Chaaban v. City of Detroit et al
OPINION AND ORDER Dismissing as moot 12 Motion to Dismiss; Dismissing as moot 14 Motion to Dismiss; granting in part and denying in part 25 Motion to Dismiss; granting in part and denying in part 30 Motion to Dismiss. Defendants shall file an answer to the Amended Complaint within 21 days of entry of this Order. Signed by District Judge Nancy G. Edmunds. (WBar)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 20-cv-12709
Honorable Nancy G. Edmunds
CITY OF DETROIT, MICHIGAN
DEPARTMENT OF CORRECTIONS,
DETROIT DETENTION CENTER,
HEIDI E. WASHINGTON, and
OPINION AND ORDER ON MOTIONS TO DISMISS [12, 14, 25, 30]
Plaintiff Zainab Chaaban, a Muslim woman who wears a hijab, alleges in her
Amended Complaint that Defendants City of Detroit, Detroit Detention Center, 1 Michigan
Department of Corrections (“MDOC”), Heidi E. Washington (Director of MDOC), and Jodi
Deangelo (Warden) violated her rights under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, the Free Exercise Clause of the First
Amendment to the United States Constitution, and Article I, Section 4 of the Michigan
State Constitution when they forced Plaintiff to remove her hijab for a booking photograph
after she was arrested in May of 2019. Plaintiff asks for money damages, including
punitive damages, along with injunctive and declaratory relief. Before the Court are
motions to dismiss the Amended Complaint by Defendants City of Detroit (ECF No. 25)
and MDOC along with Washington and DeAngelo (together, “MDOC Defendants”) (ECF
Detroit Detention Center was dismissed as a defendant from this action by stipulation of the parties. (ECF
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No. 30).2 For the reasons stated below, the Court GRANTS IN PART AND DENIES IN
PART each motion.
Plaintiff Zainab Chaaban wears a hijab pursuant to her Muslim faith. (Amended
Complaint, ECF No. 18, PageID.101 ¶¶ 4, 11.) For many observant Muslim women,
wearing a hijab or “covering” involves wearing a headscarf over one’s hair, ears, and neck
at all times when the wearer is in the presence of men who are not part of her immediate
family. (Id. ¶¶ 11, 12.) Plaintiff does not wear a niqab, or face veil. (Id. ¶ 11.)
In May of 2019, Plaintiff was arrested and taken to the Detroit Detention Center, a
detention facility that holds pre-arraigned detainees for up to 72 hours. (Id. ¶ 48; ECF No.
12-2, PageID.71 ¶ 4.) The Detroit Detention Center operates under an interagency
agreement between the Detroit Police Department and MDOC. (ECF No. 18,
PageID.104 ¶ 18; ECF No. 12-2, PageID.71 ¶ 4) (see also ECF No. 33-1, PageID.335.)3
Under that agreement, MDOC “provides custody and security services” to the Detroit
Police Department and the Michigan State Police for up to 200 arrestees. (ECF No. 331.)
While in custody, during the booking process, Plaintiff alleges she was subject to
MDOC’s Prisoner Photographic Identification Policy (the “Photograph Policy”). Section
04.04.133(B) of the Photograph Policy states that when an individual is processed into
the MDOC, a photo shall be taken of the prisoner’s face and directs that “headgear shall
not be worn.” (Id. ¶¶ 17, 48, 52.) Plaintiff states that under the Photograph Policy, she
The Court dismisses as moot motions to dismiss the original complaint filed by the City of Detroit (ECF
No. 14) and MDOC/Detroit Detention Center (ECF No. 12).
3 The Court considers the Interagency Agreement as it is referenced in Plaintiff’s pleadings and “integral to
her claims.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007)
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was forced to remove her hijab for her booking photograph in the presence of male staff
and despite her objection that removing her hijab violated her religious beliefs. (Id. ¶¶ 52,
53, 57, 58.) According to the Amended Complaint, MDOC and City of Detroit officers
ordered Plaintiff to remove her hijab and threatened to make her “sleep on the concrete
floor of the booking cell without a bed, blanket, mattress, or pillow” if she did not comply.
(Id. ¶¶ 52, 55.) Plaintiff states she complied and removed her hijab as a result of those
threats. (Id. ¶ 56.)
