Jack-Bey #168807 v. Tribley et al

Filing 56

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

HOWARD JACK-BEY,
Plaintiff,

Case No. 2:13-cv-216

v.

Honorable Robert Holmes Bell

LINDA TRIBLEY et al.,
Defendants.
___________________________________/

OPINION
Plaintiff Howard Jack-Bey Jr., an inmate currently confined at the Carson City
Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Michigan Department of Corrections (MDOC) Director Daniel Heyns, Central Facilities
Administrator Daphne Johnson, and the following Ojibway Correctional Facility (OCF) employees:
Warden Linda Tribley, Deputy Warden Daniel Quigley, Classification Director J. Kivisto, Assistant
Resident Unit Supervisor M. L. Veda, Shar Buck, Corrections Officer (Unknown) Janssen, and
Lieutenants (Unknown) Waite and G. Suzik.
On December 5, 2013, the court ordered partial service of Plaintiff’s complaint. In
the opinion, the court summarized Plaintiff’s factual allegations:
Plaintiff was convicted in the Wayne County Circuit Court of four counts of
assault with intent to rob while armed, MICH . COMP. LAWS § 750.89, and one count
of possession of a firearm during the commission of a felony, MICH . COMP . LAWS §
750.227b. He was sentenced on February 26, 1990, to concurrent prison terms of ten
to twenty years for the assault convictions and a consecutive two-year term for the
felony-firearm conviction. During his subsequent incarceration, Petitioner was

convicted in the Muskegon County Circuit Court of possession of a weapon in prison.
On May 25, 1994, Petitioner was sentenced as an habitual offender, MICH . COMP .
LAWS § 769.12, to imprisonment of fifteen to thirty years.
During the early years of his incarceration, Plaintiff forfeited a substantial
number of Good Time/Disciplinary Credits as the result of major misconduct
convictions. After many years of being major misconduct free, Plaintiff was granted
restoration of all available Good Time/Disciplinary credits. After restoration of the
credits, Plaintiff had a Suggested Good Time/Disciplinary Release (STG) date of
November 27, 2012, a Regular Good Time/Disciplinary Release (RTG) date of
February 19, 2013 and a calendar minimum of May 29, 2015. (See 1/12/12 Time
Review and Disposition Report, docket #1-4, Ex. O, Page ID#116.) Plaintiff contends
that he had a liberty interest in being interviewed by the parole board before his first
STG date. At the time his credits were restored, Plaintiff was incarcerated at the
Lakeland Correctional Facility (LCF). Plaintiff alleges that after the restoration of his
Good Time/Disciplinary Credits, LCF Warden Carol Howes indicated that she would
recommend him for early parole consideration1 and further advised that Plaintiff
would be transferred to Jackson Cooper Street Correctional Facility (JCS) for a parole
interview. Plaintiff was transferred to JCS on February 22, 2012.
While at JCS, Plaintiff continued to pursue early consideration by the parole
board. Plaintiff believed that he was making progress toward that goal when he was
informed on May 9, 2012, that he was being transferred to OCF. Plaintiff was
unhappy about the transfer because he believed that prisoners only were sent to the
Upper Peninsula as punishment for bad behavior and it would be a hardship on his
wife and mother for him to be so far away. Upon his arrival at OCF, Plaintiff was
informed that he was transferred there at the request of Defendant Warden Tribley to
facilitate the Legal Writer Program. Plaintiff spoke with Tribley and explained that
he did not want to be at OCF. She responded, “You’ve had your visits, either you
work the legal writer assignment or you just sit here and suffer, it’s your choice, either

1

Under Michigan law, habitual offenders cannot be paroled before the expiration of their calendar
minimum without the approval of the sentencing judge. See MDOC Policy Directive (PD)
03.01.102(A)(2) (eff. 8/1/1988). In order for a prisoner to seek parole consideration before the
calendar minimum, MDOC policy provides:
Staff shall instruct prisoners that they should contact their respective Program
Classification committee or classification Director, and not the sentencing court, if
they believe their case warrants parole consideration prior to the calendar minimum.
If supported by the classification staff and by the Warden, the case shall be referred
by the Warden to the Parole Board for consideration.
PD 03.01.02(H) (emphasis in original).

