.S at 324).
moving party bears the burden of showing the absence of a
genuine issue of material fact or, in the alternative, the
moving party may discharge this burden by showing that there
is an absence of evidence. See Celotex, 477 U.S. at
325. The burden then shifts to the nonmoving party to set
forth specific facts showing a genuine issue for trial.
See Id. at 324. “The evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
Legal Standard for Deciding 42 U.S.C. § 1983
satisfy the legal standard required by 42 U.S.C. § 1983,
a plaintiff must prove that two essential elements are
present in his or her claim. See Parratt v. Taylor,
451 U.S. 527, 535 (1981), overturned on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986). First, the
conduct complained of must be “committed by a person
acting under color of state law.” Id. Second,
the plaintiff must show that the conduct complaint of
deprived the plaintiff of some right, privilege, or immunity
secured by the Constitution or federal statutory law. See
1983 “contains no state-of-mind requirement independent
of that necessary to state a violation of the underlying
constitutional right.” Daniels v. Williams,
106 S.Ct. 662, 664 (1986). In a § 1983 suit, “the
plaintiff must still prove a violation of the underlying
constitutional right.” Id.
Lawson alleges violations of his rights under the First,
Eighth, and Fourteenth Amendments, and the Religious Land Use
and Institutionalized Persons Act (RLUIPA). ECF No. 8 at 5.
The Report and Recommendation recommends granting
Defendants' Motions for Summary Judgment as to all of Mr.
Lawson's claims and denying any injunctive relief to Mr.
Lawson. See ECF No. 127. Mr. Lawson objects to each
of the magistrate judge's recommendations. See
ECF No. 129.
Soy Allergy Claims
§ 1983 suit, Mr. Lawson alleges that Defendants violated
RLUIPA and the Eighth Amendment by continuing to serve him
meals containing soy ingredients. ECF No. 8 at 13-15. Mr.
Lawson seeks damages and to enjoin Defendants from serving
him meals that contain soy products. ECF No. 8 at 16-17. He
asserts that he suffered and continues to suffer physical
harms allegedly caused by the soy ingredients in the DOC
Mainline and kosher diets. See ECF No. 129, at 6.
Mr. Lawson has an allergy to soy products is a fact material
to his claims for relief. Mr. Lawson has been eating the DOC
kosher diet since 2013, and the DOC kosher diet has contained
soy for the entire period of Mr. Lawson's incarceration
at AHCC. ECF No. 41, ¶ 19. Mr. Lawson first reported he
was experiencing negative physical reactions to soy products
in January 2015, after the DOC implemented a new breakfast
regimen that contained powdered soy milk. ECF No. 8 at 6-7.
Mr. Lawson has undergone two allergy tests and neither test
indicated that he is allergic to soy. ECF No. 127 at 32.
support of his claims, Mr. Lawson submitted a log describing
the physical symptoms he experienced while eating the kosher
diet, including soy products, during a period from May to
June of 2016. See ECF No. 119 at 18-37. He filed the
declaration of a fellow inmate in which the inmate states
that he observed Mr. Lawson vomiting. Id. at 39-41.
These documents demonstrate that Mr. Lawson experienced
physical discomfort, but they do not conclusively link Mr.
Lawson's physical symptoms to his ingestion of soy
products. Mr. Lawson also submitted medical record test
results to support his claims, but he provided no reports of
medical providers interpreting the results. ECF No. 129 at
30-39. The Court will not infer evidence that does not exist
in the record. See Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990) (court will not
presume missing facts).
Lawson has failed to provide evidence demonstrating a
connection between his medical records and an inability to
safely consume soy products. Regardless of how unpleasant Mr.
Lawson's symptoms may be, serving soy to someone who is
not allergic to soy “does not amount to a
constitutional deprivation.” LeMaire v. Maass,
12 F.3d 1444, 1456 (9th Cir. 1993).
Court finds that Mr. Lawson has not presented sufficient
evidence to demonstrate a medical need for a soy-free diet
such that Defendants' treatment of his alleged soy
allergy violates his statutory or constitutional rights.
Considering the facts in the light most favorable to Mr.
Lawson, there is no genuine issue of material fact as to Mr.
Lawson's alleged allergy to soy products. Accordingly,
the Court ...