Hargrove v. Frisby et al

Filing 25

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT Defendants' motion to dismiss Plaintiff's complaint 18 be GRANTED, and that all other motions 13 14 17 20 be DENIED AS MOOT. If the Court rejects the recommendation that the moti on to dismiss be granted, the undersigned ALTERNATIVELY RECOMMENDS that the Court grant Defendants' motion to vacate this Court's prior grant of Plaintiff's application to proceed in forma pauperis, pending a new determination based up on Plaintiff's submission of a new application to so proceed. Objections to R&R due by 6/26/2018. Signed by Magistrate Judge Stephanie K. Bowman on 6/12/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DANIEL P. HARGROVE,

Case No. 1:17-cv-748

Plaintiff,

Dlott, J.
Bowman, M.J.

v.
CAPT. FRISBY, et al.,
Defendants.

REPORT AND RECOMMENDATION
I. Background
On November 7, 2017, while still incarcerated at the Lebanon Correctional
Institution, Plaintiff filed this §1983 action against various LeCI officials and employees,
including Defendants Capt. Frisby, Lt. Couch, Chaplin Taylor, and Chaplin Palmer, as
well as the LeCI Warden and Correctional Officer Whitlow. On December 27, 2017,
Plaintiff moved to amend his complaint to add, as an additional Defendant, Mr. Tom
Schwietzer. (Doc. 7).
On initial screening of both the complaint and the tendered amendment under 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), this Court dismissed all claims against
the Warden and C/O Whitlow, denied the proposed amendment to add Defendant
Schwietzer, and dismissed multiple claims against the other Defendants. At the same
time, the Court determined that the following claims could proceed: “[P]laintiff’s Fourth
Amendment individual capacity claim against defendants Frisby and Couch and plaintiff’s
First Amendment individual capacity Free Exercise claim and, to the extent it seeks
1

injunctive relief, plaintiff’s RLUIPA claim against defendants Chaplain Taylor and
Chaplain Palmer.
The remaining Defendants have filed a motion to dismiss the referenced claims for
failure to state a claim, pursuant to Rule 12(b)(6). (Doc. 18). In addition, based upon
Plaintiff’s recent release from incarceration and change of address to a private residence,
Defendants have moved to vacate this Court’s prior order granting Plaintiff in forma
pauperis status, pending a new determination of his pauper status. (Doc. 17). In addition
to responding to Defendants’ motions, Plaintiff has filed new motions to add at least one
new claim and another Defendant, as well as two motions for monetary judgment. (Docs.
13, 14, 20).
For the following reasons, the undersigned recommends that Defendants’ motion
to dismiss be granted, and that all other motions be denied as moot. Alternatively, should
the recommendation that this case be dismissed be rejected by the presiding district
judge, Defendants’ motion to revoke Plaintiff’s pauper status pending a new determination
should be granted.
II. Analysis
A. Standard of Review for Motion to Dismiss
Defendants’ motion to dismiss has been filed under Rule 12(b)(6), prior to the
commencement of any discovery. In considering the motion, the Court must “construe
the complaint in the light most favorable to the nonmoving party, accept the well-pled
factual allegations as true, and determine whether the moving party is entitled to judgment
as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327,
336 (6th Cir. 2007). Based upon liberal pleading standards under Rule 8 and the standard
2

