William WELCH, Plaintiff-Appellee, v. Don SPAULDING; Brad Purves; Steward G. Kusey, Defendants-Appellants, 627 F. App'x 479

OPINION BERNICE BOUIE DONALD, Circuit Judge. Defendants Don Spaulding (“Spaulding”) and Brad Purves (“Purves”) have filed an interlocutory appeal from a district court order denying their motion for

summary judgment based on qualified immunity. William Welch (“Welch”), a Michigan prisoner proceeding pro se, filed this civil-rights action pursuant to 42 U.S.C. § 1983. Welch sued Spaulding, the Food Service Director at Saginaw Correctional Facility (“SRF”), where Welch was incarcerated during the relevant time; Purves, the Food Service Program Manager for the Michigan Department of Corrections (“MDOC”); and Glenn Kusey (“Kusey”), an Acting Food Service Supervisor at SRF, in their individual and official capacities.

He alleged that the defendants violated his First Amendment right to the free exercise of his religion, Nation of Islam, by providing him meals that contained approximately half the daily calories provided to the general prison population during the month of Ramadan. Welch stated in his complaint that he contacted Spaulding several times regarding the low-calorie meals. Spaulding responded that the general prison population received approximately 2600 calories per day, but that he did not know how many calories the two bagged Ramadan meals provided each day contained.

After several communications with Spaulding had no impact on the meals he received, Welch filed a grievance with prison authorities regarding the allegedly nutritionally deficient meals. Kusey responded that SRF food service followed the Ramadan menu provided by the MDOC Central Food Service Project Manager (Purves). Welch’s Step II and III appeals were denied. Welch then filed the present civil-rights complaint in federal court, seeking injunctive relief as well as compensatory and punitive damages.

He attached to his complaint menus both for inmates observing Ramadan and for the general prison population and calorie counts for the various food items provided. The defendants moved for

summary judgment, arguing that 1) their provision of two bagged meals to be eaten before sunrise and after sundown allowed Welch to freely exercise his religion and 2) they were entitled to qualified immunity because Welch failed to show that they violated a clearly established statutory or constitutional right. Welch responded with two separate pleadings opposing the defendants’ motion. On July 3, 2013, a magistrate judge issued a report recommending that the defendants’

summary-judgment motion be granted in part and denied in part. Regarding the merits of Welch’s § 1983 claim, the magistrate judge found that there remained a genuine issue of material fact as to whether the provision of Ramadan meals containing only half the calories of the regular menu infringed upon Welch’s First Amendment right to free exercise of his religion. The' magistrate judge also found that Kusey was entitled to

summary judgment because the only allegation against him was his denial of Welch’s grievance, and that Purves and Spaulding were entitled to qualified immunity from claims against them for damages in their individual capacities. However, the magistrate judge found that Purves and Spaulding were not entitled to

summary judgment as to the claims for injunctive relief against them in their official capacities. Both the defendants and Welch objected to the report and recommendation. On July 17, 2014, the district court partially adopted the magistrate judge’s recommendation. The district court granted

summary judgment to Kusey on the grounds recommended by the magistrate judge. The court also dismissed Welch’s claims for declaratory and injunctive relief in light of the ruling in another Ramadan-meals case, Heard v. Finco, No. 13-cv-00373, 2014 WL 1347432 (W.D.Mich. Mar. 31, 2014), and because Ramadan 2013 had already occurred. However, the district court denied

summary judgment and qualified immunity to Purves and Spaulding as sued in their individual capacities because it found that a prisoner’s constitutional right to adequate nutrition was clearly established in 2011, and a reasonable prison official should have known that a diet of approximately 1300 calories per day for 30 consecutive days was insufficient to maintain the health of a moderately active male inmate. Purves and Spaulding have filed an interlocutory appeal, arguing that the district court erred in denying them qualified immunity on Welch’s First Amendment claim.

