McBride et al v. Michigan Department of Corrections et al

Filing 36

ORDER Adopting 28 Report and Recommendation for Denying 15 Motion for Summary Judgment, filed by Daniel H Heyns, Cathleen Stoddard, Jeffrey Woods, Anthony Stewart, Michigan Department of Corrections, Randall Treacher, Thomas Finco. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Mary Ann McBride, et al.,
Plaintiffs,
v.

Case No. 15-11222

Michigan Department of
Corrections, et. al.,

Honorable Sean F. Cox
Magistrate Judge David R. Grand

Defendants.
_________________________________/
ORDER ACCEPTING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiffs, and Michigan state prisoners, Mary Ann McBride, Brian Stanley Wittman, and
Ralph Williams (collectively “Plaintiffs”), filed this civil rights class action against multiple
defendants, claiming that they have been discriminated against for being deaf or significantly
hearing impaired. Plaintiffs specifically assert violations of: (1) Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”); (2) the Rehabilitation Act, 29 U.S.C. §
794, et seq. (“RA”); (3) The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc, et seq. (“RLUIPA”); (4) the Free Exercise Clause of the First Amendment (42 U.S.C. §
1983 - against individual defendants in their official capacities); and (5) the Free Speech Clause
of the First Amendment (42 U.S.C. 1983 - against individual defendants in their official
capacities). (D.E. No. 1, Complaint).
Defendants MDOC, Heyns, Finco, Treacher, Stewart, Woods, and Stoddard (Collectively,

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“Defendants”) filed a motion to dismiss and/or motion for summary judgment1 on May 1, 2015.
(D.E. No. 15, Def.’s Br.). Thereafter, this Court referred all pretrial matters, including
Defendants’ motion, to Magistrate Judge David R. Grand pursuant to 28 U.S.C. 636(b)(1)(A) and
(b)(1)(B). (D.E. No. 17). Plaintiffs filed a response to the motion on May 22, 2015. (D.E. No.
23, Pl.s’ Resp.). Defendants did not file a reply. The Magistrate Judge entertained oral argument
as to Defendants’ motion on September 19, 2015. (D.E. No. 26).
On October 30, 2015, Magistrate Judge Grand issued a Report and Recommendation
(“R&R), wherein he recommended that this Court DENY Defendant’s motion for partial
summary judgment. (D.E. No. 28). Defendants timely objected to the R&R on November 13,
2015. (D.E. No. 29, Def.s’ Objs.). Plaintiffs responded to Defendants’ objections on December
4, 2015.2 (D.E. No. 31).
The Court finds Defendants’ objections to be without merit. Therefore, the Court shall
ADOPT the R&R and DENY Defendants’ motion.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended
disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen
(14) days after being served with a copy of the R&R. FED. R. CIV. P. 72(b)(2). Objections must
“(A) specify the part of the order, proposed findings, recommendations, or report to which a

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The Magistrate Judge characterizes Defendants’ motion as a partial motion for summary
judgment because Defendants’ motion did not seek dismissal of Plaintiff’s Rehabilitation Act
and free speech claims. (R&R at n. 2). In their response to Defendants’ motion, Plaintiffs point
out that Defendants failed to include a statement of undisputed facts in their motion, as required
by this Court’s practice guidelines.
2

