Merel Evans Bishop v. Jesson

Merel Evans Bishop, Plaintiff, v. Lucinda Jesson, Nancy Johnston, Kevin Moser, Steve Sajdak,Joanne Christenson, Brian Erickson, and Lisa Kuklisin their individual and official capacities, Defendants.

Civil No. 14-1898 (ADM/SER)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

February 12, 2016

REPORT AND RECOMMENDATION

Merel Evans Bishop, pro se, Moose Lake, Minnesota.

Aaron Winter and Kristy L. Burdick Cariveau, Esqs., Minnesota Attorney General's Office, Saint Paul, Minnesota, for Defendants.

STEVEN E. RAU, United States Magistrate Judge

The above-captioned case comes before the undersigned on Defendants Lucinda Jesson, Nancy Johnston, Kevin Moser, Steve Sajdak, Joanne Christenson, Brian Erickson, and Lisa Kuklis's (collectively "Defendants") Motion to Dismiss [Doc. No. 55], and a Pro Se Motion for Leave to File Amicus Curiae on Behalf of Plaintiff ("Motion for Amicus Curiae") [Doc. No. 61] filed by Kenneth Steven Daywitt ("Daywitt"), on behalf of Plaintiff Merel Evans Bishop ("Bishop"). This matter was referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends that Defendants' Motion to Dismiss be granted in part and denied in part, and that the Motion for Amicus Curiae be denied.

I. BACKGROUND

A. Procedural Background

Bishop was committed to the Minnesota Sex Offender Program ("MSOP") in 2001. (Second Am. Compl.) [Doc. No. 54 ¶¶ 2, 31]. Currently Bishop is at the MSOP facility in Moose Lake, Minnesota (the "Moose Lake facility"), which is operated by the Department of Human Services ("DHS"). (Id. ¶ 2). Lucinda Jesson ("Jesson") was the Commissioner of DHS.¹ (Id. ¶ 10). Nancy Johnston ("Johnston") is the Executive Director of the MSOP, and Kevin Moser ("Moser") is the Director. (Id. ¶¶ 11, 12). Steve Sajdak ("Sajdak") is the Program Manager of the Moose Lake facility's kitchen, Joanne Christenson ("Christenson") is the Kitchen Supervisor, and Brian Erickson ("Erickson") is the Chief Cook. (Id. ¶¶ 13-15). Lisa Kuklis is the registered dietician at the Moose Lake facility. (Id. ¶ 16).

Bishop filed his original Complaint on June 12, 2014. (Compl.) [Doc. No. 1]. Defendants filed a motion to stay, which this Court denied. (Order Dated Dec. 11, 2014) [Doc. No. 30]. Bishop subsequently amended his complaint on two occasions, and Defendants now move to dismiss the Second Amended Complaint. See (Order Dated Dec. 31, 2014) [Doc. No. 33]; (First Am. Compl.) [Doc. No. 35]; (Report & Recommendation Dated July 17, 2015) [Doc. No. 52]; (Order Dated Aug. 12, 2015) [Doc. No. 53]; (Second Am. Compl.); (Mot. to Dismiss).²

B. Factual Background³

Bishop is "an observant Jewish patient who attempts to adhere to the Orthodox Jewish school of thought" and who believes in eating kosher meals. (Second Am. Compl. ¶ 30). Bishop alleges that although kosher food service has been implemented at the Moose Lake facility, there have been "many issues with the quantity/quality of the food." (Id. ¶ 33). Bishop alleges that the food has been "inedible," spoiled or expired, and "foul smell[ing]." (Id. ¶¶ 27, 33-35, 66). In addition, Bishop alleges that Defendants have "put[] non-kosher items such as cream puffs which contained lard" in his meals, have "mix[ed] meat and dairy products together," and have served eggs, vegetables, cupcakes, and other foods without a proper kosher label. (Id. ¶ 36). Bishop asserts that "[e]very time . . . a non-kosher item is placed in a food container it invalidates the kosherness" of what was previously kosher food, unless the kosher food is a "hot meal" that is individually sealed. (Id.).

With respect to his allegation that kosher food offerings were spoiled, Bishop alleges that Defendants "Sajdak, Christenson, Erickson, and Kuklis" stated that "the vendor told them that the food could be stored in the freezer for up to two (2) years" and would "still be safe to eat." (Id. ¶ 26). Bishop alleges this was "not true," as he contacted "the vendor of the products in question and was told that nothing over 6 months would be appropriate for storing in a freezer." (Id.). He further alleges that he has "submitted numerous requests up the chain of communication regarding the poor quality of food and lack of quantity," and submitted a grievance regardingthese matters. (Id. ¶ 39). Bishop's grievance was denied and he was told that his request was "not appropriate." (Id.).

