Grumbley #501014 v. Michigan, State of et al
OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
FREDERICK HARVEY GRUMBLEY,
Case No. 2:11-cv-185
Honorable R. Allan Edgar
STATE OF MICHIGAN et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321
(1996), the Court is required to dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42
U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff’s action will be dismissed because Defendants are immune or Plaintiff fails to
state a claim against them.
Plaintiff is incarcerated in the Newberry Correctional Facility. In his pro se
complaint, he sues the State of Michigan, the Michigan Department of Corrections (MDOC), MDOC
Director Patricia Caruso, Chaplain (unknown) Agee, Resident Unit Manager Kathleen Nelson,
Assistant Deputy Warden Jim Young, Warden Mitch Perry, CFA Special Activities Coordinator
Mike Martin and MDOC Grievance Specialist Sean Lockhart.
Plaintiff alleges that each religious group is given $150.00 annually from the prisoner
benefit fund to spend on religious items. In April 2010, Jewish prisoners used the funds to purchase
four prayer shawls (Tallis) and four Tzitzit undershirts from the Aleph Institute. Plaintiff asked
Defendant Agee if he could use one of the prayer shawls during the Jewish services. Agee told
Plaintiff that he only could use the shawl if Agee marked it “NCF Religious Property.” Plaintiff
responded that marking or labeling the shawl would constitute desecration of a religious item. Agree
continued to deny Plaintiff use of the shawl and refused Plaintiff’s requests to have one “signed out
or assigned” to him or to purchase one of them. Defendant Agee returned the shawls to the Aleph
Institute on December 17, 2010.
On December 14, 2010, Plaintiff wrote a letter to Defendant Young complaining that
Agee violated his constitutional rights by denying him use of the prayer shawls. Three days later,
Plaintiff filed a Step I grievance. According to the complaint, Defendant Nelson provided the
following Step I response:
Prisoner claims he was denied a shawl that was purchased by the PBF, that he felt he
was entitled to use without it being marked as NCF religious property, and he claims
that NCF is in violation of PD-03.03.130 “Humane Treatment and Conditions for
Prisoner is correct in that Chaplain [A]gee would not issue the shawls to the
Prisoners without them being marked NCF as they would disappear and were bought
with PBF funds.
Prisoners are allowed to purchase shawls in accordance with PD-05.03.150
“Religious [B]eliefs and [P]ractices of Prisoners” Attachment A, and in accordance
to P[D]-04.07.112 “Prisoner Property”.
Prisoner[’]s complaint that marking the shawls would desecrate them could not be
substantiated via CFA [S]pecial Activities Coordinator Chaplain Martin and no
violation of policy was found.
Prisoner was not in agreement and wishes to go to step two with his grievance.
(Compl., ¶9, Page ID#4.) Defendant Young reviewed and approved Nelson’s response. Defendant
Perry denied Plaintiff’s Step II grievance appeal for the reasons stated in the Step I response.
Plaintiff appealed to Step III. In his Step III appeal, Plaintiff continued to argue that marking the
shawls would desecrate them and offered biblical support for his position. Nevertheless, on February
16, 2011, Plaintiff received a Step III grievance response from Defendant Lockhart upholding the
Plaintiff claims that he was denied the use of the prayer shawls from April 14, 2010
through December 17, 2010, in violation of the First Amendment Free Exercise Clause and the Fifth
and Fourteenth Amendment Equal Protection Clause. Plaintiff also asserts a violation of the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1. For relief,
Plaintiff seeks monetary damages from each of the Defendants.
As an initial matter, Plaintiff may not maintain a § 1983 action against the State of
Michigan or the MDOC. Regardless of the form of relief requested, the states and their departments
are immune under the Eleventh Amendment from suit in the federal courts, unless the state has
waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438
U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not
expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341
(1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v.
Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit
has specifically held that the MDOC is absolutely immune from suit under the Eleventh Amendment.
See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. Mar. 12, 2010); Turnboe v.
Stegall, No. 00-1182, 2000 WL 1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the Michigan Department of Corrections) is not a “person” who may be
sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)). Therefore, Plaintiff’s claims brought under
§ 1983 against Defendants State of Michigan and MDOC must be dismissed.
In addition, Defendants State of Michigan and MDOC are immune from Plaintiff’s
claims for monetary damages under the RLUIPA. See Cardinal v. Metrish, 564 F.3d 794, 801 (6th
Cir. 2009) (“[T]he Eleventh Amendment bars plaintiff’s claim for monetary relief under
RLUIPA.”).1 Plaintiff seeks only monetary damages in this case; therefore, his claims under the
RLUIPA against Defendants State of Michigan and MDOC must be dismissed.
