Cavin #326204 v. Heyns et al

Filing 76

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 71 ; granting defendants' motion for summary judgment 65 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARIO CAVIN,
Plaintiff,

Case No. 2:15-cv-44

v.
HON. ROBERT HOLMES BELL
DANIEL HEYNS et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
On July 8, 2016, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) recommending that the Court grant Defendants’ motion for
summary judgment. (ECF No. 71.) Plaintiff has filed objections to the R&R. (ECF No. 75.)
This Court is required to make a de novo review of those portions of a R&R to which
specific objections are made, and may accept, reject, or modify any or all of the Magistrate
Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Mootness
Plaintiff objects to the Magistrate Judge’s determination that his claim for injunctive
and declaratory relief is moot as it pertains to the warden of Chippewa Correctional Facility
(URF), Defendant Woods, because Plaintiff has been transferred to a different facility.
Plaintiff argues that his claim is not moot because he could be transferred back to URF at any
time, and is likely to be transferred there again at some point during his remaining sentence.

Plaintiff’s claim is directed toward a URF policy that prevents prisoners from attending
religious services while they are confined in “toplock.” (R&R at 3.) Plaintiff contends that
this policy prevented him from attending two group services of the Wicca religion when he
was confined in toplock.
The Court discerns no error in the determination of the Magistrate Judge. The fact that
Plaintiff may be transferred back to URF at some unknown time in the future does not
present “sufficient immediacy and reality” to sustain his claim. Preiser v. Newkirk, 422 U.S.
395, 402 (1975). This is especially true considering that Plaintiff is only affected by the
policy when he is confined in toplock. At all other times, the policy has no impact. Even if
Plaintiff was transferred back to URF today, his claim would still be moot unless he is placed
in toplock. See Selby v. Caruso, 734 F.3d 554, 561 (6th Cir. 2013) (finding that prisoner’s
RLUIPA claim challenging restrictions on attending group services for prisoners confined
in administrative segregation became moot when the prisoner was released into the general
population).
“There is . . . an exception to the mootness doctrine for claims that are capable of
repetition, yet evade review.” Fredette v. Hemingway, 65 F. App’x 929, 931 (6th Cir. 2003).
This exception requires that “the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration” and that “there was a reasonable expectation that
the same complaining party would be subjected to the same action again.” Id. (emphasis in
original; internal quotation marks and citation omitted). This exception does not apply
because Plaintiff has not shown that there is a reasonable expectation that he will be
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transferred back to URF, placed in toplock, and prevented from attending the group services
for his faith. It is not enough for him to speculate that he might be transferred back to URF
someday. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (an allegation of a
likelihood of transfer back to the same facility is not enough to satisfy the capable-ofrepetition exception to mootness).
Ripeness
Next, Plaintiff objects to the Magistrate Judge’s determination that his claim
concerning Michigan Department of Corrections (MDOC) Policy Directive 03.03.105 is not
ripe. The policy provides that the warden of a facility “may” provide authorization for
prisoners confined in toplock to attend out-of-cell activities, including group worship
services. MDOC Policy Directive 03.03.105 ¶ OOO (Apr. 9, 2012). The Court agrees with
the R&R that any possible injury to Plaintiff arising from this policy directive is too remote
to give rise to a claim. Plaintiff does not contend that he is presently confined in toplock or
that prisoners at his current facility are prevented from attending group worship services.
Plaintiff contends that his claim concerns a dispute that is “likely to reoccur,” because other
wardens are likely to use the MDOC policy as an opportunity impose restrictions like those
at URF. (Objections at 3, ECF No. 75.) This is mere speculation.
Plaintiff also contends that if the Court does not permit his claim to proceed, then the
MDOC could protect itself from liability by relying on the defenses of res judicata or
equitable estoppel. That is not the case. Dismissing Plaintiff’s claim as unripe does not mean
that challenged policies are valid; rather, it means that the prospect of a legal conflict is too
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remote to be resolved at this time. Another prisoner, or even Plaintiff himself, facing an
inability to attend group services would not be barred by res judicata or equitable estoppel
from proceeding on similar claims.
Qualified Immunity
Plaintiff contends that the R&R erred in granting qualified immunity when it failed
to consider the “novelty” aspect of the qualified-immunity analysis. (Id.) In other words, for
a right to be clearly established, “[a] court need not have previously held illegal the conduct
in the precise situation at issue because ‘officials can still be on notice that their conduct
violates established law even in novel factual circumstances.’” Sutton v. Metro. Gov’t of
Nashville & Davidson Cnty., 700 F.3d 865, 876 (6th Cir. 2012) (quoting Sample v. Bailey,
409 F.3d 689, 699 (6th Cir. 2005)) (emphasis added).
There are two prongs to the qualified-immunity analysis. The first is whether the facts
alleged or shown make out a constitutional violation, and the second is whether the right that
was violated was clearly established. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If one
