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Lawson v. Carney

United States District Court, E.D. Washington

September 28, 2017

GEOFFREY R. LAWSON, SR., Plaintiff,
v.
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

         BEFORE 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 fully informed.

         BACKGROUND

         This 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 5.

         Mr. 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, ¶ 16.

         In 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.

         DOC 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.

         On 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.

         DOC 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.” Id.

         DOC's 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.

         Mr. 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.

         Mr. 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.

         PROCEDURAL HISTORY

         Defendants 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.

         Following 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 his complaint.

         DISCUSSION

         I. Legal Standard for District Court Review of Magistrate Judge's Report and Recommendation

         “A 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)).

         Mr. 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 Judge.

         II. Legal Standard for Summary Judgment

         A court 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).

         The 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).

         III. Legal Standard for Deciding 42 U.S.C. § 1983 Claims

         To 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 id.

         Section 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.

         Mr. 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.

         A. Soy Allergy Claims

         In his § 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.

         Whether 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.

         In 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).

         Mr. 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).

         The 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 ...


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