The Court agreed to extend Plaintiff’s Response deadline to December 4, 2015.
2

person objects; and (B) state the basis for the objection.” E.D. MICH. LR 72.1(d). Objections are
not “a second opportunity to present the argument already considered by the Magistrate Judge.”
Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004). Moreover, the
district court should not consider arguments that have not first been presented to the magistrate
judge. See Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778, 785
(E.D.N.C. 2011). “The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” FED. R. CIV. P. 72(b)(3).
As a preliminary matter, because Defendants submitted, and the Court accepted,
documents concerning “matters outside the pleadings,” the Magistrate Judge recommended that
Defendants’ motion be treated as a summary judgment motion. (R&R at n. 1) (citing FED. R.
CIV. P. 12(d)). The Court agrees that the summary judgment standard is appropriate here.
ANALYSIS
In their motion, Defendants argued that: (1) Plaintiffs failed to exhaust their
administrative remedies as to most of their allegations against any Defendant; (2) that MDOC is
entitled to sovereign immunity with regard to Plaintiffs’ Title II ADA claim pursuant to the
Eleventh Amendment; (3) that Plaintiffs’ RLUIPA claim is not cognizable because a “substantial
burden” has not been imposed on Plaintiffs’ religious exercise; and (4) that Defendants’ failure to
provide sign interpreters for religious services does not amount to a violation of the Free Exercise
Clause of the First Amendment.
Magistrate Judge Grand disagreed with Defendants on each point. The R&R first
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concludes that Defendants failed to demonstrate that each of the named plaintiffs’ claims were
unexhausted as to each named defendant. Magistrate Judge Grand further concluded that
Plaintiffs’ Title II ADA claim abrogated MDOC’s sovereign immunity. As to Defendants’
RLUIPA argument, the Magistrate Judge found the factual record entirely undeveloped and
concluded that summary judgement should be denied. The Magistrate Judge rejected
Defendants’ Free Exercise Clause argument on the same basis as the RLUIPA argument: namely,
that the record lacked any evidence to substantiate Defendants’ claim on this point.
Defendants have lodged four objections to the October 30, 2015 R&R. For the reasons
stated in the R&R, and for the reasons stated below, Defendants’ objections are without merit.
Objection #1 - Exhaustion Argument
In their first objection, Defendants challenge the Magistrate Judge’s conclusion that
Plaintiffs exhausted their claims against them. Defendants maintain that Plaintiffs failed to
comply with MDOC Policy Directive (“P.D.”) 03.02.130, which states, in relevant part, that:
P.

Prior to submitting a written grievance, the grievant shall attempt to
resolve the issue with the staff member involved within two business days
after becoming aware of a grievable issue... The Step I grievance must be
filed within five business days after the grievant attempted to resolve
the issue with staff.
....

R.

A grievant shall... [include] [t]he dates, times, places and names of all
those involved in the issue being grieved...

(R&R at 8) (emphasis added). Defendants argue that McBride and Wittman failed to list all of
the individually listed defendants in each of their grievances, as is required by P.D. 03.02.130 ¶
R. Thus, according to Defendants, McBride and Wittman failed to properly exhaust with respect

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to all defendants not identified in their respective grievances. Defendants also contend that
Williams failed to properly exhaust his grievance because he failed to identify any defendants in
his grievance.
Magistrate Judge Grand correctly noted that proper exhaustion meant “complet[ing] the
administrative review process in accordance with the deadlines and other applicable procedural
rules established by state law.” (R&R at 7). Although the R&R conceded that McBride and
Wittman failed to identify certain defendants in their grievances, Magistrate Judge Grand
rejected Defendants’ exhaustion argument on two grounds: (1) certain defendants could not have
been listed in the grievances at the time Plaintiffs filed them; and, alternatively, (2) to the extent
that Plaintiffs could have listed certain Defendants, but did not, Defendants may not invoke a
procedural bar for the first time now. (R&R at 11) (citing Reed-Bey v. Pramstaller, 603 F.3d 322
(6th Cir. 2010); see also (R&R at 13).
Defendants specifically contend that Magistrate Judge Grand erroneously applied the
Sixth Circuit’s holding in Reed-Bey to the grievances at issue here. In Reed-Bey, the plaintiff’s
grievance failed to identify the names of all those involved in the issue being grieved, despite
prison procedural rules requiring such. Rather than invoke a procedural bar, prison officials
addressed the plaintiff’s grievance on its merits. The Sixth Circuit concluded “that [the plaintiff]
properly exhausted his claim because he invoked one complete round of the Department’s
grievance procedures and received merits-based responses at each step.” Id. at 326. The court
explained that “[w]hen prison officials decline to enforce their own procedural requirements and
opt to consider otherwise defaulted claims on the merits, so... will we.” Id. at 325.
Because the Magistrate Judge addressed each Plaintiff separately, the Court shall as well.
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McBride
McBride filed three relevant grievances: Grievances 06c, 03f, and 06e. (R&R at 9). With
respect to grievance 06c and 03f, Defendants argue that McBride failed to identify all Defendants
in her grievances.3 Defendants take issue with the Magistrate Judge’s conclusion that even if
Grievances 06c and 03f are unexhausted, “they are still ripe for judicial review because MDOC
officials addressed the grievances on the merits.” (R&R at 11) (citing Reed-Bey, 603 U.S. at
324). Defendants’ objection here is without merit.
As a threshold matter, the Magistrate Judge rejected Defendants’ exhaustion argument as
to McBride on two alternative grounds. First, the Magistrate Judge reasoned that with respect to
Grievance 03f, McBride satisfied the prison’s procedural requirements “because she identified all
of the relevant parties whom she reasonably could have known about at the time she filed this
grievance.”4 (R&R at 9). Defendants appear to ignore the portion of the R&R, where Magistrate
Judge Grand explains that McBride could not have included certain defendants in her grievance:
(1) Defendant Stewart was not identified in the grievance because Stewart was warden at the
time the action was filed, but not at the time of the alleged wrongful conduct;5 (2) Defendant

