Carter #177803 v. Lutjens et al

Filing 8

OPINION; signed by Magistrate Judge Maarten Vermaat (cam)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
VINCENT JOE CARTER,
Plaintiff,

Case No. 2:21-cv-203

v.

Honorable Maarten Vermaat

CHRISTOPHER LUTJENS et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff
previously sought and was granted leave to proceed in forma pauperis. (ECF No. 6.) Pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to
proceed in all matters in this action under the jurisdiction of a United States magistrate judge.
(ECF No. 5.)
This case is presently before the Court for preliminary review under the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial
review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131,
1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997).
Service of the complaint on the named defendants is of particular significance in defining a
putative defendant’s relationship to the proceedings.
“An individual or entity named as a defendant is not obliged to engage in litigation unless
notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v.

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Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding
tradition in our system of justice, is fundamental to any procedural imposition on a named
defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that
capacity, only upon service of a summons or other authority-asserting measure stating the time
within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless
a named defendant agrees to waive service, the summons continues to function as the sine qua non
directing an individual or entity to participate in a civil action or forgo procedural or substantive
rights.” Id. at 351. Therefore, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat.
1321 (1996) (PLRA), by requiring courts to review and even resolve a plaintiff’s claims before
service, creates a circumstance where there may only be one party to the proceeding—the
plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212
F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the
complaint and dismissed it without prejudice before service was made upon any of the
defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”).
Here, Plaintiff has consented to a United States magistrate judge conducting all
proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent
of the parties, a full-time United States magistrate judge . . . may conduct any or all
proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the
named Defendants have not yet been served, the undersigned concludes that they are not presently
parties whose consent is required to permit the undersigned to conduct a preliminary review under
the PLRA, in the same way they are not parties who will be served with or given notice of this
opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a

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consent from the defendants[; h]owever, because they had not been served, they were not parties
to the action at the time the magistrate entered judgment.”).1
Under the PLRA, 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 Scott, Carlson, Smoyer, Unknown Parties, and Washington. The Court will also
dismiss, for failure to state a claim, the following claims against the remaining Defendants: (1)
Plaintiff’s claim pursuant to 42 U.S.C. § 1985; (2) Plaintiff’s claim pursuant to 42 U.S.C. § 1986;
(3) Plaintiff’s First Amendment and RLUIPA claims against Defendants Lutjens, Feliciano,
Wellman, Tasson, Dahl, McCarthy, and Huss; (4) Plaintiff’s Eighth Amendment claims against
Defendants Lutjens, Feliciano, Tasson, Dahl, McCarthy, and Huss; and (5) Plaintiff’s First
Amendment retaliation claim against Defendant Heinritz.

But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017)
(concluding that, when determining which parties are required to consent to proceed before a
United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the
United States Supreme Court considered in Murphy Bros. was nothing like the context of a
screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c));
Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for
the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198,
2022 WL 322883, at *4–6, *4 n.26 (3d Cir. Feb. 10, 2022) (premising its discussion of “the term
‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on
the meaning of ‘parties’ in other contexts”).
1

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The following claims remain in the case: (1) Plaintiff’s First Amendment free exercise
claims against Defendant Heinritz in her personal and official capacities; (2) Plaintiff’s RLUIPA
claims for declaratory and injunctive relief against Defendant Heinritz in her official capacity; (3)
Plaintiff’s Eighth Amendment claims against Defendants Wellman and Heinritz; and (4) Plaintiff’s
First Amendment retaliation claims against Defendants Lutjens, Feliciano, Tasson, Dahl,
McCarthy, and Huss.
Discussion
I.

Factual Allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC)

at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events
about which he complains, however, occurred at the Marquette Branch Prison (MBP) in
Marquette, Marquette County, Michigan. Plaintiff sues MDOC Director Heidi Washington,
Correctional Facilities Administration Transfer Coordinator Laura Heinritz, MDOC Bureau of
Health Care Services Nurse S. Smoyer, and the following individuals at MBP: Warden Erica Huss,
Assistant Deputy Wardens Unknown Tasson and Unknown Dahl, Business Manager Unknown
McCarthy, Food Service Director Christopher Lutjens, Assistant Food Service Director J.
Feliciano, Registered Dietician Kelly Wellman, Health Unit Manager C. Scott, Registered Nurse
Unknown Carlson, and Unknown Parties.
Plaintiff alleges that he was transferred to MBP for outpatient treatment on July 1, 2020.
(ECF No. 1, PageID.7.) At the time, Plaintiff was on the “Buddhist Religious ‘Strict Vegan Diet’
meal program.” (Id.) Plaintiff maintains that MBP did not provide or was not equipped to provide
religious “strict vegan diet” meals. (Id.) Plaintiff does not explain how the food provided by MBP
failed to comply with his religious strict vegan diet.