of review, it is far more common for cases to be disposed of on motions for summary
judgment, following a period of discovery, than on Rule 12(b)(6) motions to dismiss.
Nevertheless, where a defendant has filed a well-supported and meritorious motion to
dismiss that clearly illustrates that the plaintiff has failed to state a claim, the motion will
be granted. Having considered Defendants’ well-supported motion in this case, together
with Plaintiff’s response and Defendants’ reply, the undersigned concludes that the
motion should be granted.
B. Defendants’ Motion to Dismiss
1. Fourth Amendment Claim
Plaintiff brings a Fourth Amendment claim against Defendants Frisby and Couch
based upon a “body cavity strip search” that he was subjected to on the evening of
October 18, 2017:
[Plaintiff] was walking down the hallway coming from dinner and was subject
to a body cavity strip search because a guy was talking too loud in the
hallways when the guy told the Capt. it was him, I was still subject to and
body cavity search which violated the 4th Amendment’s illegal search rule…
[Plaintiff] contends as he was trying to leave he was called back by Lt.
Couch to be cavity searched after he was already searched and after the
guy told the Capt[.] he[’]s the one who was talking loud.
[Plaintiff] contends the cavity searches was unreasonable and was sexual
harassment and was unreasonable suspicion and the male officers promote
homosexual activity….
(Doc. 1 at 1).
The Fourth Amendment to the United States Constitution protects individuals
“against unreasonable searches and seizures.” U.S. Const. Amend. IV. However, what
is “unreasonable” under the Fourth Amendment depends on context. Thus, normally
invasive practices, like requiring inmates to expose their body cavities for visual
3

inspection, are permissible when inside prison walls. Bell v. Wolfish, 441 U.S. 520, 537,
99 S. Ct. 1861, 1873 (1979) (finding searches reasonable under the Fourth Amendment).
Defendants persuasively argue that Plaintiff’s allegation that he was searched
“because a guy was talking too loud in the hallway” gives rise to a reasonable inference
that Plaintiff was targeted for the searches based on the Defendants’ belief that Plaintiff
was involved in some form of potential rule violation or loud disturbance.

Indeed, it is

clear that Plaintiff’s primary complaint is that the Defendants should not have searched
him at all, because the grounds for the search was a disturbance being caused by a
different inmate in the same vicinity as Plaintiff. Plaintiff objects because the Defendants
searched him even though the inmate who had committed the disturbance spoke up and
told Defendant Captain Frisby that “it was him.”

In his response in opposition to

Defendants’ motion, Plaintiff maintains that “strip searches on state detainees charged
with minor offenses” are constitutionally prohibited “absent reasonable suspicion.” (Doc.
20 at 1). Thus, Plaintiff confirms that his claim is premised upon his being subjected to a
strip search “absent reasonable suspicion.” Plaintiff also more generally argues that the
prison’s search policy was “an abuse of policy.” (Id.) Last, Plaintiff complains that the
Defendants engage in “uncalled for illegal strip searches for minor infractions.” (Id. at 2).
Unfortunately for Plaintiff, the case law on which he relies is not controlling, and is
clearly distinguishable because it pertains to the rights of individuals who have not been
convicted of any offense and/or those charged with misdemeanor offenses. 1 Plaintiff’s
privacy rights are more circumspect because he is not a pretrial detainee, but a convicted

1In

addition, one of the cases cited by Plaintiff, Smook v. Minnehaha County, 340 F. Supp.2d 1037 (D.S.D.
2004), was reversed and remanded by the Eighth Circuit. See Smook v. Minihaha County, 457 F.3d 806
(2006).

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felon who was subjected to a search while incarcerated in a state prison. Within the latter
classification, the Supreme Court has given correctional officers wide latitude “to devise
reasonable search policies to detect and deter the possession of contraband in their
facilities.” Florence v. Bd. of Chosen Freeholders of Cnty. Of Burlington, 132 S. Ct.
11510, 1517 (2012); see also Stoudemire v. Mich. Dept. of Corr., 705 F.3d 560, 573-74
(6th Cir. 2013) (applying principles of Florence to an individual search, and holding that
“[a]bsent proof to the contrary, we must assume that a search of a prisoner is initiated in
an effort to detect and deter contraband.”).

