Martinko v. NH Department of Corrections et al

NITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David M. Martinko
v. Civil No. 22-cv-238-LM
N.H. Department of Corrections et al.
REPORT AND RECOMMENDATION
Before the court in this prisoner civil rights action is
plaintiff David M. Martinko’s motion for a preliminary
injunction (Doc. No. 2). In his motion, Mr. Martinko asserts
that the meals served to him by the kitchen at the New Hampshire
State Prison (“NHSP”) do not comply with his religious “no pork”
diet, in violation of his rights under the First Amendment Free
Exercise Clause and the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). Mr. Martinko further asserts that the
NHSP kitchen does not take adequate precautions to eliminate the
risk that his meals contain no pork products, and to eliminate
the risk of pork “cross-contamination” of his meals. Mr.
Martinko requests that this court order the New Hampshire
Department of Corrections (“DOC”) to provide him with cost-free
access to no-pork meals through the NHSP canteen, while this
lawsuit is pending.1
1 The motion for preliminary injunction (Doc. No. 2)
includes a request for a second type of preliminary relief: an
order prohibiting defendants from retaliating against the
plaintiff or any witnesses while this lawsuit is pending. Mr.
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In response to the motion for a preliminary injunction and
the court’s inquiry at the March 3, 2023 case management
conference in this matter, the defendants have filed documents
stating that the DOC is prepared to provide the plaintiff with a
kosher diet to be served in the dining hall. Defendants further
assert that the kosher diet, as well as their food-handling
processes, will completely address the plaintiff’s concerns.
See Doc. No. 25. Defendants assert that the plaintiff has
declined to accept that offer, which remains available to him.
Plaintiff has filed a proposed counter-offer. Doc. No. 33.
Plaintiff proposes that he be allowed to receive kosher diet
meals or no pork meals, at his preference. Defendants have not
accepted that offer, finding it to be inconsistent with prison
policy.
Upon receipt of the defendants’ representations that
plaintiff could bein to receive a kosher diet, the court
continued the evidentiary hearing it had scheduled for March 9,
2023. The court then provided the parties with an opportunity
to proceed on offers of proof and via oral argument on that
date, as to whether Mr. Martinko could demonstrate a need for a
Martinko withdrew that portion of his requested relief on the
record in the March 3, 2023 case management conference. His
prior request for such relief is therefore properly denied as
moot and, even if it were not withdrawn, would otherwise be
properly denied for reasons stated in the August 30, 2022 Report
and Recommendation (Doc. No. 5).
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preliminary injunction, in light of the availability of a kosher
diet while this lawsuit remains pending.
Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” Glossip v. Gross,
576 U.S. 863, 876 (2015) (citation omitted). Irreparable harm
and likelihood of success are the factors that weigh most
heavily in the analysis, see Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008); Shurtleff v. City of Bos., 928 F.3d
166, 171 n.3 (1st Cir. 2019); Braintree Labs., Inc. v. Citigroup
Glob. Markets Inc., 622 F.3d 36, 41 (1st Cir. 2010).
The court may rule on a motion for a preliminary injunction
without an evidentiary hearing if it has before it “‘adequate
documentary evidence upon which to base an informed, albeit
preliminary conclusion,’” and the parties have been afforded “‘a
fair opportunity to present relevant facts and arguments to the
court, and to counter the opponent’s submissions.’” Campbell
Soup Co. v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995)
(citations omitted). Here, the parties have had such an
opportunity. The plaintiff’s motion, therefore, is ripe for
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disposition at this time.
Irreparable Harm
“‘[P]erhaps the single most important prerequisite for the
issuance of a preliminary injunction is a demonstration that if
it is not granted the applicant is likely to suffer irreparable
harm before a decision on the merits can be rendered.’” Voice
of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d
26, 32 (1st Cir. 2011) (quoting 11A C. Wright, A. Miller & M.
Kane, Federal Practice & Procedure § 2948, at 129 (2d ed.
1995)). Absent a showing that the movant will suffer
irreparable harm if the court declines to order the relief
sought, a motion for a preliminary injunction may be denied.
See Braintree Labs., 622 F.3d at 41 (irreparable harm is “‘the
essential prerequisite for equitable relief’” (citation
omitted)).
In the context of claims of violations of RLUIPA or of the
First Amendment right to the free exercise of religion,
irreparable harm may be found in circumstances where a plaintiff
would be precluded from engaging in his religious practice
unless the court issued an injunction. Ramirez v. Collier, 142
S. Ct. 1264, 1278 (2022) (capital defendant who could not engage
in religious practice in his execution chamber demonstrated
irreparable harm). “‘[A] presumption of irreparable injury
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flows from a violation of constitutional rights,’” or a
prisoner’s rights under RLUIPA, in such cases. Tripathy v.
Lockwood, No. 22-949-PR, 2022 U.S. App. LEXIS 34929, at *5-*6.
