Johnson #343032 v. Martin et al

Filing 30

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 19 re 17 : Defendants' Motion for Summary Judgment 17 is GRANTED and Plaintiff's claims are DISMISSED; no good-faith basis for appeal; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

APOLLO JOHNSON,
Plaintiff,

Case No. 2:12-CV-365

v.

Hon. Gordon J. Quist

MICHAEL MARTIN, et al.,
Defendants.
/

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
On January 14, 2014, Magistrate Judge Greeley issued a Report and Recommendation (R
& R) in which he recommends granting Defendants’ motion for summary judgment as to Defendant
Bolton and denying it in part as to Defendant Martin. Plaintiff and Defendants have filed objections.
Having conducted a de novo review of the R & R, the parties’ objections, and the pertinent portions
of the record, the Court concludes that the R & R should be adopted in part and rejected in part and
that Defendants’ motion should be granted.
In his complaint, Plaintiff alleges that, during his incarceration, he learned that his father is
Jewish, and thereafter began studying the laws of Judaism. Plaintiff further alleges that his requests
that he be placed on the Kosher diet and provided with religious reading material were denied, and
that this violated his rights under the Religious Land Use and Institutional Persons Act (RLUIPA),
42 U.S.C. §§ 2000cc et seq., the First Amendment, and the Fourteenth Amendment. Defendants
moved for summary judgment on the grounds that Plaintiff failed to exhaust his administrative

remedies against Defendant Martin for the claim regarding access to religious reading material, and
on the merits as to the remaining claims. Plaintiff did not respond to Defendants’ motion. The
magistrate judge recommended granting summary judgment on the claims related to religious
reading material and the claims under the Fourteenth Amendment, but allowing Plaintiff to proceed
on his RLUIPA and First Amendment claims related to the Kosher diet.
Summary judgment is proper when “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and
draw all reasonable inferences in favor of the party opposing the motion. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). “However, the
party opposing the motion may not rely solely on the pleadings . . . ; if the nonmoving party fails
to make a sufficient showing on an essential element of the case with respect to which the
nonmovant has the burden, the moving party is entitled to summary judgment as a matter of law.”
Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001).
“A prisoner alleging that the actions of prison officials violate his religious beliefs must
show that ‘the belief or practice asserted is religious in the person’s own scheme of things’ and is
‘sincerely held.’” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (quoting Kent v. Johnson,
821 F.2d 1220, 1224 (6th Cir. 1987)). The central factor in determining whether a religious belief
is entitled to free exercise protection is whether the belief is sincerely held. Colvin v. Caruso, 605
F.3d 282, 298 (6th Cir. 2010). “[U]nder RLUIPA, prison officials are to focus their inquiries on ‘the
sincerity of a prisoner’s professed religiosity.’” Id.
In their summary judgment motion, Defendants argued that Plaintiff’s religious beliefs are
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not sincerely held. Plaintiff never responded to that motion or provided any evidence to refute
Defendants’ argument. Defendants now argue that Plaintiff’s failure to provide any evidence of a
sincerely held belief is fatal to his claim.
The Court agrees that Plaintiff has failed to sustain his burden. As the magistrate judge
noted, Defendants’ contentions are insufficient to demonstrate that Plaintiff’s beliefs are not
sincerely held. “Nevertheless, the moving party need not support its motion with evidence
disproving the nonmoving party’s claim, but need only show that there is an absence of evidence
to support the nonmoving party’s case.” Hamby v. Neel, 368 F.3d 549, 556 (6th Cir. 2004) (internal
quotations omitted).1 Plaintiff has merely alleged that he is Jewish — he has not provided an
affidavit or other evidence of a sincerely held religious belief. As the party with the burden of proof,
Plaintiff may not rely on an allegation in the complaint to defeat summary judgment. See Thompson
v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001) (“[T]he party opposing the [summary judgment] motion
may not rely solely on the pleadings.”). Moreover, although the pleadings of a pro se plaintiff are
construed liberally, Plaintiff’s pro se status does not relieve him of the obligation to provide
evidence to defeat summary judgment. Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3
(6th Cir. May 5, 2010) (internal citations omitted) (“The liberal treatment of pro se pleadings does
not require lenient treatment of substantive law, and the liberal standards that apply at the pleading
stage do not apply after a case has progressed to the summary judgment stage.”).
In the months between when Defendants filed their summary judgment motion and the
magistrate issued the R & R, Plaintiff did nothing to refute Defendants’ arguments nor advance his
case. He has failed to provide any evidence that he has a sincerely held religious belief that requires

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Defendants presented this specific argument – that Plaintiff failed to come forward with evidence of a sincerely
held belief – for the first time in their objections. Because Defendants could not know that Plaintiff would not respond
to their motion for summary judgment, the argument was never presented to the magistrate judge.

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accommodation. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s claims
under the First Amendment and RLUIPA.
Plaintiff has filed several objections to the R & R. Plaintiff argues that he exhausted all
claims against Defendant Martin, and that Defendant Bolton was involved in the decision to deny
Plaintiff Kosher meals. Even if Plaintiff’s factual allegations are true, however, it is of no moment.
Because Plaintiff has failed to provide evidence necessary to defeat Defendants’ motion for
summary judgment, his claims must fail.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate Judge
filed January 14, 2013 (dkt. # 19), is ADOPTED IN PART AND REJECTED IN PART as the
Opinion of the Court. The Report and Recommendation is adopted as it pertains to granting
summary judgment and rejected as it pertains to denying summary judgment.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (dkt. # 17)
is GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE. The Court concludes
that an appeal of this matter would not be taken in good faith. See McGore v. Wrigglesworth, 114
F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
A separate judgment will issue.

Dated: February 12, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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