We review de novo a district court’s order denying qualified immunity. Range v. Douglas, 763 F.3d 573, 588 (6th Cir.2014). In so doing, we view the facts in the light most favorable to Welch. Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir.2010). Government officials are typically immune from civil liability under § 1983, and may assert qualified immunity as an affirmative defense to charges under the statute. The burden then shifts to the plaintiff to show that the defendant officials are not entitled to immunity. Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir.2013) (citing Chappell v.

City of Cleveland, 585 F.3d 901, 907 (6th Cir.2009)). A plaintiff makes this showing when he demonstrates that 1) his allegations give rise to a constitutional violation and 2) the right violated was clearly established at the time of the incident. Plumhoff v.

Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (“An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.”) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)); see also Burgess, 735 F.3d at 472 (citing Campbell v.

City of Springboro, 700 F.3d 779, 786 (6th Cir.2012). “For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable government official would understand that what he is doing violates that right.” Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.2010) (quoting Harris v. City of Circleville, 583 F.3d 356, 366-67 (6th Cir.2009)) (internal quotation marks and modifications omitted)).

The Supreme Court has instructed courts “not to define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, 134 S.Ct. at 2023 (citation and internal quotation marks omitted). Welch asserts that he has a clearly established right to Ramadan menus that approximate the caloric value of the regular prison menus and that the defendants knowingly and unreasonably violated that right.

He argues that the defendants’ provision of Ramadan menus containing only half the calories of the regular prison menus places a great strain on his resolve to follow the dictates of his religion and observe the Ramadan fast. The defendants, on the other hand, argue that, although this court has recognized a clearly established right to a nutritionally adequate diet, see Colvin, 605 F.3d at 290; Cunningham v. Jones, 567 F.2d 653, 656-59 (6th Cir.1977) (Cunningham I), it has not mandated a certain number of calories to be provided in that diet.

In Colvin, we held that it was clearly established in the First Amendment context that “prison administrators must provide an adequate diet without violating the inmate’s religious dietary restrictions.” 605 F.3d at 290 (quoting Alexander v. Carrick, 31 Fed.Appx. 176, 179 (6th Cir.2002)). A number of other circuits have similarly recognized that “[i]nmates ... have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion.” McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir.1987); see also Nelson v.

Miller, 570 F.3d 868, 879-80 (7th Cir.2009); Kind v. Frank, 329 F.3d 979, 981 (8th Cir.2003). In Colvin, a prison chaplain mistakenly-refused the plaintiffs application for a kosher diet; as a result, the prisoner was limited to eating only fruit for 16. days. Colvin, 605 F.3d at 291.

While noting that the case “presents a clos[e] call regarding whether Colvin received food sufficient to sustain him in good health,” we ultimately granted the chaplain qualified immunity because Colvin failed to point to any evidence that the chaplain acted unreasonably or knowingly, and the chaplain “worked as quickly as possible to ensure that Colvin received kosher meals” once the mistake was discovered. Id. (alteration and internal quotation marks omitted). In Cunningham I, a prisoner in solitary confinement was given only one meal per day for 15 days.

In the absence of any proof as to the calorie count of that meal, we could not determine whether this one meal per day “was sufficient to maintain normal health” so as to comply with the Eighth Amendment, and remanded the case to the trial court to determine the nutritional content of that meal. Cunningham I, 567 F.2d at 660. Although Judge Edwards’s opinion observed that “sedentary men on the average need 2000 calories or more to maintain continued health,” id. at 657, it did not clearly establish a minimum caloric requirement.

On appeal after remand, the jail cook estimated that the caloric content of the single meals was between 2,000 and 2,500 calories. Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir.1982) (Cunningham II). On that evidence, we affirmed the district court’s dismissal of the claim, finding that 2,000 to 2,500 calories per day “was sufficient to maintain normal health for the 15 days involved.” Id. Welch had a clearly established right to a nutritious diet during Ramadan.