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way you are here for the duration.” (Compl., ¶ 35, Page ID#13.) Plaintiff decided to
accept the work assignment, rather than suffer the consequences of being placed on
unemployable status.
Plaintiff submitted requests to Defendant Tribley on May 31, 2012 and July
2, 2012, for a recommendation for early parole consideration. (See Requests to Linda
Tribley, Ex. A, docket #1-3, Page ID##59-61.) Plaintiff received a response from
Tribley on August 16, 2012, stating that Plaintiff was not eligible for removal from
habitual status until he completed the Phase 2 drug abuse program. On July 25, 2012,
Plaintiff submitted another request concerning early parole consideration to Defendant
Kavisto. (See Request to Kivisto, Ex. B, Page ID#63.) Kavisto returned the request
to Plaintiff on July 30, stating that Plaintiff had to complete the Phase 2 drug program.
(See Kivisto Response, Ex. C, Page ID#65.) Plaintiff contends that Phase 1 and 2 did
not exist when he was incarcerated in 1990, and that changing or adding new program
requirements violates MDOC policy.
Notwithstanding his objection to the Phase 2 requirement, Plaintiff sought
admission to the program and was informed that he was on the waiting list. Plaintiff
filed a Step I grievance concerning the matter. Defendant Veda responded at Step I,
stating that enrollment in the Phase 2 program is based on ERD/Calendar minimum
dates and that there was no basis for moving Petitioner ahead of other prisoners who
had earlier release dates than Plaintiff’s calendar minimum of May 29, 2015. In
addition to filing grievances, Plaintiff sent a request for Declaratory Ruling to
Defendants Heyns and Johnson. (See Request for Declaratory Ruling, Ex. H, Page
ID##90-91.) Plaintiff’s request was denied on the ground that a prisoner’s release on
parole is discretionary with the parole board and that there was no right to parole.
(See Response to Request for Declaratory Ruling, Ex. I, Page ID#94.)
Plaintiff concedes that he has no right to be released on parole, but maintains
that he has a liberty interest in being considered for parole on his SGT/RGT dates.
Plaintiff contends that by denying him access to the Phase 2 drug abuse programming
that would allow him to be considered for release on his SGT/RGT dates, Defendants
Tribley, Heyns, Johnson, Kivisto, Veda and Buck violated his Fourteenth Amendment
due process rights and his Eighth Amendment right against cruel and unusual
punishment.2 Plaintiff further claims that Defendant Tribley had him transferred to
OCF from JCS in retaliation for grievances filed and complaints made against staff
in 2006, when Plaintiff was incarcerated at the Newberry Correctional Facility and
Tribley was the Assistant Deputy Warden.
On July 28, 2012, Plaintiff was scheduled for the general library, which is
located in the OCF school building. Plaintiff brought a folder of materials for

2

Plaintiff claims that as of mid 2012, Phase 2 programming no longer is available at OCF.

