Quinn v. Warden, Chillicothe Correctional Institution

Filing 39

REPORT AND RECOMMENDATIONS re 38 MOTION for Judgment on the Pleadings: The Magistrate Judge RECOMMENDS that Defendants' Motion be GRANTED IN PART AND DENIED IN PART. It is further RECOMMENDED, to the extent Plaintiff seeks to assert it, tha t his retaliation claim be DISMISSED for failure to state a claim and that Mr. Free be DISMISSED as a Defendant. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/28/2012. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD L. QUINN, JR.,
Plaintiff,
Civil Action 2:11-cv-268
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

ROBIN KNAB, WARDEN, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Richard L. Quinn, Jr., an inmate in the custody of the Chillicothe Correctional
Institution (“CCI”) who is proceeding without the assistance of counsel, filed this civil rights
action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that Defendants impeded his
ability to exercise his religion in violation of the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), the First Amendment, and the Equal Protection Clause. This matter is
before the United States Magistrate Judge for a Report and Recommendation on Defendants’
Motion for Judgment on the Pleadings. (ECF No. 38.) For the reasons stated below, it is
RECOMMENDED Defendants’ Motion be GRANTED IN PART AND DENIED IN PART.
It is further RECOMMENDED, to the extent Plaintiff seeks to assert it, that his retaliation
claim be DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
that Mr. Free be DISMISSED as a Defendant.

I.
Plaintiff’s claims arise from Defendants’ denial of his requests for a religious
accommodation. Plaintiff’s Amended Complaint contains different exhibits, more detailed
allegations, and adds Defendants. (ECF No. 12.) Because Plaintiff is proceeding without the
assistance of counsel, the Court construes Plaintiff’s Amended Complaint as incorporating his
original Complaint in its entirety. See Abessolo v. Smith, No. 1:11-cv-680, 2012 WL 668773, at
*1 (S.D. Ohio Feb. 29, 2012) (construing pro se plaintiff’s amended complaint as incorporating
allegations and exhibits of original complaint); cf. Johnson v. United States, 457 F. App’x 462,
467 (6th Cir. 2012) (“[P]ro se pleadings are to be liberally construed . . . .”).
According to his Complaint and Amended Complaint, Plaintiff requested a religious
accommodation on December 20, 2010. More specifically, he asked to take “a Vow of a
Nazarite.” (Compl. ¶ 6, ECF No. 12.) Plaintiff alleges that Reverand Freeman, CCI’s Chaplain;
Mr. Robinson, CCI Deputy Warden of Special Services; and the Religious Services Committee
denied his requests and his appeals, effectively denying his right to exercise his racial separatist
religion. Plaintiff alleges that CCI’s Warden, Robin Knab, also “signed off on the denial.” (Am.
Compl. 3, ECF No. 12.) In his Request for Religious Accommodation, attached to his original
Complaint, Plaintiff identifies his religion as “Christian Identity.” (Compl. 14, ECF No. 5.) He
explains in an attachment to his request that he identifies him self as “Christian ‘Israel’ Identity”
and that his practice of this religion includes “invok[ing] upon [himself] to take a Vow of the
Nazarite for any period seeing fit as the Holy Spirit allows.” (Id. at 14–18.) He goes on to
explain, in detail, what the Vow of a Nazarite entails, referencing Bible verses that he asserts
support each of the Vow’s components. (Id.) For example, he indicates that he “must,” among
other things: not cut his hair with a razor; not eat certain types of food; not work on the Sabbath;
2

