Heard #252329 v. Caruso et al

Filing 410

OPINION; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

LAMONT HEARD,
Plaintiff,
Case No. 2:05-cv-231
HONORABLE PAUL L. MALONEY

v.
PATRICIA CARUSO, et al.,
Defendants.
___________________________________/

OPINION
Plaintiff Lamont Heard, an inmate currently confined in the MDOC, filed a pro se civil
rights action pursuant to 42 U.S.C. § 1983 on September 23, 2005. In his complaint, Plaintiff named
Defendants Patricia L. Caruso, Dennis Straub, Dave J. Burnett, Robert Mulvaney, Jeri-Ann Sherry,
Greg McQuiggin, Michael Brown, Steven Therrian, Sandy Shaw, Daniel Ezrow, Unknown Masker,
and Unknown Huhta. On February 6, 2007, the court granted Defendants’ motion for summary
judgment and dismissed all of Plaintiff’s claims, except for his claim against Defendant Masker. On
May 20, 2008, Plaintiff received a trial on his claims against Defendant Masker and, on May 28,
2008, judgment was entered for Defendant Masker. Plaintiff filed an appeal on June 11, 2008, and
on August 27, 2009, the Sixth Circuit vacated the district court’s grant of summary judgment for
Defendants on Plaintiff’s procedural due process, equal protection, and RLUIPA claims, and
remanded those claims for further proceedings. However, the Sixth Circuit affirmed the district court
in all other respects.

Plaintiff was appointed counsel on July 7, 2010 (docket #370). On November 4, 2010,
Plaintiff filed an amended complaint (docket #382), which names Defendants Dennis Straub, Dave
J. Burnett, Robert Mulvaney, Jeri-Ann Sherry, Michael Brown, and Sandy Shaw. Plaintiff alleges
that in 2004 he was confined in the Chippewa Correctional Facility (URF) and that he is a member
of the Nation of Islam (NOI). While at URF, Plaintiff attended a NOI religious service in which he
made certain statements commenting on the history and treatment of African Americans in the United
States. Defendant Shaw observed Plaintiff make the statements and reported them to MDOC
personnel. On September 18, 2004, Plaintiff was interviewed by Lieutenant Steven Therrian
regarding the statements. Plaintiff was consequently placed in segregation. Plaintiff was also charged
with a major misconduct for “Incite to Riot or Strike: Rioting or Striking.” A hearing was held on
the misconduct ticket on September 23, 2004, and Plaintiff was found guilty of the major misconduct.
Plaintiff alleges that prior to October 5, 2004, he was classified under MDOC security
classification guidelines to low to medium security confinement. On October 5, 2004, as a result of
the major misconduct conviction, Plaintiff was identified as a recruiter and was classified as an
adherent of “Intolerant / Subversive Groups.” Plaintiff was designated a Security Threat Group
(STG) II pursuant to the MDOC security-threat classification system. Plaintiff was not given a
hearing regarding this designation.
Plaintiff’s STG II classification automatically resulted in his transfer to a Level V
maximum-security facility. Plaintiff subsequently challenged his major misconduct conviction and
STG II classification and requested to be reclassified. Defendant Brown and Lieutenant Therrian
refused to comply with Plaintiff’s request. Plaintiff remained under the STG II classification for
approximately 6 years, through August of 2010. Plaintiff asserts that this designation imposed
significant atypical hardships on Plaintiff, including limitations on his eligibility for parole,
2

limitations on visitation, limitations on Plaintiff’s interactions with other prisoners, and limitations
on Plaintiff’s ability to exercise regularly.
Plaintiff asserts that members of the NOI are required to eat in accordance with certain
dietary restrictions and that he has repeatedly requested that Defendants Straub, Burnett, Sherry, and
Shaw accommodate his request for an NOI diet. Defendants Straub, Burnett, Sherry and Shaw have
refused to comply, stating that such a diet cannot meet the MDOC required nutritional standards.
Plaintiff contends that this denial has placed a substantial burden on his ability to freely exercise his
religious beliefs.
Plaintiff claims that Defendants’ actions violated his due process and equal protection
rights, as well as his rights under the RLUIPA. Plaintiff is seeking compensatory and punitive
damages, as well as declaratory relief and injunctive relief.
Presently before the Court is the Defendants’ Motion for Summary Judgment, pursuant
to Fed. R. Civ. P. 56 (docket #395). Plaintiff has filed a response (docket #408) and the matter is
ready for decision. Summary judgment is appropriate only if the moving party establishes that there
is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the
burden of showing there is an absence of evidence to support a claim or defense, then the party
opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The
nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is
a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed
in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment
3

motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing
Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support
of the nonmovant’s position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court
must determine whether there is sufficient “evidence on which the jury could reasonably find for the
plaintiff.” Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single
affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf.
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit
concerning state of mind created factual issue).
Initially, Defendants assert that they are entitled to summary judgment on Plaintiff’s
due process claims. “The Fourteenth Amendment protects an individual from deprivation of life,
liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir.
2005). To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show
that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a
procedural due process claims involves two steps: “[T]he first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that the Due Process Clause
does not protect every change in the conditions of confinement having an impact on a prisoner. See
Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the
Court set forth the standard for determining when a state-created right creates a federally cognizable
liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is
entitled to the protections of due process only when the sanction “will inevitably affect the duration
of his sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate
4

in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).
The Sandin Court concluded that mere placement in administrative segregation did not implicate a
liberty interest because the segregation at issue in that case did not impose an atypical and significant
hardship. Sandin, 515 U.S. at 484; Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
In its opinion remanding this claim, the Sixth Circuit stated:
We conclude that there are material issues of fact that prevent
summary judgment on Heard’s claim that his confinement to a
maximum-security facility implicates a protected liberty interest.
Unlike the prisoner in Harbin-Bey v. Rutter, 420 F.3d 571, 576-77 (6th
Cir. 2005), who challenged only his designation by MDOC officials
as an STG member, Heard challenges his placement in maximumsecurity facilities, coupled with the indefinite nature of this placement
and the consequences for his eligibility for parole. It appears that there
has been no discovery on these issues. On remand, the district court
should permit Heard discovery regarding materials relevant to showing
the conditions of his confinement in maximum-security facilities, the
nature and timing of review of his maximum-security placement, and
the consequences of his placement for parole eligibility. Defendants
will, of course, have an opportunity to introduce evidence showing that
the conditions of confinement in Michigan’s maximum-security
facilities are distinguishable from those of the maximum-security
prison in Austin.
If a prisoner establishes a protected liberty interest, the next
question is whether the state afforded the inmate sufficient process.
See Austin, 545 U.S. at 224. The district court suggested that, even if
Heard had a liberty interest, he received sufficient process when he
“was called into the Captain’s office and his actions were discussed”
and when he “received a misconduct hearing and was found guilty”
before being designated STG II. R. 143 (Dist. Ct. Op. 2/6/07 at 3).
However, on the bare-bones record before us, we cannot say whether
Heard received the process that may be due if he has a protected liberty
interest. Therefore, if the district court finds on remand that Heard’s
placement in maximum-security facilities implicates a protected liberty
interest, it should then consider whether prison officials have given
Heard the process to which he is due under the framework set forth by
the Supreme Court in Austin and, if so, whether Heard actually
received these procedural protections. See Austin, 545 U.S. at 224-30
5

(applying the three factors set forth in Mathews v. Eldridge, 424 U.S.
319 (1976)).
Heard v. Caruso, et al., Nos. 08-1710/1779/1820, pp. 11-12 (6th Cir. Aug. 27, 2009) (docket #273).
In their motion for summary judgment, Defendants assert that they are entitled to
qualified immunity from civil damages with regard to Plaintiff’s due process claims because they did
not violate a clearly established constitutional right of which a reasonable person would have known.
“Under the doctrine of qualified immunity, ‘government officials performing discretionary functions
generally are shielded from liability from civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir.2008) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Determining whether the government officials in this case are entitled
to qualified immunity generally requires two inquiries: “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?” Id. at 538-39 (citing Silberstein v. City
of Dayton, 440 F.3d 306, 311 (6th Cir.2006)); cf. Pearson v. Callahan, 555 U.S. 223 (2009) (holding
that the two-part test is not longer considered mandatory; thereby freeing district courts from rigidly,
and potentially wastefully, applying the two-part test in cases that could more efficiently be resolved
by a modified application of that framework).
In support of their motion for summary judgment, Defendants offer a copy of the
hearing report for the incite to riot charge which was held on September 23, 2004. Hearing Officer
Durant found Plaintiff guilty of the charge. The court notes that the hearing officer’s conclusion that
Plaintiff was guilty of the misconduct charge was supported by the record. In the reasons for finding,
the Hearing Officer stated:

