Prim v. Jackson

Filing 24

REPORT AND RECOMMENDATION: The Court RECOMMENDS withholding a ruling as to (6 in 2:14-cv-02159-MHW-TPK) MOTION for Preliminary Injunction and RECOMMENDS that (12 in 2:14-cv-02159-MHW-TPK) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted i n part and denied in part. Plaintiff's Motion for a Preliminary Conference (10 in 2:14-cv-02159-MHW-TPK) is DENIED. Plaintiff's Motions seeking appointment of counsel (16 in 2:14-cv-02159-MHW-TPK and 18 in 2:14-cv-02159-MHW-TPK) are GRANTED conditioned upon a final ruling by the District Judge adopting the REPORT AND RECOMMENDATION. Plaintiff's Motion to Strike (19 in 2:14-cv-02159-MHW-TPK) is DENIED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/14/2015. Associated Cases: 2:14-cv-01219-MHW-TPK, 2:14-cv-02159-MHW-TPK (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jesse Prim,

:

Plaintiff,

:

Case No. 2:14-cv-1219

v.

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Dr. Wanza Jackson,
Defendant.

:
:

________________________________________________________________
Grady Krzywkowski,
Plaintiff,
v.

:
:
:

Case No. 2:14-cv-2159

Gary C. Mohr, et al.,

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Defendants.

:

REPORT AND RECOMMENDATION AND ORDER
Plaintiff, Grady Krzywkowski, an inmate currently housed at
Grafton Correctional Institution, filed this civil action against
several state employees in their individual and official
capacities pursuant to 42 U.S.C. §1983.

His case has been

consolidated with four other cases and all matters related to
these cases are required to be filed under the case Prim v.
Jackson, 2:14-cv-1219.

However, all of the document numbers

referred to below are filings made in case number 2:14-cv-2159.
In his complaint, Mr. Krzywkowski alleges that Defendants
violated the First and Fourteenth Amendments to the United States
Constitution and the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), and that they retaliated against
him when he sought to assert his rights.
There are several motions pending.

Mr. Krzywkowski has

filed a motion for preliminary injunction (Doc. 6), two motions

for appointment of counsel (Docs. 16 & 18), a motion for a
preliminary conference (Doc. 10), and a motion to strike
Defendants’ response and amended response to the motion for
preliminary injunction (Doc. 19).

In addition, several

Defendants – Director Gary Mohr, Warden Bennie Kelly, Unit
Manager Ron Foster, Corrections Officer Dynnisha White, and
Sergeant Ivan Roberts – have filed a motion to dismiss (Doc. 12).
These motions are addressed below.

The Court will turn first to

the motion to dismiss because it addresses the sufficiency of the
complaint.
I.

Background

The following allegations are all taken from Mr.
Krzywkowski’s complaint.

Because Mr. Krzywkowski is without

counsel, his complaint must be liberally construed.

See Martin

v. Overton, 391 F.3d 710, 712 (6th Cir. 2004) (citing Haines v.
Kerner, 404 U.S. 519 (1972)).

Rather than set forth all of the

allegations in the complaint, this summary will focus on the
allegations relevant to the motion to dismiss.
Mr. Krzywkowski is an active member of the Natsarim faith,
which is categorized as “Messianic Jew” in the Ohio Department of
Rehabilitation and Correction files.

His beliefs prohibit him

from working on the weekly or annual Sabbath days, require him to
eat a kosher diet, and require him to assemble with other persons
of the faith in a worship service, particularly on Sabbath and
High Sabbath Holy Days.

(Doc. 3 at ¶¶ 24-28, 79; Doc. 3-1 at pp.

30-31).
Mr. Krzywkowski arrived at Grafton Correctional Institution
in late February of 2013.

In March of 2013, he met with the

chaplain to obtain permission to participate in the Passover
Seder service and meal.
3 at ¶ 30).

The chaplain denied that request.

(Doc.

In April and May of 2013, Mr. Krzywkowski submitted

informal complaint resolutions in an effort to resolve this
2

issue, including one directed to Defendant Kelly, who
“erroneously” denied the request as being addressed in his
previous grievance response.
1-2).

(Doc. 3 at ¶¶ 1-2; Doc. 3-1 at pp.

On May, 21, 2013, Mr. Krzywkowski submitted a notification

of grievance complaining that he was denied access to the
Passover/Seder because his religious affiliation as a Messianic
Jew was lost, and complaining that both the chaplain and
Defendant Kelly were requiring him to submit new religious
accommodation requests.