Under Florence, reasonable suspicion is not

required for visual body cavity searches of convicted felons. Cf. Stoudemire, 705 F.3d at
575 (“[S]uspicionless strip searches [are] permissible as a matter of constitutional law,
but only so long as they [are] reasonable under the circumstances….”). Thus, the mere
fact that Plaintiff was subjected to such a suspicionless search is not sufficient to state a
claim under 42 U.S.C. §1983.
This Court is limited to consideration of Plaintiff’s complaint, and recognizes that
a body cavity search is inherently intrusive. In his response in opposition to Defendants’
motion to dismiss, Plaintiff asserts that the Defendants “promote homosexual activity” and
that their “strip-search policy was an abuse of power.” (Doc. 21 at 1). Critically, however,
Plaintiff does not complain that the search of his person under that allegedly abusive
policy was conducted in an overly intrusive manner, or in a place where he was overly
exposed to public view. Contrast Stoudemire, 705 F.3d at 575 (double amputee female
inmate stated claim for “humiliating strip search in full view of several (or perhaps many)
others”); see also Salem v. Mich. Dept. of Corrections, 643 Fed. Appx. 526 (6th Cir. 2016)
(defendant not entitled to qualified immunity where strip search of female inmates
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required them to sit on an unwashed chair wet with bodily fluids from other prisoners, and
spread their labia in full public view of others, without a legitimate penological justification
for public and unsanitary conditions).
Rather than complaining about some unusual manner of the search, Plaintiff
mistakenly asserts that any suspicionless search violates the Fourth Amendment. Thus,
he alleges in a conclusory fashion that the Defendants conduct unreasonable strip
searches for only “minor infractions.” Plaintiff’s allegations are insufficient to state a claim
under the Fourth Amendment in light of Florence, particularly given his acknowledgement
that the Defendants conducted the search based upon a loud disturbance in close
proximity to Plaintiff. The fact that Defendants chose to search Plaintiff despite the
allegedly “minor” nature of the perceived infraction, and/or the confession of a different
inmate that he was responsible for the disturbance, does not transform the search into a
violation of the Fourth Amendment, because correctional officers are given wide
discretion to search, and Defendants were not required to take the other inmate’s
confession at face value.
2. First Amendment Free Exercise Claim and Claim for Injunctive
Relief Under RLUIPA Against Chaplains Taylor and Palmer
Plaintiff next asserts that Defendant Chaplains Taylor and Palmer violated both the
First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA)
when they refused to allow him to attend a particular religious service for “about 3 months”
based upon Plaintiff’s temporary housing placement in a “disciplinary dorm.” (Doc. 1 at
1).

Specifically, Plaintiff alleges that he wrote Defendant Taylor several informal

grievances, known as “kites,” in which Plaintiff sought permission to be put on “the
Jumuah and Taleem list,” but that he was informed that because he was in a disciplinary
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dorm, he was not permitted to attend one of those services: Taleem. 2 Plaintiff alleges
that he made the same request of Defendant Palmer, but that Palmer also told him he
could not attend Taleem based upon his being housed in a disciplinary dorm, but that he
could only attend the “Jumuah” service. (Doc. 1 at 2). The decision to permit Plaintiff to
attend only one of the two services appears to have been based in part upon a “rule” that
inmates in disciplinary segregation at LeCI are permitted to attend only one group service
per week. Plaintiff complains that the Chaplains “should scrap the rule because the
Christians get to go to all services and they are in the same dorm.” (Id. at 2).
a. Plaintiff’s RLUIPA Claim is Moot
On initial screening, this Court dismissed Plaintiff’s claim for monetary damages
under the RLUIPA, but permitted his claim for injunctive relief to proceed, to the extent
Plaintiff sought to “scrap the rule.”

Because Plaintiff has now been released from

incarceration, his RLUIPA claim for injunctive relief is now moot and must be dismissed.
b. Plaintiff Fails to State a Claim Under the First Amendment
The Free Exercise Clause to the First Amendment to the United States
Constitution provides that “Congress shall make no law ... prohibiting the free exercise [of
religion]....” Prisoners retain the right to a reasonable opportunity to exercise their
religious beliefs. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081 (1972). On the
face of the complaint, Plaintiff acknowledges that he was permitted to exercise his
religion, including through attendance at a weekly service. His primary complaint is that
he was not permitted to attend a second weekly service during the period of time in which
he was housed in disciplinary segregation.