6

I find no other prisoners witnesses are necessary since they would be
repetitious in nature. Prisoner Heard’s questions for the hearing
investigator and request for a bible are not relevant and would not
prove or disprove the charges. Prisoner Heard argues that speech is a
protected first amendment [sic] right however this is with out [sic]
merit as the speech he is advocating is in a prison setting, is not
protected speech because he is advocating more than mere speech but
conduct by instigating actions which are intended to seriously
endanger the physical safety of the facility, persons or property. On 918-04 at 1430 hrs prisoner Heard was addressing prisoners during a
Nation of Islam service and stated the following, calling for the
oppressed people to rise up against the oppressors. Prisoner Heard
referred to treatment by the guards and stated, “A resurrected man
won’t put up with the treatment. An FOI (Fruit of Islam) will strike
back if mistreated. He also stated, How do you establish peace?
Through war! They (prison staff) don’t want peace. They want to
paint you in their image. We have a real problem here. The white
system is the enemy! If they react to this message today - some of us
be put in prison - we already in prison! He also made reference to the
film Passion, recently shown as one of the prison movies and stated,
when they beat Jesus and the pain and the blood black people beat like
that every day because of who we are - by the crackers, the guards.
When prisoner Heard was interviewed at 1650 hrs he stated to
[Lieutenant] Therrian, The officers at URF do not respect the black
man, but they will. He further added that Jesus was persecuted,
crucified and ramifications, so shall I be persecuted and so shall there
be ramifications. I find that these statements by prisoner Heard were
advocating and instigating actions by other prisoners which are
intended to seriously endanger the physical safety of the facility,
person and property by disruption of the facility by a group. Prisoner
Heard did not deny making the statements as cited by Chaplain Shaw
but stated they were taken out of context however the other inmates
were agreeing by nodding their heads ad [sic] stated that’s right.
Prisoner Heard is not believed in his statement that he was only talking
about the history of black people in America and was not out to hurt
anyone because Chaplain Shaw heard him make the above statements
as listed above and gives no reason or basis for the Chaplain to take
them out of context. [Lieutenant] Therrian and Chaplain Shaw are
clear and factual in their statements and found credible. The charge is
upheld.
(Defendants’ Exhibit 4.)

7

It is clear that Plaintiff received due process of law with regard to the underlying
misconduct conviction, and that he cannot support any claim that his constitutional rights were
violated during the misconduct hearing. Prison inmates subject to serious disciplinary action are
entitled to (1) 24 hours advance written notice of the charges; (2) an opportunity to appear at a
hearing, to call witnesses, and present rebuttal evidence when permitting the inmate to do so will not
be unduly hazardous to institutional safety; and (3) a written statement by the factfinders as to the
evidence relied upon for their decision which includes a statement as to the reasons for the decision.
Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974). If the prisoner received these procedural
protections, and if there were “some facts” to support the decision of the hearings officer, then the
prisoner received all the process to which he was due. Superintendent of Massachusetts Institute,
Walpole v. Hill, 472 U.S. 445 (1985). Plaintiff has failed to show that his constitutional rights were
denied with regard to the underlying misconduct conviction. Therefore, the question is whether his
subsequent classification as an STG II prisoner and transfer to a maximum security prison violated
his due process rights.
In their brief, Defendants note that Plaintiff failed to have his misconduct conviction
overturned and that as a result of that conviction, Defendant Brown recommended that Plaintiff be
designated as a Security Threat Group (STG) Member of an Intolerant / Subversive Group.
(Defendants’ Exhibit 5.) Defendant Mulvaney agreed and Plaintiff was designated as an STG II
pursuant to MDOC Policy Directive 04.04.113.
According to the policy directive, an STG II member must be housed in a level V
security unit unless the prisoner is classified to administrative segregation, housed in security level
VI, or the CFA Classification Director determines that such placement is not necessary. As a result
of the STG II designation, a prisoner shall be limited to two non-contact visits per month, excluding
8

visits with an attorney, clergy, and staff of the Office of the Legislative Corrections Ombudsman. In
addition, any classification to a work or school assignment must be approved by the CFA Deputy
Director. STG II members may attend yard, religious services of their designated religion, library,
group counseling or therapy, but may not attend other group activities. In addition, participation in
scheduled leisure time activities during yard is prohibited. A STG II prisoner’s cell shall be searched
at least twice a week and out of cell movement shall not exceed one hour per day, excluding showers,
meals, work and school assignments, religious services, law library, group counseling or therapy, and
visits with an attorney, clergy, or staff of the Office of the Legislative Corrections Ombudsman.
(Defendants’ Exhibit 6.)
On October 19, 2004, Plaintiff requested removal of the STG II designation.
(Defendants’ Exhibit 8.) On October 21, 2004, Defendant Brown refused Plaintiff’s request, stating
that Plaintiff was labeled a recruiter based on his statements, which were a call to others to rise up and
join his cause. Defendant Brown noted that Plaintiff was given a hearing regarding the statements
and was found guilty of “Incite to Riot or Strike; Rioting or Striking.” Defendant Brown asserted that
Plaintiff’s statements and the fact that the hearing officer found Plaintiff guilty of making the
statements were the reason that Plaintiff had been labeled a recruiter. Defendant Brown concluded
that Plaintiff’s actions would be monitored over a period of time to determine whether Plaintiff had
disassociated himself from STG activities, and advised Plaintiff to request the removal of his STG
designation at a later date. (Defendants’ Exhibit 9.) On October 22, 2004, Plaintiff was transferred
to the Baraga Correctional Facility (AMF) a Level V security prison.
Defendants state that there is a distinction between the STG process and the
disciplinary process, and that while interrelated, the two processes are separate. Defendants explain
that Plaintiff’s STG II status resulted in his placement in a Level V security prison. However,
9