(Doc. 3 at ¶ 3; Doc. 3-1 at p. 3).

On

June 10, 2013, his notification of grievance was denied because
Mr. Krzywkowski was already on file as a Messianic Jew and
because he had to be approved for kosher meals before he would be
allowed to participate in the Passover Seder meal.

(Doc. 3 at ¶

4; Doc. 3-1 at p. 4).
On July 27, 2013, Mr. Krzywkowski submitted a request for
religious accommodation so that he could observe the Sabbath,
access and participate in Jewish feasts and celebrations, and
receive a kosher diet.

(Doc. 3 at ¶ 75; Doc. 3-1 at p. 30).

On

September 2, 2013 he revised that request, seeking, in addition
to what he had originally asked for, Messianic study material,
access to the chapel for prayer and worship and to watch
instructional DVDs, and authorization to possess certain items.
(Doc. 3 at ¶ 75; Doc. 3-1 at p. 31).

On September 10, 2013, one

of the Defendants disapproved the request for kosher meals.
(Doc. 3-1 at p. 33).

That decision listed Mr. Krzywkowski’s

religious affiliation as “Jewish Messianic.”

(Id.).

On December 6, 2013, Mr. Krzywkowski submitted another
request for religious accommodation requesting a kosher diet,
authorization to receive Messianic DVD instructional material,
and Sabbath day proscription from work.

(Doc. 3 at ¶ 75; Doc. 3-

1 at p. 34).
On February 6, 2014, Defendant Mohr and at least one other
3

Defendant implemented a variance to 72-REG-01.

As revised, the

regulation prohibits inmate-led religious services and requires
group religious services to be led by or under the immediate
control of a chaplain or approved religious services provider.
(Doc. 3 at ¶¶ 53, 124; Doc. 3-1 at page 186-87; see also 72-REG01, available at
http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm).

Mr.

Krzywkowski alleges that Grafton Correctional Institution is
applying this policy in a discriminatory manner.

(Doc. 3 at ¶

126).
On March 2, 2014, Mr. Krzywkowski submitted an appeal of the
decision regarding religious accommodation, asking for a response
to his requests.

(Doc. 3-1 at p. 35).

On April 14, 2014, one of

the Defendants issued a decision as to only one part of Mr.
Krzywkowski’s request for religious accommodation, approving the
request for kosher meals. (Doc. 3-1 at p. 36).
In May of 2014, Mr. Krzywkowski talked to Defendant White
about a porter job. He explained that he was Sabbath-observant
and could not work from Friday night to Saturday night. (Doc. 3
at ¶ 109). At this point, he did not realize that his
applications for work proscriptions were never processed. (Doc.
3 at ¶ 75). Defendant White said that she was willing to work
around that restriction and gave Mr. Krzywkowski a job cleaning
showers.

(Doc. 3 at ¶ 109).

On May 24, 2014, Defendant White

claimed that Mr. Krzywkowski failed to work on that day, which
was a Saturday, and issued a conduct report.

(Doc. 3 at ¶¶ 108 &

110; Doc. 3-1 at p. 37). The conduct report also mentioned that
Mr. Krzywkowski failed to show up for his job on Thursday, May
22, 2014. However, there is no indication that a separate
conduct report was filed for that day. On May 29, 2014,
Defendant Roberts conducted a hearing regarding the conduct
report and issued a decision finding that Mr. Krzywkowski
violated prison rules. He imposed a verbal warning. (Doc. 3 at
4

¶ 111; Doc. 3-1 at p. 38).
On June 1, 2014, Mr. Krzywkowski submitted another request
for religious accommodation seeking Sabbath congregational
services and a work proscription for Sabbath days. (Doc. 3-1 at
pp. 39-40). On June 3, 2014, Defendant Kelly referred Mr.
Krzywkowski’s request for a work proscription to another
Defendant for review. (Doc. 3 at ¶ 75; Doc. 3-1 at p. 41). On
June 5, 2014, Defendants disapproved Mr. Krzywkowski’s request
for Sabbath congregational services. (Doc. 3-1 at p. 42).
On June 7, 2014, Mr. Krzywkowski filed an informal complaint
resolution addressing the conduct report and hearing, and on June
10, 2014, Defendant Foster denied his complaint. (Doc. 3 at ¶¶
21, 113; Doc. 3-1 at p. 27).
On June 10, 2014, Mr. Krzywkowski appealed the decisions as
to his June 1 requests. On June 12, 2014, one of the Defendants
approved his request for a work proscription. (Doc. 3-1 at pp.
43-44).
Mr. Krzywkowski filed this case on October 31, 2014.
II.