3

It appears Defendants have abandoned any exhaustion argument as to Grievance 06e.

4

In Grievance 03f, McBride listed the following individuals: Warden Millicent Warren,
MDOC Director Daniel Heyns, Regional Prison Administrator Bruce Curtis, Deputy Warden
Osterhoust, Chaplin Mardini, DeAngel D. Johnson, G. Griffy, T. Beard, T. Snipes, Luna, Health
Unit Manager Jackson.
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Although the R&R does not address McBride’s failure to identify Defendants Finco and
Treacher, Plaintiffs explain that at the time of the alleged wrongful conduct, Bruce Curtis (who
was named in the grievance) had the same responsibilities at MDOC that Finco and Treacher
have now. While Defendants argue that claims against Finco and Treacher should be dismissed,
they do not address Plaintiff’s explanation. Accordingly, this fact appears undisputed. As
explained in the R&R, the fact that a “personnel change occurred between the alleged wrongful
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Stoddard was not identified in McBride’s grievance because Stoddard is being sued by Plaintiff
Wittman exclusively for conduct that occurred at DRF; and, similarly, (3) Defendant Woods was
not identified in McBride’s grievance because Woods is being sued by Plaintiff Williams for
wrongful conduct that occurred at URF. (R&R at 11). Notably, under the prison’s own rules,
McBride was not permitted to identify individuals unless they were “involved in the issue being
grieved.” With respect to Grievance 03f, Magistrate Judge correctly noted:
Defendants’ contrary view is untenable because it would require a plaintiff, in
order to exhaust her own claim to: correctly predict the identity of each future coplaintiff and/or putative class member; (2) identify which MDOC officials were
involved in each of the relevant Step I grievances filed by each such person; and
then (3) name those MDOC officials in each of her own relevant Step I grievances
(although many of these officials would have no connection to the issues being
grieved). Defendants cite no law requiring prisoner plaintiffs to possess such
prescient powers.
(R&R at n. 5). Defendants’ objection does not identify how the Magistrate Judge erred in
reaching the conclusion above. Thus, Defendants have not shown that McBride failed to
properly exhaust Grievance 03f.
Instead, Defendants focus on the Magistrate Judge’s application of Reed-Bey, which
served as the Report’s second basis for rejecting Defendants’ exhaustion argument. The Court
shall only consider this argument as it relates to Grievance 06c since Grievance 03f was properly
exhausted. Defendants argue that the “Report’s application of Reed-Bey means that a grievant
need only name one individual at Step I and, if a merits-based decision is issued at all three steps
of the process as to that individual, the grievance is exhausted as to anyone subsequently named
in a lawsuit.” (Def.s’ Objs. at 4). Again, in asserting this argument, Defendants wholly disregard