Plaintiff’s conviction for Incite to Riot caused him to be placed in administrative segregation at Level
V. Plaintiff stayed in administrative segregation at AMF from October 22, 2004, until May 20, 2005,
a period of approximately seven months. Defendants assert that from May 20, 2005, until August 4,
2010, Plaintiff was housed in the general population at Level V, although as an STG II prisoner,
Plaintiff faced restrictions above and beyond those imposed on other prisoners in Level V. Plaintiff
renounced his affiliation with Intolerant / Subversive Groups on April 7, 2010. (Defendants’ Exhibit
10.) On August 4, 2010, Plaintiff was transferred to the Chippewa Correctional Facility (URF) a
Level IV facility. On August 17, 2010, Plaintiff was transferred to the Saginaw Regional Correctional
Facility (SRF) as a Level IV prisoner. On December 2, 2010, Plaintiff was moved to Level II at SRF,
and Plaintiff is currently housed at the Lakeland Correctional Facility as a Level II prisoner.
For the purpose of this motion, Defendants concede that the seven months that Plaintiff
spent in administrative segregation at AMF constituted an atypical and significant hardship.
Defendants note that conditions in Ohio’s maximum-security institutions appear to be similar to
Michigan’s Level V administrative segregation. However, Defendants contend that Plaintiff was
provided with a sufficient level of due process to protect his constitutional rights. Defendants note
that during Plaintiff’s time in administrative segregation, MDOC Policy Directive 04.05.120 governed
his placement and continued confinement in administrative segregation. (Defendants’ Exhibits 14
and 15.) Defendants state that Ohio’s policy regarding prisoner placement and continued confinement
in maximum security prisons is virtually identical to the policy in Michigan. Defendants note that
pursuant to Policy Directive 04.05.120, ¶ J, a prisoner must be given a hearing before a neutral fact
finder and allowed to present evidence before being placed in administrative segregation.
(Defendants’ Exhibits 14 and 15.) Ohio has a similar process. See Wilkinson v. Austin, 545 U.S. at

10

226. Policy Directive 04.05.120, ¶ Q and ¶ WW1 provide that Michigan prisoners, like Ohio
prisoners, may appeal the fact finder’s decision, as well as seek continual review of their placement
in administrative segregation (defendants’ Exhibits 14 and 15.). See Wilkinson v. Austin, 545 U.S.
at 226-27.
Defendants also state that Plaintiff’s claim that his placement in administrative
segregation prohibited his release on parole lacks merit because Plaintiff is serving two non-parolable
life sentences. (See MDOC Offender Tracking System, http://mdocweb.state.mi.us/otis2/otis2profile.
aspx?mdocNumber=252329.) Therefore, he is not eligible for parole. Defendants further note that
there is no “per se” rule that prohibits a prisoner in administrative segregation from being paroled.
Defendants conclude that because Michigan’s policy with regard to placement and confinement of
inmates in administrative segregation is virtually identical to Ohio’s policy, which was held to be
constitutional in Wilkinson v. Austin, they are entitled to qualified immunity on this claim. The court
agrees. Assuming that Plaintiff’s placement in administrative segregation at Level V constituted an
atypical and significant hardship, Plaintiff was afforded a sufficient level of due process in light of
Wilkinson v. Austin to protect his constitutional rights.
Defendants further state that the time that Plaintiff spent in general population at Level
V did not constitute an atypical and significant hardship. As noted above, while Plaintiff was housed
in the general population as an STG II prisoner, he was limited to two non-contact visits per month,
excluding visits with an attorney, clergy, and staff of the Office of the Legislative Corrections

1

PD 04.05.120 ¶ Q states that the Hearing Officer’s decision may be appealed by either the prisoner or the warden
by submitting a request for rehearing to the Hearings and Appeals Division of the Office of Policy and Hearings, except
in the case of decisions by the SCC, which must be appealed through the grievance process. PD 04.05.120 ¶ W W
provides that the behavioral adjustment of administrative segregation prisoners shall be regularly reviewed by the SCC
or housing unit team. Reviews shall include a personal interview with each prisoner and shall occur at intervals of no
more than seven calendar days thereafter. Each review shall be documented on the administrative segregation behavior
review form.

11

Ombudsman. In addition, any classification to a work or school assignment had to be approved by
the CFA Deputy Director. He was not allowed to attend group activities other than yard, religious
services provided by his designated religion, library, group counseling or therapy. Plaintiff was also
prohibited from participation in scheduled leisure time activities during yard. Plaintiff’s cell was
searched at least twice a week and his out of cell movement could not exceed one hour per day,
excluding showers, meals, work and school assignments, religious services, law library, group
counseling or therapy, and visits with an attorney, clergy, or staff of the Office of the Legislative
Corrections Ombudsman. (Defendants’ Exhibit 6.)
Defendants note that pursuant to Bazzetta v. McGinnis, 430 F.3d 795, 804-05 (6th Cir.
2005), prisoners do not have a right to visitation. Nor do prisoners have a right to employment,
rehabilitation, education, or other programming. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981);
Moody v. Daggett, 429 U.S. 78, 88, n.9 (1976); Newsom v. Norris, 888 F.2d 371, 374-75 (6th Cir.
1989); Canterino v. Wilson, 869 F.2d 948, 952-54 (6th Cir. 1989); Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987); Bills v. Henderson, 631 F.2d 1287 (6th Cir. 1980). In addition, the court notes that
prisoners do not have a reasonable expectation of privacy in their cells, and have no constitutional
right to be free from having their cells searched twice a week. Hudson v. Palmer, 468 U.S. 517, 522526, 528 n 8 (1984). Defendants state that the above supports a conclusion that the restrictions
imposed on Plaintiff while confined to the general population as a Level V STG II prisoner do not
constitute an atypical and significant hardship.
Defendants state that even if Plaintiff’s STG II classification imposed conditions which
rise to the level of an atypical and significant hardship, they are still entitled to summary judgment
on this issue because Plaintiff was provided with all the process he was due. Defendants offer Policy
Directive 04.04.113, ¶ CC, which provides that local STG Coordinators must review STG II prisoners
12