Motion to Dismiss
A.

Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded
factual allegations must be taken as true and be construed most
favorably toward the non-movant. Tyler v. Hillsdale Cnty.
Sheriff's Dep't, 775 F.3d 308, 316 (6th Cir. 2014).
A 12(b)(6) motion to dismiss is directed to the complaint
and any exhibits attached to it. Commercial Money Ctr., Inc. v.
Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007)
(citing Fed. R. Civ. P. 10(c)). The merits of the claims set
forth in the complaint are not at issue on a motion to dismiss
for failure to state a claim. Consequently, a complaint will be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6) only if there is
5

no law to support the claims made, or if the facts alleged are
insufficient to state a claim, or if on the face of the complaint
there is an insurmountable bar to relief. See Rauch v. Day &
Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12
(b)(6) must be read in conjunction with Fed. R. Civ. P. 8(a)
which provides that a pleading for relief shall contain "a short
and plain statement of the claim showing that the pleader is
entitled to relief." 5A Wright & Miller, Federal Practice and
Procedure §1356 (1990). The moving party is entitled to relief
only when the complaint fails to meet this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions are required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). A “complaint must contain either direct or
inferential allegations respecting all the material elements to
sustain a recovery under some viable legal theory." Id.
(emphasis in original, internal quotations and citations
omitted). As stated by the First Circuit and cited approvingly
by Scheid:
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. (citing O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir.
1976)). It is with these standards in mind that the motion to
dismiss will be decided.
B. Discussion
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.
6

1998) (internal quotations and citations omitted).

A plaintiff

seeking relief under §1983 may bring a claim against a public
official in his or her individual or official capacity.
Individual-capacity claims “seek to impose individual liability
upon a government officer for actions taken under color of state
law.”

Hafer v. Melo, 502 U.S. 21, 25 (1991).

In contrast, an

official-capacity claim is “another way of pleading an action
against an entity of which an officer is an agent.”
Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978).

Monell v.
Mr.

Krzywkowski has sued all Defendants in their individual and
official capacities.

In their motion to dismiss, Defendants do

not distinguish between claims brought in an individual and
official capacity.

Based on the arguments in the motion to

dismiss, the Court construes the motion to dismiss as seeking
dismissal of only the claims against the moving Defendants in
their individual capacities.
To state a claim under RLUIPA, an inmate must first
demonstrate that a prison policy substantially burdens a
religious practice.
(6th Cir. 2014).

Haight v. Thompson, 763 F.3d 554, 559-60

RLUIPA provides:

[n]o government shall impose a substantial burden on
the religious exercise of a person ... confined to an
institution ... even if the burden results from a rule
of general applicability, unless the government
demonstrates that imposition of the burden on that
person -(1)is in furtherance of a compelling
governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a). The term “government” includes States,
their agencies and departments, and persons acting under color of
state law.

42 U.S.C. § 2000cc–5(4)(A).

“RLUIPA thus requires an

inmate to show that his or her religious exercise was
7

substantially burdened.”

Barhite v. Caruso, 377 F. App'x 508,

511 (6th Cir. 2010) (citing Cutter v. Wilkinson, 423 F.3d 579,
583 (6th Cir. 2005)).

“An action will be classified as a

substantial burden ‘when that action forced an individual to
choose between “following the precepts of her 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.”’”

Barhite, 377 F. App’x at 511 (quoting

Living Water Church of God v. Charter Twp. of Meridian, 258 F.
App’x 729, 734 (6th Cir. 2007) (quoting Sherbert v. Verner, 374
U.S. 398, 404 (1963), and Thomas v. Review Bd. of Ind. Employment
Sec. Div., 450 U.S. 707, 717-18 (1981))).
1.

Defendant Mohr

Turning first to the allegations against Defendant Mohr,
(Doc. 3 at ¶¶ 53, 124, and 126), Mr. Krzywkowski alleges that
Defendants Mohr and Jackson “signed and approved a variance in
the religious policy that constrains inmates[’] ability to
assemble for prayer and Bible Study without a Chaplain’s
presence.”

(Doc. 3 at ¶53).

The variance at issue was 72-REG-

01, which provides in part that inmates cannot serve as religious
service providers and that congregate activities must be lead by
or under the immediate control of a chaplain or approved
religious services provider.

(See Doc. 3-1 at page 186-87; see

also 72-REG-01, available at
http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm).

Mr.