Plaintiff alleges that after her booking photograph was taken, a copy of the
photograph went into her file which was then disseminated to and viewed by male officers
and male members of the public who made requests for the photo pursuant to the
Freedom of Information Act (“FOIA”). (Id. ¶ 59, 61, 62.) The photo was also placed on a
wristband that Plaintiff was required to wear and present for inspection while under the
custody of MDOC and the City of Detroit. (Id. ¶ 60.)
Plaintiff was tried, acquitted of all charges, and released from custody (Id. ¶ 51,
61.) She initiated this action by filing a complaint against MDOC and the City of Detroit
along with Defendants Washington and DeAngelo in both their individual and official
capacities. (ECF No. 1.) Plaintiff later filed an Amended Complaint “to include specific
allegations against the City of Detroit.” (ECF No. 18.)
On December 14, 2020 the City of Detroit filed a motion to dismiss Plaintiff’s
Amended Complaint in lieu of filing an answer. (ECF No. 25.) In its motion, the City of
Detroit argues Plaintiff’s complaint fails to state the elements of any cause of action
against the City of Detroit and therefore should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6).
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The MDOC Defendants also filed a motion to dismiss in which it argues Plaintiff’s
claims for injunctive and declaratory relief are moot, the claims for money damages are
barred by sovereign and qualified immunity, and that claims for money damages against
Defendants Washington and DeAngelo in their individual capacities are barred under
RLUIPA. (ECF No. 30.) The MDOC Defendants also argue Defendant Washington is
absolutely immune from suit with respect to Plaintiff’s state law claim and that the Court
should decline to exercise supplemental jurisdiction over the state law claim.
Plaintiff states in her response to the MDOC Defendants’ motion that she seeks
monetary damages from the individual Defendants only and does not seek to hold MDOC
liable for monetary damages. (ECF No. 35, PageID.379 n. 14.) Accordingly, the Court
DISMISSES the federal claims for damages against MDOC and Defendants Washington
and DeAngelo in their official capacities.4
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where
the complaint fails to state a claim upon which relief can be granted. When reviewing a
motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light
most favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
As Plaintiff has agreed to drop the RLUIPA and First Amendment claims for monetary damages against
MDOC, the Court finds no need to address the MDOC Defendants’ unopposed argument that sovereign
immunity bars money damages on the federal claims. (ECF No. 30, PageID.278.) To the extent Plaintiff
means only to drop the claims against MDOC itself, and not Defendants Washington and DeAngelo in their
official capacities, the Court relies on Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989), in
dismissing claims for money damages against those defendants in their official capacities only. See id. (“[A]
suit against a state official in his or her official capacity is not a suit against the official but rather is a suit
against the official's office... As such, it is no different from a suit against the State itself.”).
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2007). But the court “need not accept as true legal conclusions or unwarranted factual
inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)).
A plaintiff’s factual allegations “must do more than create speculation or suspicion
of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Dismissal is appropriate if the plaintiff failed
to offer sufficient factual allegations that make the asserted claim plausible on its face.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A “claim is facially plausible
when a plaintiff ‘pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’ ” Matthew N. Fulton,
DDS, P.C. v. Enclarity, Inc., 907 F.3d 948, 951-52 (6th Cir. 2018) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
When deciding a motion under Rule 12(b)(6), the Court looks only to the pleadings.
Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). But the Court also may
consider the documents attached to them, Commercial Money Ctr., Inc. v. Illinois Union
Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)), documents
referenced in the pleadings that are “integral to the claims,” id. at 335-36, documents that
are not mentioned specifically but which govern the plaintiff's rights and are necessarily
incorporated by reference, Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997),
abrogated on other grounds by Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), and
matters of public record, Northville Downs v. Granholm, 622 F.3d 579, 586 (6th Cir. 2010).
Beyond that, however, assessment of the facial sufficiency of the complaint ordinarily
must be undertaken without resort to matters outside the pleadings. Wysocki v. Int'l Bus.
Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010).
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A. Plaintiff’s Claims For Injunctive and Declaratory Relief Are Not Moot
The MDOC Defendants argue that Plaintiff’s injunctive and declaratory relief claims
are moot because she is no longer in MDOC custody and there is no risk MDOC will
release her booking photograph. (ECF No. 30, PageID.272.)