2022 WL 17751273, at *2 (2d Cir. Dec. 19, 2022) (citation
omitted).
RLUIPA and Free Exercise Claims
RLUIPA bars certain prisons, including the NHSP, “from
substantially burdening an inmate’s religious exercise unless
the regulation under attack is the least restrictive way to
advance a compelling state interest.” Kuperman v. Wrenn, 645
F.3d 69, 79 (1st Cir. 2011). In general, RLUIPA provides more
protections to an inmate’s religious exercise than the First
Amendment Free Exercise Clause. Yahtues v. Dionne, No. 16-cv-
174-SM, 2020 DNH 050, 2020 U.S. Dist. LEXIS 53254, at *30, 2020
WL 1492877, at *10 (D.N.H. Mar. 27, 2020) (citations omitted).
“Therefore, ‘[i]f there is no RLUIPA violation, there will be no
Free Exercise Clause violation.’” Id. (citations omitted).
To establish a violation of RLUIPA, the “plaintiff bears
the burden of demonstrating that he or she wishes to engage in
(1) a religious exercise (2) motivated by a sincerely held
belief, which exercise (3) is subject to a substantial burden
imposed by the government.” LeBaron v. Spencer, 527 F. App’x
25, 28 (1st Cir. 2013) (internal quotation marks and citation
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omitted); see also Bader v. Wrenn, 675 F.3d 95, 99 (1st Cir.
2012) (no RLUIPA violation shown as to transfer of prisoner that
reduced his access to group worship and counseling, where those
religious “disadvantages” depended proximately on decisions and
actions not attributable to the government’s actions in
transferring the prisoner).
Once a plaintiff has established that his religious
exercise has been substantially burdened by a government policy,
the onus shifts to the government to show that the burden
furthers a compelling governmental interest and that the burden
is the least restrictive means of achieving that compelling
interest. Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 38 (1st
Cir. 2007). This allocation of burdens applies equally in the
context of motions for a preliminary injunction. Ramirez, 142
S. Ct. at 1277.
NHSP Kosher Diet
Defendants filed a declaration, executed under the penalty
of perjury, of Jonathan K. Hanson, DOC Director of
Administration, whose responsibilities include overseeing the
implementation of all prison policies relating to food service,
safety, sanitation, and hygiene. Doc. No. 29, at 1. Director
Hanson prepared his declaration, relying on his own knowledge
and experience, in consultation with the prison’s nutritional
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consultant, the prison chaplain, the prison’s chef supervisor,
and the prison’s food service director. Id. at 1-2. Defendants
have explained that a kosher diet will be made available to Mr.
Martinko the day that he signs up for it, and that it will
continue to be offered to him for the duration of this lawsuit.
Id. at 2.
Director Hanson explained that the prison’s kosher diet is
consistent with the dietary practices of Messianic Jewish
inmates like Mr. Martinko who follow a no-pork diet, as no pork
or pork-products are included in the kosher diet. Id. The
“kosher diet provided by the DOC meets the guidelines
established by the DOC chaplains and the consulting rabbi” for
those prisoners who follow a kosher diet. Id. The meals served
to prisoners receiving the kosher diet are nutritionally
equivalent to the meals served to prisoners receiving the “no-
pork” diet and to the meals served to prisoners who do not
receive special diets, even though there are additional
strictures imposed upon the dietary practices of prisoners who
receive kosher diets, which their kosher meals satisfy, which
“no-pork” diet prisoners do not require as part of their
religious practices. Id. at 3.
Director Hanson’s declaration explains that the kosher
entrée for each meal is purchased from a vendor that is
contractually obligated to meet kosher food preparation
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standards. Id. The vendor’s product is a shelf-stable entree
that the DOC receives in a sealed package, which remains sealed
throughout the storage and preparation process until the
prisoner receiving it opens it. Id. Other kosher foods served
to prisoners on the kosher diet (such as fresh vegetables and
bread) are stored and prepared using kosher compliant, dedicated
surfaces and utensils, to avoid the risk of cross-contamination.
Id.
Mr. Martinko’s Claim of Punitive Nature of Kosher Diet
Mr. Martinko concedes that the kosher diet would address
his concerns for cross-contamination. He has argued that
preliminary injunctive relief remains necessary, however, as the
kosher diet is “punitive” insofar as it excludes some foods his
religious diet would allow. By his calculation, there are ten
meal varieties offered to prisoners on the kosher diet, while
there are twenty-three no-pork meal varieties served to
prisoners not on the kosher diet on a four week rotation (a
difference of thirteen varieties within a four-week period), and
a total of forty-two meal varieties served to prisoners not on
any special diet. The types of no-pork foods unavailable to
those on the kosher diet include scrambled eggs, pancakes,
macaroni and cheese, and pizza, which the plaintiff enjoys and
would have to forego. In addition, the prison offers holiday
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meals on special occasions including Superbowl Sunday
(hamburgers), Memorial Day, the Fourth of July, Thanksgiving and
Christmas (turkey, stuffing, “real mashed potatoes,” cranberry
sauce, and pie), which he could eat on a no-pork diet but would
miss if he were on the kosher diet.
