Lindensmith v. Jerone et al

Filing 43

ORDER adopting 35 Report and Recommendation granting 25 Motion to Dismiss or for Summary Judgment filed by Bill Adams, Melissa Jerome, Wayne Deverney, Billy Ray Thompson Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID LINDENSMITH,
Plaintiff,
vs.

Civil Action No. 10-CV-13530
HON. BERNARD A. FRIEDMAN

MELISSA JEROME, et al.,
Defendants.
______________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Magistrate Judge Mark A. Randon has filed a Report and Recommendation (“R&R”)
in which he recommends that the court grant defendants’ motion to dismiss. Plaintiff has filed 650
pages of objections, ten pages of which appear to be actual objections. See docket entries 38-42.
Under Fed. R. Civ. P. 72(b) (3), the court reviews de novo those portions of an R&R to which a
proper, specific objection has been made.
Plaintiff, a Michigan prison inmates, alleges that he ordered four books pertaining
to his religion from The Teitan Press in March 2010. The books, which cost $153, were delivered
to the prison by mail in April 2010. The mail room clerk, defendant Jerome, signed a “Notice of
Package/Mail Rejection,” informing plaintiff that the books would not be delivered to him because
they had not come directly from an approved publisher or vendor. Plaintiff alleges that the prison
chaplain, defendant Thompson, wrote something on the cover of plaintiff’s package and told Jerome
the books did not come from an approved publisher. Plaintiff filed a grievance. Defendant
DeVerney investigated the grievance and denied it at Step I. A hearing was held by defendant
Adams on May 14, 2010. Adams determined that one of the books had been properly withheld from
plaintiff for the stated reason, but that the other three had come directly from the publisher and

should not be withheld. Adams also indicated that the books were missing. In an addendum to the
hearing report dated May 21, 2010, Adams indicated that one of the approved books had been
located and given to plaintiff. In October 2010 plaintiff filed a claim for reimbursement with the
State Administrative Board, which approved the claim in the amount of $114.75.
Based on these facts, plaintiff asserts claims against Thompson, Jerome, Adams and
DeVerney for “conspir[ing] to deprive the Plaintiff of his free exercise of his religious beliefs under
the color of law in violation of the Religious Land Use and Institutionalized Persons Act
(RLUIPA).” He also alleges that Jerome lost his books in retaliation for filing the grievance. For
relief plaintiff seeks compensatory damages for the three books, $31 million in punitive damages
against Jerome and Thompson for violating his rights under RLUIPA, $11 million in punitive
damages against Adams and DeVerney for participating in the conspiracy, $275,000 in damages
against Jerome for retaliating against him, and an order barring the State of Michigan “from
recieving Federal funds for the next 30 years.”
The court has reviewed the file in this matter, including the R&R and plaintiff’s
objections. As the magistrate judge has explained in the R&R, defendants are entitled to dismissal
of the complaint because damages are not available against the individuals in their personal capacity
under RLUIPA and because defendants are entitled to Eleventh Amendment immunity insofar as
plaintiff is suing them in their official capacities. These points are explained in detail 6-8 of the
R&R, and the court adopts this analysis.
In addition, defendants Thompson, DeVerney and Adams are entitled to dismissal
of the complaint as to them for failure to state a claim. Even taking the allegations in the complaint
at face value, these defendants were not involved in the decision to withhold delivery of plaintiff’s

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books. Plaintiff does not allege that Thompson, as the prison chaplain, had any authority to withhold
mail from plaintiff or any other inmate, nor would such a suggestion be plausible. Thompson
allegedly made “a notation on the cover of the package,” but it was Jerome, not Thompson, who
signed the “Notice of Package/Mail Rejection.” Nor is any claim stated against DeVerney, whose
only alleged involvement in the matter is that he investigated and then denied plaintiff’s grievance
at Step I, a decision Adams subsequently overturned. Adams’ only alleged involvement is that held
a hearing and ruled largely in plaintiff’s favor, finding that plaintiff was entitled to three of the four
books.
The only defendant who was actually involved in withholding plaintiff’s books is
Jerome, the mail room clerk. The claims against her fail, however, for a number of reasons. The
RLUIPA claim fails because damages are not an available remedy under the statute. Further,
although Jerome initially withheld plaintiff’s books, she did so pursuant to a prison policy that has
obvious security/anti-contraband purposes and was not on its face unduly burdensome to the free
exercise of plaintiff’s religion. Moreover, Jerome’s decision to withhold the books was not, it turns
out, the reason plaintiff did not receive them. As noted above, during the one-month period between
the books’ arrival at the prison and Adams’ hearing on plaintiff’s grievance, the books were lost.
One was later found and provided to plaintiff. Adams has submitted an affidavit to this effect and
plaintiff has no evidence to the contrary. Therefore, even assuming plaintiff had a First Amendment
right to the other three books, the undisputed fact is that the books were not deliberately withheld,
but lost.

Negligence is not actionable under 42 U.S.C. § 1983.

Moreover, plaintiff was

compensated for the three missing books in an amount that, plaintiff acknowledges, closely
approximates the purchase price.

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For these reasons,

IT IS ORDERED that Magistrate Judge Randon’s R&R is hereby accepted and
adopted as the findings and conclusions of the court.

IT IS FURTHER ORDERED that defendant’s motion to dismiss or for summary
judgment [docket entry 25] is granted.

Dated: December 14, 2011
Detroit, Michigan

S/Bernard A. Friedman__________________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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