Johnson #324642 v. Killough et al

Filing 6

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

CORIELLE JOHNSON,
Plaintiff,
v.

Case No. 2:15-cv-17
Honorable Gordon J. Quist

NORMA KILLOUGH et al.,
Defendants.
______________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983
and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.
§ 2000cc-1(a)(1)-(2). The Court has granted Plaintiff leave to proceed in forma pauperis. Under
the Prison Litigation Reform Act (PLRA), 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, the Court will
dismiss Plaintiff’s complaint for failure to state a claim against Defendants LaPlante, Mackie and
Russell. The Court will serve the complaint against Defendants Snyder, Killough and Mize. In
addition, the Court will deny Plaintiff’s motion for a preliminary injunction.

Discussion
I.

Factual allegations

Plaintiff Corielle Johnson is incarcerated by the Michigan Department of Corrections
(MDOC) at Marquette Branch Prison (MBP), though the events giving rise to the complaint
occurred while he was incarcerated at Baraga Correctional Facility (AMF). Defendants are: MDOC
Special Activities Coordinator Norma Killough, Grievance Specialist Richard Russell, Grievance
Coordinator (unknown) LaPlante, Warden Thomas Mackie, Chaplain Keith Snyder, and Operations
Administrator E. Mize.
Plaintiff alleges that he is a believer in “I am” (also called Yahweh or YHWH) and
follows the “way of Abram” set forth in the Bible. (Compl., docket #1, Page ID#5.) In April 2013,
he requested a religious diet from Chaplain Snyder because he desired to be “eating holy,” which
means eating food blessed by a “Levitical Priest” and “having his food touched by no unclean
utensil, hand, or other foods.” (Id. at Page ID##5-6.) Snyder interviewed Plaintiff, and Plaintiff
explained that he is not Jewish, but that he is a Hebrew in the “bloodline” of Eber, “son of Shem,
son of Noah[.]” (Id. at Page ID#5.) Snyder submitted Plaintiff’s request to Special Activities
Coordinator Killough and Operations Administrator Mize. Snyder, Killough and Mize allegedly
conferred with one another and decided that a religious diet was not warranted. In a March 5, 2014
memorandum, Killough explained the reasons for denial of Plaintiff’s request:
Mr. Johnson requested and was interviewed for the kosher menu by Chaplain
Snyder of the Baraga Correctional Facility in April of 2013. While it is
difficult for one person to discern the sincerity and intent of another, based
on the information provided and on a review of his recent behavior, Mr.
Johnson’s request for a religious meal accommodation is denied.
(Mem. to Warden Thomas Mackie, docket #1-1, Page ID#16.) The memorandum noted that
Plaintiff’s “[r]ecent behavior . . . includes 51 misconducts since April 2013.” (Id.)
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When Plaintiff received notice of the denial of his request, he was on “modified
access” to the grievance process. (Id. at Page ID#10.) Under MDOC policy, a prisoner may be
placed on modified access for filing “an excessive number of grievances which are vague,
duplicative, raise non-grievable issues, . . . contain prohibited language. . . , or [if the prisoner] is
found guilty of [intentionally filing an unfounded grievance.]” MDOC Policy Directive 03.02.130
¶ HH (July 9, 2007). While on modified access, the prisoner can obtain grievance forms only
through the Step I coordinator, who must first determine whether the issue is grievable and
otherwise meets the criteria for an appropriate grievance under the policy. Id. ¶ KK. On March 12,
2014, Plaintiff asked Grievance Coordinator LaPlante for two Step I grievance forms (one regarding
the denial of a religious diet and the other for a claim of sexual harassment) and a Step II grievance
form. On March 30, 2014, Plaintiff received two of the requested forms; he did not receive a form
for complaining about the rejection of his request for a religious diet. Thereafter, Plaintiff sent
multiple requests so that he could file a grievance regarding his diet, to no avail.
Finally, on May 19, 2014, Plaintiff filed a grievance about the rejection of his
religious meal request. Grievance Coordinator LaPlante rejected it as untimely, even though
LaPlante was the one who prevented Plaintiff from filing the grievance at an earlier date. Plaintiff
appealed that decision, and Warden Mackie and Grievance Specialist Russell denied his appeal at
Steps II and III of the grievance process.
Plaintiff claims that Defendants have substantially burdened the practice of his
religion (in violation of the First Amendment and the RLUIPA), and subjected him to
“psychological torture and spiritual pain” (ostensibly in violation of the Eighth Amendment), by
refusing to accommodate his religious diet. (Id. at Page ID#7.) He further claims that Defendants
LaPlante, Mackie and Russell violated MDOC policy and deprived Plaintiff of access to the courts
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when they failed to provide grievance forms or properly review his grievances. Plaintiff claims that
Defendants should be held liable under 18 U.S.C. §§ 2, 241, and 242 for their conduct, in addition
to § 1983 and the RLUIPA. As relief, Plaintiff seeks compensatory and punitive damages. In
addition, in a motion filed with the complaint, Plaintiff seeks a preliminary injunction.
II.