The Sixth Circuit has not ruled, however, on whether the RLUIPA authorizes suits for monetary damages
against state officials in their individual capacities. Heard v. Caruso, 351 F. App’x 1, 13 n.5 (6th Cir. 2009). Plaintiff
has not specified whether the remaining Defendants are sued in the official or individual capacities. Construing this pro
se pleading liberally, the Court will assume that Plaintiff intended to sue them in both their official and individual
capacities. To the extent Plaintiff sues the remaining Defendants in their official capacities, his claim under the RULIPA
must be dismissed on immunity grounds. The Court will consider the merits of Plaintiff’s claim with regard to the
Defendants in their individual capacities.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’
– that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2));
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff’s only allegation against MDOC Director Caruso is that she “is directly
responsible for the violations of [his] constitutional rights at the hands of the employees under her
command . . .” (Compl., ¶ 29, Page ID#8.) Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Ashcroft, 129 S. Ct. at 1937; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation
must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.
2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not
enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575;
Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). “[A] plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Plaintiff has failed to allege that Defendant
Caruso engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim
Defendants Nelson, Young, Perry and Lockhart
Plaintiff sues Defendants Nelson, Young, Perry and Lockhart because they denied his
Step I grievance and his Step II and III grievance appeals. The Sixth Circuit held that where a
defendant’s only involvement in the allegedly unconstitutional conduct is “the denial of
administrative grievances or the failure to act,” the defendant cannot be liable under § 1983. Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
The reason is that there must be active
Failing to intervene on a prisoner’s behalf to remedy alleged
unconstitutional behavior does not amount to active unconstitutional behavior by a person who
merely denies an administrative grievance. Id. Also, in unpublished decisions, the Sixth Circuit has
held that a prisoner’s allegation that a defendant improperly denied a grievance is not a claim of
constitutional dimension because there is “no inherent constitutional right to an effective prison
grievance procedure.” See Overholt v. Unibase Data Entry, Inc., No. 98-3302, 2000 WL 799760,
at *3 (6th Cir. June 14, 2000); Lyle v. Stahl, No. 97-2007, 1998 WL 476189, at *1 (6th Cir. Aug. 3,
1998); see also Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994) (no
constitutional right to a grievance procedure). Plaintiff, therefore, fails to state claim against
Defendants Nelson, Young, Perry and Lockhart.
Defendants Agee and Martin
Plaintiff contends that Defendant Agee violated the First Amendment and the
Fourteenth Amendment Equal Protection Clause when he denied Plaintiff use of an unmarked prayer
shawl. He further alleged that Defendant Martin should have known that the prayer shawl is a sacred
garment that cannot be marked in any way, and, thus, contributed to the violation of his
While “lawful incarceration brings about the necessary withdrawal or limitation of
many privileges and rights,” inmates clearly retain the First Amendment protection to freely exercise
their religion. O’Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To establish that
this right has been violated, Plaintiff must establish that: (1) the belief or practice he seeks to protect
is religious within his own “scheme of things,” (2) his belief is sincerely held, and (3) Defendant’s
behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d 1220, 1224-25 (6th Cir.
1987); see also, Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (same); Bakr v. Johnson,
No. 95-2348,1997 WL 428903, at *2 (6th Cir. July 30, 1997) (“sincerely held religious beliefs
require accommodation by prison officials”). Assuming Plaintiff could satisfy the first two
requirements of a First Amendment free exercise claim, the Court will consider whether Defendants’
behavior infringed upon Plaintiff’s religious practice.
When a prison regulation impinges upon an inmate’s constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interest. Turner v. Safley, 482
U.S. 78, 89 (1987)); Flagner, 241 F.3d at 483. 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) whether there exists a valid, rational connection between
the prison regulation and the legitimate governmental interest put forward to justify it; (2) whether
there are 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) (stating
that “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.
Plaintiff cannot show that Defendants’ behavior infringed upon Plaintiff’s practice
of his Jewish faith because he was free to purchase his own prayer shawl, which would not have to
be marked. Even if Agee’s policy of marking the prayer shawls as prison property infringed upon
Plaintiff’s constitutional rights, the infringement was valid because marking the shawls as prison
property reasonably related to legitimate penological interests. The prayer shawls at issue were
purchased with money from the PBF and were intended to be shared by all Jewish prisoners at the
facility. Under the circumstances, Defendant Agee had a legitimate governmental interest in
marking or labeling the prayer shawls as communal prison property to prevent them from being
intentionally or inadvertently converted to prisoners’ personal property. Consequently, the first
Turner factor is satisfied. The other three Turner factors also support the restriction. Most
significantly, alternative means of exercising the right remained open to Plaintiff because he could
purchase his own prayer shawl. Plaintiff, therefore, fails to state a claim under the First Amendment.
The purpose of the RLUIPA is to “protect[ ] institutionalized persons who are unable
freely to attend to their religious needs and are therefore dependent on the government’s permission
and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005).