or both of these prongs is not met, then the defendant is entitled to qualified immunity. The
R&R appears to have rested its decision primarily on the first prong. Plaintiff’s objection
goes to the second prong. Thus, even if Plaintiff is correct, his objection would not change
the outcome of the case.
In any event, the Court discerns no error in the conclusion that it is not clearly
established that restricting access to group religious activities for prisoners on top lock is a
First Amendment violation. In order to prevail, Plaintiff must show that the balancing of the
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factors in Turner v. Safley, 482 U.S. 78 (1987) clearly established that a policy like the one
at URF is unreasonable. See Iswed v. Caruso, 573 F. App’x 485, 490 (6th Cir. 2014).
Plaintiff cites persuasive authority from the Second Circuit, none of which compels the
conclusion that the URF policy violated his constitutional rights. In Ford v. McGinnis, 352
F.3d 582 (2d Cir. 2003), the first case cited by Plaintiff, the prisoner alleged that prison
officials were not serving religious meals to prisoners in segregation. Rather than decide the
First Amendment claim and the issue of qualified immunity, however, the court remanded
the matter to resolve factual disputes. Id. at 538. Similarly, in Salahuddin v. Coughlin, 993
F.2d 306 (2d Cir. 1993), the court recognized that confinement in keeplock does not deprive
prisoners of the right to participate in group religious services, but it remanded the matter for
further development of the record as to whether the defendants’ actions were reasonable. Id.
at 310. Finally, in Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976), the court merely held
that an allegation that prisoners in punitive segregation and “keeplock” are denied
participation in chapel services was sufficient to state a claim. Id. at 3. The court then
remanded the matter for further factual development and a determination of the
reasonableness of the defendants’ actions. Id. Thus, even assuming that the foregoing cases
are factually applicable, none of them actually held that the defendants’ conduct violated the
First Amendment.
Plaintiff also raises an objection regarding the first prong of the analysis. He contends
that he has shown a constitutional violation because the ban on group religious services for
prisoners in toplock is not based on any “security justifications.” (Objections at 4.) As the
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R&R discussed, however, the relevant question is whether the policy was supported by a
valid penological interest justifying the temporary restriction on Plaintiff’s First Amendment
rights. Security concerns are just one example of a penological interest. The R&R cited
another: the need for an incentive for better behavior. Thus, Plaintiff’s objection is without
merit.
RLUIPA
Plaintiff further contends that Defendants are not entitled to qualified immunity with
respect to his RLUIPA claim. The R&R did not make a finding of qualified immunity
regarding this claim. Rather, it determined that this claim is moot as it pertains to Defendant
Woods and not ripe as it pertains to Defendant Heyns.
First Amendment
Plaintiff offers several other objections to the R&R’s determination that Plaintiff does
not state a constitutional violation. Plaintiff claims that a decision cited in the R&R, Walker
v. Mintzes, 771 F.2d 920 (6th Cir. 1985), is distinguishable. That is true. In Walker, the
prison implemented a blanket ban on group services for inmates in administrative segregation
due to security concerns (prison riots) which are not present in Plaintiff’s case. Nevertheless,
as discussed above, the R&R cited a valid penological interest, which is what Turner v.
Safley, 482 U.S. 78 (1987) requires.
Plaintiff also objects to the determination that Plaintiff failed to cite any evidence
undermining Defendants’ contention that the blanket ban served legitimate government
purposes. Plaintiff ostensibly contends that punishment is not a legitimate purpose, but the
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R&R relied on Beard v. Banks, 548 U.S. 521 (2006). Plaintiff cites the dissenting opinion
in that case, but obviously the dissenting opinion is not controlling.
Turner analysis
Plaintiff also objects to the determination that he failed to specify the materials that
he lacked in order to conduct solitary rituals as an alternative means of exercising his
religion. Plaintiff contends that he specified these materials in his complaint, in his
deposition, and in an affidavit. But all of these refer to the same materials that he would have
needed to conduct a service on his own, as a replacement for the sort of service to which he
was denied access. In his deposition, he did not deny that no one prevented him from
practicing his religion in other ways in his cell. Rather, he acknowledged his inability to
practice in his cell was due, in part, to a personal lack of knowledge about what to do.
Summary Judgment
Finally, Plaintiff contends that there are genuine issues of fact regarding the Turner
factors, including the availability of alternative means for Plaintiff to practice his religion.
But even if there are no alternative means for Plaintiff to practice his religion, the R&R is
correct that this factor is not “conclusive,” and that the balance of factors supports the
reasonableness of the policy. (R&R 11-12.)
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s objections (ECF No. 75) are DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 17)
is APPROVED and ADOPTED as the opinion of the Court, except that the Court declines
to certify that an appeal would not be in good faith.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 65) is GRANTED.
A judgment will enter consistent with this order.

Dated: October 27, 2016

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

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