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, 47 (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, 556 U.S. 662, 678 (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, 556 U.S. at 679. 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, 556 U.S. at 678 (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, 556 U.S. at 679 (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)).
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A. 18 U.S.C. §§ 2, 241, 242
Plaintiff cites portions of the federal criminal code, 18 U.S.C. §§ 2, 241, and 242, as
a basis for relief. As a private citizen, Plaintiff may not enforce these statutes. See Abner v. Gen.
Motors, 103 F. App’x 563, 566 (6th Cir. 2004) (finding that a private citizen cannot initiate a federal
criminal prosecution under 18 U.S.C. § 241); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per
curiam) (“Only the United States as prosecutor can bring a complaint under 18 U.S.C.
§§ 241–242.”). Plaintiff lacks “a judicially cognizable interest in the prosecution or nonprosecution”
of another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Furthermore, the foregoing statutes
do not provide for a private right of action. See United States v. Oguaju, 76 F. App’x 579, 581 (6th
Cir. 2003) (finding that “the district court properly dismissed [the plaintiff’s] claim pursuant to 18
U.S.C. §§ 241 or 242 because [the plaintiff] has no private right of action under either of these
criminal statutes”). Thus, any claims asserted under the foregoing statutes will be dismissed.
B. 42 U.S.C. § 1983
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
1. Defendants Mackie & Russell
The only specific conduct by Warden Mackie and Grievance Specialist Russell that
is alleged in the complaint is that they affirmed the denial of Plaintiff’s grievance during the
grievance appeal process. Liability under § 1983 may not be imposed simply because a supervisor
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denied an administrative grievance or failed to act based upon information contained in a grievance.
See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Furthermore, even if their subordinates
engaged in unconstitutional conduct, Defendants Mackie and Russell are not liable merely by virtue
of their supervisory roles or their awareness of that conduct. Section 1983 does not permit
government officials to be held liable under a theory of respondeat superior or vicarious liability.
Iqbal, 556 U.S. at 676; 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, 575-76 (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
576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004).
Plaintiff contends that Defendants Mackie and Russell conspired with other
Defendants to violate his rights, but this contention is not supported. A civil conspiracy under
§ 1983 is “an agreement between two or more persons to injure another by unlawful action.” See
Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935,
943-44 (6th Cir. 1985)). Plaintiff must show the existence of a single plan, that the alleged
coconspirator shared in the general conspiratorial objective to deprive him of a federal right, and that
an overt action committed in furtherance of the conspiracy caused an injury to Plaintiff. Hensley,
693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, Plaintiff
must plead a conspiracy claim with particularity, as vague and conclusory allegations unsupported
by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that allegations of
conspiracy must be supported by allegations of fact that support a “plausible suggestion of
conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008);
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Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538
(6th Cir. 1987). As to Defendants Mackie and Russell, Plaintiff’s claim is wholly conclusory and