2The

spelling of the names of the two services varies in the case law, as reflected in some of the quotations
herein. Other than case quotations, the spelling used by Plaintiff in his complaint will be used in this R&R.

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In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872,
110 S.Ct. 1595 (1990), the Supreme Court held that “neutral, generally applicable laws
that incidentally burden the exercise of religion usually do not violate the Free Exercise
Clause of the First Amendment. “ Holt v. Hobbs, 135 S.Ct. 853, 859 (2015) (citing Smith,
494 U.S. at 878-882). Following Smith, Congress enacted both the Religious Freedom
Restoration Act of 1993 (RFRA) and later, the RLUIPA, “in order to provide greater
protection for religious exercise than is available under the First Amendment.” Holt v.
Hobbs, 135 S.Ct. at 859–60 (citing Hobby Lobby, 134 S.Ct. 2751, 2760–2761 (2014)).
Because Plaintiff’s RLUIPA claim has been rendered moot by his release from
incarceration, his remaining claim is not entitled to the greater protections offered by that
statute.

Instead, viewing Plaintiff’s claim for monetary damages against the two

Chaplains solely under the First Amendment, I recommend that his remaining claim be
dismissed for failure to state a claim. Specifically, I conclude that Plaintiff has failed to
allege that his Muslim faith was more than incidentally burdened for the three-month
period in which he was housed in disciplinary segregation and permitted to attend only
one of the two types of religious services offered to Muslims in other areas of the prison
each week.
Unlike claims brought under the RLUIPA, the analysis of Plaintiff’s First
Amendment claim requires significantly more deference to prison officials’ decisions
impacting religious exercise. Thus, a prison regulation that impinges on a prisoner's right
to exercise his religion will be upheld if it is reasonably related to a legitimate penological
interest such as security, discipline, rehabilitation of prisoners, or other requirements
relating to prison administration.

See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254
8

(1987). In Turner, the Supreme Court established a four-factor test 3 to determine when
a prison regulation that impinges upon a constitutional right is “reasonable.” See also
Phelps v. Dunn, 965 F.2d 93, 98 (6th Cir.1992).
In O'Lone v. Estate of Shabazz, 107 S.Ct. 2400, 482 U.S. 342 (1987), the Supreme
Court applied Turner to hold that a policy that prevented Muslim inmates from attending
a weekly religious service that was central to their faith did not violate the First
Amendment:
There are, of course, no alternative means of attending Jumu'ah;
respondents' religious beliefs insist that it occur at a particular time. But the
very stringent requirements as to the time at which Jumu'ah may be held
may make it extraordinarily difficult for prison officials to assure that every
Muslim prisoner is able to attend that service. While we in no way minimize
the central importance of Jumu'ah to respondents, we are unwilling to hold
that prison officials are required by the Constitution to sacrifice legitimate
penological objectives to that end. In Turner, we did not look to see whether
prisoners had other means of communicating with fellow inmates, but
instead examined whether the inmates were deprived of “all means of
expression.” Id., at 92, 107 S.Ct., at 2263. Here, similarly, we think it
appropriate to see whether under these regulations respondents retain the
ability to participate in other Muslim religious ceremonies. The record
establishes that respondents are not deprived of all forms of religious
exercise, but instead freely observe a number of their religious obligations.
The right to congregate for prayer or discussion is “virtually unlimited except
during working hours,” Tr. 182 (testimony of O'Lone), and the state-provided
imam has free access to the prison. Muslim prisoners are given different
meals whenever pork is served in the prison cafeteria. Special
arrangements are also made during the month-long observance of
Ramadan, a period of fasting and prayer. …We think this ability on the part
of respondents to participate in other religious observances of their faith
supports the conclusion that the restrictions at issue here were reasonable.