However, “prison security is a compelling state interest” and “deference is due to institutional
officials’ expertise in this area.” Id. at 725 n.13. Accordingly, the RLUIPA does not “elevate
accommodation of religious observances over an institution’s need to maintain order and safety.”
Id. at 722. Further, in applying the RLUIPA, “courts must take adequate account of the burdens a
requested accommodation may impose on nonbeneficiaries . . . and they must be satisfied that the
Act’s prescriptions are and will be administered neutrally among different faiths . . . .” Id. at 720
(internal citations omitted).
An inmate asserting a claim under the RLUIPA must first produce prima facie
evidence demonstrating that his religious exercise was substantially burdened. See § 2000cc–2(b);
Barhite v. Caruso, 377 F. App’x 508, 511 (6th Cir. 2010). An action of a prison official “will be
classified as a substantial burden when that action forced an individual to choose between ‘following
the precepts of [his] religion and forfeiting benefits’ or when the action in question placed
‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Barhite, 377
F. App’x at 511 (quoting Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x
729, 734 (6th Cir. 2007) (quoting Sherbert v. Vernier, 374 U.S. 398, 404 (1963), and Thomas v.
Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981))). The government then bears the
burden of persuasion to prove that any substantial burden on the inmate’s exercise of his religious
beliefs was “in furtherance of a compelling governmental interest” and imposition of the substantial
burden on the inmate is “the least restrictive means of furthering that compelling governmental
interest.” §§ 2000cc–2(b), 2000cc–1(a)(1)–(2). The RLUIPA employs a more rigorous standard -the least restrictive means of furthering a compelling governmental interest -- than the standard
applied to First Amendment free exercise claims, a uniform rule having a reasonable relation to
legitimate penological interests. See Cutter, 544 U .S. at 712.
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Plaintiff cannot demonstrate that Defendants placed a substantial burden on his
religious exercise. The communal prayer shawls were available to all Jewish prisoners, including
Plaintiff. To the extent Plaintiff believed that marking or labeling the shawls constituted desecration
of a religious object, he was free to purchase and possess his own prayer shawl, which would not
have to be marked. Moreover, marking the communal prayer shawls to prevent them from getting
lost or stolen was entirely consistent with the institution’s need to maintain order and security.
Plaintiff, therefore, fails to demonstrate entitlement to relief under the RLUIPA.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may
not “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially
a direction that all persons similarly situated should be treated alike. U.S. CONST ., amend. XIV; City
of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). When a law adversely impacts
a “suspect class” such as one defined by race, alienage, or national origin, or invades a “fundamental
right” such as speech or religious freedom, the rigorous “strict scrutiny” standard ordinarily governs,
whereby such laws “will be sustained only if they are suitably tailored to serve a compelling state
interest.” City of Cleburne, 473 U.S. at 440. However, while a convicted prisoner does not forfeit
all constitutional protections by virtue of his confinement, “lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights . . . .” Price v. Johnston, 334 U.S.
266, 285 (1948). “The limitations on the exercise of constitutional rights arise both from the fact
of incarceration and from valid penological objectives – including deterrence of crime, rehabilitation
of prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(citing, inter alia, Turner v. Safley, 482 U.S. 78, 84 (1987)).
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Plaintiff generally asserts that he was discriminated against because of his religious
beliefs, but fails to provide a factual basis for his claim. For example, Plaintiff does not allege how
he is being treated differently from other similarly situated Jewish prisoners or how Jewish prisoners
are being treated differently from other religious groups. While a complaint need not contain
detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions.
Twombly, 550 U.S. at 555. The court must determine whether the complaint contains “enough facts
to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The court need not
accept “threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements . . . .” Iqbal, 129 S. Ct. at 1937. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
– but it has not ‘show[n]’ – that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting
FED . R. CIV . P. 8(a)(2)). Because the complaint fails to allege a plausible claim of religious
discrimination, Plaintiff’s equal protection claim must fail.
To the extent Plaintiff claims that Agee’s conduct violated MDOC policy, the alleged
failure to comply with an administrative rule or policy does not itself rise to the level of a
constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v. Freland,
954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992);
McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to
follow policy directive does not rise to the level of a constitutional violation because policy directive
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does not create a protectable liberty interest). Section 1983 is addressed to remedying violations of
federal law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d
Moreover, to the extent that Plaintiff’s complaint presents claims under state law, this
Court declines to exercise jurisdiction over the state law claims. “Where a district court has
exercised jurisdiction over a state law claim solely by virtue of supplemental jurisdiction and the
federal claims are dismissed prior to trial, the state law claims should be dismissed without reaching
their merits.” Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998) (citing
Faughender v. City of N. Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991)); see also Landefeld v.
Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c), because Defendants State of Michigan and MDOC are immune
and Plaintiff fails to state a claim against the remaining Defendants.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
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This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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