Krzywkowski argues that this violates his right to exercise his
religion freely and violates the First Amendment and RLUIPA.
The Court of Appeals has held that “[a]n inmate's claim
regarding a constitutional violation is analyzed under the
framework set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct.
2254, 96 L.Ed.2d 64 (1987).”

Colvin v. Caruso, 605 F.3d 282, 293
8

(6th Cir. 2010).

Under the Turner framework, “prison regulations

that impinge on an inmate's constitutional rights are valid if
they are ‘reasonably related to legitimate penological
interests.’ . . .

This deferential standard is employed in light

of the ‘inordinately difficult undertaking’ of prison
administration, which ‘requires expertise, planning, and the
commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of
government.’”

Id. (quoting Turner, 482 U.S. at 89 & 85).

Specifically, the Court is to consider the four factors outlined
in Turner:
“First, there must be a valid, rational connection
between the prison regulation and the legitimate
governmental interest put forward to justify it.” If
not, the regulation is unconstitutional, and the other
factors do not matter. Unlike the first factor, the
remaining factors are considerations that must be
balanced together: (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) whether there are “ready
alternatives” available “that fully accommodate the
prisoner's rights at de minimis cost to valid
penological interests.”
Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999) (quoting
Turner, 482 U.S. at 89–91) (internal citations removed).

This is

a fact-specific balancing test, and plaintiffs are not required
to plead every fact relevant to a claim in their complaint but
merely to set forth a facially plausible claim.
Mr. Krzywkowski has set forth a facially plausible claim
under both the First Amendment and RLUIPA by arguing that the
regulation impinges on and substantially burdens his right to
exercise his religion by preventing congregate worship on the
Sabbath.

While Defendants have cited a Court of Appeals decision
9

to demonstrate that the type of regulation at issue has been
upheld as constitutional, Spies v. Voinovich, 173 F.3d 398,
405-06 (6th Cir. 1999) (citations omitted), this case is only at
the pleadings stage.

It remains to be seen whether the parties’

evidence will result in the same application of the Turner
factors here, so it would not be proper to dismiss the claims
about this regulation at this time.
2.

Defendant Kelly

Turning to the allegations against Defendant Kelly, (Doc. 3
at ¶¶ 1, 2, 3, 75, 102, 115 & 130), those allegations address his
role in the grievance process or the process relating to requests
for religious accommodations.
First, Mr. Krzywkowski alleges that one of the Defendants,
Defendant Smith, violated his rights by refusing to let him
participate in the Passover Seder event.

However, he does not

allege that Defendant Kelly participated directly in the denial.
Rather he alleges that Defendant Kelly received an informal
complaint resolution (“ICR”) request from Mr. Krzywkowski
complaining that Defendant Smith wrongly barred him from the
Passover Seder event.

Mr. Krzywkowski alleges that Defendant

Kelly incorrectly responded to the ICR by stating that the issue
was addressed in a previous ICR.
A mere denial of a grievance is not actionable under §1983
where that denial did not cause or contribute to the
constitutional violation.

“The ‘denial of administrative

grievances or the failure to act’ by prison officials does not
subject supervisors to liability under §1983.”

Grinter v.

Knight, 532 F.3d 567, 576 (6th Cir. 2008) (citations omitted);
see also Argue v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th Cir.
2003) (holding that the plaintiff failed to state a claim
concerning the alleged interference with his ability to file
grievances “because there is no inherent constitutional right to
10

an effective prison grievance procedure”).

An official’s failure

to act may rise to the level of a constitutional violation where
that failure is an abandonment of “the specific duties of his
position ... in the face of actual knowledge of a breakdown in
the proper workings of the department,” that “result[s] directly
in a violation of the plaintiff’s” constitutional rights.

Hill

v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992) (involving an
official who repeatedly failed to review and respond to the
medical needs of the prison population); see also Williams v.
McLemore, 247 F. App’x 1 (6th Cir. 2007).

However, there is no

liability where officials’ only involvement was to deny
administrative grievances and to fail to remedy the alleged
behavior or intervene on the inmate’s behalf.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

Shehee v.
Furthermore, the

wrongful denial of a grievance “does not present a deprivation of
any federal right, as there is no inherent constitutional right
to an effective prison grievance procedure.”

Keenan v. Marker,

23 F. App'x 405, 407 (6th Cir. 2001) (citations omitted).
Accordingly, while inmates who exhaust the prison grievance
process without obtaining relief may seek relief in the district
courts, see, e.g., Walker v. Michigan Dep't of Corr., 128 F.
App'x 441, 446 (6th Cir. 2005), such relief would be for the
underlying constitutional violation and not for the wrongful
denial of the grievance.