3The

four factors are: (1) a “‘valid, rational connection’ between the prison regulation and the legitimate
governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the
right that remain open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources generally” and (4) “the
absence of ready alternatives.” Turner v. Safley, 482 U.S. at 89–91, 107 S.Ct. at 2261–63.

9

Id., 107 S.Ct. at 2406, 482 U.S. at 351–52. The Supreme Court’s analysis of the Turner
factors in O’Lone is instructive, 4 but is not definitive because the Defendants here seek
dismissal under Rule 12(b)(6), prior to any development of the record.
Before reaching the Turner analysis, however, this Court is required to determine
whether Plaintiff has adequately alleged that the Defendants substantially burdened the
free exercise of his religion. See O’Lone, 482 U.S. at 348-349; Cutter v. Wilkinson, 544
U.S. 709, 722, 125 S.Ct. 2113 (2005). In other words, the threshold element of a free
exercise claim requires an inmate to show that the government action actually infringes
upon the free exercise of a religious belief. See also generally Sherbert v. Verner, 374
U.S. 398, 403–04, 83 S.Ct. 1790, 1793–94 (1963) (overruled in part by Smith).
Importantly, the required threshold showing of an actual infringement is not satisfied
unless the infringement amounts to a “substantial burden” on the exercise of the belief.
As the Defendants put it, “[t]he First Amendment only protects conduct mandated by a
particular faith. It does not protect optional practices.” (Doc 18 at 5).
Nowhere in his complaint does Plaintiff allege that he was denied the opportunity
to participate in religious practices that are central or mandatory for his religion. He was,
indeed, permitted to attend Jumuah. In his response in opposition to Defendants’ motion
to dismiss, Plaintiff appears to confuse the allegations in his complaint and contend that
he was denied the opportunity to attend Jumuah instead of Taleem, rather than the

4Unlike

under the RLUIPA, in a First Amendment claim, the inmate retains the burden to disprove the
validity of a prison regulation pursuant to the Turner analysis. See Overton v. Bazzetta, 539 U.S. 126,
132, 123 S.Ct. 2162 (2003).

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reverse. 5 Regardless, he continues to acknowledge that he was allowed to attend at least
one of those weekly services.
Plaintiff’s response in opposition to Defendants’ motion suggests that the First
Amendment prohibits any and all restrictions on his preferred religious practices while
being housed in the prison’s segregation unit.
The plaintiff contends he was not allowed to attend Jumuah because the
Imam that’s contracted with the institution to do the services informed them
that Jumuah was not mandatory and only Taleem was; see grievance he
filed[.] The plaintiff contends state corrections officers could not violate the
1983 Free Exercise Clause because he was in a high-security area, and
official’s belief that refusal did not violate these rights, based solely on
opinion of corrections system’s religious authorities….
(Doc. 21 at 2). 6 Contrary to Plaintiff’s suggestion, the First Amendment is not violated
when a prison policy has only an incidental effect or merely causes an inconvenience to
the exercise of the person's religion.

See Abdur-Rahman v. Michigan Dept. of

Corrections, 65 F.3d 489, 491 (6th Cir. 1995) (holding policy that prevented attendance
at service did not violate First Amendment where it did not affect “an essential tenet” of
Rahman's religious beliefs). Again, and in contrast to the broader protections offered by
the RLUIPA, “the availability of alternative means of practicing religion is a relevant
consideration” under the First Amendment. Holt v. Hobbs, 135 S.Ct. at 862. See also
generally, Graham v. Commissioner of Internal Revenue, 822 F.2d 844, 850–51 (9th
Cir.1987)(explaining that the First Amendment provides protection against burdens that
pressure the religious person “to commit an act forbidden by the religion or by preventing

5Other

courts have noted that, whereas Jumuah is a group prayer service that every Muslim is obligated to
attend if possible, “Taleem is a religious study period that is generally held on a weekly basis though there
is no religious obligation to attend.” Sharp v. Johnson, 669 F.3d 144, 147 (3d Cir. 2012).
6Notwithstanding his reference to grievances, Plaintiff did not attach any administrative grievance
documents to his complaint.