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Plaintiff alleges that from July 1, 2020, until July 10, 2020, he was forced to choose
between an inadequate diet and adherence to his religion because: (1) MBP did not provide “strict
vegan diet” meals and (2) the food was served in inadequate portions. (Id.) During that time,
Plaintiff ate a piece of fruit and juice each day for more than a week, causing him to suffer “severe
hunger pains all day and all night.” (Id.) Moreover, his inability to eat affected his mental illness
and antidepressant medication. (Id.) Plaintiff began hallucinating and was placed on 72-hour
observation/suicide watch from July 4, 2020, through July 8, 2020. (Id.)
Plaintiff contends that his meals “must be prepared a certain way to prevent cross
contamination with other foods that are considered ‘haram’ (harmful).” (Id.) He contends that
Defendants Huss, Dahl, Wellman, Lutjens, Feliciano, and McCarthy “refused to provide Plaintiff
with his religious diet or provide him with a special diet consistent with his religious beliefs,
enough to sustain normal health.” (Id.) On July 8, 2020, Plaintiff filed a grievance against
Defendants Wellman and Tasson, as well as Olsen, Sergeant Methorny, PC Johnson, and
Psychiatrist Mende Green (not parties), for deliberate indifference to his medical and psychiatric
needs and for violating his “rights to practice his sincerely held religious beliefs.” (Id.) On July 18,
2020, Plaintiff filed another grievance against Defendants Wellman, Lutjens, and Feliciano “for
conspiring to alter and falsify documents, in particular [his] religious vegan meal tickets.” (Id.)
According to Plaintiff, he was receiving foods that were not on the Buddhist “strict vegan diet”
and, therefore, were haram. (Id.) From July 10, 2020, through July 24, 2020, Defendant Wellman
provided Plaintiff vegan meals from the general population chow line “in order to try and
accommodate Plaintiff’s strict religious vegan meals.” (Id., PageID.8.)
On July 24, 2020, Plaintiff was transferred to the Chippewa Correctional Facility in
Kincheloe, Chippewa County, Michigan, “so that his religious diet could be accommodated.” (Id.)

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He alleges, however, that on September 14, 2020, Defendant Heinritz or her successor approved
Plaintiff’s transfer back to MBP despite MBP’s inability to accommodate his religious diet. (Id.)
After he was sent back to MBP, he “notified all named Defendants and Defendant Wellman told
Plaintiff that she ha[d] no authority to modify or change his religious diet.” (Id.) Plaintiff spoke
directly to Defendants Lutjens, Feliciano, McCarthy, Huss, Tasson, and Dahl about the issue while
his numerous grievances were pending. (Id.) Those Defendants acknowledged when responding
to his grievances that MBP does not provide religious diets. (Id.) They also told Plaintiff that “they
would not intervene or order a religious vegan diet tray for him,” and that they would help him get
his religious meals only if he withdrew his pending grievances against them. (Id., PageID.9.) When
Plaintiff refused to withdraw his grievances, “he was told on multiple occasions that they would
make sure he [would] not receive any special accommodations or any special treatment to
accommodate his religious meals.” (Id.) Plaintiff claims that Defendants Lutjens, Feliciano, and
McCarthy told him he should “do them and the State a favor and kill himself and save them all
money, because if it was up to them they would allow Plaintiff to starve.” (Id.)
Plaintiff also spoke to the Security Classification Committee (SCC), consisting of
Defendants Huss, Dahl, and Tasson, when they made rounds in Q-Block. (Id.) These Defendants
told Plaintiff “that the only way [he] was going to eat [was] to break his religious tenets and eat
off the regular meal lines, just ask for the sub because they would not be providing him with a
religious ‘strict vegan’ diet to change his religious beliefs, because he would be a resident of MBP
for a while.” (Id.) These Defendants also told Plaintiff “to keep filing letters and complaints to
their bosses and see if anything changes” because he would “be transferred by the time anything
is investigated or done about his religious diet.” (Id.) Plaintiff contends that not receiving his
religious diet again caused him to experience severe hunger pains and also “caus[ed] his mental

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capacity and stability to deteriorate further, and caused side effect from taking his anti-depression
medication from not eating.” (Id.)
Plaintiff filed another grievance on September 17, 2020. (Id.) He contends that he was
forced to eat only fruit and juice, as well as what he was able to get from other inmates and “extra
peanut butter cups from other inmate lunch bags” from September 14, 2020, until November of
2020. (Id.) He contends that without his religious diet, he was unable to eat, exercise, adequately
pray, and adequately practice and study his religious faith. (Id.) Plaintiff avers that he also suffered
a “severe emotional, mental, physical[,] and psychological breakdown.” (Id.)
Based on the foregoing, Plaintiff asserts violations of his First and Eighth Amendment
rights, as well as his rights under the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. §§ 2000cc, et seq. Plaintiff also asserts violations of 42 U.S.C. §§ 1985 and
1986. He seeks declaratory and injunctive relief, as well as compensatory and punitive damages.
(Id., PageID.13.)
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
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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)).
A.

Claims Pursuant to 42 U.S.C. § 1985

Plaintiff avers that Defendants conspired to violate his rights pursuant to 42 U.S.C. § 1985.
(ECF No. 1, PageID.12–13.) To maintain a cause of action for conspiracy under 42 U.S.C.
§ 1985(3),2 a plaintiff must establish the following four elements: (1) a conspiracy involving two
or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons
of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes
injury to a person or property, or a deprivation of any right or privilege of a citizen of the United
States. See Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996) (citing Johnson v. Hills & Dales
Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994)); Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir.
1998). Moreover, the plaintiff must allege that there existed “some racial, or perhaps otherwise