conduct and the filing of the complaint cannot be used to preclude McBride from bringing her
related claims.” (R&R at 10) (citations omitted).
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the fact that the subsequently named defendants in this suit were not personally involved in the
issues grieved.
Defendants also claim that Reed-Bey is inapplicable, where, as here, a prisoner identifies
an individual in her grievance, just not all the same individuals named in her complaint.
Defendants point out that the prisoner in Reed-Bey failed to identify any individuals, unlike
Plaintiffs here. To the extent that Defendants suggest that this distinction is outcome
determinative, they are mistaken. Defendants argument here is without merit for two reasons.
First, Defendants have narrowly construed Reed-Bey’s holding, making it applicable only to facts
identical to those present before the Sixth Circuit. However, such a reading misconstrues ReedBey. Reed-Bey stands for the proposition that an otherwise procedurally defective grievance is
properly exhausted if it received merits-based responses throughout the grievance process. ReedBey, 603 F.3d at 325 (A “State’s decision to review a claim on the merits gives [the court] a
warrant to do so as well, even when a procedural default might otherwise have resolved the
claim.”). Nowhere did the Sixth Circuit indicate an intent for courts to narrowly apply its
holding to the specific facts presented before it. In fact, Reed-Bey’s holding has been applied to
situations where, as here, a prisoner received a merits-based decision on a grievance that is later
alleged to be procedurally deficient. Defendants’ argument fails for another reason: it mistakenly
presumes that Grievance 06c actually identified an individual by name. As Defendants have
consistently pointed out, McBride’s Grievance 06c only identifies MDOC. Thus, Defendants are
correct in that this grievance is procedurally deficient. However, this falls squarely within the
realm of narrow facts that Defendants have argued Reed-Bey would apply. Despite McBride’s
failure to name individuals, as is required by P.D. 03.02.130, prison officials accepted the
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grievance and responded to its merits. Defendants cannot expect the Court to enforce procedural
rules when their own prison officials failed to enforce such rules. Dismissing the case now on
procedural grounds would improperly give the MDOC’s merit-based rejection of the grievance
“undeserved insulation from federal judicial review.” Id. at 326.
Wittman
Wittman filed two grievances while incarcerated at DRF: Grievance 66-12i and
Grievance 90-12i. Defendants advance the same arguments against Wittman as they did against
McBride. Specifically, Defendants argue that Wittman failed to exhaust these grievances
because: (1) Grievance 66-12i only identifies “Head RN,” in violation of P.D. 03.02.130; and (2)
of the named defendants, only Defendant Heyns is identified in Grievance 90-12i.
With respect to Grievance 66-12i, the Magistrate Judge properly concluded that it “is ripe
for judicial review under Reed-Bey since MDOC officials addressed the grievance on its merits.”
(R&R at 13). Defendants’ arguments to the contrary are not persuasive for the same reasons
discussed above.
With respect to Grievance 90-12i, the Magistrate Judge acknowledged that certain named
defendants were not identified in that grievance. However, like McBride, Wittman’s failure to
identify certain defendants can be explained. Magistrate Judge Grand correctly noted that:
Grievance 90-12i satisfied the requirements of P.D. 03.02.130 ¶ R because
Wittman appropriately submitted this grievance ‘against Warden Willie Smith,
MDOC Director Heyns, Regional Prison Administrator Bruce Curtis, ADA
Coordinate Koenigsknecht, all unknown Deputy Wardens, and all unknown Shift
Supervisors.’ As with McBride, at the time of the alleged wrongful conduct,
Willie Smith (named in the grievance) was the warden at DRF. However, at the
time this action was filed, Stoddard was the warden at that facility. The fact that
this personnel change occurred in the interim cannot be used to preclude Wittman