11

him or her from engaging in conduct or having a religious experience which the faith
mandates.”, aff'd sub nom, Hernandez v. Commissioner of Internal Revenue, 490 U.S.
680, 699, 109 S.Ct. 2136, 2148 (1989); Werner v. McCotter, 49 F.3d 1476, 1480 (10th
Cir.1995); Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.2006)(defining substantial burden
on religious exercise).
Under the First Amendment, only burdens on religious practices that are “central”
or “essential” are constitutionally significant. Id.; see also Blanken v. Ohio Dept. of
Rehabilitation and Correction, 944 F. Supp. 1359, 1364 (S.D. Ohio 1996) (noting “oftcited” requirement that tenet be “central” and presumption that “a burden on
an incidental religious belief or practice which holds little significance to a particular
religious structure” would not violate the First Amendment); Weir v. Nix, 890 F. Supp. 769,
782–84 (S.D. Iowa,1995)(holding that plaintiff who failed to allege why one hour of group
worship per week was insufficient, or how policies restricted the core tenets of his beliefs,
failed to satisfy threshold Turner and O’Lone threshold requirement of an “actual
infringement or substantial burden on the exercise of religion in order to establish a
claimed violation of the Free Exercise Clause.”); cf., Livingston Christian Schools v.
Genoa Charter Township, 858 F.3d 996 (6th 2017)(defining “substantial burden” under
the RLUIPA). Because Plaintiff’s complaint, as amended, is devoid of allegations that the
restriction to one group service per week actually and substantially burdened the free
exercise of his religion, he has failed to state a First Amendment claim.
3. Qualified Immunity
All Defendants are also entitled to qualified immunity on all claims filed against
them in their individual capacities. Even though dismissals on the basis of qualified
12

immunity are more frequently made on summary judgment, see Grose v. Caruso, 284
Fed. Appx. 279, 283 (6th Cir. 2008) (internal citations omitted), a dismissal may be
granted under Rule 12(b)(6) where, as here, the Plaintiff’s allegations fail to show that
any Defendant violated any clearly established constitutional right of which a reasonable
official should have known.
a. Claim Against Defendants Frisby and Couch
No clearly established law prohibits prison officials from conducting visual strip
searches on inmates without a more articulable “reasonable suspicion” than the
investigation of a loud disturbance in the vicinity. Nor does any clearly established law
prohibit such searches in the prison context for “minor offenses.” Even if Plaintiff could
prove that the Defendants violated prison policy, that would not show a violation of
Plaintiff’s Fourth Amendment rights, because there is no controlling Supreme Court
precedent and a paucity of Sixth Circuit case law on the precise issues presented by this
case. Because no controlling law exists that would have put the Defendants on notice
that subjecting Plaintiff to undergo a visual body cavity search under the circumstances
violated any established constitutional right, Defendants are entitled to qualified immunity.
Accord Dotson v. Wilkinson, 477 F. Supp.2d 838, 850 (N.D. Ohio 2007) (granting Rule
12(b)(6) motion to dismiss on qualified immunity grounds to defendants sued in their
individual capacities, where inmate had not demonstrated any constitutional violation
under the Eighth Amendment).
b. Claim Against Chaplains Taylor and Palmer
Defendants are also entitled to qualified immunity on Plaintiff’s First Amendment
claim. Although the undersigned has determined that dismissal is warranted based upon
13