2

Subsections (1) and (2) of § 1985 do not apply. Subsection (1) is inapplicable because Plaintiff
does not allege a conspiracy to interfere with federal officers in the performance of their duties.
See 42 U.S.C. § 1985(1). The first clause of subsection (2) is also inapplicable because Plaintiff
does not allege that Defendants conspired to influence parties, witnesses, or jurors in federal court
proceedings. See 42 U.S.C. § 1985(2). In addition, the second clause of subsection (2) is
inapplicable because Plaintiff does not allege that Defendants conspired to “interfere with due
process in state courts with the intent to deprive persons of their equal protection rights.” Fox v.
Mich. State Police Dep’t, 173 F. App’x 372, 376 (6th Cir. 2006).
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class-based, invidiously discriminatory animus behind the conspirators’ action.” See Kush v.
Rutledge, 460 U.S. 719, 726 (1983); see also Collyer, 98 F.3d at 233.
Here, Plaintiff suggests that the alleged conspiracy was motivated by his religious beliefs.
Nevertheless, while Plaintiff alleges that Defendants worked together, his complaint is devoid of
facts suggesting that they overtly agreed to violate his equal protection rights. See Siefert v.
Hamilton Cnty., 951 F.3d 753, 768 (6th Cir. 2020) (noting that a plaintiff must set forth facts
alleging that defendants agreed to violate the plaintiff’s rights and committed an overt act in
furtherance of that agreement). Plaintiff’s conclusory allegations are insufficient to maintain his
conspiracy claim against Defendants. See Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir.
1987) (noting that “conspiracy claims must be pled with some degree of specificity” and that
“vague and conclusory allegations unsupported by material facts will not be sufficient to state a
claim”).
Plaintiff’s conspiracy claim is also barred by the intracorporate conspiracy doctrine. This
doctrine states that “if all of the defendants are members of the same collective entity, there are
not two separate ‘people’ to form a conspiracy.” Hull v. Cuyahoga Valley Joint Vocational Sch.
Dist. Bd. of Ed., 926 F.2d 505, 510 (6th Cir. 1991). The Sixth Circuit repeatedly has applied the
doctrine to claims under § 1985(3). Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839–40
(6th Cir. 1994) (quoting Hull, 928 F.2d at 510).3 Recently, in Jackson v. City of Cleveland, 925
F.3d 793, 817-19 (6th Cir. 2019), the Sixth Circuit concluded that the intracorporate conspiracy
doctrine applies to § 1983, as well as § 1985, recognizing that in both contexts, unless members
of the same collective entity (such as the MDOC) are acting outside the scope of their employment,

3

The Supreme Court has neither adopted nor rejected application of the intracorporate conspiracy
doctrine to claims under 42 U.S.C. § 1985. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1867–69 (2017)
(citing Great Am. Fed. Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 372 n.11 (1979)).
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they are deemed to be one collective entity and not capable of conspiring. Jackson, 925 F.3d at
819; see also Novak v. City of Parma, 932 F.3d 421, 436-37 (6th Cir. 2019) (same).
Here, Defendants are members of the same collective entity—the MDOC. Plaintiff does
not allege, much less show, that Defendants were acting outside the scope of their employments.
The “scope of employment” limitation “recognizes a distinction between collaborative acts done
in pursuit of an employer’s business and private acts done by persons who happen to work at the
same place.” Johnson, 40 F.3d at 840. “The mere ‘fact that two or more agents participated in the
decision or in the act itself will normally not’ suffice to create a conspiracy.” Id. (quoting
Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972)). In addition, “simply joining corporate
officers as defendants in their individual capacities is not enough to make them persons separate
from the corporation in legal contemplation.” Harris v. Bd. of Educ., 798 F. Supp. 1331, 1346
(S.D. Ohio 1992). Instead, a plaintiff must allege that the defendants “acted other than in the
normal course of their corporate duties.” Id. Plaintiff has not done so here. Accordingly, Plaintiff
has failed to state a claim for violations of 42 U.S.C. § 1985(3).
B.

Claims Pursuant to 42 U.S.C. § 1986

Plaintiff also suggests that Defendants violated 42 U.S.C. § 1986, which states:
Every person who, having knowledge that any of the wrongs conspired to be done,
and mentioned in section 1985 of this title, are about to be committed, and having
power to prevent or aid in preventing the commission of the same, neglects or
refuses to do so, if such wrongful act be committed, shall be liable to the party
injured . . . for all damages caused by such wrongful act, which such person with
reasonable diligence could have prevented . . . .
42 U.S.C. § 1986.
Causes of action under § 1986, by its terms, are premised on the violation of
§ 1985. As discussed supra, Plaintiff fails to state a claim under § 1985. Accordingly, his claim
under § 1986 fails as well. Bartell v. Lohiser, 215 F.3d 550, 560 (6th Cir. 2000) (explaining that
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§ 1986 is derivative and conditioned on establishing a § 1985 violation); Browder v. Tipton, 630
F.2d 1149, 1154 (6th Cir. 1980) (same).
C.

Claims Pursuant to 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.

Claims Against Defendants Scott, Carlson, Smoyer, and Unknown
Parties

Plaintiff names Scott, Carlson, Smoyer, and Unknown Parties as Defendants but fails to
include any factual allegations regarding them in the body of his complaint. The exhibits attached
to his complaint, however, indicate that Defendants Carlson and Smoyer reviewed and rejected
Plaintiff’s grievances. (ECF No. 1-4, PageID.34-35, 39.)
It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must
make sufficient allegations to give a defendant fair notice of the claim). Where a person is named
as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even
under the liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am.,
92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how
any named defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App’x
762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any
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degree of specificity which of the named defendants were personally involved in or responsible
for each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at
*2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant);
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of allegations
as to them which would suggest their involvement in the events leading to his injuries”). Because
Plaintiff’s claims fall far short of the minimal pleading standards under Fed. R. Civ. P. 8 (requiring
“a short and plain statement of the claim showing that the pleader is entitled to relief”), his
complaint must be dismissed against Defendants Scott and Unknown Parties.
As noted above, Plaintiff’s exhibits indicate that Defendants Carlson and Smoyer reviewed
and rejected his grievances. Government officials, however, may not be held liable for the
unconstitutional conduct of their subordinates 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).
Moreover, § 1983 liability may not be imposed simply because a supervisor 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). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the

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Constitution.” Iqbal, 556 U.S. at 676. Plaintiff fails to allege that Defendants Carlson and Smoyer
engaged in any active unconstitutional behavior and, therefore, fails to state a claim against them.
2.