In support of their argument that MDOC will not release Plaintiff’s booking
photograph pursuant to a FOIA request, the MDOC Defendants attach to their motion a
declaration from Andrew Phelps, a manager in the Policy/FOIA/Offender ADA Section of
MDOC. (ECF No. 12-2, PageID.71 ¶1.) The Court considers the Phelps declaration as a
document “incorporated by reference” into the Amended Complaint as it relates entirely
to Plaintiff’s assertion that MDOC released or will release Plaintiff’s booking photograph
in response to a FOIA request. (See ECF No. 18 ¶¶ 61, 73.) According to the declaration,
Plaintiff’s allegation that MDOC released her photograph pursuant to FOIA requests is
inaccurate. (ECF No. 12-2, PageID.72 ¶ 6.) Moreover, Phelps states that if MDOC did
receive a FOIA request for a detainee’s booking photograph, it would refer the request to
the City of Detroit or the Detroit Police Department. (Id.) The statements in Phelps’
declaration are consistent with the FOIA request exhibits attached to the City of Detroit’s
motion to dismiss. (ECF No. 25-1, 25-2.) These FOIA requests (which are considered by
the Court as they are referenced in the pleadings and integral to Plaintiff’s claims) are
addressed to the City of Detroit FOIA Coordinator, not MDOC.
Federal courts may only adjudicate actual cases and live controversies. DeFunis
v. Odegaard, 416 U.S. 312, 316 (1974). If events occurring before or during the pendency
of a case make it “impossible for the court to grant any effectual relief whatever. . .” the
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case may be dismissed as moot. Coal. for Gov't Procurement v. Fed. Prison Indus., Inc.,
365 F.3d 435, 458 (6th Cir. 2004) (quoting Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992)). But “even the availability of a partial remedy is sufficient to prevent
[a] case from being moot.” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam)
(citing Church of Scientology of Cal., 506 U.S. at 13). Thus, whether a claim is moot turns
on whether a court can provide “any effectual relief.”
Plaintiff has been released from MDOC custody and MDOC has shown through
Phelps’ declaration that it is not responsible for disseminating Detroit Detention Center
booking photographs through FOIA. Notably absent from MDOC’s motion, however, is
any assertion that MDOC will not maintain Plaintiff’s photograph for its own internal
purposes, keep it in a permanent file, or allow the photograph to be viewed by male
members of its staff. Setting this omission aside for the moment, Plaintiff’s claims for
declaratory and injunctive relief are still under this Court’s jurisdiction as they fall under
the exception to the mootness doctrine for being “capable of repetition, yet evading
review.” Kingdomware Technologies, Inc. v. U.S., 136 S.Ct. 1969 (2016) (citing Spencer
v. Kemna, 523 U.S. 1 (1998)). This exception applies “only in exceptional situations,”
where (1) “the challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration,” and (2) there [is] a reasonable expectation that the same
complaining party [will] be subject to the same action again.” Id.
The MDOC Defendants argue Plaintiff does not have a reasonable expectation
that she will be arrested in the State of Michigan and subjected to the same actions again
thus the exception does not apply. (ECF No. 30, PageID.275.) In support of this argument,
Defendants point to Kensu v. Haigh, 87 F.3d 172 (6th Cir. 1996), where a state prisoner
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brought a civil rights action against corrections officials for opening and examining his
legal mail outside his presence. Id. at 173. There, the Sixth Circuit found the plaintiff’s
claims for declaratory and injunctive relief were moot because the plaintiff was no longer
confined to an institution that searched his mail. Id. at 175.
This case can be distinguished from Kensu because the Kensu plaintiff was
arrested, charged, tried, convicted, and confined to a state prison that searched his mail.
By contrast, the Detroit Detention Center, where Plaintiff was held, holds pre-arraigned
arrestees for the Detroit Police Department for up to 72 hours. (ECF No. 12-2,
PageID.71 ¶ 4.) While the possibility that one might be convicted and sent to state prison
at some unknown time in the future may not present “sufficient immediacy and reality” to
sustain a claim, the Court finds it to be much more likely, and sufficient for purposes here,
that one would be arrested by the Detroit Police and booked. See Maryland Cas. Co. v.
Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) (requiring the legal interests of a party who
seeks a declaratory judgment to be “of sufficient immediacy and reality.”)
B. Plaintiff’s Claims For Money Damages Against Defendants In Their
Individual Capacities Are Barred Under RLUIPA
Plaintiff brings her first cause of action against under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) which provides, in relevant part: “No government
shall impose a substantial burden on the religious exercise of a person residing in or
confined to an institution . . . A person may assert a violation of this chapter as a claim or
defense in a judicial proceeding and obtain appropriate relief against a government.” 42
U.S.C. §§ 2000cc-1-2 (emphasis added).
The MDOC Defendants, relying on Haight v. Thompson, 763 F.3d 554, 570 (6th
Cir. 2014), argue money damages are not available to Plaintiff on her RLUIPA claim
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brought against Defendants Washington and DeAngelo in their individual capacities.
(ECF No. 30, PageID.280.) Plaintiff did not respond to this argument in her brief, but
another court in this district recently identified competing authorities on this issue:
In Sossamon v. Texas, 563 U.S. 277, 288 (2011), the
Supreme Court held that sovereign immunity was not waived
by Congress in the enactment of the RLUIPA, and thus, suits
for money damages against officials in their official capacities
were barred by Eleventh Amendment sovereign immunity.
Relying on the Supreme Court’s reasoning in Sossamon, the
Sixth Circuit in Haight v. Thompson, 763 F.3d 554, 570 (6th
Cir. 2014), held that the RLUIPA does not permit individual
capacity suits for money damages: “Congress's failure to
speak so clearly here renders any putative individualcapacity,
inappropriate.” (emphasis in original).
Most recently, in [Tanzin v. Tanvir, 141 S. Ct. 486 (2020)],
while addressing a claim under a separate statute, the
Religious Freedom Restoration Act (RFRA), which contains
an identical “appropriate relief” clause as the RLUIPA, the
Supreme Court concluded that RFRA allows money-damages
suits against officials sued in their individual capacities. 141
S. Ct. at 492. The Court explicitly stated that this decision was
not in conflict with Sossamon. Id. at 492–93. Thus, Tanzin
does not expressly overrule Haight, nor does it mention the
Catlett v. Washington, No. 20-13283, 2021 WL 3680196, at *5 (E.D. Mich. Aug. 19, 2021)
The Catlett court identified two post-Tanzin district court decisions that discussed
whether RLUIPA permitted individual capacity suits for money damages. Id.; see also
Ruplinger v. Louisville/Jefferson Cty. Metro Gov't, No. 3:19-CV-583-DJH-RSE, 2021 WL
682075 (W.D. Ky. Feb. 22, 2021); Mease v. Washington, No. 2:20-CV-176, 2021 WL
1921071 (W.D. Mich. May 13, 2021). In Ruplinger, the Western District of Kentucky held
that, in the absence of Sixth Circuit guidance following Tanzin, the plaintiff’s claim for
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damages under the RLUIPA was not barred by Eleventh Amendment immunity. 2021 WL
682075, at *6. In Mease, the Western District of Michigan came to the opposite
conclusion reasoning that “the basis of the Haight court’s decision—the need for clarity in
statutes promulgated under the Spending and Commerce Clauses—did not apply in
Tanzin.” Mease, 2021 WL 1921071, at *16. Accordingly, the court in Mease held that
Tanzin did not abrogate Haight and that Haight remains controlling authority in this circuit.
Like the court in Catlett, this Court finds the reasoning in Mease to be persuasive
on this issue. Thus, without further guidance from the Sixth Circuit, the Court finds Haight
to be controlling and DISMISSES Plaintiff’s RLUIPA claim for money damages against
Defendants Washington and DeAngelo in their individual capacities.
C. Individual Defendants Are Not Entitled To Qualified Immunity
The MDOC Defendants move to dismiss the RLUIPA, First Amendment, and
Michigan Constitutional claims against Defendants Washington and DeAngelo on the
basis of qualified immunity. According to Defendants, Plaintiff’s right to refuse to remove
her hijab for her booking photograph or while in view of male employees was not “clearly
“The doctrine of qualified immunity shields government officials performing
discretionary functions from civil liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Once raised, it is the plaintiff's burden
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to show that the defendants are not entitled to qualified immunity.” Kinlin v. Kline, 749
F.3d 573, 577 (6th Cir. 2014) (citing Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir.2013)).