status once every six months. The STG Coordinator’s decision is reviewed by the Warden, the STG
Coordinator in Lansing, and the Deputy Director of the MDOC. Defendants contend that, at a
minimum, because the STG policy has never been ruled unconstitutional, they are entitled to qualified
immunity.
In response to Defendants’ assertions, Plaintiff claims that his initial designation as
a STG II member constituted a violation of his rights under the Due Process Clause of the Fourteenth
Amendment. However, as noted above, this designation was the direct result of Plaintiff’s
misconduct conviction for “Incite to Riot.” Plaintiff received a hearing on this misconduct, and was
found guilty by the Hearing Officer. Plaintiff did not have his conviction overturned. Plaintiff states
that while confined in administrative segregation at Level V, he was subjected to numerous conditions
which combined to render his confinement atypical and significant. As noted above, Defendants
concede that Plaintiff’s confinement in administrative segregation while at Level V was atypical and
significant. However, because Plaintiff received sufficient due process protections, his confinement
in administrative segregation did not violate his due process rights.
Plaintiff also appears to be claiming that his confinement in the general population at
Level V as an STG II prisoner subjected him to conditions which were atypical and significant. As
noted by the Sixth Circuit in their opinion, the pertinent question is whether conditions of
confinement in Michigan’s maximum-security facilities are distinguishable from those of the
maximum-security prison in Wilkinson v. Austin. In Wilkinson v. Austin, conditions in the Ohio State
Penitentiary (OSP), a “supermax” facility, were such that almost all human contact was prohibited,
even to the point that conversation was not permitted from cell to cell. The plaintiff’s cell lights
might be dimmed, but remained on 24 hours a day. In addition, the plaintiff in Wilkinson v. Austin
was only able to exercise for one hour each day in a small indoor room. The court in Wilkinson v.
13

Austin noted that not only were the restrictions in the OSP quite severe, placement in the OSP was
indefinite. Finally, the Wilkinson v. Austin court observed that placement in the OSP disqualifies an
otherwise eligible prisoner for parole consideration. See Wilkinson v. Austin, 545 U.S. at 214-15.
In contrast to the conditions at issue in Wilkinson v. Austin, Plaintiff in this case was
allowed two non-contact visits per month, in addition to visits with an attorney, clergy, and staff of
the Office of the Legislative Corrections Ombudsman. Plaintiff was also allowed to attend religious
services provided by his designated religion, go to the library, and attend group counseling or therapy
if pertinent. And although Plaintiff’s out of cell movement could not exceed one hour per day, this
time did not include times spent outside of his cell for showers, meals, religious services, law library,
group counseling or therapy, and visits with an attorney, clergy, or staff of the Office of the
Legislative Corrections Ombudsman. (Defendants’ Exhibit 6; see also Plaintiff’s Exhibit 4 (Deputy
Director Straub’s deposition testimony).) Moreover, as noted by Defendants, Plaintiff is serving two
non-parolable life sentences and is not eligible for parole. In his deposition testimony, Deputy
Director Straub states that being a STG II member does not render a prisoner ineligible for parole
review. (Plaintiff’s Exhibit 4, p. 7.) Defendants further note that there is no “per se” rule that
prohibits a level V prisoner from being paroled. For the reasons set forth above, the court concludes
that Plaintiff’s living conditions during his time in the general population at Level V did not constitute
an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995). Therefore, Plaintiff did not have a liberty interest in
the procedures affecting his classification and security. Id.
Moreover, the court notes that Policy Directive 04.04.113, ¶ CC provides that local
STG Coordinators must review STG II prisoners status once every six months.

