Klein v. Bowen et al

Filing 8

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion to Supplement his Complaint is granted. ECF No. 3 . However, because Plaintiff has not stated a plausible claim for relief, Plaintiff's Compla int is summarily dismissed for failure to state a claim in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 7/23/2019. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

THOMAS KLEIN,
Plaintiff,
v.
RICHARD A. BOWEN, et al.,
Defendants.

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CASE NO. 4:19CV8

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 3]

Pro se Plaintiff Thomas Klein, a prisoner in the Ohio State Penitentiary, filed suit under
42 U.S.C. § 1983 against Ohio State Penitentiary Warden Richard A. Bowen, Deputy Warden
Palmer, Mail Room Supervisor Lt. Bowen, and Chaplain Rader. For the reasons that follow, the
Court dismisses Plaintiff’s claims against all Defendants.
I. Background1
Plaintiff is an inmate incarcerated at the Ohio State Penitentiary. ECF No. 1 at PageID #:
2. He alleges that he desired to obtain a “Black Sun Necklace with Runes.” Id. at PageID #: 3;
ECF No. 1-9. Plaintiff claims the necklace is a religious pendant representative of his status as a
member of the Odinism faith. ECF No. 1 at PageID #: 3-4. Plaintiff alleges he was not sure of
the “exact rules” pertaining to obtaining permission for a religious pendant. Id. at PageID #: 3.
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Shortly after filing his original complaint, ECF No. 1, Plaintiff filed a motion for
permission to supplement his complaint, ECF No. 3, attaching a proposed supplemental
complaint, ECF No. 3-1. The Court grants Plaintiff’s motion to supplement his
complaint. Plaintiff also filed an “Amended Complaint,” ECF No. 4, and a “Further
Amendment,” ECF No. 6. The Court construes these filings as supplemental pleadings to
his operative complaint.

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He first wrote to Lt. Bowen to ask whether his ordering the pendant he desired “was going to be a
problem.” Id. at PageID #: 5. Lt. Bowen told Plaintiff that he should kite his unit manager or the
prison chaplain. ECF No. 1-6 at PageID #: 21. Plaintiff complied, kiting Chaplain Rader. ECF
No. 1 at PageID #: 5. In response, Chaplain Rader directed Plaintiff to submit a request for
religious accommodation form. Id.
Plaintiff completed and submitted a request for religious accommodation form. Id.
Before he received a response to his request, he ordered the pendant, assuming that there was no
legitimate reason to deny his request. Id. at PageID #: 5-6. Chaplain Rader, however, denied
Plaintiff’s religious accommodation request, finding that Plaintiff “did not articulate the
connection of the Black Sun to his faith” and did not follow the prison’s procedure for requesting
religious accommodations. Id. at PageID #: 6; ECF Nos. 1-2, 1-3. At Chaplain Rader’s
direction, Lt. Bowen confiscated the pendant as contraband. ECF No. 1 at PageID #: 6.
In response, Plaintiff initiated the grievance process by filing an informal complaint
resolution form with Deputy Warden Palmer. Id. Palmer and Warden Bowen upheld Chaplain
Rader’s decision. Id. Plaintiff then sent an informal complaint to Lt. Bowen. ECF No. 1-12. In
response, Plaintiff received a Notice of an Unauthorized Item Received, informing him that the
item was seized as nuisance contraband. ECF No. 1-10. Plaintiff again wrote to Lt. Bowen, who
notified Plaintiff that he should write to Chaplain Rader. ECF No. 1-13.
Plaintiff subsequently filed two Notification of Grievance forms. ECF Nos. 1-15, 1-16.
The grievances were denied on the grounds that Plaintiff violated ODRC policy by ordering his

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necklace prior to obtaining approval for his request for a religious accommodation and Plaintiff
failed to “articulate the connection of the black sun to [his] faith.” ECF Nos. 3-3, 3-4.
Plaintiff appealed the denial of his grievances. ECF No. 6 at PageID #: 134. Plaintiff
received a response from the Religious Services Administrator, providing that “[I]t seems that
this is a matter of proper procedure related to the expectation of the institution regarding receipt
of the item into the facility. Please discuss the appropriate process for approval and for the
potential obtaining the item with your institution chaplain and/or unit staff.” ECF No. 6-1.
Plaintiff was subsequently informed:
In accordance with 61-PRP-01(c)(3) Items may only be ordered from current DRC
approved vendor catalog. A religious accommodation allows you to order from
additional vendors. In accordance with 72 Reg 02 please follow the procedures and
make the request [for a religious accommodation] using DRC 4326 prior to
completing the requested activity.
ECF No. 6-2.
Plaintiff has not alleged that he re-submitted a request for a religious accommodation
using DRC 4326, as instructed. Instead, he contends that he need not comply with the prison’s
religious accommodation procedure. ECF No. 6 at PageID #: 135.
II. Standard of Review
Pro se pleadings are liberally construed by the Court. Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, the
district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it
fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or
fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir.