There are two questions a court must consider when deciding whether a
government official is entitled to qualified immunity: “First, viewing the facts in the light
most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has
occurred? Second, was the right clearly established at the time of the violation? These
prongs need not be considered sequentially.” Baynes, 799 F.3d at 610 (quoting Miller v.
Sanilac County, 606 F.3d 240, 247 (6th Cir. 2010)). If either prong is not met, the
government officer is entitled to qualified immunity.” Doe v. Miami Univ., 882 F.3d 579,
604 (6th Cir. 2018) (citing Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir.
Regarding the constitutional violation prong, Plaintiff has sufficiently alleged her
Muslim faith requires the wearing of a hijab when she is in the presence of men who are
not part of her immediate family, and that being required to remove her hijab in the
presence of male staff, stand for an identification photograph without her hijab, or carry
around that photograph as identification throughout the period of incarceration violates
her sincerely held religious beliefs as does the dissemination of the photograph to male
employees or members of the public. (ECF No. 18 ¶¶ 11-15.) Thus, a constitutional
violation has been plausibly alleged.
Whether a right is clearly established “turns on the ‘objective legal reasonableness
of the action, assessed in light of the legal rules that were clearly established at the time
it was taken.” Pearson v. Callahan, 555 U.S. 223, 244 (2009) (quoting Wilson v. Layne,
526 U.S. 603, 614 (1999)). This does not require the existence of a previous case with
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“materially similar” facts. Hope v. Pelzer, 536 U.S. 730, 731 (2002). “Qualified immunity
operates to ensure that before they are subjected to suit, officers are on notice that their
conduct is unlawful.” Id. And “officials can be on notice that their conduct violates
established law even in novel factual situations.” Id. The question a court must ask is
“whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s]
alleged treatment was unconstitutional.” Id.
The First Amendment forbids all laws “prohibiting the free exercise” of religion.
Even in a prison setting, established law forbids regulations that would arbitrarily and
capriciously impinge on an inmate’s constitutional rights. Turner v. Safley, 482 U.S. 78,
89 (1987). The Supreme Court established in Turner that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.” 482 U.S. at 89. See also Brown v. Johnson, 743 F.2d
408, 411–12 (6th Cir. 1984) (“Where an inmate's religious freedom is at stake,
correctional officials may only adopt regulations which are ‘reasonably and substantially’
justified by official concern for internal security and inmate discipline.”).
Plaintiff’s allegations are sufficient to show the MDOC Defendants were “on notice”
that their policy violates a Muslim woman’s right to freely exercise her religion. Plaintiff
alleges she “made her dissent and protest to the forceful removal of her hijab extremely
clear” and “asserted her right to keep her hijab on for the photograph because it is
representative of a sincerely-held religious belief, as a Muslim-woman.” (ECF No. 18,
PageID.111 ¶ 53.) Moreover, it defies logic that officers operating in a facility in Detroit,
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near one of the nation’s largest Muslim communities, would not be aware of the religious
significance of the hijab.5
At this stage in the proceeding, The MDOC Defendants have not established a
“legitimate penological interest” for the conduct alleged. Accordingly, Plaintiff states a
claim for relief and Defendants Washington and DeAngelo are not immune from suit
based upon qualified immunity. See Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir.
2015) (noting it is “generally inappropriate for a district court to grant a 12(b)(6) motion to
dismiss on the basis of qualified immunity”); Evans-Marshall v. Bd. of Educ. of Tipp City
Exempted Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J, concurring)
(observing that it is generally “difficult for a defendant to claim qualified immunity on the
pleadings before discovery and before the parties (much less the courts) know what is
being balanced against what.”) (emphasis in original).
D. Defendant Washington is Not Entitled to Absolute Immunity Under
The MDOC Defendants next argue Defendant Washington, as the Director of
MDOC, is entitled to absolute immunity from suit with respect to Plaintiff’s Michigan State
Constitutional claim. (ECF No. 30, PageID.285.)
