Reischauer #190306 v. Jones

Filing 142

FINDINGS OF FACT AND CONCLUSIONS OF LAW ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

D A V ID J. REISCHAUER #190306, P l a in tif f , F ile No. 2:06-CV-149 v. H O N . ROBERT HOLMES BELL G IL B E R T JONES, D e f e n d a n t. / F I N D IN G S OF FACT AND CONCLUSIONS OF LAW P la in tif f David J. Reischauer filed this pro se prisoner civil rights action against D e f en d a n t Chaplain Gilbert Russell Jones pursuant to 42 U.S.C. § 1983, complaining that D e f e n d a n t unfairly burdened his right to exercise his religious beliefs in violation of his rig h ts under the First and Fourteenth Amendments to the United States Constitution, the R e lig io u s Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., and the Religious L a n d Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq. S p e c i f ic a lly, Plaintiff complains that while he was in protective segregation at Kinross C o rre c tio n a l Facility, Defendant denied him group worship services, Ramadan fasting, c e le b ra tio n food at the conclusion of Ramadan, and access to religious books. The parties waived their right to a jury trial. (Dkt. No. 135, 10/22/08 Order.) On N o v e m b e r 3, 2008, the Court conducted a non-jury trial on Plaintiff's First Amendment

c la im s and his RLUIPA claims which arose before November 7, 2003.1 Only two witnesses te stif ie d at the trial: Plaintiff Reischauer and Defendant Jones. After careful consideration o f the parties' stipulated facts, the witnesses' testimony, the exhibits introduced at trial, and th e parties' supplemental briefs, the Court makes the following findings of fact and co n clus ion s of law in accordance with Fed. R. Civ. P. 52(a). I. Plaintiff was incarcerated at the Kinross Correctional Facility ("KCF"), a prison run b y the Michigan Department of Corrections ("MDOC"), from June 26, 2003, to January 16, 2 0 0 4 . (Dkt. No. 133, Jt. Final Pretrial Order, ¶ 2(b).) Defendant Jones was the chaplain at K C F in 2003-2004. (Id. at ¶ 2(d).) On October 21, 2003, at Plaintiff's request, Plaintiff was moved from his security le v e l 2 general population housing unit to A-3, the protective segregation unit at KCF. (Id. a t ¶ 2(c); Def. Ex. 1, Admin. Seg. Rev.; Def. Ex. 20, History of Cell Usage.) Plaintiff re m a in e d in protective segregation until he was transferred from KCF on January 16, 2004. (D e f . Ex. 1; Def. Ex. 20.) O n August 5, 2003, Plaintiff changed his religious faith group from Protestant to M u s l im Brotherhood. (Def. Ex. 12, Decl. of Religious Pref.) Between 2001 and 2003 P la in tif f changed his religious preference back and forth between "Protestant" and "Muslim"

This Court previously granted summary judgment in favor of Defendant on Plaintiff's R F R A claim and on those portions of his RLUIPA claim which arose after November 7, 2 0 0 3 . (Dkt. No. 64, Order Approving R&R (Dkt. No. 43).) 2

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f iv e times. (Ex. 12, Religious Preference Change History.) While Plaintiff was housed in g e n e ra l population he had no issues with Defendant concerning his access to Muslim r e l i g io u s services, books, or practices. His issues only arose after he was transferred to p ro te c tiv e segregation. "Protective segregation is a unit which provides physical separation of prisoners from th e general population in order to protect them from harm by other prisoners." (Def. Ex. 3, P D 04.05.120 ¶ H.) Prisoners in protective segregation are subject to greater limitations on p ro p e rty, program, and activity access than prisoners in general population. (Def. Ex. 3, PD 0 4 .0 5 .1 2 0 ¶¶ W, X, Y.) Prisoners in protective segregation are not locked in individual cells. T h e y can move around the housing unit, have visitors, use the telephone, use the mail, and r e q u e s t books from the prison general library or law library. Writing paper and writing u te n s ils are available to them. The protective segregation unit at KCF, A-3, has a capacity of only 60 prisoners. D e f en d a n t visited A-3 on a weekly basis. Plaintiff testified that he never saw Defendant on A - 3 . Both Plaintiff and Defendant testified that they never had any oral communications. A ll of the communications that form the basis for this action were carried on strictly through w ritte n correspondence. On November 7, 2003, Plaintiff wrote his first letter regarding religious matters while in protective segregation. This letter was directed to the warden:

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A t this time I request that I be provided a copy of the Muslim Brotherhood B o o k Index as I whish to cheak some books out. I also request I be provided Islamic religious service acording to the teachings o f Islam as well as both Id selebrations inclooding the Ramadan Fast breaking b a g as the rest of the Muslims will recive here at KCF. (Def. Ex. 14, 11/7/03 Reischauer correspondence to KCF Warden (reproduced as written).) P la in tif f followed up with a similar letter to Defendant dated November 10, 2003: A t this time I request to be provided a copy of the Muslim Brotherhood Book In d e x as I would like to cheak some books out. I also request that the Muslims on A-3 be provided religious servies acording w ith the teaching of Islam inclooding both Id festivels and Ramadan fast b re a k in g bag as the rest of the Muslims at KCF will recive. (D e f . Ex. 14, 11/10/03 Reischauer correspondence to KCF Chaplain (reproduced as written).) O n November 13, 2003, Defendant responded to Plaintiff's correspondence as follows: You have been put on Ramadan meals as of 11/13/03. There is no such thing a s "Fast Breaking Bags" for the ID. All other Muslims purchase their food th ro u g h the prisoner store. Any books you wish will need to be ordered th ro u g h approved vendors. Group books do not go to A-3. (Pl. Ex. D, Pl.'s correspondence.) A. Group Religious Services G ro u p religious services and activities for prisoners in segregation may be offered o n ly as set forth in PD 04.05.120 "Segregation Standards." (Def. Ex. 2, PD 05.03.150 ¶ Y.) T h e Segregation Standards provide that a prisoner classified to protective segregation shall b e permitted religious programming, "which shall include group religious services to the

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e x te n t feasible," and which do not allow contact with general population prisoners. (Def. Ex. 3 , PD 04.05.120 ¶ Y(6).) The procedure for seeking a worship service while in protection at KCF is outlined in KCF Operating Procedure 05.03.150: The security of the facility precludes participation in religious programming f o r prisoners in detention/segregation. The prisoners housed in d e te n tio n /s e g re g a tio n may receive religious counseling and/or religious m a te ria ls by making a request in writing to the institutional Chaplain's office. P r is o n e rs housed in protection, may request a worship service by signing up a t the floor officer's desk, three (3) days prior to the normal chapel date for t h a t unit. The institutional Chaplain will contact the floor officer weekly to d i s c o v e r if any prisoners desire a worship service and confirm the date and tim e accordingly. (P l. Ex. T, OP-KCF 05.03.150 "Information" ¶ 3.) P la in tif f did not present evidence that he ever signed up for group services at the floor o f f ic e r's desk. Neither did he present evidence that any other protective segregation p ris o n e rs signed up for Muslim group religious services. Plaintiff did request that the M u s lim s on A-3 be provided religious services in his November 10, 2003, correspondence to Defendant. (Pl. Ex. D.) However, Plaintiff did not identify anyone else who wanted M u slim group religious services, nor did he indicate how many Muslims on A-3 wished to b e provided religious services. According to Defendant, it was not feasible to provide a group Muslim service based u p o n Plaintiff's request. Group services involve the use of limited resources. The feasibility o f group services depended on a number of factors, including time, room, supervision,