Accordingly, the allegations regarding

Defendant Kelly’s response to the ICR do not rise to the level of
a §1983 claim.

Mr. Krzywkowski’s allegations against Defendant

Kelly also fail to set forth a claim for relief under RLUIPA.
Second, Mr. Krzywkowski alleges that Defendant Kelly and
three other Defendants violated his RLUIPA rights to exercise his
religion freely “when they refused to timely process plaintiff’s
[requests for religious accommodations], resulting in plaintiff
not being able to practice his beliefs.”
11

(Doc. 3 at ¶ 102).

However, apart from this conclusory allegation, there are no
allegations of any actions that Defendant Kelly took to either
delay or deny Mr. Krzywkowski’s requests for religious
accommodations.

There are no allegations that the earlier

requests for religious accommodations were considered by or
should have been considered by Defendant Kelly.

The only

allegations specific to Defendant Kelly’s role with respect to
these requests are that Defendant Kelly was one of several
individuals who “signed off” on Mr. Krzywkowski’s June 1, 2014
request for a work proscription, that he did so two days after
the request was submitted, and that Defendant Kelly was one of
three defendants who “approved a work proscription for Sabbaths
on 6/12/14.”

(Doc. 3 at ¶¶ 75 & 115).

These allegations suggest

that Defendant Kelly was one of several people who approved Mr.
Krzywkowski’s June 1, 2014 request for religious accommodation
seeking a work proscription for all observed Sabbaths, and that
Defendant Kelly did so in a timely manner.
The single conclusory allegation that Defendant Kelly
refused timely to process Mr. Krzywkowski’s requests for
religious accommodation, which is contradicted by the factual
allegations relating to Defendant Kelly, is not sufficient to
state a claim against Defendant Kelly.

Similarly, a separate

conclusory allegation that Defendant Kelly and three other
Defendants have “continually erected barriers to discourage and
prevent Plaintiff and fellow inmates of the faith access to the
chapel to view Messianic-Jewish instructional D.V.D. videos”
(doc. 3 at ¶ 130), is not supported by any factual allegations
against Defendant Kelly.

The only other allegation against

Defendant Kelly is that he is requiring Mr. Krzywkowski to file a
new religious affiliation request (doc. 3 at ¶ 3).

However, Mr.

Krzywkowski has not pleaded any facts which might demonstrate how
that requirement violates his constitutional or RLUIPA rights.
12

This particular allegation appears to be part of the claim
relating to Defendant Kelly’s denial of grievances, which, for
the reasons set forth above, fails to state a viable
constitutional or statutory claim.
3.

Defendant Foster

The allegations against Defendant Foster, (Doc. 3 at ¶¶ 21,
113 & Doc. 3-1 at p. 27), are that he wrongly denied an informal
complaint resolution relating to a conduct report filed against
Mr. Krzywkowski for not working on the Sabbath and that Defendant
Foster could have overruled a finding of guilt on the same
conduct report.

As discussed above, a wrongful denial of a

grievance does not violate the Constitution.
Furthermore, to the extent that Mr. Krzywkowski seeks to
hold Defendant Foster liable as a supervisor for a subordinate’s
conduct, he cannot do so unless Defendant Foster actually
participated in or encouraged the wrongful behavior.

Persons

sued in their individual capacities under §1983 can be held
liable based only on their own unconstitutional behavior.
Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012)
(citing Murphy v. Grenier, 406 F. App’x 972, 974 (6th Cir. 2011)
(unpublished opinion) (“Personal involvement is necessary to
establish section 1983 liability”) & Gibson v. Matthews, 926 F.2d
532, 535 (6th Cir. 1991) (noting that personal liability “must be
based on the actions of that defendant in the situation that the
defendant faced, and not based on any problems caused by the
errors of others, either defendants or non-defendants”)).
Consequently, unless the plaintiff's complaint affirmatively
pleads the personal involvement of a defendant in the allegedly
unconstitutional action about which the plaintiff is complaining,
the complaint fails to state a claim against that defendant and
dismissal is warranted.
421 (6th Cir. 1984).

See Bellamy v. Bradley, 729 F.2d 416,

This rule holds true even if the supervisor
13

has actual knowledge of the constitutional violation as long as
the supervisor did not actually participate in or encourage the
wrongful behavior.