speculative. The complaint contains no specific facts from which to make a plausible inference that
they shared a plan or otherwise agreed to violate Plaintiff’s rights.
In short, Plaintiff has not alleged that Defendants Mackie or Russell engaged in any
unconstitutional conduct. Thus, Plaintiff does not state a § 1983 claim against them. See Iqbal, 556
U.S. at 676 (“[A] plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.”).
2. Defendant LaPlante
Plaintiff contends that Grievance Coordinator LaPlante improperly prevented
Plaintiff from exhausting his administrative remedies for his religious-diet claim, thereby denying
him access to the courts. See 42 U.S.C. § 1997e(a) (requiring prisoners to exhaust available
administrative remedies before bringing claims under federal law with respect to prison conditions).
In particular, LaPlante failed to provide a grievance form, and later rejected a grievance regarding
Plaintiff’s diet as untimely.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). As the Sixth Circuit has held, however, the PLRA “only
mandates exhaustion of available remedies,” and thus, “a prisoner’s right to access the courts cannot
be compromised by a grievance officer’s alleged interference with the institutional grievance
process.” Crump v. Prelesnik, No. 13-1627, order at 2-3 (6th Cir. Aug. 4, 2014). In other words,
Defendant’s interference with Plaintiff’s ability to file a timely grievance could not have prevented
Plaintiff from exhausting his remedies as required by the PLRA, because Plaintiff “could raise such
interference to show that he satisfied ‘available’ remedies. . . .” See id. at 3; see also Walker, 128
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F. App’x at 446 (noting that if a grievance officer prevented a prisoner on modified access from
filing a non-frivolous grievance, “that would be the end of possible administrative remedies with
regard to that grievance”). Consequently, Plaintiff does not state an access-to-the-courts claim.
To the extent Plaintiff asserts that Defendant LaPlante failed to follow MDOC policy
with regard to the rejection of his grievance or requests for grievance forms, he does not state a
claim under § 1983 because that statute only permits claims for “deprivation of rights secured by
the constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924
(1982). It does not provide redress for a violation of a state law or prison policies. Pyles v. Raisor,
60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994).
Plaintiff also asserts that LaPlante conspired with other Defendants, but like his
conspiracy claim against Mackie and Russell, this claim is conclusory and speculative. Thus,
Plaintiff does not state a § 1983 claim against LaPlante.
3. Defendants Killough, Snyder & Mize
Plaintiff alleges that Defendants Killough, Snyder and Mize burdened the exercise
of his religion by denying his request for kosher meals. At this stage of the proceedings, the Court
concludes that these allegations suffice to state at least a First Amendment claim against them.
Thus, the Court will order service of the complaint on the latter Defendants.
C. RLUIPA
Under the RLUIPA, “[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution, . . . even if the burden results
from a rule of general applicability,” unless the government can show (1) that the imposition of the
burden “is in furtherance of a compelling governmental interest,” and (2) the burden furthers that
interest by use of the “least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2). At this stage of the
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proceedings, the Court concludes that Plaintiff states a possible official-capacity claim under the
RLUIPA against Defendants Killough, Snyder and Mize. Plaintiff does not allege that Defendants
LaPlante, Mackie or Russell had any involvement in the decision to refuse him a religious diet.
Thus, he does not state a claim against them, and they will be dismissed.
III.