and not touch anything dead. (Id.) He explains that individuals belonging to the Christian
Identity religion “follow the Holy Bible, not just the things we like, but all of it.” (Id.)
According to Plaintiff, nonwhites transferred from Ross Correctional Institution (“RCI”)
have been allowed a religious accommodation to take the Vow of a Nazarite. He speculates that
Defendants are denying his request for a religious accommodation because he is white and
practices a separatist religion.
On March 1, 2011, Plaintiff filed an informal complaint with Warden Knab, requesting a
to move to a cell where he would not have to interact with nonwhites, which he alleges is against
his practice of his racial-separatist religion. He reported that his interaction with nonwhites had
caused him “serious uneasiness and conflict.” (Id. at 19.) He concluded the informal complaint
as follows: “I hold you and this prison system responsible for any damage or harm that [might]
come about by not following the Law on your part.” (Id.) Mr. Free, CCI’s Institutional
Inspector, filed a conduct report against Plaintiff based upon the language he included in the
grievance, citing a violation of a rule that prohibits threat of bodily harm to another. Plaintiff
alleges that Mr. Free took his statement out of context and filed the conduct report against him in
retaliation for his attempts to practice his non-mainstream, separatist religion. The Rules
Infraction Board (“RIB”) found Plaintiff guilty of the violation and as a penalty, required him to
spend 15 days in segregation or “the hole.” (Compl. 5, ECF No. 5; Am. Compl. 3, ECF No. 12.)
Plaintiff alleges that Mr. Mohr, the Ohio Department of Rehabilitation and Correction Director,
affirmed the RIB’s decision.
In his Amended Complaint, Plaintiff names the following individuals as Defendants:
Warden Knab, Reverend Freeman, CCI Deputy Wardon of Special Services Mr. Robinson, Mr.
Free, and Mr. Mohr. Defendants Mohr and Freeman have been dismissed for failure to effect
3

service. (Feb. 1, 2012 Order, ECF No. 37.) Plaintiff asserts claims under RLUIPA and also
under § 1983 for violation of his equal protection rights and right to exercise his religion. In
addition, it appears that Plaintiff is attempting to assert a retaliation claim. He requests to be
transferred to any one of four medium security prisons that he believes would accommodate his
requests to take a Nazarite Vow. (Compl. 6, ECF No. 5.) Further, in his Amended Complaint,
as in his original Complaint, Plaintiff seeks nominal damages and compensatory damages in the
amount of $10,000.
The remaining Defendants have moved for dismissal, asserting that Plaintiff has failed to
allege facts sufficient to give rise to a plausible claim for relief. Defendants further assert that
they are entitled to Eleventh Amendment Immunity. Plaintiff did not file a memorandum in
opposition to Defendants’ Motion for Judgment on the Pleadings.
II.
A motion filed under Federal Rule of Civil Procedure 12(c) attacks the sufficiency of the
pleadings and is evaluated under the same standard as a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citation
omitted).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 566 U.S. 662 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
4

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial
plausibility is established “when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In considering whether this facial plausibility standard is met, a Court must construe the
complaint in the light most favorable to the non-moving party, accept all factual allegations as
true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations
omitted). In addition, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). The Court is not required, however, to accept as true mere legal conclusions
unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).
III.
The Court examines Defendants’ arguments in favor of dismissal with regard to each of
Plaintiff’s causes of action before considering whether the Eleventh Amendment operates to as a
jurisdictional bar to Plaintiff’s § 1983 claims.
A.

RLUIPA and Free Exercise of Religion
Plaintiff alleges that Defendants’ refusal to allow him to take a Vow of a Nazarite

violated RLUIPA and his right to free exercise of his religion under the First Amendment.
Defendants contend that Plaintiff’s First Amendment and RLUIPA claims are so factually
deficient that dismissal for failure to state a claim is appropriate. The undersigned disagrees.