First Amendment Free Exercise and RLUIPA Claims

Plaintiff contends that Defendants violated his rights under the First Amendment and
RLUIPA by not providing his Buddhist “strict vegan” diet during his incarceration at MBP. (ECF
No. 1, PageID.11.) The First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.
The right to freely exercise one’s religion falls within the fundamental concept of liberty under the
Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Thus, state
legislatures and those acting on behalf of a state are “as incompetent as Congress” to interfere with
the right. Id.
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) his belief is sincerely held; and (3)
Defendants’ 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); Bakr v.
Johnson, No. 95-2348, 1997 WL 428903, at *2 (6th Cir. July 30, 1997).
Plaintiff has sufficiently alleged his sincerely held religious belief that a “strict vegan” diet
is part of his religious practice. The next consideration is “whether the challenged practice of the
prison officials infringes upon the religious belief . . . .” Kent, 821 F.2d at 1224–25. A practice
will not be considered to infringe on a prisoner’s free exercise of religion unless it “place[s] a
substantial burden on the observation of a central religious belief or practice . . . .” Hernandez v.
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C.I.R., 490 U.S. 680, 699 (1989); see also Welch, 627 F. App’x at 485 (McKeague, J., dissenting)
(“To violate the First Amendment, the diet must impose a substantial burden on the inmate’s
exercise of religion.”). “[T]he Supreme Court has made clear that the ‘substantial burden’ hurdle
is high.” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th
Cir. 2007). “[A] ‘substantial burden’ is a difficult threshold to cross.” Id. at 736. Such a burden
“must place more than an inconvenience on religious exercise.” Id. at 739 (quoting Midrash
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 20014)). A particular
government action will not be considered a substantial burden merely because it “may make [the]
religious exercise more expensive or difficult.” Id.
The Court’s analysis of Plaintiff’s RLUIPA claim parallels the analysis of his First
Amendment free exercise claim. In relevant part, RLUIPA prohibits any government from
imposing a “substantial burden on the religious exercise” of a prisoner, unless such burden
constitutes the least restrictive means of furthering a compelling governmental interest. 42 U.S.C.
§ 2000cc-1(a). The term “religious exercise” includes “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” Id., § 2000cc-5(7).
The phrase “substantial burden” is not defined in RLUIPA. The Sixth Circuit has relied
upon the Act’s legislative history to conclude that the term has the same meaning under RLUIPA
as provided by the Supreme Court in its decisions regarding First Amendment free exercise claims.
See Living Water, 258 F. App’x at 733–34. Thus, a burden is substantial where it forces an
individual to choose between the tenets of his religion and foregoing governmental benefits or
places “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id.
(citations omitted); Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (recognizing that RLUIPA’s
institutionalized persons provision was intended to alleviate only “exceptional” burdens on

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religious exercise). A burden is less than “substantial” where it imposes merely an “inconvenience
on religious exercise,” see, e.g., Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1323 (11th Cir.
2005), or does not “pressure the individual to violate his or her religious beliefs.” Living Water,
258 F. App’x at 734. Such conclusions recognize that RLUIPA was not intended to create a cause
of action in response to every decision which serves to inhibit or constrain religious exercise, as
such would render meaningless the word “substantial.” Civil Liberties for Urban Believers v. City
of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).
Here, accepting as true Plaintiff’s allegations that consuming anything other than a “strict
vegan” diet violates the tenets of his faith, he was required to either abandon his religious diet
practices or have less than adequate nutrition while incarcerated at MBP. Requiring Plaintiff to
make such a choice is precisely the type of pressure that substantially burdens the free exercise of
Plaintiff’s religious practice. Plaintiff, therefore, has stated claims for violation of his First
Amendment free exercise and RLUIPA rights.
Plaintiff attributes the constitutional violations he has suffered with respect to the failure
to accommodate his religious strict vegan diet to remaining Defendants Lutjens, Feliciano,
Wellman, Tasson, Dahl, McCarthy, Heinritz, Huss, and Washington. However, Plaintiff’s factual
allegations clarify that not every one of those Defendants played an active role in the alleged
violation of his religious rights. Moreover, differences between the remedies available under
§ 1983 and RLUIPA impact whether Plaintiff may pursue relief against the potentially liable
Defendants in their personal capacities, their official capacities, or both.
a.

Free Exercise Defendants

“[A] plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. The Court, therefore,
must consider who is responsible for creating and changing religious diets.
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General requirements for MDOC’s food service are set forth in MDOC Policy Directive
04.07.100 (eff. Oct. 1, 2019).4 Such requirements include three meals a day, with hot food provided
for two of those meals. Id., ¶ G. All menus and meals must satisfy the nutritional and caloric
recommendations set forth in the dietary reference intakes approved by the National Research
Council, and menu planning must follow “The Dietary Guidelines for Americans.” Id., ¶ H. The
Food Services Program Manager is responsible for issuing standardized regular diet menus to be
used at all MDOC facilities. Id., ¶ J. Food service policy identifies two other types of diets other
than the regular diet: therapeutic diets, as described in MDOC Policy Directive 04.07.101 (eff.
Sept. 1, 2018), and religious diets, as set forth in MDOC Policy Directive 05.03.150 (eff. Jan. 3,
2022).
The religious diet menu consists of a vegan menu. The policy provides: “An alternative
menu will be developed and provided only with approval of the Deputy Director and only if it is
determined that the Vegan menu does not meet the religious dietary need of the prisoner.” Id.,
¶ OO. The religious diet policy does not provide for changes to the religious diet menu other than
changes necessary because the vegan menu does not meet the religious requirements of the
prisoner. The policy indicates, however, that the vegan religious diet is not offered at MBP. Id. It
provides that “[t]he Deputy Director or designee shall determine at which facilities religious meals
will be offered.” Id.
The only other possible alternative diet referenced is the therapeutic diet. Regarding such
diets, the policy directive provides:
The Administrator of the Bureau of Health Care Services (BHCS) or designee shall
maintain a Diet Manual identifying criteria for prescribing and providing
therapeutic diets, specific to the MDOC needs. The MDOC diet manual is
4