Preliminary Injunctive Relief

In a motion filed with the complaint (docket #3), Plaintiff seeks a preliminary
injunction requiring the MDOC to provide him with a kosher diet. As an initial matter, the Court
may not issue a preliminary injunction in these circumstances, as Defendants have not received
notice of Plaintiff’s request. Rule 65(a)(1) of the Federal Rules of Civil Procedure provides that
“[t]he court may issue a preliminary injunction only on notice to the adverse party.” See Phillips
v. Chas. Schreiner Bank, 894 F.2d 127, 130-31 (5th Cir. 1990) (“The courts consistently have treated
[R]ule 65(a)(1) as mandatory and have not hesitated to dissolve preliminary injunctions issued
without notice or the opportunity for a hearing on disputed questions of fact and law.”).
On the other hand, to the extent that Plaintiff seeks a temporary restraining order
(TRO), which may be issued without notice, he has failed to support his request. Rule 65(b)(1)
provides that the Court may issue a TRO without notice only if, among other things, “specific facts
in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ.
P. 65(b)(1) (emphasis added). Plaintiff has not presented an affidavit or verified complaint setting
forth the “specific facts” required by the rule.
Furthermore, the balance of factors weighs against the issuance of preliminary
injunctive relief. In exercising its discretion to grant such relief, a court must consider whether
Plaintiff has established the following elements: (1) a strong or substantial likelihood of success on
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the merits; (2) the likelihood of irreparable injury if the preliminary injunction does not issue; (3)
the absence of harm to other parties; and (4) the protection of the public interest by issuance of the
injunction. The issuance of preliminary injunctive relief is committed to the discretion of the district
court. See Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These factors are not
prerequisites to the grant or denial of injunctive relief, but they must be “carefully balanced” by the
district court in exercising its equitable powers. Frisch’s Rest., Inc. v. Shoney’s, Inc., 759 F.2d 1261,
1263 (6th Cir. 1985). Moreover, where a prison inmate seeks an order enjoining state prison
officials, the court is required to proceed with the utmost care and must recognize the unique nature
of the prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland,
740 F.2d 432 at 438 n.3, (6th Cir. 1984). The party seeking injunctive relief bears a heavy burden
of establishing that the extraordinary and drastic remedy sought is appropriate under the
circumstances. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002); Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978); see also O’Lone v. Estate of
Shabazz, 482 U.S. 342 (1986).
Plaintiff’s “initial burden” in demonstrating entitlement to preliminary injunctive
relief is a showing of a strong or substantial likelihood of success on the merits of his action.
NAACP v. Mansfield, 866 F.2d 162, 167 (6th Cir. 1989). Plaintiff has not made such a showing.
It is not at all clear from Plaintiff’s pro se complaint or subsequent filings that Plaintiff has a
substantial likelihood of success on his claim that prison officials have imposed a burden on the
exercise of his religion in violation of the Constitution or the RLUIPA.
To establish that his First Amendment rights have been violated, Plaintiff must
establish: (1) that 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) that Defendant’s behavior infringes upon this
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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”). Similarly, the RLUIPA provides, in relevant part, that “[n]o
government shall impose a substantial burden on the religious exercise of a person residing in or
confined to [a prison] . . . .” 42 U.S.C. § 2000cc–1(a) (emphasis added).
It appears that Defendants denied Plaintiff’s request, at least in part, based on a
perceived lack of sincerity in his beliefs. Plaintiff offers no evidence to support the existence of his
beliefs, let alone the sincerity of them. The unsworn allegations in Plaintiff’s complaint that he
maintains certain religious beliefs are insufficient to demonstrate a substantial likelihood of success
on his claims that Defendants refused to accommodate his religious beliefs.
As for irreparable harm, Plaintiff contends that he will suffer in the absence of an
injunction because he will be forced to eat food that does not conform to his beliefs. Given the lack
of evidence regarding the existence or sincerity of those beliefs, however, the presence of irreparable
harm is not evident. Furthermore, the Court notes that Plaintiff did not receive a decision on his
request for a kosher diet for nearly a year. He made the request in April 2013, and his request was
denied in March 2014. He does not allege that he took any action during that time to obtain a
quicker response. This apparent lack of effort to secure compliance with his beliefs for such an
extended period of time undermines the sincerity of those beliefs and the possibility that irreparable
harm will result if the injunction is not granted.
Finally, the interests of identifiable third parties and the public at large weigh against
an injunction. Decisions concerning prison security are vested in prison officials, in the absence of
a constitutional violation. Any interference by the federal courts in the administration of state
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prisons is necessarily disruptive. The public welfare therefore militates against the issuance of
extraordinary relief in the prison context, absent a sufficient showing of a violation of constitutional
rights. See Glover, 855 F.2d at 286-87. That showing has not been made here. Accordingly, for
all the foregoing reasons, Plaintiff’s motion for a preliminary injunction will be denied.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants LaPlante, Mackie and Russell, and all claims arising under 18 U.S.C.
§§ 2, 241, and 242, will be dismissed for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendants
Killough, Snyder and Mize. The Court will deny Plaintiff’s motion for a preliminary injunction.
An Order consistent with this Opinion will be entered.

Dated: March 23, 2015

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

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