5

The First Amendment, made applicable to the states through the Fourteenth Amendment,
provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .” U.S. Const. amend. I. “Prisoners retain the First Amendment
right to the free exercise of their religion.” Hayes v. Tennessee, 424 F. App’x 546, 549 (6th Cir.
2011). “Under § 1983, a prisoner alleging that the actions of prison officials violate his religious
beliefs must show that the belief or practice asserted is religious in the person’s own scheme of
things and is sincerely held.” Barhite v. Caruso, 377 F. App’x 508, 511 (6th Cir. 2010) (citation
and internal quotation marks omitted). The prisoner must also show that the prison’s action
substantially burdens his sincerely held religious beliefs. Id. “An action of a prison official will
be classified as a substantial burden when that action forced an individual to choose between
following the precepts of his religion and forfeiting benefits or when the action in question
placed substantial pressure on an adherent to modify his behavior and to violate his beliefs.”
Hayes, 424 F. App’x at 555 (internal quotation marks and citations omitted). Under § 1983, if
the action substantially burdens a prisoner’s sincerely held beliefs, the action “is valid if it is
‘reasonably related to legitimate penological interests.’” Colvin v. Caruso, 605 F.3d 282, 296
(6th Cir. 2010) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
RLUIPA is less deferential and affords more constitutional protection to prisoners than §
1983. “Under RLUIPA, ‘[n]o government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, . . . even if the burden results from a
rule of general applicability,’ unless the government can show (1) that the imposition of the
burden ‘is in furtherance of a compelling governmental interest,’ and (2) the burden furthers that
interest by use of the ‘least restrictive means.’” Barhite, 377 F. App’x at 510 (quoting 42 U.S.C.
§ 2000cc-1(a)(1)-(2)).
6

Defendants incorrectly argue that Plaintiff has failed to state a claim because he has not
sufficiently alleged the following:
•

What religion Plaintiff practices (“separatist religion” is not sufficient);

•

Whether Plaintiff has a sincerely held belief in that religion;

•

Whether taking a “vow of a Nazarite” is a fundamental tenet of his
religion;

•

What a “vow of a Nazarite” actual is and the policies and practices it
implicates;

•

Whether Plaintiff has submitted any further requests for accommodation
regarding religious practices required after taking a “vow of a Nazarite”;
and

•

How the denial of his requested accommodation interfered with, or
substantially burdened, the practice of his religion.

(Defs.’ Mot. 4, ECF No. 38.) Defendants assert that “[t]he only information provided by
Plaintiff is that he is white and practices a separatist religion.” (Id.) Contrary to Defendants’
assertion, Plaintiff’s original Complaint, Amended Complaint, and the exhibits to these
pleadings provide the following factual content: Plaintiff’s religion is Christian Identity, and
more specifically, Christian Israel Identity; a practice within this religion is to take a Vow of the
Nazarite; he believes that the Bible calls him to take the Vow and that his religion requires him
to follow the Bible; the Holy Spirit guides him as to when and for how long he is to take this
Vow; the Vow entails, among other things, restrictions on cutting hair, foods consumed, and
working on the Sabbath. Defendants correctly note that Plaintiff did not explicitly allege that his
religious beliefs are “sincerely held.” Such a degree of explicitness, however, is not required to
survive a motion for judgment on the pleadings. See Twombly, 550 U.S. at 570 (holding that
“facial plausibility” is established “when the plaintiff pleads factual content that allows the court

7

to draw the reasonable inference . . .”); see also Watts v. Florida Intern. Univ., 495 F.3d 1289,
1296 (11th Cir. 2007) (internal citation omitted) (“In Twombly terms, [the plaintiff] has certainly
alleged ‘enough factual matter (taken as true) to suggest’ that his religious belief was sincerely
held, putting forward ‘plausible grounds to infer’ that it was sincerely held and ‘identifying facts
that are suggestive enough to render [the sincerity of his belief] plausible.’ That is all that is
required at this stage of the litigation.”). The undersigned finds that Plaintiff’s pleadings and the
attached exhibits provide sufficient factual content from which the Court can reasonably infer
that taking the Nazarite Vow is a genuine religious observance to him. Because Plaintiff has
sufficiently alleged a prima facie violation, the undersigned recommends that the Court deny
Defendants’ Motion for Judgment on the Pleadings with regards to Plaintiff’s First Amendment
free exercise and RLUIPA claims.
B.

Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. It “protects against invidious discrimination among similarly-situated individuals or
implicating fundamental rights.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260
(6th Cir. 2006). “The Equal Protection Clause does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant respects
alike.” Heyne v. Metro. Nashville Pub. Schools, 655 F.3d 556, 570 (6th Cir. 2011) (internal
quotation marks and citations omitted).
The undersigned finds that Plaintiff has failed to state a claim against Defendants under §
1983 for violating his right to equal protection. This cause of action flows from Plaintiff’s
alleged observation that nonwhites at another ODRC institution, namely, Ross Correctional
8

Institution (“RCI”), have been permitted to take the Nazarite Vow. Based on this observation,
Plaintiff speculates that Defendants have denied his requests to take the Vow because he is
white. His requested injunctive relief, however, demonstrates that Plaintiff cannot allege that he
is similarly situated to the nonwhites at RCI who have been permitted to take the Vow.
Specifically, Plaintiff requests a transfer to RCI so that he, too, can practice his religion. Thus,
Plaintiff concedes that institutional placement is a relevant and even an outcome-determinative
consideration and that he is not similarly situated to the nonwhites who have been permitted to
take the Vow with regard to this consideration. Consistently, Plaintiff does not allege that he is
similarly situated to the nonwhites from RCI who were permitted to take the Vow.1 Nor does he
make allegations from which the Court could infer that Defendants even considered his race
when denying his request for a religious accommodation. Accordingly, it is recommended that
the Court grant Defendants’ Motion for Judgment on the Pleadings as to Plaintiff’s equal
protection claim.
C.

Retaliation
It is unclear from the face of Plaintiff’s pleadings whether he is asserting a retaliation

claim against Mr. Free arising from his filing of a conduct report. Indeed, Defendants,
understandably, did not interpret Plaintiff’s pleadings as raising a retaliation claim, and

1

To be clear, the undersigned’s recommendation of dismissal of Plaintiff’s equal
protection claim is not premised solely upon Plaintiff’s failure to allege that he is similarly
situated to the nonwhites who were permitted to take the Nazarite Vow. See Davis v. Prison
Health Servs., 679 F.3d 433 (6th Cir. 2012) (citations omitted) (“[E]ven if [the inmate] had failed
to include allegations about similarly-situated prisoners, his [equal protection claim] still should
not have been dismissed at the pleadings stage.) Instead, the undersigned concludes that his
claim lacks plausibility because he has, in essence, conceded that he is not similarly situated to
the nonwhites who have been permitted to take the Vow and also because he makes no
allegations which could support an inference that race accounted for the alleged difference in
treatment.
9

therefore, raised no arguments with regard to such a claim in their Motion for Judgment on the
Pleadings. (See Defs.’ Mot. 3, ECF No. 38 (positing that Plaintiff has asserted a First
Amendment free exercise claim, a RLUIPA claim, and an equal protection claim).) Moreover,
in listing his causes of action in his Amended Complaint, he makes no mention of a retaliation
claim. The bulk of his allegations in his Amended Complaint, however, concern the
circumstances surrounding Mr. Free’s filing of a conduct report and the consequences flowing
from the report. (See Am. Compl. ¶¶ 7–11, ECF No. 12.) Further, in his original Complaint,
Plaintiff states “I feel [Mr. Free’s filing of the conduct report] is retaliat[ion] for me trying to
exercise my nonmainstream religion.” (Compl. 5, ECF No. 5.) According to Plaintiff, Mr. Free
based his conduct report on a statement “taken out of context” that he had made in an informal
complaint. (Id.) As a result of Mr. Free’s conduct report, Plaintiff spent fifteen days in
segregation. Construing the allegations in the original Complaint and Amended Complaint
liberally, the undersigned concludes that Plaintiff intends to include a retaliation claim against
Mr. Free.
The undersigned must, therefore, consider whether Plaintiff’s retaliation claim should be
dismissed pursuant to 28 U.S.C. § 1915, the federal in forma pauperis statute. Congress enacted
§ 1915 in order to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504
U.S. 25, 31 (1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees
and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive
to refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v.
Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