Plaintiff references certain MDOC policy directives and the policies regarding religious and
therapeutic diets in his complaint.
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researched and written by the BHCS Registered Dietitians. This manual provides a
guideline for circumstances under which therapeutic diets are to be ordered and
medical nutritional services are to be provided.
To comply with existing standards of health care, all therapeutic diets shall be
ordered by the MP or dentist based on guidelines set forth in the MDOC Diet
Manual. The menus for therapeutic diets will be written by BHCS Registered
Dietitians in accordance with the MDOC Diet Manual. Therapeutic diet orders will
be reviewed by BHCS Registered Dietitians to ensure appropriateness and make
recommendations based on the guidelines of the MDOC Diet Manual. All
therapeutic diets will be served as prescribed in the Prisoner Health Record (PHR)
by the MP or dentist and in accordance with the MDOC Diet Manual and
PD 04.07.100 “Offender Meals and Food Quality Assurance.”
* * *
Menu options such as vegetarian, pork-free or other dietary variances that are
requested for religious or personal (non-medical) reasons are not therapeutic diets
and should not be ordered as such.
MDOC Policy Directive 04.07.101, ¶¶ G, H, M. (eff. Sept. 1, 2018). The policy directive makes
clear that the preparation and service of the food is the responsibility “of Food Service within each
institution” but the food is to be “prepared and served according to the therapeutic diet menus as
written by [Bureau of Health Care Services] Registered Dieticians.” Id., ¶¶ P, Q.
Here, Plaintiff’s complaint alleges that on numerous occasions, he personally spoke to
Defendants Lutjens, Feliciano, Wellman, Tasson, Dahl, McCarthy, and Huss about the issues with
his diet and that they refused to do anything to assist. He also avers that they were aware that MBP
“did not provide and/or was not equipped to provide special religious Buddhist ‘strict vegan’ diet[]
meals.” (ECF No. 1, PageID.8.) However, with respect to Defendant Wellman, Plaintiff asserts
that she tried to accommodate his religious practices by providing him with vegan items from the
regular menu. (Id.) Based upon the above policy directives, and the absence of any allegations in
Plaintiff’s complaint to the contrary, there are no facts alleged that support an inference that
Defendants Lutjens, Feliciano, Wellman, Tasson, Dahl, McCarthy, and Huss played an active role
in creating the religious diet, failing to offer it at MBP, having Plaintiff transferred to MBP, and
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refusing to change Plaintiff’s diet to a strict vegan diet to accommodate his Buddhist beliefs.
Plaintiff’s First Amendment free exercise claims against those Defendants will, therefore, be
dismissed.
Similarly, there is nothing in the policy directives or Plaintiff’s factual allegations that
support the inference that Defendant Washington played any role in creating the religious diet and
not offering it at MBP, or that she played any role in the failure to switch Plaintiff to an alternative
religious diet and having him transferred to MBP. Plaintiff, therefore, has failed to allege that
Defendant Washington participated in active unconstitutional behavior regarding his claimed First
Amendment free exercise violation.
Plaintiff contends that Defendant Heinritz had him transferred to MBP a second time
despite knowledge that MBP could not accommodate his religious diet. (ECF No. 1, PageID.8.)
Plaintiff alleges that prior to transfer, all inmates are to be screened to ensure that their special
accommodations can be met at the new facility. (Id., PageID.13.) MDOC Policy Directive
05.01.140 provides that a transfer order must include “the purpose of transfer, program
information, [Special Problem Offender Notice] information, Security Threat Group (STG)
designation, assaultive and property risk designations, current security screening designations,
special handling (e.g., medical accommodations), and any pertinent information regarding special
precautions which are to be taken with that prisoner.” MDOC Policy Directive 05.01.140 ¶ H (eff.
Nov. 1, 2017). Based upon that policy directive, and given Plaintiff’s allegations, Plaintiff has
plausibly alleged that Defendant Heinritz violated his First Amendment free exercise rights by
transferring him to MBP despite knowing that MBP could not accommodate his religious diet.
Plaintiff sues Defendant Heinritz in her personal and official capacities. (ECF No. 1,
PageID.3.) As noted above, he seeks damages as well as declaratory and injunctive relief. A suit