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n u m b e r of people attending, and the availability of a volunteer to run the service. According to Defendant, one person does not constitute a group for purposes of group services, and P la in tif f did not demonstrate that there were a sufficient number of other prisoners to justify a group service. Although there was no strict minimum number of participants required for a group service, Defendant testified that for group services to be feasible, he would generally e x p e c t a minimum of five prisoners. With any smaller number, individual counseling would b e more appropriate. Defendant also testified that it is difficult to find Muslim clerics or volunteers to come to KCF to lead Muslim services because there are no Muslim congregations or mosques in th e Upper Peninsula of Michigan or in the Northern Lower Peninsula of Michigan. Twice a year Muslim volunteers come from the Detroit area to visit all four prisons in the vicinity o f KCF. However, because they have limited time, they meet with large groups in general p o p u la tio n rather than with individuals in protective segregation. Plaintiff had alternatives to group services for practicing his religion while in p ro tec tiv e segregation. Prisoners, including those in protective segregation, are entitled to v is its by a qualified clergy or a volunteer in an outreach program sponsored by an external re lig io u s organization, even if these visitors are not on the prisoner's approved visitor's list. (D e f . Ex. 4, PD 05.03.140, ¶ N; Def. Ex. 3, PD 04.05.120 ¶ W(13).) Prisoners in protective s e g re g a tio n may correspond with religious clerics through the mail or by telephone. They m ay engage in individual prayer, and they may possess religious materials and books. In

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a d d itio n , Defendant testified that prison policy permits a group of three or four prisoners to g a th e r together for sharing. P la in tif f testified that it was important for him to join with all the Muslim brothers on F r id a ys for a religious observance. However, Plaintiff did not present any evidence that D ef en d an t impeded his ability to meet with a small group of other Muslim prisoners on A-3 f o r religious observances. Plaintiff acknowledged that he did not attempt to utilize other a v a ila b le means of practicing his religion, such as one-on-one religious counseling through p e rs o n a l visits, mail, or telephone. Plaintiff did not present any evidence to suggest that D e f en d a n t in any way impeded Plaintiff's ability to engage in these alternative methods of p ra c tic in g his religion. Plaintiff merely indicated that he did not know anyone to contact who c o u ld perform Islamic group services or individual religious counseling because he depended o n the Muslim Brotherhood in the prison for his Muslim contacts. Ramadan Fasting O n October 14, 2003, Defendant issued a memorandum regarding Islamic Ramadan O b s e rv a n c e. (Pl. Ex. I.) The memo was directed to the Control Center and was posted on th e bulletin boards in the prison housing units. During Ramadan it is customary for Muslims to fast from dawn until sunset. (Id.) The memorandum identified when Ramadan would be o b se rv e d , and the guidelines for prisoners who wished to participate in the Ramadan fast. (Id .) To accommodate the Ramadan fast, prisoners must request to be placed on the

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R a m a d a n fast list. Those who are on the list are allowed to take the evening meal back to th e ir cell in a bag, to be eaten after sunset. Plaintiff acknowledged that the memorandum regarding Ramadan observance was p o s te d in his housing unit. The memo indicated that in 2003, Ramadan began on October 2 6 and ended on November 24. (Pl. Ex. H, 9/19/03 letter from MDOC Special Activities C o o rd in a to r to Wardens.) Nevertheless, Plaintiff did not request to be placed on the R am ad a n fast list until his November 7, 2003, correspondence to the warden. (Pl. Ex. D; D ef . Ex. 14.) On November 13, 2003, Resident Unit Manager ("RUM") Roger M. Dodds advised A s s is ta n t Resident Unit Supervisor ("ARUS") Patrick Harrington that Plaintiff had requested to participate in Ramadan. (Pl. Ex. F.) Prisoner Reischaver [sic] has requested to participate in Ramadan. Please inf o rm 3-11 shift officers to allow Reischaver [sic] to pickup his dinner meal w h e n A-3 goes to chow and carry it back to the unit where he can eat it after su n se t. (P l. Ex. F.) The following day ARUS Harrington emailed RUM Dodds that "Prisoner R eisch av er [sic] states that he no longer wants to participate in Ramadan now that he is on A -3 ." (Pl. Ex. G.) A copy of the email was delivered to Defendant. (Id.) P la in tif f testified that he never told anyone that we wanted to be removed from the f a st list. Defendant testified that based upon ARUS Harrington's email Defendant

u n d e rs to o d that Plaintiff had chosen to be removed from the Ramadan fast list. Defendant e x p la in e d that it is not uncommon for prisoners to change their minds about fasting. Plaintiff 8