2

Formerly 28 U.S.C. § 1915(d).
10

as part of the statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
*

*

*

28 U.S.C. § 1915(e)(2)(B)(i) & (ii) (emphasis added); Denton, 504 U.S. at 31. Thus, § 1915(e)
requires sua sponte dismissal of an action “at any time” upon the Court’s determination that the
action is frivolous or malicious, or upon determination that the action fails to state a claim upon
which relief may be granted. Id.
Even construing Plaintiff’s allegations liberally, the undersigned recommends dismissal
of his retaliation claim pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim. The elements
of a First Amendment retaliation claim are as follows:
“(1) the plaintiff engaged in protected conduct; (2) and adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two—that is, the adverse action was motivated at least in part
by the plaintiff’s protected conduct.”
Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (quoting Thaddeus-X v. Blatter, 175
F.3d 378, 394 (6th Cir. 2000). Assuming, for purposes of this Report and Recommendation, that
Mr. Free’s conduct was sufficiently adverse to satisfy the second element of a retaliation claim,
Plaintiff’s claim fails because he has not alleged any facts establishing a causal connection
between his protected activity and the adverse action. It is not enough for Plaintiff to allege that

11

he “feels” like Mr. Free acted with a retaliatory motive. See Harbin–Bey v. Rutter, 420 F.3d
571, 580 (6th Cir. 2005) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987))
(“[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be
sufficient to state . . . a claim under § 1983.’”) Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir.
2001) (citations omitted) (“[B]are allegations of malice on the defendants’ parts are not enough
to establish retaliation claims . . . .”); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”)
Because the Court is unable to infer retaliatory intent from Plaintiff’s vague and conclusory
assertion, it is recommended that Plaintiff’s retaliation claim be dismissed for failure to state a
claim pursuant to § 1915(e)(2)(B)(ii). It is further recommended that Mr. Free be dismissed as a
Defendant because Plaintiff’s allegations concerning Mr. Free relate only to his retaliation claim.

D.

Eleventh Amendment Immunity
Defendants assert that Plaintiff’s § 1983 claims fails as a matter of law because they are

barred by the Eleventh Amendment. In support of this assertion, Defendants submit that
Plaintiff has sued Defendants solely in their official capacities and seeks only monetary relief.
The Court agrees that to the extent Plaintiff seeks monetary damages from Defendants in
their official capacities, the Eleventh Amendment bars his claims. The Eleventh Amendment
provides as follows:
The judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens of Subjects of a Foreign State.
U.S. Const. amend. XI. The Eleventh Amendment operates as a bar to federal-court jurisdiction
when a private citizen sues a state or its instrumentalities unless the state has given express
12

consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby
Cnty., 211 F.3d 331, 334 (6th Cir. 2000). “The burden of establishing Eleventh Amendment
immunity lies with the state . . . .” Barker v. Goodrich, 649 F.3d 428, 432 (6th Cir. 2011).
Eleventh Amendment Immunity does not apply “where a state has itself waived its immunity
from federal suit” or “where Congress has abrogated the states’ immunity.” Thiokol Corp. v.
Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993). Here, Defendants have not waived
immunity, as is evident by the fact that they raised it in their Answer and also in their Motion for
Judgment on the Pleadings. Accordingly, Plaintiff may not pursue monetary relief against
Defendants in their official capacity.
Plaintiff may, however, pursue injunctive relief against Defendants in their official
capacities. See Barker, 649 F.3d at 433 (“To the extent Barker seeks declaratory and injunctive
relief against Defendants in their official capacities, the suit may proceed.”); Evans v. Vinson,
427 F. App’x 437, 441–42 (6th Cir. 2011) (same); cf. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 n.10 (1989) (“[O]fficial-capacity actions for prospective relief are not treated as
actions against the State.”). In terms of injunctive relief, Plaintiff seeks a transfer to one of four
named ODRC facilities, where he asserts that he will be permitted to take his Nazarite Vow.
Plaintiff, in his original and Amended Complaints, has failed to explicitly state the
capacity in which he is suing Defendants. The Court must, therefore, apply the “course of
proceedings” test to ascertain whether Defendants have notice of Plaintiff’s intent to hold them
personally liable. Shepherd v. Wellman, 313 F.3d 963, 967–68 (6th Cir. 2002) (“Where no
explicit statement appears in the pleadings, this Circuit uses a ‘course of proceedings’ test to
determine whether the § 1983 defendants have received notice of the plaintiff’s intent to hold
them personally liable.”); Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (“When
13