9

from bringing his related claims.6
Similarly, with respect to Stewart and Woods, Stewart is being used by McBride
exclusively for wrongful conduct that exclusively occurred at URF. Since Stewart
and Woods both had no connection to the issues that Wittman grieved at DRF, he
obviously had no reason to mention them in Grievance 90-12i and, thus, did not
violate P.D. 03.02.130 ¶ R.
(R&R at 13) (citations omitted). Defendants have not pointed to any deficiency in the Magistrate
Judge’s reasoning as to this point. Instead, Defendants urge the Court to construe Reed-Bey
narrowly. However, even assuming Defendants’ construction of Reed-Bey was proper, it has no
bearing on the findings above. This is because Defendants’ Reed-Bey argument necessarily
presumes that P.D. 03.02.130 ¶ R was violated. But, here, it was not. The rule at issue only
requires prisoners to name individuals involved in the issue grieved. Again, as the Magistrate
Judge properly explained, the unidentified defendants were not involved in the issues grieved. It
belies common sense to require more of prisoners than the prison’s own procedural rules require.
See Troche v. Crabtree, No. 15-3258, 2016 WL 736312, *5 (6th Cir. Feb. 25, 2016) (“In the end,
it cannot be said that an inmate did not exhaust his administrative remedies because he failed to
do something not specified, outlined, or required by his prison’s grievance procedure.”).
Williams
Williams filed one grievance while incarcerated at URF: Grievance 28e. It related to an
ongoing issue with the facility’s text/telephone system. (R&R at 14). In their summary judgment
motion, Defendants initially argued that Williams had failed to properly exhaust his grievance

6

While the R&R does not discuss Finco and Treacher, the Court finds that they assumed
the role of Bruce Curtis after Plaintiff had filed his grievance. As mentioned in a previous note,
Defendants have not disputed Plaintiff’s assertion as to this fact. Thus, Wittman could not be
expected to identify either Finco or Treacher in his grievance.
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because it was untimely filed, in violation of P.D. 03.02.130 ¶ P. (Def.s’ Br. at 12-13). After
reviewing the grievance, Magistrate Judge Grand properly determined that, when “affording all
reasonable inferences to Williams, his grievance could be construed as relating to the denial of a
request he made on October 23, 2013. Such an interpretation would make his grievance, filed on
October 20, 2013, timely under P.D. 03.02.130 ¶ P.” (R&R at 14). Magistrate Judge Grand
found a second reason for rejecting Defendants’ argument: it “essentially seeks to impose a
permanent waiver of claims of an ongoing or repetitive nature that are not raised when the very
first instance of alleged wrongdoing occurs.” (R&R at 15). The R&R points out that Defendants
advanced no support or law for such a theory, and concluded that Defendants failed to establish
improper exhaustion.
Defendants appear to have abandoned the arguments advanced before the Magistrate
Judge as to this issue. Now, Defendants argue that Williams did not properly exhaust because he
failed to identify the defendants in his grievance. (Def.s’ Objs. at 6). Defendants maintain that
Reed-Bey does not apply here since the grievance never received a merits-based response. Id.
This claim, however, is not a proper objection because Defendants failed to raise it in their initial
motion. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by
the district court if timely objections are filed, absent compelling reasons, it does not allow
parties to raise at the district court stage new arguments or issues that were not presented to the
magistrate.” Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citing United States v.
Waters, 158 F.3d 933, 936 (6th Cir. 1998)).
For these reasons, Defendants’ first objection is overruled.