h a s not presented any evidence to suggest that Defendant had any reason to question ARUS H a rr in g to n 's representation that Plaintiff had voluntarily withdrawn from the fast list. The MDOC advised wardens that prisoners who are removed from the Ramadan fast lis t must be issued a Notice of Intent to Conduct an Administrative Hearing setting forth an a p p ro p ria te reason for removal. (Pl. Ex. H, 9/19/03 letter from Dave J. Burnett to Wardens.) C o n tra ry to Plaintiff's assertions, no administrative hearing is required when a prisoner v o lu n ta rily chooses to be removed from the list. Plaintiff testified that he filed a grievance relating to his removal from the fast list on N o v e m b e r 29, 2003. In this grievance Plaintiff complained that he was denied "the fast b re a k in g bag that's provided to the rest of the Muslims at KCF that's payed for out of the M u s lim Brotherhood genral fund." (Def. Ex. 17.) Plaintiff's grievance appears to be related to the Eid celebration food rather than the daily fast list. Even if the grievance can be u n d e rs t o o d to reference Plaintiff's removal from the daily fast list, the grievance was not f ile d until 15 days after Plaintiff's removal from the list, and after Ramadan had already ended. Plaintiff presented two letters he allegedly sent to Defendant dated November 20, 2 0 0 3 , and December 11, 2003. (Pl. Ex. D, 11/20/03 and 12/11/03 correspondence from R e is c h a u er to KCF Chaplain). In the November 20 letter Plaintiff states that he was not b e in g provided his meal to take back to A-3 to eat after sunset, and advises that he never a sk e d to be removed from the fast list. In the December 11 letter Plaintiff asks whether he

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is still on the Ramadan fast list because he was told by the corrections officers that he was n o t on the list and could not bring his meal back to his housing unit. (Id.) Defendant denies receiving either of these letters, and Plaintiff never received a re sp o n se to these letters. Plaintiff acknowledged that Defendant had responded to all of his o th e r correspondence. Because these two letters are not consistent with the contents of P la in tif f 's grievance, and because Defendant did not respond to them, as he generally did, the Court finds by a preponderance of the evidence that Plaintiff did not send these letters to Defendant. The Court accordingly finds that Plaintiff did not request to be reinstated to th e Ramadan fast list after he was removed. In addition, the Court notes that even if Plaintiff d id write and send these letters at on the listed dates, the letters still show that Plaintiff did n o t make a timely complaint about being removed from the daily fast list, and that Plaintiff d id not know how long the Ramadan fast lasted. The Court finds that Plaintiff voluntarily chose to be removed from the Ramadan fast l i s t . The Court further finds that even if Plaintiff was removed from the list against his w is h e s, Defendant reasonably understood that Plaintiff had chosen to be removed, and P la in tif f did not make a timely effort to be reinstated to the fast list. Eid Ul-Fitr Celebration A t the conclusion of Ramadan Muslims celebrate the breaking of the fast in a c e le b ra tio n known as Eid Ul-Fitr. Plaintiff requested that he be provided the same food that

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the other Muslim prisoners would receive for the Eid celebration.

It was Plaintiff's

u n d e rs ta n d in g that the celebration snacks were purchased by the Prisoner Benefit Fund. Defendant's memorandum regarding Ramadan observances provided that "On the day o f breaking the fast (ID AL FITRA), special group prayer will be held in the Kitchen from 8 :3 0 -1 0 :3 0 . Snack items from the prisoner store may be consumed during the fast breaking g a th e rin g ." (Def. Ex. 18, 10/14/03 Memo.) In a second memorandum dated November 23, 2 0 0 3 , Defendant specifically addressed the Ramadan fast-breaking as follows: "Celebration w ill consist of prayers; speeches; picture taking by Link staff; passing out certificates; and e a tin g snack items purchased out of the prisoner store by participating prisoners." (Def. Ex. 1 8 , 11/23/03 Memo.) Defendant testified that prisoners use their own funds to purchase s n a c k s from the prison store for the Eid celebration. The prison did not supply the snacks, n o r were the snacks purchased with Prison Benefit Funds. The prison only supplied a cooler a n d some ice. Plaintiff was not prevented from ordering his own celebration snacks from the p ris o n store. Plaintiff acknowledged that even indigent prisoners receive $10 a month that c o u ld be spent at the prison store. Because Plaintiff offered no evidence other than his own testimony to contradict the w ritte n policy regarding celebration food, the Court finds that the food for the Eid celebration w a s purchased by prisoners with their own funds, and that accordingly Defendant did not w ro n g f u lly refuse to provide Plaintiff a fast-breaking bag for the Eid celebration. M u slim Brotherhood Books