This court’s responsibility in ruling on a preliminary
injunction motion in a case involving allegations of RLUIPA
violations is to ensure the prevailing plaintiff has access to a
menu that is consistent with his religious diet, provided he is
otherwise eligible for preliminary injunctive relief. The court
issuing a preliminary injunction is not required to provide the
plaintiff with his preferred choice of foods among the widest
variety of options available at the prison that his diet allows.
The court can issue equitable relief only to the extent
necessary to avoid a risk of irreparable harm, which in the
context of a religious diet claim would require the court to
ensure that the plaintiff’s diet is not substantially burdened
by government action. If this court were to grant Mr. Martinko
relief on his preliminary injunction motion by, for example,
requiring defendants to prepare his meals without including any
pork products and to take all available measures to eliminate
the risk of cross-contamination, the NHSP’s provision of a
kosher diet and the processes employed to serve food to him, as
set forth in Director Hanson’s declaration, would appear to
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satisfy such an order.
This court is not persuaded that the prison’s kosher diet
is “punitive” or inconsistent with his religious diet. The
defendants offered him access to the kosher diet only after the
court suggested that such an offer might address his concerns
and allegations about cross-contamination and hidden pork in the
NHSP no-pork diet, while this action is pending. And Mr.
Martinko concedes that such a diet would satisfy his religious
dietary requirements. The timing and circumstances of the offer
of a kosher diet appear to be an offer of compromise, not an
intent to punish.
Furthermore, approximately twenty prisoners currently
receive the kosher diet on a regular basis as their religious
diet. There is no evidence before the court to suggest that any
prisoners have ever received the kosher diet as punishment.
More than a few prisoners, including some at the NHSP, have
litigated their right to a kosher diet; for them, the kosher
diet is a remedy or relief on their claims, not punishment.
In the specific context of religious diet claims,
irreparable harm may be found where a plaintiff shows that
prison policies place him in the position of foregoing non-
compliant meals on a daily basis, or violating his sincerely
held belief that he must observe his religious diet, a dilemma
that the prisoner faces every day until the matter is resolved.
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Turner v. Collier, No. 4:19-CV-04124, 2022 U.S. Dist. LEXIS
179663, at *27, 2022 WL 4734828, at *10 (S.D. Tex. Sept. 30,
2022), appeal filed, No. 22-20583 (5th Cir. Nov. 4. 2022). The
evidence at this preliminary stage of the case shows that the
prison’s kosher diet is nutritionally adequate and comparable to
the meals other prisoners receive. And, when served to Mr.
Martinko, the kosher diet would not place him in the position of
having either to forego a nutritious meal or to partake of food
his religion requires he avoid. Mr. Martinko has identified no
authority for the proposition that having a rotating menu of ten
nutritionally balanced meals, prepared according to procedures
approved by a consulting rabbi, places any substantial burden on
his no-pork religious diet.
Mr. Martinko has the ability to partake of a religious diet
that satisfies the requirements of his religious diet and
addresses his concerns about cross-contamination, for the
duration of this lawsuit. While he has chosen not to accept
that offer, the record shows he may reconsider that decision at
any time and begin to receive the kosher diet within a matter of
hours upon his request. His ability to avoid noncompliance with
the strictures of his no-pork diet is within his control; no
court order is necessary to protect his right to a diet that
meets his religious requirements during the pendency of this
lawsuit. Accordingly, the district judge should DENY
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plaintiff’s motion for a preliminary injunction (Doc. No. 2),
without prejudice, as the plaintiff has not shown that he will
suffer any irreparable harm while this lawsuit remains pending,
as a result of defendants’ policies or practices, in the absence
of court-ordered relief.2
Conclusion
For the foregoing reasons, the district judge should deny
the motion for a preliminary injunction (Doc. No. 2) without
prejudice. Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
The objection period may be extended upon motion. Failure to
file any objection within the specified time waives the right to
appeal the district court’s Order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
2 Denying the motion for a preliminary injunction without
prejudice would not preclude Mr. Martinko from filing a new
motion for a preliminary injunction, going forward, if he is
able to show a likelihood of irreparable harm in the absence of
court-ordered relief, a likelihood of success on the merits, and
that the balance of equities and the public interest warrant
such relief. Further, the District Judge’s approval of this
Report and Recommendation would not resolve Mr. Martinko’s
claims for permanent injunctive relief, as the defendants have,
at this time, promised only that they will make a kosher diet
available to Mr. Martinko for the duration of the lawsuit.
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______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 10, 2023
cc: David M. Martinko, pro se
Laura D. Devine, Esq.
Brandon F. Chase, Esq.
Brendan A. O’Donnell, Esq.
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