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Objection #2 - Eleventh Amendment Immunity Argument
Both parties agree that the test expounded in United States v. Georgia, 546 U.S. 151
(2006), applies when determining whether Title II of the ADA validly abrogates sovereign
immunity.7
In stating their second objection, Defendants argue that “there is no basis to conclude that
the Eleventh Amendment was abrogated with respect to the ADA Title II claims.” (Def.s’ Objs.
at 10). Specifically, Defendants contend that Magistrate Judge Grand misapplied the second
prong of the Georgia standard when he concluded that actual violations of the equal protection
clause and due process clause were pleaded. (Def.s’ Objs. at 7).
Equal Protection
In their initial motion, Defendants relied principally on Popovich v. Cuyahoga Cnty.
Court of Common Pleas, 276 F.3d 808, 811 (6th Cir. 2002), for the proposition that individuals
that are not part of a suspect class must identify a due process violation (rather than an equal
protection violation) in order to abrogate sovereign immunity. (Def.s’ Br. at 18). In response,
Magistrate Judge Grand correctly explained why Defendants were mistaken as to this point:
The problem with defendants’ reliance on Popovich is that the Sixth Circuit
subsequently clarified in Mingus that, as long as a plaintiff seeks only the level of
review to which he would otherwise be entitled (i.e., “rational basis” review in a

7

“To ascertain whether Title II of the ADA validly abrogates state sovereignty in any
given Fourteenth Amendment case, the Supreme Court requires the following assessment be
made... ‘(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported
abrogation of sovereign immunity as to that class of conduct is nevertheless valid.’” (R&R at 16)
(citing Georgia, 546 U.S. at 159).
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disability case) – and not a heightened level fo review (i.e., “strict scrutiny”) –
Eleventh Amendment immunity as to his ADA claim would be abrogated because
doing so would not “create a higher standard of liability” for the defendant.
....
Analogizing to the Title II ADA claim asserted in Mingus, plaintiffs in this action
allege that ‘Defendants failure to provide effective communication for individuals
with hearing disabilities denied and continues to deny, on the basis of their
disability, Plaintiffs the same access to Defendants’ services, benefits, activities,
programs, or privileges as the access provided to hearing individuals.’
Importantly, this does not equate to an assertion that plaintiffs are entitled to
‘strict scrutiny’ review of this alleged unequal treatment. In fact, plaintiffs
emphasize that they ‘do not claim to be members of suspect class.’
(R&R at 18, 20) (emphasis added) (internal citations omitted).
Defendants now disagree with the determination that Plaintiffs have established a
violation of equal protection under rational basis scrutiny, contending that the Magistrate Judge’s
only explanation for concluding that rational basis is not implicated is Plaintiffs’ statement that
they “do not claim to be members of a suspect class.” (Def.s’ Objs. at 8) (internal citations
omitted). Defendants caution that under Magistrate Judge Grand’s theory, “all claims of unequal
treatment would defeat Eleventh Amendment immunity so long as plaintiffs asserted that they
were not seeking strict scrutiny review.” Id.
Defendants’ argument is without merit for various reasons. First, Defendants entirely
ignore the Magistrate Judge’s application of Mingus, thereby misconstruing the R&R’s mention
of strict scrutiny as it relates to Plaintiffs’ allegations. Second, Plaintiffs’ allegations, coupled
with the statement relied upon by Magistrate Judge Grand, logically lead to the conclusion that
strict scrutiny review is not being sought. Third, there is no problem with Magistrate Judge
Grand’s “theory,” despite Defendants’ assertion to the contrary. Eleventh Amendment immunity
would not be defeated by all claims of unequal treatment, if defendants simply provided a reason

13

(i.e. rational basis) to justify such treatment. Here, Defendants have not provided any rational
basis, whatsoever, for the disparate treatment alleged by Plaintiffs. And finally, even
Defendants’ initial brief conceded that, “with respect to Title II claims, the gist of Plaintiffs’
Complaint is that they are denied effective and comparable access to services as compared to
non-disabled inmates. Such an assertion is a quintessential equal protection type claim that
does not overcome the 11th Amendment immunity enjoyed by the State of Michigan.” (Def.s’
Br. at 18-19) (emphasis added).
Due Process
In their initial brief, Defendants argued that Plaintiffs had failed to plead a Fourteenth
Amendment due process violation. Defendants noted that there was no constitutionally protected
due process right to effective prison grievance procedures, rehabilitation, education, or jobs.
(Def.s’ Objs. at 18-19) (internal citations omitted). The Magistrate Judge correctly rejected
Defendants argument:
This argument lacks merit because plaintiffs’ allegations implicate due process
concerns not with respect to prison grievance procedures or obtaining education or
a job while in prison, but rather with respect to the inability to meaningfully
defend themselves at disciplinary and parole proceedings, impeding their freedom
to communicate with relatives, and infringing upon their free exercise of religion
by failing to provide sign interpreters at religious services. MDOC’s failure to
address the plaintiffs’ real claims alone merits denial of the relief it requests.
(R&R at 21) (emphasis added). Magistrate Judge Grand proceeded to address Plaintiffs’ claims
despite Defendants’ failure to do so. He concluded, and Defendants do not refute, “that the
complaint properly pleads an actual violation of due process” with respect to Defendants’ failure
to provide interpreters at disciplinary and parole hearings. (Def.s’ Objs. at 11).