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purposes of reading and studying his school materials from the University of the
Moorish Science Temple of America (UMSTA) and researching a Moorish Science
Temple of America (MSTA) class action lawsuit. When Plaintiff arrived, Defendant
Janssen instructed Plaintiff to step forward to officer’s desk for a shakedown. Janssen
looked through the folder and told Plaintiff that he could not bring in any personal
materials. Plaintiff told Janssen that he was violating Plaintiff’s right to research and
study his religion and the class action lawsuit. Defendant Janssen allegedly became
angry and responded, “I don’t care sue me.” (Compl., ¶ 75, Page ID#25.) Plaintiff
told Janssen that he was going to file a grievance and left the building.
The following day, Plaintiff learned that Defendant Janssen wrote a Class III
Misconduct Report against Plaintiff for violating a posted rule. (See Class III
Misconduct Report, Ex. BB, docket #1-5, Page ID#172.) According to the report,
Plaintiff violated school rule #2, which states that no personal items are allowed in the
school. Defendant Waite was the reviewing officer for the misconduct charge. The
misconduct hearing was conducted on July 30, by Hearing Officer P. Ross. Ross
found Plaintiff “not guilty” of the charge because Plaintiff was not going to school,
but to a library call-out where personal paperwork was permitted. (See Class III
Misconduct Hr’g Report, Ex. BB, Page ID#176.)
Later on July 30, Plaintiff was informed by Defendant Waite that Defendant
Janssen wrote a Class II Misconduct Report against Plaintiff for insolence arising
from the same incident on June 28. (See Class II Misconduct Report, Ex. AA, docket
#1-4, Page ID#168.) According to the report, Plaintiff spoke to Janssen in a loud and
angry tone threatened to sue him for “big money.” (Id.) The Class II Misconduct
Report was dated July 29, 2012, but Plaintiff contends that Janssen wrote it on July
30, after Plaintiff was found “not guilty” of the first charge. Plaintiff asserts that the
misconduct violated MDOC policy requiring that the misconduct report be written as
soon as possible after the violation occurs. Plaintiff claims that Defendants Janssen
and Waite conspired to fabricate the Class II misconduct charge in retaliation for
Plaintiff’s verbal complaints and grievance against Janssen. Following a hearing on
August 8, 2012, the hearing officer, Defendant Suzik, found Janssen’s statement to
be credible and found Plaintiff guilty of the offense. (See Class II Misconduct Hr’g
Report, Ex. AA, Page ID#169.) Plaintiff was sanctioned with three days’ loss of
privileges. Plaintiff appealed the decision to Defendant Quigley, who denied the
appeal on August 20, 2012. Plaintiff filed a grievance against Defendants Janssen,
Waite, Suzik and Quigley, but it was rejected as non-grievable because it concerned
a misconduct conviction. Plaintiff appealed to Step III, claiming staff corruption,
retaliation and due process violations.
Plaintiff claims that Defendant Janssen violated his First Amendment rights
of access to the courts and to practice his religion when he denied Plaintiff access to
the law library. He alleges that Janssen retaliated against him for attempting to
resolve the matter by writing a false misconduct against him. Plaintiff claims that

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Defendants Janssen and Waite engaged in further retaliatory conduct when they
conspired to charge him with a second misconduct after he was found not guilty of the
first misconduct. Plaintiff contends that Defendants Suzik, Quigley and Tribley were
apprised of the violations committed by Janssen and Waite, but failed to take
reasonable actions to protect Plaintiff’s constitutional rights. In addition, Plaintiff
claims that his due process rights were violated in the proceedings on the Class II
misconduct charge, for which he was found guilty. Plaintiff also asserts a violation
of his Eighth Amendment right against cruel and unusual punishment and state law.
See docket #9, pp. 2-7 of 20.
After reviewing Plaintiff’s complaint, the Court dismissed Plaintiff’s claims against
Defendants Tribley, Heyns, Johnson, Quigley, Kivisto, Veda, Buck and Suzik, and ordered service
of Plaintiff’ First Amendment retaliation claims against Defendants Janssen and Waite, and Plaintiff’s
First Amendment free exercise claim against Defendant Janssen. Id. at pp. 19-20 of 20.
Presently before the Court is the Motion for Summary Judgment filed by Defendants
Janssen and Waite pursuant to Fed. R. Civ. P. 56. Plaintiff has filed a response 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
motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing

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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 Plaintiff failed to exhaust his administrative remedies
with regard to his claim that his misconduct was retaliatory. A prisoner’s failure to exhaust his
administrative remedies is an affirmative defense, which Defendants have the burden to plead and
prove. Jones v. Bock, 549 U.S. 199, 212-216 (2007). A moving party without the burden of proof
need show only that the opponent cannot sustain his burden at trial. See Morris v. Oldham County
Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761
(6th Cir. 2005). A moving party with the burden of proof faces a “substantially higher hurdle.”
Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d
1036, 1056 (6th Cir. 2001). “Where the moving party has the burden -- the plaintiff on a claim for
relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to hold
that no reasonable trier of fact could find other than for the moving party.” Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary Judgment Under the
Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The
United States Court of Appeals for the Sixth Circuit repeatedly has emphasized that the party with
the burden of proof “must show the record contains evidence satisfying the burden of persuasion and