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against an individual in his or her official capacity is equivalent to a suit brought against the
governmental entity: in this case, the MDOC. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). An official-capacity defendant
is absolutely immune from monetary damages. Will, 491 U.S. at 71; Turker v. Ohio Dep’t of Rehab.
& Corr., 157 F.3d 453, 456 (6th Cir. 1998); Wells v. Brown, 891 F.2d 591, 592-93 (6th Cir. 1989).
The Court, therefore, will dismiss Plaintiff’s suit for monetary relief against Defendant Heinritz in
her official capacity.
Moreover, an official capacity action seeking injunctive relief constitutes an exception to
sovereign immunity. See Ex Parte Young, 209 U.S. 123, 159–60 (1908) (Eleventh Amendment
immunity does not bar prospective injunctive relief against a state official). “Under the Ex Parte
Young exception, a federal court can issue prospective injunctive and declaratory relief compelling
a state official to comply with federal law[.]” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507
(6th Cir. 2008) (citing Will, 491 U.S. at 71 & n.10). Plaintiff seeks injunctive relief in the form of
an order enjoining his transfer to any facility that does not provide special religious diets. (ECF
No. 1, PageID.13.) Defendant Heinritz is the MDOC’s Correctional Facilities Administration
Transfer Coordinator and, therefore, would have direct involvement in any future transfers of
Plaintiff to other MDOC facilities. Plaintiff, therefore, may maintain his First Amendment free
exercise claim for declaratory and injunctive relief against Defendant Heinritz in her official
capacity.
b.

RLUIPA Defendants

RLUIPA does not create a cause of action against an individual in that individual’s personal
capacity. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 331 (5th Cir. 2009), aff’d Sossamon

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v. Texas, 563 U.S. 277 (2011)5; see also Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012)
(“[RLUIPA] does not create a cause of action against state employees in their personal capacity.”);
Washington v. Gonyea, 731 F.3d 143, 145 (2d Cir. 2013) (“RLUIPA does not provide a cause of
action against state officials in their individual capacities . . . .”).6 Plaintiff names Defendants
Lutjens, Feliciano, Wellman, Tasson, Dahl, McCarthy, and Huss in their personal capacities only.
(ECF No. 1, PageID.2–4.) Plaintiff’s RLUIPA claims against those Defendants will, therefore, be
dismissed. Plaintiff’s RLUIPA claims against Defendant Heinritz in her personal capacity will also
be dismissed.
Moreover, RLUIPA does not permit damages claims against prison officials in their official
capacities either. A suit against an individual in his official capacity is equivalent to a suit brought
against the governmental entity. See Will, 491 U.S. at 71 (1989); Matthews, 35 F.3d at 1049. In
Sossamon v. Texas, 563 U.S. 277 (2011), the Supreme Court held that the RLUIPA did not
abrogate sovereign immunity under the Eleventh Amendment. See also Cardinal v. Metrish, 564
F.3d 794, 801 (6th Cir. 2009) (“[T]he Eleventh Amendment bars plaintiff’s claim for monetary
relief under RLUIPA.”). Therefore, although the statute permits the recovery of “appropriate relief
against a government,” 42 U.S.C. § 2000cc-2(a), monetary damages are not available under
The Supreme Court granted certiorari only on the question “Whether an individual may sue a
State or state official in his official capacity for damages for violation of” RLUIPA. Sossamon v.
Texas, 560 U.S. 923 (2010). Thus, the Supreme Court left undisturbed and unreviewed the Fifth
Circuit’s holding that “RLUIPA does not create a cause of action against defendants in their
individual capacities.” Sossamon, 560 F.3d at 331.
5

6

In Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014), the Sixth Circuit analyzed whether
Congress’s spending power permitted a RLUIPA damages claim against an individual prison
official in the official’s personal capacity. The court rested its determination that such claims were
not permitted on its conclusion that “appropriate relief” under RLUIPA was not a sufficiently clear
statement to authorize such a damages claim. Id. at 567-69. The court stopped short of adopting
the reasoning that swayed the Fifth Circuit in Sossamon and subsequent federal circuit court
panels. Haight, however, did not squarely present the issue whether a personal capacity suit for
injunctive or declaratory relief might be available.
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RLUIPA. Plaintiff’s claims for damages against Defendants Washington and Heinritz in their
official capacities will, therefore, be dismissed.
Sovereign immunity, however, does not bar a suit seeking declaratory or injunctive relief
against Defendants in their official capacities. See Ex Parte Young, 209 U.S. at 159–60. That
exception, however, applies only to prospective relief. Green v. Mansour, 474 U.S. 64, 68–73
(1985). Plaintiff seeks declaratory or injunctive relief that is prospective. For the reasons discussed
above, Plaintiff may maintain his claims for declaratory and injunctive relief under RLUIPA
against Defendant Heinritz in her official capacity. Plaintiff, however, has not set forth allegations
that Defendant Washington was personally involved in his transfer to MBP and the failure to
provide him a religious diet. His RLUIPA claims against Defendant Washington will, therefore,
be dismissed.
3.

Eighth Amendment Claims

Plaintiff next avers that Defendants Huss, Dahl, Wellman, McCarthy, Lutjens, and
Feliciano violated his Eighth Amendment rights by refusing him his religious diet, causing him to
be unable to adequately eat. (ECF No. 1, PageID.12.) He also suggests that Defendants
Washington and Heinritz violated his Eighth Amendment rights by placing him at MBP, where he
was unable to eat because he could not receive his religious diet. (Id.)
The Eighth Amendment imposes a constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be “barbarous,” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148
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F.3d 596, 600–01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations
of essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954. “Routine discomfort is ‘part
of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations
are required to make out a conditions-of-confinement claim.” Id.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he
faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479–80 (6th
Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims)); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)). The deliberate-indifference
standard includes both objective and subjective components. Farmer, 511 U.S. at 834; Helling,
509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated
under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the
subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or
safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting or failing to act
with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of
recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually knew of a substantial