14

Moreover, Magistrate Judge Grand concluded that Defendants had not “shown [how]
plaintiffs’ assertion[s], that the alleged ADA violations impede their freedom to communicate
with relatives and infringe upon their free exercise of religion by failing to provide sign
interpreters at religious services, fail to implicate due process concerns.” (R&R at 23). On
objection, Defendants maintain that the Magistrate Judge’s conclusion is improperly premised on
Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891 (6th Cir. 2001), which stands for the
proposition that “‘almost all § 1983 claims rely on the substantive component of the Due Process
Clause because it is through that vehicle that fundamental rights are incorporated against the
states.’” (R&R at 23). In stating their objection, Defendants claim that “Judge Grand does not
explain how an analysis of Section 1983 claims is relevant to an ADA Eleventh Amendment
analysis; nor does there appear to be any jurisprudence supporting its relevance to the instant
matter.” (Def.s’ Objs. at 9). This argument is without merit. Notably, Magistrate Judge Grand
was correct: Defendants have yet to provide any explanation as to why these allegations do not
implicate due process. This, on its own, merits denial of the relief Defendants seek. Rather than
substantiate their claims with applicable law, Defendants improperly focus on the Magistrate’s
citation to Brandenburg. Defendants appear to have taken the Magistrate’s reference to
Brandenburg out of context. As Plaintiffs correctly note, the “Magistrate Judge cited
Brandenburg for the basic principle that the factual allegations underpinning both Plaintiffs’
ADA claim and Plaintiffs’ First Amendment Free Exercise and Free Speech claims (Counts IV
and V), which Plaintiffs have brought under Section 1983, implicate due process...” (Pl.s’ Resp.
at 17).
Defendants also claim that “Brandenburg provides clear support for the conclusion that
15

Plaintiffs claims are not even properly contained within the ADA count as there are more specific
provisions of the constitution that are implicated as evidenced by Plaintiffs’ separate free speech
and freedom of religion claims.” (Def.s’ Objs. at 10). Defendants fail to substantiate this
argument with any analysis. While it is true that, in Brandenburg, the court stated that “a cause
of action cannot be based in substantive due process where a more specific constitutional
provision is applicable,” Defendants disregard the fact that Plaintiffs (unlike the Brandenburg
plaintiff) have not brought a substantive due process claim. Due process is being discussed
solely for purposes of immunity. Thus, Defendants’ undeveloped assertion lacks merit.
For the reasons above, Defendants’ second objection is overruled.
Objection #3 - RLUIPA Argument
In their third objection, Defendants argue that “Judge Grand improperly concludes that
Plaintiffs stated a claim with respect to RLUIPA based primarily on his belief that the ‘factual
record in this case is entirely undeveloped’ and that Defendants did not identify a ‘compelling
governmental interest that would justify their failure to provide an interpreter or sufficiently
demonstrate that such an interest was served in the ‘least restrictive way’” (Def.s’ Objs. at 13)
(citing R&R at 24). Defendants maintain that the R&R “misses the mark, as... the complaint
itself failed to plead facts that could illustrate a substantial burden on religion.” (Def.’s Objs. at
13).
Defendants’ objection fails for two main reasons. First, it appears that Defendants are
seeking to apply the wrong standard to their summary judgment motion. Because matters outside
the pleadings were presented to, and considered by, the Court, Defendants’ motion must be