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In his correspondence to Defendant dated November 10, 2003,Plaintiff also requested " a copy of the Muslim Brotherhood Book Index" so that he could check some books out. (Pl. E x . D, 11/10/03 correspondence to KCF chaplain.) Defendant responded twice to Plaintiff's request for books from the Muslim B ro t h e r h o o d locker. In a memo dated November 13, 2003, Defendant advised that "Any b o o k s you wish will need to be ordered through approved vendors. Group books do not go to A-3." (Def. Ex. 14.) In a second memo dated November 25, 2003, Defendant advised: " A s for the books, you can order any book which meets mail policies and is from one of the ap p rov ed vendors and or publishers." (Pl. Ex. U.) The MDOC's policy on religious beliefs and practices provides that prisoners are g e n e ra lly allowed to receive religious reading material through the mail or from the institutio n al chaplain. (Def. Ex. 2, PD 05.03.150 ¶ XX.) "Institutional chaplains shall ensure th a t religious reading material from a variety of religious groups is available for prisoner u s e ." (Id.) Prisoners in segregation are entitled to access to law library services as well as in s titu tio n a l general library services. (Def. Ex. 3, PD 04.05.120 ¶ W(15), (16); Def. Ex. 9, P D 05.03.110 (L); Def. Ex. 10, A-3 Protection Rules ¶¶ 22-23.) Plaintiff contends that because law library clerks bring books requested by protective c u sto d y prisoners, Defendant could have brought Plaintiff books from the Muslim B ro th e rh o o d library.

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E ac h religious group in the prison has a locker in the control center where it may store p rop erty acquired by the group with funds from the Prison Benefit Fund. The lockers are m a in ta in e d and controlled by the prisoners. General population prisoners may check books o u t of these religious group libraries. The Muslim Brotherhood maintains a library in one o f these religious group lockers. Defendant testified that he denied Plaintiff's request for books or a book list from the M u s lim Brotherhood because the Muslim Brotherhood's book collection was not an in s titu tio n a l library. The books are not maintained by prison staff, so it is difficult for the p riso n to ensure that the books are not used for smuggling contraband. Due to these security c o n c ern s , books from such un-monitored sources do not go into A-3, the protective s e g r e g a tio n unit. There is no policy guaranteeing that a prisoner in protective segregation c a n obtain books from prisoners in general population. Plaintiff testified that there were no Muslim or Islamic books in the segregation lib ra ry. Defendant testified that there was a rotating collection of books in the A-3 religious lib ra ry, including various books from all of the religions recognized by the State. (Pl. Ex. 2 , Attachment A, Recognized Religious Groups.) In addition, the books in the general prison lib ra ry included religious reading material for Muslims. Plaintiff could have requested books f ro m the prison library. If the prison library did not have the specific books Plaintiff wanted, P la in tif f could have ordered books from approved vendors.

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P la in tif f testified that the books he wanted were not available in the prison library. P la in tif f 's testimony is not credible because Plaintiff could not describe the books he wanted b y title or subject area, and there is no evidence that Plaintiff ever attempted to request any M u s lim religious reading materials from the prison library. II. Plaintiff alleges that Defendant violated his First Amendment and RLUIPA rights by d e n yin g repeated requests for Islamic weekly Ju'mam services, denying his repeated requests f o r religious books from the Muslim Brotherhood Religious Library at KCF, removing him f ro m the monthly Ramadan fast list without his consent, and denying him a fast-breaking bag f o r the Eid celebration. Inmates retain their First Amendment right to exercise their religion, but the right may b e subjected to reasonable restrictions and limitations. Abdur-Rahman v. Michigan Dept. of C o r r e c tio n s , 65 F. 3d 489, 491 (6th Cir. 1995) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972) (p e r curiam); Bell v. Wolfish, 441 U.S. 520, 549-51 (1979)). A prison regulation that im p in g e s on a prisoner's right to exercise his religion is nevertheless valid if it is reasonably re la te d to a legitimate penological interest such as deterrence of crime, rehabilitation of p ris o n e rs , and institutional security. Phelps v. Dunn, 965 F.2d 93, 98 (6th Cir. 1992) (citing O ' L o n e v. Shabazz, 482 U.S. 342, 348 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987). F a c to r s relevant to determining the reasonableness of restrictions are: (1) whether there is a " v a l id , rational connection" between the restriction and the legitimate governmental interest