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that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281
F.3d at 561 (quoting 11 JAMES WILLIAM MOORE , ET AL., MOORE ’S FEDERAL PRACTICE § 56.13[1],
at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same). Accordingly, summary judgment in favor
of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of
different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553
(1999).
Prisoners commonly file grievances pursuant to policy of the Michigan Department
of Corrections to exhaust administrative remedies. For example, a prisoner may grieve “alleged
violations of policy and procedure or unsatisfactory conditions of confinement which directly affect
the grievant.” MICH . DEP ’T OF CORR., Policy Directive 03.02.130, ¶ E (effective 4/28/03). As noted
above, Plaintiff is asserting that Defendant Janssen retaliated against him by charging him with two
misconducts. Defendant Waite reviewed the misconduct charges with Plaintiff. Plaintiff was found
“not guilty” of the first misconduct ticket, and was found guilty of the second ticket.
As noted by Defendants, decisions made in the prison hearings division are nongrievable. Policy Directive 03.02.130, ¶ F(1). Therefore, the grievance procedure was not available
to Plaintiff. Instead, Plaintiff was required to “file a motion or application for rehearing in order to
exhaust his or her administrative remedies before seeking judicial review of the final decision or
order.” See MICH . COMP . LAWS § 791.255(1). Defendants assert that Plaintiff failed to raise
retaliation during the hearings on his misconduct tickets and that, as a result, he has not exhausted his
remedies with regard to his claims that the tickets were retaliatory. In support for their contention that
Plaintiff was required to raise retaliation during his misconduct hearing, Defendants cite Siggers v.
Campbell, 652 F.3d 681 (6th Cir. 2011).

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This court previously addressed the application of Siggers to a similar case:
Defendant cites Siggers v. Campbell, 652 F.3d 681, 693–94 (6th
Cir.2011), for the proposition that “A prisoner claiming that the
issuance of a major misconduct violation constituted retaliation must
raise that issue at the misconduct hearing.” (Def.'s Obj. 2, ECF No.
29.) The portion of Siggers that Defendant cites, however, concludes
that the plaintiff in that case had not exhausted his administrative
remedies because the retaliation of which he complained at his hearing
was different from the retaliation he presented to the court. Siggers,
therefore, does not stand for the proposition for which Defendant cites
it. Even if it did stand for such a proposition, the Misconduct Hearing
Report reveals that Plaintiff at least raised the issue that the
misconduct ticket was fabricated.
Colvin v. Pederson, 2014 WL 2616499, 1 (W.D. Mich. 2014).
With regard to the first misconduct ticket, Plaintiff was found not guilty of a class III
minor misconduct. Hearing Officer Ross ruled that because Plaintiff was on a library call out and was
thus allowed to possess personal paperwork. Hearing Officer Ross concluded that Plaintiff had not
violated a posted rule. See docket #42-2, pp. 2-3 of 3. Plaintiff asserts that he did argue retaliation
during the hearing by Hearing Officer Ross, although this argument is not noted in the hearing report.
According to Plaintiff, Hearing Officer Ross told him that it was not necessary to make such a record
because it was a minor misconduct hearing, the misconduct was improper, and that he was finding
Plaintiff “not guilty.” See docket #53, p. 4 of 8.
With regard to the second minor misconduct ticket, Plaintiff was found guilty
following a hearing. The misconduct hearing report for the second misconduct ticket fails to show
that Plaintiff raised retaliation as a defense to this misconduct ticket. See docket #42-3, pp. 2-3 of 3.
However, Plaintiff asserts that he informed Hearing Officer Suzik of the retaliation, but that Suzik
failed to include that in the record. In addition, Plaintiff contends that while Siggers concerned a class
I major misconduct, the misconducts at issue in the instant case were class II and III minor