16

treated as one for summary judgment. FED. R. CIV. P. 12(d). Defendants wholly disregard this
fact. Defendants have not advanced any argument as to why the Court should apply a Rule
12(b)(6) standard to a summary judgment motion.
Even assuming, arguendo, that Defendants were seeking the appropriate standard, the
argument still fails. Defendants essentially advance the same argument initially presented to the
Magistrate Judge: “a failure to provide interpreters at religious services does not pressure an
inmate to violate his religious beliefs or abandon one of the precepts of his religions; thus, it does
not constitute a substantial burden within the meaning of RLUIPA.” (Def.s’ Objs. at 14; Def.s’
Br. at 22) (citing Living Water Church of God v. Charter Tp of Meridian, 258 Fed. App’x 729,
735 (6th Cir. 2007)). But, in making this argument, Defendants ignore Magistrate Judge Grand’s
reliance on Haight v. Thompson, 763 F.3d 554 (6 th Cir. 2014). As the Magistrate Judge
explained:
In [Haight], the Sixth Circuit Court of Appeals held that a “substantial burden” is
imposed when prison officials either: (1) “place[] substantial pressure on an
adherent to modify his behavior and to violate his beliefs;” or (2) “effectively bar
his sincere faith-based conduct.”
....
Since Haight is the Sixth Circuit’s most recent and salient elucidation of the
“substantial burden” test, the Court adheres to its holding.
(R&R at 24) (emphasis added) (internal citations omitted). Defendants have not asserted that
Magistrate Judge Grand improperly relied on Haight. Importantly, Defendants do not dispute
that a failure to provide interpreters “effectively bars Plaintiffs’ sincere faith-based conduct,”
which, according to Haight, constitutes a substantial burden within the meaning of RLUIPA.
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For these reasons, and the reasons stated in the R&R, Defendants’ third objection is
overruled.
Objection #4 - Free Exercise Clause Argument
In their final objection, Defendants argue that Magistrate Judge Grand failed “to consider
that Defendants are asserting that the complaint on its face does not state a claim with respect to
the Free Exercise Clause.” (Def.s’ Objs. at 14). Again, Defendants are attempting to apply the
wrong standard at the summary judgement stage: Defendants ask the Court to a Rule 12(b)(6)
standard to their summary judgment motion. Defendants have not addressed the effect Rule
12(d) has on their motion. Nor have Defendants apprised the Court of a single case or rule that
would support the imposition of a 12(b)(6) standard on a summary judgment motion.
Moreover, Defendants’ argument fails even if addressed on its merits. In arguing that
Plaintiffs failed to state a cognizable free exercise of religion claim, Defendants state that the
complaint fails to assert coercion on the part of MDOC or that Plaintiffs have been penalized for
their religious beliefs. However, Defendants appear to be applying the wrong standard here. As
Magistrate Judge Grand pointed out, the applicable standard for analyzing Plaintiffs’ challenges
to restrictions on free exercise of religion can be found in Turner v. Safley, 482 U.S. 78 (1987):
“[t]here, the Supreme Court held that ‘when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.’” (R&R at 26) (quoting Turner, 482 U.S. at 89). Like their brief in front of the
Magistrate Judge, Defendants’ objection “lacks any meaningful analysis of the factors specified
in Turner.” (R&R at 27). Defendants do not assert that Magistrate Judge Grand erroneously

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cited Turner. Instead, Defendants’ objection appears to advance the same arguments previously
advanced before the Magistrate Judge.
For these reasons, Defendants’ fourth objection is overruled.
ORDER
For the reasons set forth above IT IS ORDERED that the Court ACCEPTS AND ADOPTS
the October 30, 2015 R&R. Accordingly, the Court shall DENY Defendants’ Motion to for Partial
Summary Judgment.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 24, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 24, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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