The Court takes note that Plaintiff has identified numerous examples of federal, state, and local
government policies and regulations in place across the United States that recognize the religious interest
in the hijab and permit it to be worn in official photographs. (ECF No. 18 ¶¶ 24-36.) For example, the United
States Department of State permits those who wear hats or head coverings for religious reasons to keep
those coverings in official passport photographs if they submit a signed statement verifying the head
covering is part of their religious attire. (Id. ¶ 25.) The United States Citizenship and Immigration Services
also permits religious head coverings to be worn in photographs. Under its policy, if the head covering casts
a shadow or obscures a portion of the wearer’s face, the wearer is offered a photographer of the same
gender and a private area where he or she can adjust the head covering for the photograph. (Id. ¶ 26.)
Similar to the federal policies mentioned, the state of Michigan permits an applicant for a driver’s license to
wear religious headwear as long as it does not touch the person’s eyebrows. (Id. ¶ 27.) And some police
departments have updated their policies to state that Muslim women are not required to remove religious
head coverings like hijabs for booking photographs. (Id. ¶ 27.)
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Defendants’ argument stems from the Michigan Supreme Court’s holding in Ross
v. Consumers Power Co., 363 N.W.2d 641, 667 (Mich. 1984), which was later codified in
the Governmental Liability for Negligence Act (“GLNA”), at Mich. Comp. Laws.
691.1407(5). This section of the GLNA shields judges, legislators, and government
executives, including the Director of MDOC, from “tort liability for injuries to persons or
damages to property if he or she is acting within the scope of his or her judicial, legislative,
or executive authority.” Mich. Comp. Laws. 691.1407(5).
But “[g]overnmental immunity is not available ‘where it is alleged that the state, by
virtue of custom or policy, has violated a right conferred by the Michigan Constitution.’ ”
Wendrow v. Michigan Dep't of Hum. Servs., 534 F. App'x 516, 525 (6th Cir. 2013) (citing
Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 751 (Mich. 1987)). The state’s liability is
limited to “appropriate cases” defined as those “in which the state's liability would, but for
the Eleventh Amendment, render it liable under the 42 U.S.C. § 1983 standard for local
governments articulated in Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658
(1978).” Pleasant v. Zamieski, 895 F.2d 272, 278 (6th Cir. 1990) (quoting Smith, 410
N.W.2d at 794 (Boyle, J., concurring)). In Monell, the Supreme Court held that liability
may exist only where “the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by the body's officers.” 436 U.S. at 690.
Plaintiff sufficiently alleges a constitutional claim for which immunity is not available
under the Sixth Circuit’s interpretation of Smith. The Amended Complaint alleges
Plaintiff’s right to freely exercise her religion was violated by virtue of MDOC’s Photograph
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Policy. (ECF No. 18 ¶¶ 84, 92.) Thus, Defendant Washington has not demonstrated she
is entitled to immunity on this issue.
E. Plaintiff’s Claims Against the City of Detroit
Finally, the Court turns to arguments raised by the City of Detroit in their motion to
dismiss the Amended Complaint for lack of pleading specific allegations that would state
a claim against the City of Detroit. Plaintiff names the City of Detroit as a defendant in
each of the three substantive causes of action she brings as well as her claim for
1. Plaintiff States A Claim Under RLUIPA
As discussed above, Plaintiff’s first cause of action accuses all Defendants,
including the City of Detroit, of violating RLUIPA. “RLUIPA prohibits a State from imposing
‘a substantial burden on the religious exercise of a person residing in or confined to an
institution’ unless the government shows that the burden furthers ‘a compelling
governmental interest’ and ‘is the least restrictive means’ of doing so.” Cavin v. Michigan
Dep't of Corr., 927 F.3d 455, 458 (6th Cir. 2019) (citing 42 U.S.C. § 2000cc-1(a)). Thus,
the plaintiff is required to show (1) she wishes to exercise her religion due to a “sincerely
held religious belief” and (2) “that the government substantially burdened that religious
exercise.” Id. (citing Holt v. Hobbs, 574 U.S. 352, 352 (2015)); see also Haight, 763 F.3d
at 559–60 (“[t]o establish a cognizable claim under RLUIPA, the inmate must first
demonstrate that a prison policy substantially burdens a religious practice”) (citing Cutter
v. Wilkinson, 544 U.S. 709, 725 n. 13 (2005)). If a plaintiff successfully makes this
showing, the burden moves to the defendant to “meet the daunting compelling-interest
and least-restrictive-means test.” Id. at 863.