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misconducts, which are not subject to the same procedural requirements. See MDOC Policy Directive
03.03.105, eff. 04/09/12.
As in Colvin, Plaintiff in the instant case asserted that the misconduct tickets were
fabricated during the hearings. Moreover, as noted by Plaintiff, the tickets were not major misconduct
tickets and were not subject to the same due process protections. Plaintiff contends that the hearing
record for such misconduct tickets is cursory and does not include the detail required for a finding of
guilty on a class I major misconduct ticket. The court concludes that for the reasons stated by the
court in Colvin, Plaintiff exhausted his administrative remedies on his retaliation claims.
Defendants assert that with regard to the second misconduct ticket, Plaintiff’s
retaliation claim is properly dismissed because he was found guilty of the misconduct following a
hearing. Defendants are correct. Where plaintiff is ultimately found guilty of misconduct charges,
plaintiff cannot state a claim for retaliation arising from the misconduct charges. Wilson v. Phipps,
No. 97-1661, 1998 WL 384560, at *1 (6th Cir. June 18, 1998) (citing Orebaugh v. Caspari, 910 F.2d
526, 528 (8th Cir. 1990) (per curiam)). Therefore, Plaintiff’s retaliation claim regarding the second
misconduct ticket written by Defendant is properly dismissed.
Defendants next assert that Plaintiff’s retaliation claims with relate to the first
misconduct ticket by Defendant Janssen are properly dismissed because he was not engaged in
protected conduct. Retaliation based upon a prisoner’s exercise of his or her constitutional rights
violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).
In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was
engaged in protected conduct; (2) an adverse action was taken against him that would deter a person
of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least

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in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of
the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Defendants assert that Plaintiff was not engaged in protected conduct when he received
the misconduct ticket by Defendant Janssen on July 28, 2012. Conduct that violates a legitimate
prison regulation is not protected. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008). With
regard to this misconduct ticket, Plaintiff alleges that on July 28, 2012, he was scheduled for the
general library, which is located in the OCF school building. Plaintiff brought a folder of materials
for purposes of reading and studying his school materials from the University of the Moorish Science
Temple of America (UMSTA) and researching a Moorish Science Temple of America (MSTA) class
action lawsuit. Defendant Janssen looked through the folder and told Plaintiff that he could not bring
in any personal materials. Plaintiff complained that Defendant Janssen was violating his right to
research and study his religion and research a class action lawsuit, and Defendant Janssen told
Plaintiff that he did not care and Plaintiff could sue him. A review of the misconduct ticket shows
that Defendant Janssen wrote the ticket because Plaintiff lacked authorization to be in the school with
his personal items. See docket #42-2, p. 2 of 3. The class II misconduct hearing report gives the
reason for the “not guilty” finding as follows: “School Rule #2 states no personal material in the
school, however Jack-Bey #168807 was going to a library call-out where personal paperwork is
permitted.”
Defendant Janssen now asserts that at the time Plaintiff received the first misconduct
ticket, he was attempting to study religious materials with another member of the Moorish Science

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Temple of America (MSTA), which is a violation of MDOC policy. Defendants assert that Plaintiff
did not have a constitutionally protected right to engage in this conduct. In his affidavit, Defendant
Janssen stated that on July 28, 2012, Plaintiff and inmate Waiver Watson #200504 attempted to bring
MSTA religious materials into the library. Defendant Janssen states that he informed Plaintiff and
Watson that they could not bring religious materials into the library and wrote Plaintiff a misconduct
ticket for violation of posted rules. During this time, OCF provided a MSTA service and study time
for members to review their religious materials. However, MSTA members were not allowed to
study their materials together in the library. See docket #43, ¶¶ 3-5, pp. 2-3 of 3.
On the face of the misconduct ticket and hearing report, it appears that Defendant
Janssen mistakenly thought Plaintiff was on a school call-out and could not possess religious
materials. If true, this does not support Plaintiff’s claim that the ticket was retaliatory. However, this
is contradicted by the version of events set forth by Defendant Janssen in his affidavit. In addition,
Defendants do not identify any specific rule which prohibits inmates from studying MSTA materials
together in support of Defendant Janssen’s affidavit. Because Defendant Janssen’s affidavit sets forth
a different version of events than that set forth in the ticket, it raises a question regarding Defendant
Janssen’s motive for executing the affidavit and actually creates an issue of fact with regard to the
events leading up to the misconduct ticket. The court concludes that Plaintiff has a constitutionally
protected right to exercise his religious beliefs and to do legal research. There is an issue of fact
regarding Defendant Janssen’s motivation in writing the misconduct ticket on Plaintiff. Therefore,
Defendant Janssen is not entitled to summary judgment on Plaintiff’s claim that the ticket was
retaliatory.