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1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no
arguable basis in law when a defendant is immune from suit or when a plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has
no arguable factual basis when the allegations are delusional or rise to the level of the irrational
or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.
When determining whether the plaintiff has stated a claim upon which relief can be
granted, the Court must construe the Complaint in the light most favorable to the plaintiff, accept
all factual allegations as true, and determine whether the Complaint contains “enough fact to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The plaintiff's obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
Although a Complaint need not contain detailed factual allegations, its “factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the Complaint are true.” Id. The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The
Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), further explains the
“plausibility” requirement, stating that “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 678. Furthermore, “the plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

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defendant acted unlawfully.” Id. This determination is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id.
III. Analysis
Plaintiff alleges he “was never supposed to be subjected to the process of securing a
religious accommodation before, and in order to, order[] [his] pendant.” ECF No. 1 at PageID #:
7. He contends that requiring him to do so violates his right to religious freedom under the Free
Exercise Clause and Establishment Clause and discriminates against him and members of his
faith in violation of the Equal Protection Clause. Id. at PageID #: 9, 11.
Although prisoners retain the right under the First Amendment to the free exercise of
their religion, Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001), that right is not absolute.
“[T]he circumstances of prison life may require some restrictions on prisoners’ exercise of their
religious beliefs,” requiring a court to “balance the prisoners’ constitutionally protected interest
in the free exercise of their religious beliefs against the state’s legitimate interests in operating its
prisons.” Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985).
A prisoner bringing a free exercise claim has the initial burden of establishing “that the
disputed conduct substantially burdens his sincerely held religious beliefs.” See Salahuddin v.
Goord, 467 F.3d 263, 275 (2d Cir. 2006); see also Barhite v. Caruso, 377 F. App’x 508, 510 (6th
Cir. 2010) (citing Salahuddin for the proposition that a plaintiff must show a substantial burden
“at the threshold”). If the plaintiff does so, the burden shifts to the defendant to identify
legitimate penological interests which justify the restriction. Salahuddin, 467 F.3d at 275.

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Further, when a prison regulation substantially infringes on an inmate’s First Amendment
religious practices, “the regulation is valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Prison officials are accorded wide latitude
and deference in the adoption and application of prison policies and procedures in this regard.
See Bell v. Wolfish, 441 U.S. 520, 546 47 (1979); see also Flagner, 241 F.3d at 481 (“To ensure
that courts afford appropriate deference to prison officials, the Supreme Court has determined
that prison regulations alleged to infringe constitutional rights are judged under a reasonableness
test less restrictive than that ordinarily applied to alleged infringements of fundamental
constitutional rights.”) (internal quotations omitted). “[B]ecause ‘the problems of prisons in
America are complex and intractable,’ and because courts are particularly ‘ill equipped’ to deal
with these problems, [courts] generally have deferred to the judgments of prison officials in
upholding these regulations against constitutional challenge.” Shaw v. Murphy, 532 U.S. 223,
229 (2001) (quoting Procunier v. Martinez, 416 U.S. 396, 404 05 (1974)) (internal citation
omitted). “Where a state penal system is involved, federal courts have . . . additional reason to
accord deference to the appropriate prison authorities.” Turner, 482 U.S. at 85.
When the relevant law is applied, Plaintiff has not alleged a plausible free exercise claim.
Even assuming Plaintiff’s professed adherence to Odinism is sincere, his allegations are
insufficient to suggest that Defendants have imposed a substantial burden on his beliefs. Plaintiff
alleges that prison officials have repeatedly interpreted prison procedures as requiring him to
apply for a religious accommodation in order to obtain the pendant he seeks from a non-approved
vendor. ECF No. 1 at PageID #: 7; ECF No. 3-1 at PageID #: 78. The prison officials’

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interpretation of ODRC’s prison rules are entitled to deference, notwithstanding Plaintiff’s
contrary interpretation. Moreover, it is apparent on the face of his pleadings that an avenue may
exists for him to obtain the pendant he seeks by following the proper procedures. ECF Nos. 6-1,
6-2. Requiring Plaintiff to follow applicable prison procedures does not impose a substantial
burden on the exercise of his professed religious beliefs. See Living Water Church of God v.
Charter Twp. of Meridian, 258 F. App’x 729, 734 37 (6th Cir. 2007) (a government’s action
constitutes a substantial burden when it forces an individual to choose between “following the
precepts of her religion and forfeiting benefits,” but not when it merely imposes an
inconvenience or makes the practice of one’s religion more difficult or expensive).
Additionally, Plaintiff has not alleged facts sufficient to support a claim under the
Establishment Clause. Plaintiff contends Defendants violated the Establishment Clause by
requiring any purchase of religious materials to be made through one of three ODRC-sanctioned
vendors. ECF No. 6 at PageID #: 136. The prison policies Plaintiff challenges apply to all
orders of religious pendant from non-approved vendors, not just orders of Odinist pendants.
Such a ban does not suggest a violation of the Establishment Clause. “The clearest command of
the Establishment Clause is that one religious denomination cannot be officially preferred over
another.” Maye v. Klee, 915 F.3d 1076, 1084 (6th Cir. 2019). The prison policies at issue do not
prefer one particular religion or religious institution over another.
Finally, Plaintiff has not alleged a plausible claim under the Equal Protection Clause.
“To state an equal protection claim, a plaintiff must adequately plead that the government treated
the plaintiff ‘disparately as compared to similarly situated persons and that such disparate

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treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.’”
Ctr. for Bio Ethical Reform, Inc., 648 F.3d 365, 379 (6th Cir. 2011). Plaintiff has not alleged
that any other inmate who wished to order a religious pendant from a non-approved vendor was
permitted to so without being subjected to ODRC’s procedural requirements. He has accordingly
not pleaded that he was subjected to disparate treatment.
IV. Conclusion
Plaintiff’s motion to supplement his complaint is granted. ECF No. 3. However, because
Plaintiff has not stated a plausible claim for relief, Plaintiff’s complaint is summarily dismissed
for failure to state a claim in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith.

IT IS SO ORDERED.

July 23, 2019
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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