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p u t forward to justify it; (2) whether there are "alternative means of exercising the right that r e m a in open to the prison inmate; (3) the impact accommodation of the asserted c o n s t i tu tio n a l right will have on guards and other inmates, and on the allocation of prison re so u rc e s generally; and (4) the existence or absence of ready alternatives of accommodating th e prisoner's rights. Turner, 482 U.S. at 89-90. The Religious Land Use and Institutionalized Persons Act ("RLUIPA") prohibits the im p o s itio n of a "substantial burden" on a prisoner's religious exercise unless the imposition o f the burden is the least restrictive means of furthering a compelling governmental interest. 4 2 U.S.C. § 2000cc-1(a). The term "religious exercise" includes "any exercise of religion, w h e th e r or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2 0 0 0 c c -5 (7 ). "Although RLUIPA bars inquiry into whether a particular belief or practice is `c e n tra l' to a prisoner's religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not preclude in q u iry into the sincerity of a prisoner's professed religiosity." Cutter v. Wilkinson, 544 U.S. 7 0 9 , 725 n.13 (2005). W h ile the phrase "substantial burden" is not defined in RLUIPA, courts have c o n c lu d e d that a burden is substantial where it forces an individual to choose between the te n e ts of his religion and foregoing governmental benefits, or places "substantial pressure on a n adherent to modify his behavior and to violate his beliefs." Living Water Church of God v . Charter Twp. of Meridian, 258 F. App'x 729, 733-34 (6th Cir. 2007) (citations omitted). S e e also Cutter, 544 U.S. at 720 (recognizing that RLUIPA's institutionalized persons

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p ro v is io n was intended to alleviate only "exceptional" burdens on religious exercise). A b u rd e n is less than "substantial" where it imposes merely an "inconvenience on religious e x e rc is e ," Konikov v. Orange County, Florida, 410 F.3d 1317, 1323 (11th Cir. 2005), or does n o t "pressure the individual to violate his or her religious beliefs." Living Water Church of G o d , 258 F. App'x at 734. This Court previously granted Defendant qualified immunity on the RLUIPA claims a f te r November 7, 2003. (Dkt. No. 64, Op. and Order 3.) Thus, the only time period at issue f o r any RLUIPA claim is the time between October 21, when Plaintiff was placed in p ro te c tiv e segregation, to November 7, 2003. Plaintiff has failed to produce any evidence th a t he requested any books, religious services, or participation in Ramadan fasting from D e f en d a n t during the applicable time period. Plaintiff's first written request to Defendant c o n c e rn in g books, services, and participation in fasting is dated November 10, 2003. B e c au s e Plaintiff has not produced any evidence that Defendant violated his rights under R L U IP A during the applicable time period, Defendant is entitled to judgment on Plaintiff's R L U IP A claims. Plaintiff's First Amendment and RLUIPA claims also fail on the merits. "[T]he s in c e rity of a prisoner's religious beliefs is central to both a First Amendment and a RLUIPA c la im ." Horacek v. Burnett, No. 07-11885, 2008 WL 4427825, at *6 (E.D. Mich. 2008). A c c o r d in g ly, an initial issue to be considered in addressing a First Amendment Free Exercise c la i m is whether the Plaintiff's beliefs are religious in nature and whether those religious