While we should avoid “defin[ing] clearly established law at a high level of generality,” Plumhoff, 134 S.Ct. at 2023, we also decline to define nutritional adequacy in the First Amendment context in terms of specific daily caloric requirements. This is because nutritional adequacy is a multifactored concept. Accordingly, the question of whether a prison official has knowingly provided a nutritionally inadequate diet is a faci>specific inquiry that requires consideration of, inter alia, daily caloric content, duration of the diet, and the nutritional needs of the prisoner.

Providing a single low-calorie meal to a well-fed prisoner, for example, is unlikely to cause malnourishment and therefore would not trigger a constitutional violation. But a diet comparable in caloric content to the one Welch received can, in fact, lead to malnourishment, and there is no indication that Welch possessed characteristics that would have insulated him from potential malnourishing effects. Several facts in this case distinguish it from Colvin and Cunningham. Welch has submitted nutritional charts with estimates of his daily intake during the month of Ramadan.

Tying individual menu items to their respective calorie values, Welch alleges he was fed approximately 1,300 calories per day during the 30-day period, though he claims that some days he received less than 1,200 calories. Thus, viewing his claim in the light most favorable to him, Welch was receiving approximately 65% of what we recognized in Cunningham I to be the daily requirement for an average sedentary man to maintain normal health. 567 F.2d at 657.

Moreover, the prisoners in both Colvin and Cunningham only endured the modified diets in question for 15 and 16 days, respectively: that Welch had to subsist on his reduced rations for an entire month worsens the scenario. Finally, we emphasized in Colvin that the chaplain responsible for denying the plaintiff kosher meals had no apparent knowledge of the mistake, and when he found out, took immediate steps to provide nutritious kosher meals once the mistake was discovered. See 605 F.3d at 290. In context, his prompt action persuaded us he ought to retain qualified immunity.

Here, by contrast, the menus and calorie counts for the various menu items were available to the defendants as they were to Welch, and Welch informed both Purves and Spaulding of the meals’ caloric deficiency. They cannot rely, therefore, on their argument that they did not have actual knowledge of the caloric content in the Ramadan meals. Moreover, unlike the chaplain in Colvin, Purves and Spaulding allegedly took no remedial action after Welch complained to them, even though there seems to be no reason that additional bagged meals could not have been provided. See also Carter v. Washington Dep’t of Corr., No.

C11-5626, 2013 WL 1090753, at *13 (W.D.Wash. Feb. 27, 2013) (finding no constitutional violation because prison officials “corrected the caloric values of the Ramadan meals and when that was still insufficient, they added supplements to the meals to ensure that the goal of 2700 average calories was met.”). The legal question of immunity will ultimately depend on which version of the facts the jury finds most credible. Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir.1989).

Thus, we find as a matter of law that it is clearly established that the prison must provide adequate nutrition to prisoners,, despite religious restrictions. Welch has demonstrated that his allegations — if accepted by a jury — give ñse to a constitutional violation. He has therefore made Plumhoffs required showing to defeat defendants’ claim of qualified immunity at this stage, and established a genuine issue of material fact regarding whether the particular restricted diet in his case was so lacking as to violate this established right.

Accordingly, we AFFIRM the district court’s order denying qualified immunity. . "[C]alorie intake should not fall below 1,200 a day in women or 1,500 a day in men, except under the supervision of a health professional. Eating too few calories can endanger your health by depriving you of needed nutrients.” Harvard Medical School, Health Solutions to Lose Weight and Keep it Off, Special Report 2009. . This is not to say that we require a showing of malnutrition for a plaintiff to proceed on such a claim. The fact that Welch did not document specific adverse health effects does not defeat his claim at this stage.

A restrictive diet that "substantially diminish[es an inmate’s] qualitative spiritual experience” during Ramadan can be a substantial burden in the First Amendment context. Makin v. Colorado Dep’t of Corr., 183 F.3d 1205, 1212 (10th Cir.1999), The temptation to break the Ramadan fast due to hunger and discomfort caused by a nutritionally inadequate diet may substantially burden an inmate's right to free exercise of religion. Couch v. Jabe, 479 F.Supp.2d 569, 589 (W.D.Va.2006).