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risk to inmate health or safety may be found free from liability if they responded reasonably to the
risk, even if the harm ultimately was not averted.” Id. at 844.
“[I]t is clearly established that the prison must provide adequate nutrition to prisoners,”
and that a failure to do so is an Eighth Amendment violation. See Welch v. Spaulding, 627 F. App’x
479, 484 (6th Cir. 2015). Here, Plaintiff contends that during his incarceration at MBP, he “had to
live off a piece of [fruit,] a cup of breakfast juice, and 4 oz cups of peanut butter that he received
from other inmates.” (ECF No. 1, PageID.12.) Plaintiff also alleges that his inability to adequately
eat caused him to experience hunger pains, difficulty sleeping, and side-effects from being unable
to take his antidepressant with food. (Id.)
Plaintiff contends that Defendants Lutjens, Feliciano, and McCarthy told him that “he
should do them and the State a favor and kill himself and save them all money, because if it was
up to them they would allow Plaintiff to starve.” (Id., PageID.9.) The use of such language,
although unprofessional, does not rise to constitutional dimensions. See Johnson v. Dellatifa, 357
F.3d 539, 546 (6th Cir. 2004); Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir. 1987); see also
Murray v. U.S. Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997)
(“Although we do not condone the alleged statements, the Eighth Amendment does not afford us
the power to correct every action, statement, or attitude of a prison official with which we might
disagree.”). Nothing in the complaint, however, leads to the inference that Defendants Lutjens,
Feliciano, and McCarthy failed to offer any sort of meal to Plaintiff. Given the lack of such
allegations, Plaintiff has failed to set forth a plausible Eighth Amendment claim against
Defendants Lutjens, Feliciano, and McCarthy.
With regard to Defendants Dahl, Tasson, and Huss, Plaintiff alleges that they told him
“directly that the only way [he] was going to eat is to break his religious tenets and eat off the

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regular meal lines.” (ECF No. 1, PageID.9.) Again, however, nothing in the complaint leads to the
inference that these Defendants refused to offer any sort of meal to Plaintiff. Likewise, nothing in
the complaint leads to an inference that Defendant Washington actively refused to offer any sort
of meal to Plaintiff. Given the lack of such allegations, Plaintiff has failed to set forth a plausible
Eighth Amendment claim against Defendants Dahl, Tasson, Huss, and Washington.
With regard to Defendant Wellman, Plaintiff alleges that from July 10, 2020, through July
24, 2020, she attempted to accommodate his religious needs by providing him vegan items from
the regular menu. (ECF No. 1, PageID.8.) When Plaintiff was transferred back to MBP on
September 14, 2020, Defendant Wellman told Plaintiff that she “has no authority to modify or
change his religious diet.” (Id.) As discussed supra, Defendant Wellman had no authority to do so.
However, as a dietician at MBP, Defendant Wellman would have responsibility for ensuring that
Plaintiff received adequate calories and nutrition. Plaintiff’s complaint infers that Defendant
Wellman knew that Plaintiff was not receiving adequate nutrition and failed to correct such.
Plaintiff, therefore, has set forth a plausible Eighth Amendment claim against Defendant Wellman
at this time.
As to Defendant Heinritz, Plaintiff alleges that she transferred him back to MBP on
September 14, 2020, despite knowing that his religious diet could not be accommodated at that
facility. (ECF No. 1, PageID.8.) As discussed supra, MDOC Policy Directive provides that prior
to transferring an inmate, it must be determined that the transferee facility can accommodate that
inmate’s needs, including programming, etc. MDOC Policy Directive 05.01.140 ¶ H. Plaintiff’s
complaint allows an inference that, as transfer coordinator for the MDOC, Defendant Heinritz
knew that Plaintiff would not be able to adequately eat at MBP unless he violated his religious diet

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tenets and transferred him anyway despite that knowledge. Plaintiff, therefore, has set forth a
plausible Eighth Amendment claim against Defendant Heinritz at this time.
4.

First Amendment Retaliation Claims

Plaintiff contends that Defendants Heinritz, Huss, Tasson, Dahl, McCarthy, Lutjens, and
Feliciano retaliated against him for filing grievances by burdening his religious exercise by not
providing a Buddhist “strict vegan” diet while he was incarcerated at MBP. (ECF No. 1,
PageID.12.) Specifically, Plaintiff suggests that Defendants Huss, Tasson, Dahl, McCarthy,
Lutjens, and Feliciano retaliated by telling him that they would help him get his religious diet only
if he “signed off his pending grievances against them.” (Id., PageID.9.) He suggests further that
Defendant Heinritz retaliated against him by transferring him back to MBP.
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 three elements: (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 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)).
The filing of a nonfrivolous prison grievance is constitutionally protected conduct for
which a prisoner cannot be subject to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th
Cir. 2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Plaintiff, therefore, has
adequately alleged protected conduct: he states that he filed numerous grievances concerning the
denial of his religious diet and lack of adequate food.
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To establish the second element of a retaliation claim, a prisoner-plaintiff must show
adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising
his constitutional rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one
and does not depend on how a particular plaintiff reacted. The relevant question is whether the
defendants’ conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not
show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir.
1987)); see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints
screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no
concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations
omitted); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on
the defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A
screening) (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)).
Here, Plaintiff contends that Defendant Heinritz transferred him to MBP a second time
despite knowing that the facility could not accommodate his religious diet. In general, a transfer
from one prison facility to another is not considered adverse. See LaFountain v. Harry, 716 F.3d
944, 948 (6th Cir. 2013) (citing Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003)). “Since
prisoners are expected to endure more than the average citizen, and since transfers are common