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b e lie f s are sincerely held. United States v. Seeger, 380 U.S. 163, 183-84 (1965). "Whether re lig io u s beliefs are sincerely held is a question of fact." Mosier v. Maynard, 937 F.2d 1521, 1 5 2 6 -2 7 (1 0 th Cir. 1991) (citing Seeger, 380 U.S. at 185). The evidence does not preponderate in favor of Plaintiff on the issue of sincerity. P la in tif f changed his religious preference frequently. He waited half-way through Ramadan b e f o re asking to be placed on the fast list. When he was removed from the fast list the f o llo w in g day, he waited at least six days, if not longer, before complaining that he was im p ro p e rly removed. While he complains about Defendant's failure to provide books or s e r v i c e s , he did not make any effort to obtain Muslim religious reading from any other a v a ila b le source. When he was denied group services he did not attempt to obtain individual c o u n se lin g through visits, mail, or telephone, from any Muslim cleric. Plaintiff has not met h is burden of showing, by a preponderance of the evidence, that his Muslim faith is sincere. A c c o rd in g ly, Defendants are entitled to judgment on Plaintiff's First Amendment claims and R L U IP A claims. In addition, even if Plaintiff's religious beliefs were sincere, Defendant would still be e n title d to judgment on Plaintiff's RLUIPA and First Amendment claims because Plaintiff h a s not shown that Defendant's restrictions on his exercise of religion were not reasonably re late d to legitimate penological interests, or that they imposed a "substantial burden" on his re lig io u s exercise.

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W ith respect to Plaintiff's demand for group religious services, this Court previously h e ld that Plaintiff's classification in protective segregation presented a sufficient basis for D e f en d a n t to preclude him from attending group religious services with the general p o p u la tio n . (Dkt. No.43, R&R 10-11.) With respect to Plaintiff's demand for group services in the protective segregation unit, contrary to Plaintiff's assertions, neither the KCF O p e ra tin g Procedures nor the KCF A-3 Protection rules suggest that prisoners in protective se g re g a tio n have a right to group services on demand. (Pl. Ex. T, OP-KCF 05.03.150; Pl. E x . A, A-3 Protection Rules ¶¶ 42-43.) They merely describe the procedures for requesting o r attending religious services. They do not guarantee that group worship services will be p ro v id e d . Defendant's failure to provide a group Muslim worship service in the protective se g re g a tio n unit did not restrict Plaintiff's ability to exercise his religion. The failure to p ro v id e a group service did not prevent Plaintiff from worshiping on his own, from w o rsh ip in g with a small group of other prisoners, or from worshiping with a Muslim cleric o r religious volunteer. Moreover, providing group services involves the utilization of limited p ris o n resources. It was reasonable not to provide group religious services where there was n o indication that more than one prisoner wanted the service and where there were no M u s l im clerics available to lead a group service. Defendant's actions did not impose a s u b s ta n tia l burden on Plaintiff's exercise of his religion. To the extent the failure to provide

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g ro u p services is viewed as a restriction Plaintiff's exercise of his religion, the restriction was re a so n a b ly related to the legitimate governmental interest put forward to justify it. W ith respect to Plaintiff's claim regarding Ramadan fasting, Plaintiff did not ask to b e placed on the fast list until Ramadan was half over, and Defendant was advised that P lain tiff voluntarily took himself off the fast list within a day of being placed on the list. A c c o rd in g ly, Defendant did not wrongfully interfere with Plaintiff's right to participate in th e Ramadan fast. With respect to Plaintiff's claim regarding the Eid Ul-Fitr feast bag, the evidence re v e als that Defendant did not deny Plaintiff anything that other prisoners received. Any p r i s o n e r could purchase food for the Eid celebration from the prison store. Neither

D e f en d a n t nor the prison had any responsibility for providing the food for Plaintiff or for any o th e r Muslim prisoner who wanted to participate in the Id celebration. Defendant's refusal to provide Id celebration snacks accordingly did not interfere with or burden Plaintiff's right to exercise his religion. D e f e n d a n t's refusal to bring books from the Muslim Brotherhood to prisoners in p ro te c tiv e segregation did not violate any prison regulations. While in protective segregation P la in tif f had no right to receive books from prisoners in general population, and Plaintiff had a m p le alternative sources for obtaining Muslim religious books. Accordingly, the restriction d id not impose a substantial burden on Plaintiff's exercise of his religious beliefs and it was re a s o n a b ly related to a legitimate penological interest in prison security.