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With regard to Defendant Waite, there is no indication that he had any involvement
with the misconduct ticket prior to his review of the ticket after it had been written by Defendant
Janssen. Because it does not appear as if Defendant Waite was personally involved in any retaliatory
conduct with regard to this ticket, he is entitled to summary judgment on this claim. Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264, 120 S. Ct. 2724 (2000).
In his complaint, Plaintiff also claims that, by denying him access to the law library
with his personal religious materials, Defendant Janssen violated his First Amendment right to
practice his religion. 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. See 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) that 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) (noting that “sincerely
held religious beliefs require accommodation by prison officials”).
While inmates retain First Amendment rights to the free exercise of religion, prison
officials may impinge on these constitutional rights where their actions are “reasonably related to
legitimate penological interests.” See Flagner, 241 F.3d at 483 (quoting Turner v. Safley, 482 U.S.
78, 89 (1987)). 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;

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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.
In this case, it is not clear that there was any actual policy prohibiting Plaintiff from
possessing or studying religious materials in the OCF library. In support of his response to the motion
for summary judgment, Plaintiff attaches a copy of the OCF Library Rules, which was revised in May
of 2012, and signed by Deputy Warden Quigley on May 31, 2012. See docket #54-1, pp. 2-3 of 18.
The rules do not contain any prohibition on studying religious materials during library. Id. at p. 2 of

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18. Plaintiff also includes MSTA publications indicating a need for daily study in order to properly
practice the religion. Id. at pp. 10-18 of 18.
Defendants have failed to offer any evidence showing the existence of a rule
prohibiting Plaintiff from studying his religion during library, or showing the existence of a valid,
rational connection between the prison regulation and a legitimate governmental interest. Therefore,
Defendant Janssen is not entitled to summary judgment on this claim.
Defendants alternatively move for qualified immunity.

Government officials,

performing discretionary functions, generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999);
Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An “objective reasonableness” test is used to
determine whether the official could reasonably have believed his conduct was lawful. Dietrich, 167
F.3d at 1012; Anderson v. Creighton, 483 U.S. 635, 641 (1987). “Qualified immunity balances two
important interests-the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).
In making a qualified immunity determination the court must decide whether the facts
as alleged or shown make out a constitutional violation or whether the right that was allegedly
violated was a clearly established right at the time of the alleged misconduct. Id. at 816. If the court
can conclude that either no constitutional violation occurred or that the right was not clearly
established, qualified immunity is warranted. The court may consider either approach without regard

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to sequence. Id. As previously discussed, because Plaintiff cannot establish that his constitutional
rights were violated with regard to his claim that the second misconduct ticket was retaliatory,
Defendants are entitled to qualified immunity on that claim.
However, as noted above, there is an issue of fact with regard to whether Defendant
Janssen retaliated against Plaintiff in writing the first misconduct ticket, as well as whether Defendant
Janssen violated Plaintiff’s First Amendment right to freely exercise his religious beliefs. Plaintiff
has a clearly established right to be free from retaliation and to practice his religion. Therefore,
Defendant Janssen is not entitled to qualified immunity on these claims.
In light of the foregoing, the court concludes that Defendants Janssen and Waite are
entitled to summary judgment with regard to Plaintiff’s claim that the second misconduct ticket,
written on July 30, 2012, was retaliatory. However, Defendant Janssen is not entitled to summary
judgment on Plaintiff’s claims that the July 28, 2012, misconduct ticket was retaliatory and that
Defendant Janssen violated his First Amendment right to freely exercise his religious beliefs.
Accordingly, Defendants’ Motion Summary Judgment (Docket #42) will be granted, in part, and
Plaintiff’s claims against Defendant Waite will be dismissed.
An Order consistent with this Opinion will be entered.

Dated: February 26, 2015

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

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