Cary #269436 v. Napel et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATION 32 re 29 : Plaintiff's Motion 29 for Injunctive Relief is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

BRYAN ALLEN CARY,
Plaintiff,
v.

Case No. 2:16-CV-102

R. NAPEL, et al.,

HON. GORDON J. QUIST

Defendants.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, a state prisoner confined with the Michigan Department of Corrections, has sued
several Defendants pursuant to 28 U.S.C. § 1983 alleging that they violated his rights under the First
and Fourteenth Amendments by taking away his medicine bag—“a native American religious item
necessary for prayer & protection.” (ECF No. 1 at PageID.2.) On December 22, 2016, Plaintiff
filed a motion for a temporary restraining order and preliminary injunction requesting that the Court
order Defendants to return the medicine bag to Plaintiff. (ECF No. 29.) On December 30, 2016,
Magistrate Judge Greeley issued a Report and Recommendation (R & R) recommending that the
Court deny Plaintiff’s motion. Applying the preliminary injunction factors, see In re DeLorean
Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985), the magistrate judge concluded that Plaintiff failed
to demonstrate a strong or substantial likelihood of success on the merits and that Plaintiff failed to
show that he will be irreparably harmed if the requested relief is not granted. (ECF No. 32 at
PageID.122.) The magistrate judge further reasoned that because Plaintiff’s motion concerns a
matter of prison administration, the Court should consider the interests of prison officials in
balancing the pertinent factors. (Id. at PageID.122–23.)

Plaintiff has filed an Objections to the R & R, asserting that the magistrate judge erroneously
concluded that Plaintiff has failed to demonstrate a substantial likelihood of success on the merits
and irreparable harm. After conducting a de novo review of the R & R, Plaintiff’s Objections, and
the pertinent portions of the record, the Court concludes that the R & R should be adopted.
The Court concurs with the magistrate judge’s observation that Plaintiff has not shown a
strong likelihood of success. This is not to say that Plaintiff cannot ultimately prevail on the merits
of his claim, but at this juncture Plaintiff has not met the high burden of demonstrating a substantial
likelihood of success on his First Amendment claim. In this regard, the Court is particularly mindful
that courts are generally hesitant to interfere with matters of prison administration and should defer
to the professional judgment of prison administrators. See Overton v. Bazzetta, 539 U.S. 126, 132,
123 S. Ct. 2162, 2167 (2003).
The Court notes that MDOC policy treats a “medicine bag” as a religious item for members
of the Native American religious group and allows such members to possess a “medicine bag” under
certain circumstances. See Cary v. Robinson, et al., No. 1:13-CV-31 (W.D. Mich.) (ECF No. 185
at PageID.184 (citing MDOC Policy Directive Attachment 05.03.150A)). Moreover, Plaintiff is
correct that such policy was recognized in McElhaney v. Elo, No. 98-1832, 2000 WL 32036 (6th Cir.
Jan. 6, 2000). Nonetheless, as the magistrate judge stated, Plaintiff failed to present evidence
supporting his claim that he has a strong or substantial likelihood of success in showing that
Defendants violated his rights by taking his medicine bag—for example, Plaintiff has not shown that
the confiscation of his medicine bag was unjustified by any legitimate penological concern. The
absence of such evidence requires denial of Plaintiff’s motion.
Therefore,

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IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued December 30, 2016 (ECF No. 32) is ADOPTED as the Opinion of the Court. Plaintiff’s
Motion for Injunctive Relief (ECF No. 29) is DENIED.

Dated: February 16, 2017

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

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