The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 33) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny plaintiff Maurice Wallace's motion for a temporary restraining order and a preliminary injunction (Doc. 7). Wallace has objected to the Report (Doc. 35).At the Court's request, the defendants responded to Wallace's motion after the Report was filed (Doc. 49), and Wallace has replied to that response (Doc. 52).
I. Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Wallace, an inmate at Tamms Correctional Center ("Tamms"), brought this case because he believes prison personnel are impermissibly preventing him from observing his religious (Satmar Hasidic Judaism) diet, customs, dress and worship in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, et seq. (Count 1). He also believes the diet he is being given is nutritionally insufficient in violation of the Eighth Amendment (Count 2) and that prison personnel are retaliating against him for filing grievances about the foregoing (Count 3).
In his motion for a temporary restraining order and a preliminary injunction, Wallace asks the Court to force the defendants to allow him to use his new Jewish name instead of his given name, to provide kosher, prepackaged food for Wallace's consumption on the Sabbath, and to allow him to observe Jewish customs and rites such as, for example, wearing a yarmulke and other clothing items, performing benedictions, wearing a beard and earlocks and observing the Sabbath, holidays and fasting dates.
The Report found that Wallace had not carried his burden of showing he would suffer irreparable harm absent preliminary injunctive relief. Wallace objects to the Report, noting that between November 2007 and May 2008, he lost 75 pounds because of an allegedly insufficient diet.
In response to Wallace's motion and after the issuance of the Report, the defendants provided evidence that Tamms is providing Wallace a kosher diet approved by a Jewish rabbi. They also state that Wallace has the ability to obtain a yarmulke and other religious items but that he has failed to use the correct procedure to request them and that, consequently, no defendant has prevented him from wearing the items. The defendants also noted that Wallace is not prevented from performing benedictions in his cell or from growing a beard and earlocks as long as they satisfy institutional security requirements designed to prevent hiding contraband. He is also not required to work, write or do physical activity on the Sabbath or to eat food prepared by Jews on the Sabbath. The defendants note that state law prevents Wallace from changing his name. The defendants note that all the requests Wallace has made using Tamms' institutional policies for dietary modifications for fasting days have been granted. Finally, the defendants note that dreidels are not allowed at Tamms because they have sharp points and can be used as weapons. Tamms' policies, the defendants contend, are designed to achieve orderly administration of the dietary system and prevent the flow of contraband in the prison.
In his reply, Wallace argues that he would suffer greater harm by not having his motion granted than Tamms would suffer by being forced to accede to his religious practice requests. He again points to his weight loss as evidence of irreparable harm. Wallace also argues that he has made the appropriate requests for religious items but has been refused, and without those items he cannot perform benedictions. However, his exhibits attached to his reply demonstrate he has requested the items free of charge, and that request was denied because the items are not free to inmates. He also argues that the food Tamms supplies him on the Sabbath does not meet his religious requirements even though it was not prepared by Jewish workers. He also challenges the defendants' assessment of a dreidel as a potential weapon and notes that other potential weapons such as pens and eyeglasses are provided to inmates.
Preliminary injunctive relief is designed "to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Platinum Home Mortgage Corp. v. Platinum Fin. Group Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a threshold showing that (1) it has some likelihood of success on the merits, (2) no adequate remedy at law exists, and (3) it will suffer irreparable harm if the injunction is not granted. Ferrell v. United States Dep't of Housing & Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). If the moving party is able to establish these three factors, the Court must then balance the harms to both parties using a "sliding scale" analysis, also taking into consideration the effect that granting or denying the injunction will have on the public. "[T]he greater the moving party's likelihood of prevailing on the merits, the less strongly it must show that the balance of harms weighs in its favor." Ferrell, 186 F.3d at 811; accord Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). "A preliminary injunction is an extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Chicago Dist. Council of Carpenters Pension Fund v. K & I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)); accord Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 376 (2008). When deciding a motion for temporary injunction, the Court applies the same standard as it does to a motion for a preliminary injunction. Crue v. Aiken, 137 F. Supp. 2d 1076, 1083 (C.D. Ill. 2001).
The Court questions the Report's conclusion that, even if Wallace's claims may have merit, he will not suffer irreparable harm while this case is pending. See Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) ("The loss of First Amendment freedoms is presumed to constitute an irreparable injury for which money damages are not adequate, and injunctions protecting First Amendment freedoms are always in the public interest."); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) ("[T]he denial of a plaintiff's right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily."). However, regardless of the existence of irreparable harm, ...