See Shehee v. Luttrell, 199 F.3d 295, 300

(6th Cir. 1999) (prison officials cannot be held liable under §
1983 for failing to respond to grievances which alert them of
unconstitutional actions); see also Stewart v. Taft, 235 F. Supp.
2d 763, 767 (N.D. Ohio 2002) (“supervisory liability under § 1983
cannot attach where the allegation of liability is based on a
mere failure to act”).

There are no allegations suggesting that

Defendant Foster either participated in or encouraged the
issuance of the conduct report.

For these same reasons, the

allegations against Defendant Foster do not state a claim under
RLUIPA.
4.

Defendant White

The allegations against Defendant White, Doc. 3 at ¶¶ 21,
108, 109, 110, relate to the conduct report that she issued
against Mr. Krzywkowski for failing to work on the Sabbath.

Mr.

Krzywkowski alleges that the conduct report and the unusual delay
in granting his Sabbath work proscription violated his due
process rights and his right freely to exercise his religion
under the First and Fourteenth Amendments and RLUIPA.

There are

no allegations that Defendant White was responsible for the delay
in granting his work proscription, so only the issuance of the
conduct report is relevant here.
Defendants do not argue that Mr. Krzywkowski fails to state
a due process claim about the conduct report.

Rather,

their

sole argument is that these allegations do not constitute a cause
of action under the First Amendment or RLUIPA.
Defendants’ arguments fail.

However,

“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.’”
14

Flagner

v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (quoting Kent v.
Johnson, 821 F.2d 1220, 1224 (6th Cir. 1987)).

The Court of

Appeals “has consistently applied the pre-[Religious Freedom
Restoration Act] standard set forth in Turner to evaluate
challenges by prisoners to restrictions on the free exercise of
religion.”

Flagner, 241 F.3d at 482 (citation omitted).

Mr.

Krzywkowski has alleged that observing the Sabbath by not working
on the Sabbath is central to his religious beliefs and that his
religious beliefs are sincerely held.

It is reasonable to infer

that a conduct report punishing him for exercising those beliefs
could violate the First Amendment depending on what evidence
emerges in discovery relating to the Turner factors.
In response, Defendants state, without citation to legal
authority, that issuing a conduct report cannot violate the First
Amendment.

That is simply not the case; other courts have found

that the issuance of a conduct report may constitute retaliation
in violation of an inmate’s constitutional rights.

See, e.g.,

Walker v. Bertrand, 40 F. App'x 988, 990 (7th Cir. 2002)
(plaintiff “adequately stated a claim that prison officials
issued a conduct report and sentenced him to segregation in
retaliation” for filing a lawsuit).

Defendants also argue that

the conduct report was for Mr. Krzywkowski’s failure to work on
both a Thursday and a Saturday, rather than just a Saturday.
Defendants do not explain how that fact would defeat a claim that
the conduct report - which included the failure to perform work
on the Sabbath - burdened Mr. Krzywkowski’s right to exercise his
religion.

In addition, it appears from the Conduct Report

attached to the complaint that the actual Conduct Report was
issued for failing to work on a Saturday and that the report only
mentions as context his failing to work on a Thursday.
at p. 37).

(Doc. 3-1

Finally, Defendants argue that Mr. Krzywkowski’s work

proscription was not approved until after the conduct report was
15

issued, and therefore he violated a prison rule.

That is not

necessarily dispositive because prison rules can be violative of
the First Amendment and RLUIPA.
173 F.3d 398 (6th Cir. 1999).

See, e.g., Spies v. Voinovich,

Accordingly, Defendants’ arguments

as to Defendant White are not persuasive at the motion to dismiss
stage.
5.

Defendant Roberts

Turning next to the allegations against Defendant Roberts
(Doc. 3 at ¶¶ 110 & 111), Mr. Krzywkowski alleges that this
Defendant conducted the hearing on the conduct report issued by
Defendant White and ultimately issued a Hearing Officer’s Report
upholding the Conduct Report.

Prison officials can be held

liable for violating an inmate’s constitutional rights if they
uphold a conduct report that punishes an inmate for exercising
constitutional rights.

See, e.g., Wilson v. Greetan, 571

F.Supp.2d 948, 955 (W.D. Wis. 2007).

Defendants argue only that

a prison official cannot be held liable for participating in the
grievance process - an argument which is not relevant here, since
a conduct report differs substantially from an inmate-initiated
grievance - and that the conviction was based on the Thursday
work absence.

The Court has already concluded that the complaint

plausibly claims that it was based on the Saturday absence.
Neither of these arguments is sufficient to justify the dismissal
of the claims against Defendant Roberts.
6.

