The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("R & R") (Doc. 219) of Magistrate Judge Philip M. Frazier recommending that the Court (1) grant in part and deny in part plaintiff William O. Spivey's motion for summary judgment (Doc. 177); (2) grant defendant Rabbi Scheimann's motion for summary judgment (Doc. 184); (3) deny defendants C/O Cox, Chaplain Love, and Chaplain Sutton's motion for summary judgment (Doc. 193); and (4) deny Spivey's motions for injunctive relief (Docs. 157, 159, 163, 167, 199 & 217) as moot. For the following reasons, the Court adopts in part and rejects in part the R & R.
Spivey, an inmate in the Illinois Department of Corrections ("IDOC"), identifies his religion as Reform Judaism. During the course of the relevant allegations in the instant complaint, he was incarcerated in three different IDOC facilities as follows: (1) Centralia Correctional Center ("Centralia") from March 11, 2010, to May 10, 2010; (2) Pinckneyville Correctional Center ("Pinckneyville") from May 10, 2010, to February 16, 2011; and (3) Menard Correctional Center ("Menard") from February 16, 2011, to the present. It appears Spivey was paroled for a short period of time in the beginning of 2013, but he is again presently incarcerated in Menard.
The allegations in Spivey's complaint concern his attempts to update his IDOC records to correctly reflect his religion as Reform Judaism. Because Spivey's records incorrectly reflected his religion as protestant, IDOC refused to accommodate his diet or religious holidays. Specifically, he alleges he was denied a religious kosher vegan diet and days off work to observe his Sabbath.
While incarcerated at Centralia, Spivey made requests to Love, Centralia's chaplain, and Scheimann to change his religious affiliation to Reform Judaism. Scheimann is a rabbi, associated with the Lubavitch Chabad House of Illinois, who provides services to IDOC's Jewish population through a contract with the State of Illinois. Spivey did not receive a response from his requests to Love or Scheimann. Spivey believes his requests were denied because he is gay and transsexual.
After his transfer to Pinckneyville, Spivey continued to make requests to speak to Scheimann and Sutton, Pinckneyville's chaplain, for the purpose of changing his religious affiliation. At Pinckneyville, Spivey was denied a kosher vegan diet because his records did not correctly reflect his religion as Reform Judaism. Sutton ignored Spivey's requests and told him Scheimann would not change his religious status because Spivey was "gay and a transsexual." Doc. 177, p. 2. After Spivey explained that IDOC had improperly recorded his religion, Sutton told Spivey he was "properly labeled." Id.
After his transfer to Menard, Scheimann continued to ignore Spivey's multiple requests to change Spivey's religious affiliation. While at Menard, Spivey also alleges that Cox stole a change of religious affiliation form out of a letter that Chaplain Harner, Menard's chaplain, had sent to Spivey. It does appear, however, that Chaplain Harner sent Spivey another change of religious affiliation form that Spivey later received.
Spivey originally filed his complaint pursuant to 42 U.S.C. § 1983 on August 31, 2010, under case number 10-cv-689-JPG, listing unrelated causes of action against multiple defendants. The Court severed the unrelated claims, and this case is one of those severed claims. Still pending in this case are Religious Land Use and Institutionalized Persons Act ("RLUIPA") and First Amendment free exercise claims against Love, Sutton, Cox, and Scheimann. The Court will now consider the R & R's recommendations.
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. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Ordinarily, arguments raised for the first time in an objection to a report and recommendation are waived. See United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000); Divane v. Krull Elec. Co., 194 F.3d 845, 849 (7th Cir. 1999). "Failure to raise arguments will often mean that facts relevant to their resolution will not have been developed; one of the parties may be prejudiced by the untimely introduction of an argument . . . . Additionally, a willingness to consider new arguments at the district court level would undercut the rule that the findings in a magistrate judge's report and recommendation are taken as established unless the party files objections to them." Melgar, 227 F.3d at 1040. The Court will first turn to consider the R & R with respect to the parties' cross motions for summary judgment.
3.The Parties' Motions for Summary Judgment
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
Where the non-movant bears the burden of persuasion, "the movant's initial burden 'may be discharged by 'showing' -- that is, point out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Modrowski v. Pigatto, No. 11-1327, 2013 WL 1395696, at *2 (7th Cir. Apr. 8, 2013) (citing Celotex, 477 U.S. at 325). In such a case, the movant need not "support its motion with affidavits or other similar materials negating the opponent's claim." Modrowski, 2013 WL 1395696, at *2 (citing Celotex, 477 U.S. at 323).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.
a.Scheimann's Motion for Summary Judgment
The R & R recommends this Court grant Scheimann's motion for summary judgment because Scheimann is not a state actor and cannot be held liable under § 1983 or RLUIPA. Spivey has not asserted that Scheimann is a state actor and has not objected to this recommendation. After a review of the record, the Court finds this recommendation is not clearly erroneous. Accordingly, the Court adopts this portion of the R & R and grants Scheimann's motion for summary judgment. As no claims remain pending against Scheimann, the Court further dismisses Scheimann from this case. Now, the Court will consider the motions for summary judgment concerning the claims against the remaining defendants Cox, Love, and Sutton (hereinafter, collectively "Defendants").
b.Spivey's Motion for Summary Judgment
Spivey filed his motion for summary judgment arguing he is entitled to summary judgment on his remaining RLUIPA and First Amendment free exercise claims. In support of his motion, Spivey attached his own affidavit. In their response to Spivey's motion for summary judgment, Defendants do not attach any evidence to contradict Spivey's version of events or acknowledge Spivey's affidavit. Rather, they argue that Spivey's motion is deficient because he makes no citations to the record, fails to present any undisputed material facts, and "merely reiterates the statements made in his Complaint." Doc. 196, p. 2. The Court, however, notes this district has no requirement that a party present undisputed material facts in a motion for summary judgment. Further, Spivey does not merely reiterate the allegations in his complaint, but provides an "affidavit" in support of his claims. ...