The STG

Coordinator’s decision is reviewed by the Warden, the STG Coordinator in Lansing, and the Deputy
14

Director of the MDOC. In addition, if the local STG Coordinator determines that the prisoner has
discontinued STG associations and activities, the prisoner shall be offered the opportunity to formally
renounce membership by completing the Security Threat Group Renunciation / Removal form. If the
prisoner completes the form, the local STG Coordinator shall recommend to the Warden that the
designation be removed. If the Warden agrees, the recommendation shall be forwarded to the CFA
Deputy Director, who shall make the final determination. (Defendants’ Exhibit 7.) In the instant
action, Plaintiff renounced his affiliation with Intolerant / Subversive groups on April 7, 2010, and
was subsequently transferred to SRF as a level IV prisoner on August 17, 2010. (Defendants’ Exhibit
10.) Therefore, Plaintiff was able to have the STG II label removed and be reclassified to a lower
security level by renouncing his affiliation. The court concludes that the record supports a finding
that Plaintiff received sufficient process to protect his constitutional rights. Incumaa v. Ozmint, 507
F.3d 281, 289 (4th Cir.2007) (noting that an inmate’s assignment to a maximum security unit is
directly tied to an inmate’s bad behavior so the inmate “ ‘holds the keys' to his remaining free from
the unit.”); Williams v. Greifinger, 97 F.3d 699, 705 (2nd Cir.1996) (a prisoner “holds the keys to his
cell” when he remains in solitary confinement until he abides by prison rules). Plaintiff’s assertion
that his removal from STG status is contingent upon remaining free of future misconducts for
disrupting prison security does not implicate the sufficiency of the process he already received.
Rather, such a policy merely shows that Plaintiff can control the level of his confinement by avoiding
certain prohibited conduct. Moreover, it is not unreasonable for prison officials to motivate a
prisoner’s desire to comply with prison rules by threatening to punish a prisoner for misbehaving.
For the reasons set forth above, the court concludes that Plaintiff’s initial confinement
in administrative segregation and his subsequent confinement as an STG II prisoner in the general
population at level V did “not violate clearly established statutory or constitutional rights of which
15

a reasonable person would have known.’” Phillips, 534 F.3d at 538 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). As noted previously, viewing the facts in the light most favorable to
Plaintiff, his initial confinement in administrative segregation and his subsequent confinement as an
STG II prisoner in the general population at level V did not violate the constitution. Moreover,
Plaintiff did not have a clearly established right to be free from such confinement at the time of the
violation. Id. at 538-39 (citing Silberstein, 440 F.3d at 311; cf. Pearson v. Callahan, 555 U.S. 223
(2009)).
Defendants also state that they are entitled to qualified immunity on Plaintiff’s claim
that he was denied a Nation of Islam (NOI) diet. With regard to Plaintiff’s equal protection claim
regarding his diet, the Sixth Circuit stated:
“[When a prison regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner v. Safely, 482 U.S. 78, 89 (1987). We
have explained that in the prison context “policies infringing on
religious rights may be found unreasonable where accommodations are
made for others.” Turner v. Bolden, 8 F. App’x 453, 456 (6th Cir.
2001) (unpublished order). If the defendants can show that the Nationof-Islam diet requested by Heard fails to meet nutritional standards, we
believe that the refusal to provide this diet would be “reasonably
related to legitimate penological interests.” Turner, 482 U.S. at 89.
The defendants have come forward with some evidence that the
Nation-of-Islam diet is nutritionally inadequate—the affidavit of
defendant Burnett, who evidently consulted the MDOC documents in
which it was determined that the Nation-of-Islam diet was inadequate.
However, it appears that Heard has been denied discovery of the
MDOC documents and, therefore, denied the opportunity to dispute
defendants’ evidence.
Heard v. Caruso, et al., Nos. 08-1710/1779/1820, pp. 16-17 (6th Cir. Aug. 27, 2009) (docket #273).
Defendants assert that the decision to refuse Plaintiff’s request for a NOI diet satisfies
that rational basis test set forth in Turner v. Safely, so that they are entitled to summary judgment on

16

this claim. To determine whether a prison official’s actions are reasonably related to a legitimate
penological interest, the Court must assess the official’s actions by reference to the following factors:
1.

does there exist a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward
to justify it;

2.

are there alternative means of exercising the right that remain
open to prison inmates;

3.

the impact that accommodation of the asserted constitutional
right will have on guards and other inmates, and on the
allocation of prison resources generally; and

4.

whether there are ready alternatives available that fully
accommodate the prisoner’s rights at de minimis cost to valid
penological interests.

Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-91).
Failure to satisfy the first factor renders the regulation or action infirm, without regard
to the remaining three factors. Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-90) (“a
regulation cannot be sustained where the logical connection between the regulation and the asserted
goal is so remote as to render the policy arbitrary or irrational”). If the first factor is satisfied, the
remaining three factors are considered and balanced together; however, they are “not necessarily
weighed evenly,” but instead represent “guidelines” by which the court can assess whether the policy
or action at issue is reasonably related to a legitimate penological interest. Flagner, 241 F.3d at 484
(citations omitted). It should further be noted that the Turner standard is not a “least restrictive
alternative” test requiring prison officials “to set up and then shoot down every conceivable
alternative method of accommodating the claimant’s constitutional complaint.” Instead, the issue is
simply whether the policy or action at issue is reasonably related to a legitimate penological interest.
Id.