Additional Argument Raised in Reply Brief

In their reply brief, Defendants for the first time argue
that the claims against Defendants for monetary damages are not
permitted.

A party may not ordinarily raise a new issue in a

reply because the opposing party has no opportunity to respond.
See, e.g., Hamilton v. Astrue, 2010 WL 1032646, *6 (N.D. Ohio
March 17, 2010) (“A [party] cannot wait until the reply brief to
make new arguments, thus effectively depriving the opposing party
16

of the opportunity to expose the weaknesses of [those new]
arguments”).

Accordingly, that argument is not before the Court

at this time.
III.

Motion for Preliminary Injunction

Mr. Krzywkowski has also moved for a preliminary injunction
as to several of his requests.

He has framed his requests as

follows:
–To allow Plaintiff and fellow inmates of the
faith daily (if possible if chapel rooms are available)
two hour sessions to view Messianic Instructional
Videos;
–To open the chapel for Sabbath Services (on
Saturdays);
-To cease and desist causing disruptions and/or
unjust barriers preventing Plaintiff the right to
freely exercise his religion;
-To allow Plaintiff recognition of his religious
calendar as it pertains to the Hebrew calendar observed
Holy Days, i.e., observed fasts and feasts;
-To adopt and/or recognize the Natsarim faith
under the Messianic Jewish catchment on the ODRC
computer system;
-To allow Plaintiff to observe his religious Holy
Days[’] dietary accommodations and providing sack meals
on Friday evenings to cover the daily caloric minimum
for a day[’]s worth of food for the Sabbath;
-To expunge Plaintiff’s conduct report from the
Institutional Record caused by Plaintiff’s protected
conduct in observing a rest day on the Sabbath;
-To allow Plaintiff to receive his incoming mail,
religious mail, including but not limited to,
legitimate religious publications, books, Messianic
Jewish artifacts, without withholding it or rerouting
it for unusual delays;
-To allow Plaintiff to remain in his cell location
and cease and desist moving Plaintiff to new cell
17

locations without just cause;
-To cease and desist threatening Plaintiff the STG
(Security Threat Group: gang member) label for engaging
in protected conduct like filing grievances against the
Chaplain or filing this lawsuit;
-To refrain from transferring Plaintiff from his
current place of confinement to another prison for
engaging in protected conduct; and,
-To cease and desist from threats issued to
Plaintiff by third parties via Chaplain Smith or any of
the other defendants.
(Doc. 6 at 2-3).
A.

Standard

The first question the Court must answer is whether it must
hold an evidentiary hearing as to any of the requested grounds
for preliminary injunctive relief.

Federal Rule of Civil

Procedure 65 provides that “[t]he court may issue a preliminary
injunction only on notice to the adverse party.”
65(a)(1).

Fed. R. Civ. P.

The Court of Appeals has “interpreted this requirement

to ‘impl[y] a hearing in which the defendant is given a fair
opportunity to oppose the application and to prepare for such
opposition.’”

Certified Restoration Dry Cleaning Network, L.L.C.

v. Tenke Corp., 511 F.3d 535, 552-53 (6th Cir. 2007) (citations
and internal quotations omitted).

However, the Court of Appeals’

“Rule 65 jurisprudence indicates that a hearing is only required
when there are disputed factual issues, and not when the issues
are primarily questions of law.”

Id.

(citations omitted).

Accordingly, the Court of Appeals adopted this summary of the
rule initially announced by the Eleventh Circuit:
[W]here facts are bitterly contested and credibility
determinations must be made to decide whether
injunctive relief should issue, an evidentiary hearing
must be held. [However,] where material facts are not
in dispute, or where facts in dispute are not material
to the preliminary injunction sought, district courts
18

generally need not hold an evidentiary hearing.
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke
Corp., 511 F.3d 535, 552-53 (6th Cir. 2007) (quoting McDonald’s
Corp. v. Robertson, 147 F.3d 1301, 1312–13 (11th Cir. 1998)).
In order to determine whether factual disputes are material
to the preliminary injunction sought, it is necessary to consider
the standard for a preliminary injunction.

In deciding whether

to grant a preliminary injunction, the Court considers the
following factors:
(1) whether the movant has a strong likelihood of
success on the merits; [2] whether the movant would
suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public
interest would be served by the issuance of the
injunction.
Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th
Cir. 2011) (citation and internal quotation marks omitted).
These are “factors to be balanced, not prerequisites that must be
met.”

Welch v. Brown, 551 F. App'x 804, 808 (6th Cir. 2014)

(quoting Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994)).
Injunctive relief is “an extraordinary remedy which should be
granted only if the movant carries his or her burden of proving
that the circumstances clearly demand it.”