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among prisons, ordinarily a transfer would not deter a prisoner of ordinary firmness from
continuing to engage in protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir.
2005). In any event, Plaintiff’s complaint is devoid of facts from which the Court could infer that
Defendant Heinritz was personally aware of any grievances filed by Plaintiff prior to his second
transfer to MBP. Plaintiff’s conclusory and speculative allegations, therefore, fail to state a
plausible First Amendment retaliation claim against Defendant Heinritz.
Plaintiff also contends that Defendants Huss, Tasson, Dahl, McCarthy, Lutjens, and
Feliciano retaliated against him by telling him that they would not help him get his religious diet
unless he “signed off his pending grievance against them.” (ECF No. 1, PageID.9.) This Court has
recognized that similar “settlement offers” do not constitute adverse action. See Reese v. West, No.
1:21-cv-492, 2022 WL 325403, at * (W.D. Mich. Feb. 3, 2022) (dismissing inmate’s First
Amendment retaliation claim based upon allegations that the defendant officer threatened to ensure
that he did not receive his property back if he refused to sign off on his grievance). Moreover,
many courts, including this one, have concluded that the denial or refusal to process a grievance
is not adverse action. See, e.g., Cameron v. Gurnoe, No. 2:19-cv-71, 2019 WL 2281333, at *4–5
(W.D. Mich. May 29, 2019) (citing cases); Branch v. Houtz, No. 1:16-cv-77, 2016 WL 737779, at
*6 (W.D. Mich. Feb. 26, 2016); Ross v. Westchester Cnty. Jail, No. 10 Civ. 3937(DLC), 2012 WL
86467, at *8 (S.D.N.Y. Jan. 11, 2012) (the refusal to file a grievance is, without more, insufficient
to constitute an adverse action); Stone v. Curtin, No. 1:11-cv-820, 2011 WL 3879505, at *4 (W.D.
Mich. Aug. 31, 2011) (the failure to process a prison grievance would not deter a prisoner of
ordinary firmness from exercising his right to file a grievance); Green v. Caruso, No. 1:10-cv-958,
2011 WL 1113392, at *10 (W.D. Mich. Mar. 24, 2011) (the denial of a prisoner’s grievances was
not sufficiently adverse to support a retaliation claim); Burgos v. Canino, 641 F. Supp. 2d 443,

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454 (E.D. Pa. 2009), aff’d, 358 F. App’x 302 (3d Cir. 2009) (the rejection or denial of prison
grievances does not constitute an adverse action for purposes of a retaliation claim).
As set forth above, however, MDOC policy dictates that alternative religious diets are
“developed and provided only with approval of the Deputy Director and only if it is determined
that the Vegan menu does not meet the religious dietary needs of the prisoner.” MDOC Policy
Directive 05.03.150 ¶ OO. Presumably, Plaintiff himself could not have contacted the Deputy
Director directly and requested an alternative diet; he would have needed assistance in doing so
from the administration at MBP. Moreover, by refusing to sign off on his grievances against
Defendants Huss, Tasson, Dahl, McCarthy, Lutjens, and Feliciano, Plaintiff continued to receive
inadequate nutrition while at MBP because he chose not to forego his religious tenets. Essentially,
Defendants’ offer of help meant Plaintiff had to choose between adequate meals and foregoing his
First Amendment right of redress. For purposes of this action, the Court concludes that this
Hobson’s choice constitutes sufficient adverse action, as it is plausible that a person of ordinary
firmness would choose adequate nutrition and forego his or her right of redress.
Finally, temporal proximity “may be ‘significant enough to constitute indirect evidence of
a causal connection so as to create an inference of retaliatory motive.’” Muhammad v. Close, 379
F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)).
Plaintiff suggests that Defendants Huss, Tasson, Dahl, McCarthy, Lutjens, and Feliciano refused
to assist him in obtaining his religious diet because of his grievances throughout his incarceration
at MBP. Plaintiff, therefore, has set forth plausible First Amendment retaliation claims against
Defendants Huss, Tasson, Dahl, McCarthy, Lutjens, and Feliciano at this time.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Scott, Carlson, Smoyer, Unknown Parties, and Washington will be
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Case 2:21-cv-00203-MV ECF No. 8, PageID.110 Filed 05/10/22 Page 29 of 29

dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C.
§ 1997e(c). The Court will also dismiss, for failure to state a claim, the following claims against
the remaining Defendants: (1) Plaintiff’s claim pursuant to 42 U.S.C. § 1985; (2) Plaintiff’s claim
pursuant to 42 U.S.C. § 1986; (3) Plaintiff’s First Amendment and RLUIPA claims against
Defendants Lutjens, Feliciano, Wellman, Tasson, Dahl, McCarthy, and Huss; (4) Plaintiff’s Eighth
Amendment claims against Defendants Lutjens, Feliciano, Tasson, Dahl, McCarthy, and Huss;
and (5) Plaintiff’s First Amendment retaliation claim against Defendant Heinritz.
The following claims remain in the case: (1) Plaintiff’s First Amendment free exercise
claims against Defendant Heinritz in her personal and official capacities; (2) Plaintiff’s RLUIPA
claims for declaratory and injunctive relief against Defendant Heinritz in her official capacity; (3)
Plaintiff’s Eighth Amendment claims against Defendants Wellman and Heinritz; and (4) Plaintiff’s
First Amendment retaliation claims against Defendants Lutjens, Feliciano, Tasson, Dahl,
McCarthy, and Huss.
An order consistent with this opinion will be entered.

Dated:

/s/Maarten Vermaat
Maarten Vermaat
United States Magistrate Judge

May 10, 2022

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