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Plaintiff has alleged wearing her hijab is a sincerely held religious belief “core to
her identity” and that wearing the hijab is “a mandatory aspect of [her] Muslim identity and
faith.” (ECF No. 18, PageID.103 ¶¶ 4, 13, 14.) Defendant City of Detroit does not dispute
these allegations, but instead argues Plaintiff fails to state a claim against it because
Plaintiff has not identified any City of Detroit policy that substantially burdens religious
Plaintiff was “confined to an institution” at all relevant times for purposes of
RLUIPA. It is also undisputed that the Photograph Policy under which Plaintiff was made
to remove her hijab is a policy belonging to MDOC, not the City of Detroit. (ECF No. 18,
PageID.104.) Nevertheless, Plaintiff has alleged the City of Detroit implemented the policy
by “forc[ing] arrestees who wear religious head coverings to remove those head coverings
for a photograph.” (Id., PageID.102. ¶ 10.) This is a task the City of Detroit is “bound to
perform.” (Id., PageID.104 ¶ 18.) Moreover, Plaintiff alleges City of Detroit officers “falsely
stated that the law necessitated for the removal of [her] hijab; threatening to make [her]
sleep on the concrete floor of the booking cell without a bed, blanket, mattress, or pillow
if she continued to be noncompliant” and that Plaintiff removed her hijab as a direct
consequence. (Id., PageID.111 ¶ 55, 56.) According to the allegations in the Amended
Complaint, these actions by the City of Detroit “substantially burdened Plaintiff’s religious
exercise” in several ways—by requiring to remove her hijab to be photographed (Id.,
PageID.113 ¶ 72); by creating a permanent public record of that image which has been
and could continue to be released to the public (Id., ¶ 73); and by requiring Plaintiff to
wear the photograph on a wristband and present it to male staff (Id., ¶ 74).
Case 2:20-cv-12709-NGE-APP ECF No. 37, PageID.442 Filed 09/07/21 Page 17 of 20
These allegations, accepted as true and construed in the light most favorable to
Plaintiff, are sufficient to state a claim under RLUIPA. See Directv, Inc., 487 F.3d 471,
476 (6th Cir. 2007).
2. Plaintiff States A Claim Under 42 U.S.C. § 1983
Plaintiff’s second cause of action, brought under 42 U.S.C. § 1983, alleges
Defendants, including the City of Detroit, violated Plaintiff’s right to freely exercise her
religion pursuant to the First Amendment to the United States Constitution. Section 1983
creates a federal cause of action against “any person” who deprives someone of a federal
constitutional right while acting under color of state law. Monell, 436 U.S. at 691–92.
Although § 1983 does not abrogate state sovereign immunity, the statute provides a
vehicle to sue local governments for constitutional violations. Id. at 690. A city can be a
“person” for the sake of a § 1983 claim. Id.
There are at least four avenues through which a plaintiff can hold a municipality
liable under § 1983. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
A plaintiff can look to: “(1) the municipality’s legislative enactments or official agency
policies; (2) actions taken by officials with final decision-making authority; (3) a policy of
inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal
rights violations.” Id. (citing, among others, Monell, 436 U.S. at 694). The official policy or
custom must be the “moving force” behind the constitutional violation. City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (quoting Monell, 436 U.S. at 694); Meyers v. City of
Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994) (noting that a municipality can be liable
under § 1983 for “a pervasive custom or practice, of which the city lawmakers know or
Case 2:20-cv-12709-NGE-APP ECF No. 37, PageID.443 Filed 09/07/21 Page 18 of 20
Plaintiff has sufficiently alleged a constitutional violation. See Section III(E)(1) of
this opinion, supra. The issue here is whether the City of Detroit can be held liable for a
policy which did not originate with the City, but which has been alleged to be enforced by
the City and its officers under the authority of the interagency agreement between the
City of Detroit and MDOC. (See ECF No. 18 ¶ 55 wherein Plaintiff alleges that City of
Detroit officers, among others, participated in the booking process.) Per the terms of the
agreement, the Detroit Police Department “[s]hall be made aware of and not contravene
MDOC policy and procedure.” (See ECF No. 33-1, PageID.) Thus, the City of Detroit was
aware of the Photograph Policy and promulgated that policy or, at a minimum, adopted
“a custom of tolerance or acquiescence of federal rights violations.” Thomas, 398 F.3d at
429. Because the City of Detroit has not identified any authority to suggest that it cannot
be held responsible under existing law, the Court finds that dismissal of Plaintiff’s claim
at this stage of the proceeding is improper.