17

Defendants offer the April 8, 2011, deposition testimony of Gatha McClellan, who
retired from her position as Food Service Director for Correctional Facilities Administration for the
MDOC on July 31, 2009. (Defendants’ Exhibit 16.) Ms. McClellan testified that she had purchased
and read two books in order to research what would be required in providing a diet in compliance
with Elijah Muhammad’s How to Eat to Live. McClellan stated that the diet was very restrictive,
prohibited numerous types of foods, and only provided for one meal every two days. (Defendants’
Exhibit 16, p. 13.) Defendants attach a list of 35 different kinds of foods which are prohibited by the
NOI diet, including peanut butter and potatoes. (Defendants’ Exhibit 16, attachment 1.) McClellan
testified that peanut butter is one of the many sources of protein for prisoners in the MDOC and that
potatoes are another staple of food in the MDOC. McClellan also noted that the only type of bean
allowed by the NOI diet was navy beans, which were one of the more expensive type of beans.
(Defendants’ Exhibit 16, pp. 19-22.) McClellan opined that the NOI diet would be unworkable and
that implementing the diet could pose a threat to security because it would require the MDOC to
house large numbers of NOI prisoners at a few institutions in order to accommodate their dietary
needs. (Defendants’ Exhibit 16, pp. 25-26.)
The court notes that the reasons set forth by Defendants mainly address the potential
expense and inconvenience to the MDOC of instituting such a diet. However, as noted by Plaintiff,
such considerations apply to implementing any religious diet, including Buddhist and Kosher diets,
both of which are provided by the MDOC. With regard to the issue of whether the NOI diet is
nutritionally adequate, Defendants fail to expand on their previous assertion, and merely refer to
Attachment A of Policy Directive 04.07.100, which states that male prisoners in the MDOC are to
be provided with a diet constituting 2,900 kcal per day. (Defendants’ Exhibit 16, attachment 1.) In
response, Plaintiff offers an excerpt from How to Eat to Live, which states that eating one meal a day,
18

of the right kind of food and having a pure drink, will bring health and prolonged life, and that eating
once every other day would be even better. However, there does not appear to be any requirement
that adherents eat only every other day. Rather, the proscription appears to be regarding the types of
foods allowed, similar to Buddhist and Kosher diets. (Plaintiff’s Exhibit 19.) Because there
continues to be an issue of fact regarding whether Defendants’ refusal to provide Plaintiff with an
NOI diet violates his equal protection rights, Defendants’ request for summary judgment on this issue
is properly denied.
Finally, Defendants state that they are entitled to qualified immunity on Plaintiff’s
RLUIPA claim. The RLUIPA statute provides, in pertinent part, that
[n]o government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution ... even if the burden results from a rule
of general applicability, unless the government demonstrates that imposition of the
burden on that person(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
Although the statute permits the recovery of “appropriate relief against a government,”
42 U.S.C. § 2000cc-2(a), the Sixth Circuit recently held that monetary damages are not available
under RLUIPA. Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009) (“[T]he Eleventh Amendment
bars plaintiff’s claim for monetary relief under RLUIPA.”), petition for cert. filed, 78 U.S.L.W. 3065
(U.S. July 22, 2009) (No. 09-109). In Sossamon v. Texas, ___ S. Ct. ___, 2011 WL 1485252 (Apr.
20, 2011), the Supreme Court also held that the RLUIPA did not abrogate sovereign immunity under
the Eleventh Amendment.

19

In relevant part, the RLUIPA prohibits any government from imposing a “substantial
burden on the religious exercise” of a prisoner, unless such burden constitutes the least restrictive
means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a). The term
“religious exercise” “includes any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.” 42 U.S.C. § 2000cc-5(7). While this definition of religious exercise is
broad, it does require that Plaintiff’s religious beliefs be “sincerely held.” See, e.g., Episcopal Student
Foundation v. City of Ann Arbor, 341 F.Supp.2d 691, 700 (E.D. Mich. 2004) (citation omitted);
Lovelace v. Lee, 472 F.3d 174, 187 n.2 (4th Cir. 2006) (citations omitted). However, prison officials
may not inquire into whether a particular belief or practice is “central” to a prisoner’s religion. Cutter
v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (recognizing that “the truth of a belief is not open to
question, rather the question is whether the objector’s beliefs are truly held”).
While the phrase “substantial burden” is not defined in the RLUIPA, courts have
concluded that a burden is substantial where it forces an individual to choose between the tenets of
his religion and foregoing governmental benefits or places “substantial pressure on an adherent to
modify his behavior and to violate his beliefs.” Living Water Church of God v. Charter Township
of Meridian, 258 Fed. Appx. 729, 733-34 (6th Cir., Dec. 10, 2007) (citations omitted); see also,
Marshall v. Frank, 2007 WL 1556872 at *5 (W.D. Wis., May 24, 2007) (quoting Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)) (a substantial burden is one
which renders religious exercise “effectively impracticable”); Cutter v. Wilkinson, 544 U.S. 709, 720
(2005) (recognizing that RLUIPA’s institutionalized persons provision was intended to alleviate only
“exceptional” burdens on religious exercise).
By the same token, a burden is less than “substantial” where it imposes merely an
“inconvenience on religious exercise,” see, e.g., Konikov v. Orange County, Florida, 410 F.3d 1317,
20