a § 1983 plaintiff fails to affirmatively plead capacity in the complaint, we then look to the
course of proceedings to determine whether . . . notice has been satisfied.”). Under this test,
failure to affirmatively state that a defendant is sued in his “individual capacity” is not fatal to
the claim where “the course of proceedings otherwise indicates that the defendant received
sufficient notice.” Moore, 272 F.3d at 772. In applying the course of proceedings test, the
Court considers, “the nature of the plaintiff’s claims, requests for compensatory or punitive
damages, and the nature of any defenses raised in response to the complaint, particularly claims
for qualified immunity, to determine whether the defendant had actual knowledge of the
potential for individual liability.” Shepherd, 313 F.3d at 969 (citing Moore, 272 F.3d at 772
n.1).
Applying the course of proceedings test, the undersigned concludes that Defendants were
on notice that they were being sued as individuals. Garcia v. Dykstra, 260 F. App’x 887 (6th
Cir. 2008), is instructive. In Garcia, the United States Court of Appeals for the Sixth Circuit
applied the course of proceedings test to conclude that the defendants were on notice that they
were being sued in their individual capacity. The Garcia plaintiff had not specified that he was
suing the defendants in their individual capacities. Id. at 894. He collectively prayed for
compensatory damages against the group without mentioning any defendant by name. Id. at
894–95. The Garcia defendants asserted the defense of qualified immunity in both their answer
and their amended answer. Id. at 895. In concluding that the defendants were on notice, the
Sixth Circuit reasoned as follows:
That [the defendants] asserted a qualified immunity defense in both the answer and
the amended answer distinguishes this case from Shepherd, making it more factually
similar to Moore. The qualified immunity defense shows that they were in fact on
notice of the possibility of an individual capacity § 1983 claim by the time they filed
both the original and the amended answer. See Lindsay v. Bogle, 92 F. App’x 165,
14

169 (6th Cir. 2004) (stating that “the assertion of a qualified-immunity defense (even
a contingent qualified-immunity defense) indicates that the defendants were aware
they could be held personally liable”); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir.
1995) (“Because qualified immunity is available only in a personal capacity suit . .
. the assertion of that defense indicates that the defendant interpreted the plaintiff's
action as being against him personally.”). Thus, the demand for money damages,
along with something more, here the qualified immunity defense asserted in the
answer and amended answer, demonstrates that [the defendants] were aware of
potential liability in their individual capacities.
Id. In this case, as in Garcia, Plaintiff seeks $10,000 in compensatory damages against
Defendants collectively. In addition, Defendants, in their Answer, raised the defense of qualified
immunity. (ECF No. 25 at ¶ 13; ECF No. 29 at 13.) Garcia persuades this Court to conclude
that Defendants were on notice that they were being sued as individuals such that Plaintiff may
proceed on his § 1983 claims.
The Court notes that with regard to his RLUIPA claim, Plaintiff may only obtain
injunctive relief. See Sossamon v. Texas, 131 S.Ct. 1651, 1663 (2011) (“We conclude that
States, in accepting federal funding, do not consent to waive their sovereign immunity to private
suits for money damages under RLUIPA because no statute expressly and unequivocally
includes such a waiver.”); Colvin, 605 F.3d at 289 (“[M]onetary damages are not available under
RLUIPA.”); Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (holding that the plaintiff’s
attempt to seek damages against the defendant in his personal capacity “cannot be based on
[RLUIPA] because the Act does not create a cause of action against state employees in their
personal capacity”).
IV.
For the reasons set forth above, it is RECOMMENDED Defendants’ Motion be
GRANTED IN PART AND DENIED IN PART such that Plaintiff may proceed on his
RLUIPA and § 1983 First Amendment free exercise claim. It is further RECOMMENDED, to
15

the extent Plaintiff seeks to assert it, that his retaliation claim be DISMISSED for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and that Mr. Free be DISMISSED as a
Defendant.
V.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

16

Date: June 27, 2012

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

17