3. Plaintiff Does Not State A Claim For Damages Under The Michigan State
In Jones, the Michigan Supreme Court held that there is no independent damages
remedy against a municipality for violations of the Michigan Constitution. Jones v. Powell,
612 N.W.2d 423 (Mich. 2000). Relying on Smith, 410 N.W.2d 749, the court recognized
a narrow remedy available against the state despite its Eleventh Amendment protection
from other claims. Id. at 337. Unlike in cases against the state, however, the Jones court
recognized that a plaintiff may obtain relief from a municipality through other causes of
action including common law tort remedies or pursuant to 42 U.S.C. § 1983. Thus, the
court found the concerns in Smith to be inapplicable in actions such as this one.
Case 2:20-cv-12709-NGE-APP ECF No. 37, PageID.444 Filed 09/07/21 Page 19 of 20
Here, Plaintiff has alleged causes of action under RLUIPA and 42 U.S.C. § 1983
in addition to her Michigan Constitutional claim. Accordingly, under Jones, Plaintiff fails
to state a claim for money damages against the City of Detroit for a violation of the
The court’s holding in Jones applies only to claims for money damages. Thus,
Plaintiff’s claims for injunctive and declaratory relief survive the City of Detroit’s motion.
See Patriot Ambulance Serv., Inc. v. Genesee County, 666 F.Supp.2d 712, 717 (E.D.
Mich. 2009) (Battani, J.) (dismissing the plaintiff's claims for damages against the
defendant county, board of commissioners, and individual commissioners for Michigan
Constitutional violations, but holding that to the extent that “Plaintiffs are not seeking
monetary relief under the Michigan Constitution, the Jones case is inapplicable” and
allowing the requests for declaratory judgment to proceed.).
4. Plaintiff’s Claim for Declaratory Judgment
In addition to her federal and state claims, Plaintiff seeks a judgment from this
Court, pursuant to Fed. R. Civ. P. 57 and 28 U.S.C. §§ 2201-02, declaring that
Defendants’ practices violate RLUIPA, the First Amendment, and the Michigan
Constitution. Because the Court rejects portions of Defendants’ arguments in regard to
Plaintiff’s substantive claims, Plaintiff’s request for declaratory judgment does not fail as
a matter of law.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
the City of Detroit’s Motion to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 25.)
With respect to Plaintiff’s Michigan Constitutional claim for money damages, the City of
Case 2:20-cv-12709-NGE-APP ECF No. 37, PageID.445 Filed 09/07/21 Page 20 of 20
Detroit’s motion is GRANTED and that claim is hereby DISMISSED. In all other respects,
the City of Detroit’s motion is DENIED.
The Court also GRANTS IN PART AND DENIES IN PART the MDOC Defendants’
Motion to Dismiss the Amended Complaint. (ECF No. 30.) With respect to Plaintiff’s claim
for money damages against Defendants Washington and DeAngelo in their individual
capacity pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§ 2000cc, Defendants’ motion is GRANTED and that claim is hereby DISMISSED. The
Court also DISMISSES Plaintiff’s Religious Land Use and Institutionalized Persons Act
and § 1983 claims for damages against MDOC and Defendants Washington and
DeAngelo in their official capacities. In all other respects, the MDOC Defendants’ motion
The Court DISMISSES AS MOOT motions to dismiss the original complaint filed
by the City of Detroit (ECF No. 14) and MDOC/Detroit Detention Center (ECF No. 12).
Defendants shall file an answer to the Amended Complaint within 21 days of entry
of this Order.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 7, 2021
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 7, 2021, by electronic and/or ordinary mail.
s/William Barkholz for Lisa Bartlett
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