Bishop alleges that the poor quality and low quantity of kosher food caused "everyone," including Bishop, to quit eating the kosher meals. (Id. ¶ 44). Bishop resumed eating kosher meals, however, "after Passover . . . in 2014." (Id.). The "kosher food product" at MSOP has "been changed" three times "since its inception at the MSOP." (Id. ¶ 35). Bishop also asserts that another MSOP client previously "was the 'go to' person regarding the kosher food diet" and attempted to find "a quality product that the MSOP could serve," but that these efforts were met with assertions that those products were not cost effective or were unavailable because of "a contract issue." (Id. ¶ 25). This other MSOP client stopped eating kosher food due to medical issues. (Id.).

Bishop further alleges that the kosher meals offered at the Moose Lake facility do not satisfy "the standards of the American Dietetic Association for adult males," and that the caloric values of kosher meals differ considerably from those of the non-kosher meals. (Id. ¶ 37). Specifically, those eating non-kosher meals "receive anywhere between 2600-3000 calories per day" while Bishop alleges that at a "maximum" he receives "1200-1600 calories" per day. (Id.). Bishop alleges that the "National Research Council states that an adult male who is over 50 and moderately active should receive a minimum of 2200-2400 calories to maintain a healthy diet"—a caloric intake much greater than Bishop alleges he receives when adhering to a kosher diet.⁴ (Id. ¶ 38). Bishop alleges that he "gave kitchen staff a menu" reflecting only the koshermeals "that did not contain the non-kosher items for their reference," but that they "refused to utilize [his] suggestions." (Id. ¶ 36).

Bishop, who is diabetic, has suffered "extremely low blood sugar, due to . . . lack of proper caloric intake" since starting back on kosher meals in 2014 and has lost "excessive weight." (Id. ¶¶ 24, 32). Bishop's low blood sugar episodes have resulted in "Health Services being called to bring glucose packs in the middle of the night, to assist in bringing [Bishop's] blood sugar back to a normal range." (Id. ¶ 32); see also (id. ¶ 40) (noting "many incidents of low blood sugar" requiring use of "glucose packets" or food that "is not kosher due to the mixing of meat and dairy"). Bishop asserts that he has lost approximately eighty-five pounds since he began eating kosher meals, in contrast to other clients within the MSOP who "eat the regular meal [and] maintain their weight, without problems." (Id. ¶ 37). He further asserts that he has had his insulin reduced on many occasions due to his insufficient diet and states that he "no longer receives insulin due to weight loss and low food intake." (Id. ¶ 41). He alleges that he has submitted "requests" and a grievance "regarding his issues with low blood sugar and rapid weight loss due to the poor quality of food which was either inedible," non-kosher, or was "low in caloric intake." (Id. ¶ 27). "Defendants responded to these request[s] with vague answers or without answering the question at all." (Id.). Bishop alleges that he has been "seen by MSOP's dietician"—Kuklis—"whom he has complained to about the food quality, and the lack of quantity." (Id. ¶ 41).

Bishop also alleges that he submitted "requests and a grievance" to Defendants to permit a "volunteer rabbi" to "provide training to Defendants' [sic] regarding the proper handling of kosher food." (Id. ¶ 43). "Defendants denied the requests . . . , stating that it violates policy to allow volunteers into the kitchen," though Bishop has been unable to find the applicable policy.(Id.). Bishop believes Defendants will not allow a volunteer rabbi to come in to the Moose Lake facility because of "the many violations that may be discovered in the kitchen." (Id.). Bishop later alleges, however, that Defendants ultimately agreed "to allow for said training," though they "will not allow the rabbi in the facility kitchen as is necessary" for the inspection of Defendants' practices, kitchen, and food. (Id. ¶ 93).

In addition to the allegations discussed above, Bishop makes several additional allegations related to each Defendant. With respect to all Defendants, Bishop generally alleges that Defendants, in both their individual and official capacities, "implemented, retained, and carried out a policy and/or de facto standing practice of serving inedible, improper and inadequate kosher meals and non-kosher meals as kosher meals, by the inclusion of non-kosher foods and provision[] or service in a non-kosher manner." (Id. ¶¶ 10-16). He also alleges that "violations" were "brought to their attention and there was no action taken to correct the problem." (Id. ¶ 18).

Bishop also asserts that Jesson "is responsible in her individual and official capacity to assure that the MSOP is meeting constitutional standards and Minnesota law." (Id. ¶ 10).

With regard to Johnston, Bishop alleges that as the Executive Director of the MSOP, Johnston is responsible for ensuring that MSOP clients "within her care" are receiving "proper food as described in Minnesota Rule[] 4665.2900." (Id. ¶ 11).

As to Moser, Bishop states that he "continued to allow the service of" inadequate kosher food "even after [Bishop] brought to the attention of [Moser] . . . the inadequate meals, and the poor quality of the food." (Id. ¶ 12).

With regard to Sajdak, Christenson, Erickson, and Kuklis, Bishop alleges that these Defendants have "no official training in the food service...