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I n summary, the Court concludes that Plaintiff has failed to prevail on either his First A m e n d m e n t claim or his RLUIPA claim. A judgment of no cause of action will be entered in favor of Defendant on all of Plaintiff's claims. III. S u b s e q u e n t to the trial in this matter the Court invited the parties to file supplemental trial briefs. Plaintiff's supplemental trial brief includes objections, a request for a new trial, an d a request for appointment of counsel. (Dkt. No. 138.) Plaintiff's first objection is to the Court's failure to resolve his August 28, 2008, re q u e st for sanctions against Defendant. (Dkt. No. 113). Plaintiff requested sanctions in res p o n s e to Defendant's proposed final pretrial order because Defendant failed to afford P la in tif f the opportunity to take part in the drafting of the proposed pretrial order. (Id.) P la in tif f was able to file his objections to the proposed final pretrial order, so Plaintiff had in p u t into the final pretrial before it was signed by the Magistrate Judge on October 22, 2008. (D k t. No. 133.) Plaintiff's request for sanctions is accordingly moot. Plaintiff second objection is to the Court's failure to resolve his objections to the M a g is tra te Judge's September 24, 2008, order denying appointment of counsel (Dkt. No. 1 2 5 , 9/24/08 Order; Dkt. No. 126, Pl.'s Obj.) A magistrate judge's resolution of a nondispositive pretrial matter should be modified o r set aside on appeal only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); W.D. Mich. LCivR 72.3(a). The Magistrate Judge

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d e n ie d Plaintiff's request for counsel based upon his determination that the assistance of c o u n se l was not necessary to the proper presentation of Plaintiff's position. (Dkt. No. 125, 9 /2 4 /0 8 Order.) This determination was neither clearly erroneous nor contrary to law. The is s u e s in this case were fairly straightforward. Plaintiff was not challenging the

c o n stitu tio n a lity of prison regulations, but only Defendant's application of those regulations to Plaintiff's situation. Accordingly, the issues for trial were predominantly issues of fact ra th e r than issues of law. Moreover, because this case was to be tried to the court rather than to a jury, many of the difficulties of trying the case were eliminated. Plaintiff's third objection is to the non-production of Defense witnesses Roger Dodds a n d Patrick Harrington. In the final pretrial order Defendant named these individuals as " m a y call" witnesses. (Dkt. No. 133 at ¶ 4(B).) Plaintiff indicated that he declared all of D e f en d a n t's listed witnesses to be "hostile witnesses." (Dkt. No. 133 at ¶ 4(A)(2).) Plaintiff d id not indicate that he was relying on Defendant to call these witnesses. Plaintiff contends that he was denied an opportunity to examine Harrington and Dodds re g a rd in g the content of their emails. Plaintiff contends that the Court cannot conclude that H a rr in g to n and Dodds' statements were true without the benefit of their testimony. The truth of the content of Harrington and Dodds' emails was immaterial to this trial. N e ith e r Harrington nor Dodds was a defendant in this case. The issue in this case was what D e f en d a n t Jones understood. Accordingly, Plaintiff's inability to examine Harrington and

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D o d d s regarding the truth of the statements in their emails did not adversely affect Plaintiff's a b ility to present his case. Plaintiff has moved for a new trial and for appointment of counsel. In support of these re q u e sts Plaintiff contends that he did not receive a fair trial because he was not competent to represent himself. "The appointment of counsel in a civil proceeding is not a constitutional right and is ju s tif ie d only in exceptional circumstances." Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2 0 0 3 ) (citing Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993).) In determining w h e th e r such exceptional circumstances exist, courts typically consider the type of case, the c o m p lex it y of the factual and legal issues involved, and the abilities of the plaintiff to r e p r e s e n t himself. Lavado, 992 F.2d at 606. This trial did not present exceptional Plaintiff was able to present the

c irc u m s ta n c es warranting the appointment of counsel.

d o c u m e n ts he wanted to have considered by the court, and he was able to clearly articulate h is concerns. The outcome of this trial would not have been different had Plaintiff had c o u n s e l. Accordingly, the denial of counsel did not result in "`fundamental unfairness im p in g in g on due process rights.'" Lavado, 992 F.2d at 604 (quoting Reneer v. Sewell, 975 F .2 d 258, 261 (6th Cir. 1992)). An order and judgment consistent with this opinion will be entered.

Dated: January 29, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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