1323 (11th Cir. 2005), or does not “pressure the individual to violate his or her religious beliefs.”
Living Water Church of God v. Charter Township of Meridian, 258 Fed. Appx. at 734. Such
conclusions recognize that RLUIPA was not intended to create a cause of action in response to every
decision which serves to inhibit or constrain religious exercise, as such would render meaningless the
word “substantial.” See Civil Liberties for Urban Believers, 342 F.3d at 761.
In its opinion, the Sixth Circuit stated:
If Heard’s religion requires adherence to a Nation-of-Islam diet, prison
officials’ refusal to accommodate this diet would impose a substantial
burden. See, e.g., Al-Amin v. Shear, No. 08-7681, 2009 WL 971454,
at *2-3 (4th Cir. Apr. 10, 2009) (unpublished) (finding that denying
kosher (“Common Fare”) food to observant Sunni Muslim during
Ramadan would be a substantial burden). The defendants would then
have the burden of showing that denial of the Nation-of-Islam diet was
the least restrictive means of furthering a compelling government
interest. As explained above with respect to Heard’s equal-protection
claim, there remains a material issue of fact as to whether Heard’s
proposed Nation-of-Islam diet does or does not meet MDOC
nutritional standards.
Heard v. Caruso, et al., Nos. 08-1710/1779/1820, pp. 18-19 (6th Cir. Aug. 27, 2009) (docket #273).
In addition, in a footnote, the Sixth Circuit stated that pursuant to Cardinal v. Metrish,
564 F.3d 794 (6th Cir. 2009), Plaintiff Heard may seek only declaratory or injunctive relief and not
monetary relief with respect to his RLUIPA claim against defendants in their official capacities. The
Sixth Circuit then cited Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir. 2009) (discussing split of
authority on issue; holding that RLUIPA does not subject state officials to suit in their individual
capacities) and noted that it has not ruled on whether RLUIPA authorizes suits for monetary damages
against state officials in their individual capacities. The Court declined to address the issue because
it was remanding to the district court for further consideration of whether a Nation-of-Islam diet

21

meets MDOC nutritional standards and because the parties have not briefed this issue. Heard v.
Caruso, et al., Nos. 08-1710/1779/1820, p. 19, n. 5 (6th Cir. Aug. 27, 2009) (docket #273).
In their brief, Defendants contend that Plaintiff has not demonstrated that his religion
compels him to follow the NOI diet. Defendants offer the deposition testimony of Dave Burnett, in
which he testifies that most of the members of the NOI do not adhere to the diet set forth by Elijah
Muhammad. (Defendants’ Exhibit 17, p. 19.) However, in Plaintiff’s affidavit, he attests that in
addition to being a member of the NOI, he is a follower of the teachings of Elijah Muhammad and
that, as such, he is compelled to follow his dietary teachings. (Plaintiff’s Exhibit 1, ¶¶ 6-7.)
Therefore, there appears to be an issue of fact regarding whether Defendants’ refusal to provide
Plaintiff with the NOI diet substantially burdens the practice of Plaintiff’s religious beliefs.
Defendants further state that they have a compelling state interest in not providing an
NOI diet, because such a provision would divert funds from other areas of the MDOC budget, such
as employee salaries, and ultimately impact prison security. Defendants refer to Michigan’s current
budget crisis and Gatha McClellan’s deposition testimony, which asserts that providing an NOI diet
would significantly increase costs. However, Defendants’ assertions lack specificity regarding the
amount and nature of such increased costs. Moreover, Defendants claim that prison security would
be affected are vague and conclusory. On one hand, Defendants state that requiring all prisoners to
eat navy beans with every meal would cause resentment (despite the fact that there is no indication
that an NOI diet would require that navy beans be served with every meal). On the other hand,
Defendants claim that providing such a diet would require large numbers of NOI prisoners to be
housed at a small number of facilities. However, if all NOI prisoners were housed together, there
would be no need to require non-NOI prisoners to eat navy beans. The court concludes that there is
a genuine issue of material fact regarding whether Defendants have a compelling state interest in
22

refusing Plaintiff’s request for an NOI diet. Consequently, Defendants are not entitled to summary
judgment on this claim.
In light of the foregoing, the court concludes that Plaintiff has failed to sustain his
burden of proof in response to Defendants’ request for summary judgment on his due process claims
regarding his security classification and placement in a level V facility. However, as noted above,
there appears to be genuine issues of material fact regarding Plaintiff’s equal protection and RLUIPA
claims. Therefore, the court will deny summary judgment on those claims.
An Order consistent with this Opinion will be entered.

Dated: August 30, 2011

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

23