Plaintiff’s failure to adequately state this claim, the Defendants could not be expected to
know based upon established case law, that the complained-of policy restricting Plaintiff
from attending multiple weekly services while housed in segregation, violated the First
Amendment. Aside from case law that supports the conclusion that Plaintiff has not
established a constitutional violation due to his failure to allege that attendance at multiple
services was a central tenet of his faith, courts have widely upheld similar policies under
a Turner analysis. See, e.g., O’Lone, supra; Reischauer v. Jones, 2009 WL 232625, at
*7 (W.D.Mich.2009) (holding that failure to provide access to group religious service to
Muslim inmate in segregation did not substantially burden his right to practice his religion);
Williams v. Miller, 696 Fed. Appx. 862 (10th Cir. 2017) (upholding regulation preventing
any maximum security inmates from attending group services); Muwwakkil v. Johnson,
2010 WL 3585983 (W.D. Va. Sept. 13, 2010) (upholding limitations on religious property
and prayer services)
Where an inmate is “not deprived of all forms of religious exercise, but
instead freely observe[s] a number of [his] religious obligations,” the prison
regulation is reasonable. … Similarly, …in inquiring whether there are
alternative means to allow a prisoner to exercise his right, the right should
be broadly construed to include “general religious activity.” Cooper v.
Tard, 855 F.2d 125, 129 (3d Cir.1988); see Thornburgh v. Abbott, 490 U.S.
401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (the right must be viewed
“sensibly and expansively”).
Stroud v. Roth, 741 F. Supp. 559, 562 (E.D. Pa. 1990) (internal citations omitted)
(upholding policy prohibiting Muslim inmate in disciplinary or administrative segregation
from physically attending services, where inmate was permitted to receive religious
counseling, obtain religious materials, and view videotape of service). “A prisoner need
not be afforded his preferred means of practicing his religion as long as he is afforded

14

sufficient means to do so.” Wali v. Woods, 2005 WL 1185554, at *4 (W.D. Mo. 2005)
(quoting Murphy v. Missouri Dept. of Corr., 372 F.3d 979, 983 (8th Cir. 2004)).
C. Alternative Analysis of Defendants’ Motion to Vacate Order on Motion for
Leave to Proceed In Forma Pauperis (Doc. 17)
In addition to their motion to dismiss, Defendants have filed a motion to vacate this
Court’s prior order permitting Plaintiff to proceed in this case in forma pauperis, or without
payment of a filing fee, under the Prison Litigation Reform Act.

As a matter of law,

Defendants’ motion is well-founded because prisoners pay full filing fees in installments
only during their incarceration. If a prisoner is released during the pendency of his or her
lawsuit, the district court is required to make a new determination of “whether the released
individual qualifies for pauper status” and/or should remain obligated to pay the remainder
of any fees owed.

In re Prison Litig. Reform Act, 105 F.3d 1131, 1139 (6th Cir. 1997).

Although Plaintiff maintains that he is still a pauper, this Court is unable to make the
required determination without Plaintiff’s submission of a new affidavit and the relevant
(non-prisoner) application to proceed in forma pauperis.
However, given that the undersigned has recommended that Defendants’ motion
to dismiss this case be granted, the practical benefit of requiring Plaintiff to complete the
referenced forms is likely to be nil, unless this Report and Recommendation is rejected.
For that pragmatic reason, the undersigned has addressed Defendants’ motion to revoke
Plaintiff’s pauper status as an alternative recommendation.
III. Conclusion and Recommendations
For the reasons discussed above, IT IS RECOMMENDED THAT Defendants’
motion to dismiss Plaintiff’s complaint (Doc. 18) be GRANTED, and that all other motions
(Docs. 13, 14, 17, 20) be DENIED AS MOOT. If the Court rejects the recommendation
15

that the motion to dismiss be granted, the undersigned ALTERNATIVELY
RECOMMENDS that the Court grant Defendants’ motion to vacate this Court’s prior grant
of Plaintiff’s application to proceed in forma pauperis, pending a new determination based
upon Plaintiff’s submission of a new application to so proceed.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DANIEL P. HARGROVE,

Case No. 1:17-cv-748

Plaintiff,

Dlott, J.
Bowman, M.J.

v.
CAPT. FRISBY, et al.,
Defendants.
.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

17