Overstreet v.

Lexington–Layette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th. Cir.
2002).

Further, the “proof required for the plaintiff to obtain

a preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion.”

Leary v.

Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).
“When a party seeks a preliminary injunction on the basis of
the potential violation of the First Amendment, the likelihood of
success on the merits often will be the determinative factor.”
Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir.
19

2014) (internal quotation marks and citation omitted).

This is

because, with respect to irreparable injury, “loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”
quotation marks and citations omitted).

Id. (internal

And with respect to the

public interest, “it is always in the public interest to prevent
the violation of a party's constitutional rights.”

Id. (internal

quotation marks and citations omitted).
B.

Discussion

While Mr. Krzywkowski has based his motion for preliminary
injunction on the violation of his RLUIPA rights, (Doc. 6 at 1317), he also refers to his constitutional rights under the First
Amendment.

(Doc. 6 at 1; Doc. 6-1 at ¶1).

Accordingly, the

Court will consider both grounds for the various types of
injunctive relief sought.
To demonstrate a strong likelihood of success on the merits
of his First Amendment claims, Mr. Krzywkowski must show that
prison regulations or actions of prison officials violate his
right to free exercise of his religion.
F.3d 282, 290 (6th Cir. 2010).

Colvin v. Caruso, 605

If he does so, his claim is then

analyzed under the Turner framework, and he must show that
Defendants' actions are not “reasonably related to legitimate
penological interests,” or that the balance of the remaining
factors weigh in his favor.

Id. (citing Turner, 482 U.S. at 89).

To demonstrate a strong likelihood of success on the merits of
his RLUIPA claims, Mr. Krzywkowski must show that his “religious
exercise was substantially burdened.”
F.3d 554, 559-60 (6th Cir. 2014).

Haight v. Thompson, 763

If he does so, he must then

demonstrate that the prison policy is not “in furtherance of a
compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.”

42 U.S.C. §2000cc–1(a).
20

1.

Religious Instructional Videos

Mr. Krzywkowski first seeks an injunction permitting him and
his fellow inmates of the faith “daily (if possible if chapel
rooms are available) two hour sessions to view Messianic
Instructional Videos.”

He has provided evidence in the form of a

sworn declaration that at present, he has access to view
Messianic DVDs at the chapel one time per month if he is “lucky.”
(Doc. 6-1 at p. 5 of 19, ¶33).

He states that other inmate faith

groups access religious DVDs on a weekly basis, however, he has
not stated a claim based on religious discrimination.

(Id.)

In

response, Defendants filed an affidavit stating that Mr.
Krzywkowski has access to the videos once a month and, if the
chaplain is available, can be viewed on extra days.
at ¶16).

(Doc. 15-1

Accordingly, there is some dispute as to whether Mr.

Krzywkowski has access to the videos slightly more often than
once a month or slightly less often than once a month.

However,

this factual dispute is immaterial because Mr. Krzywkowski has
failed to establish that the frequency of his opportunities to
view religious videos violates his right to free exercise of his
religion or that it substantially burdens his religious exercise.
Turning to the four factors considered for a preliminary
injunction, Mr. Krzywkowski has not provided any evidence of the
role that watching the DVDs would play in his belief system or
the reason that any particular frequency of video watching would
be required.

Accordingly, he has not demonstrated a strong

likelihood of success on the merits.

In addition, there is no

evidence that viewing the DVDs on the current schedule would
cause him to suffer irreparable injury – especially in light of
the fact that there is no evidence that the content of the DVDs
is unavailable to him in other formats such as audio tapes or
written materials.

The issuance of an injunction requiring DVDs

to be made available on a different schedule is unlikely to cause
21

substantial harm to others, although it could cause additional
expense for GCI.

It is not clear whether the public interest

would be served by the issuance of the injunction.

There are no

relevant disputes of fact, so a hearing is not necessary as to
this request for relief.

Accordingly, Mr. Krzywkowski has failed

to carry his burden of demonstrating that the circumstances here
demand a preliminary injunction.
2.

Sabbath Worship

Mr. Krzywkowski also seeks an injunction directing
Defendants to open the chapel for Sabbath Services on Saturdays.
He has provided evidence that he is of the Natsarim Faith and
that he is “mandated to have assembly with other persons of his
faith in a worship service.”
6).

(Doc. 6-1 at p. 1-2 of 19, ¶¶ 2 &

He has further provided evidence that “it is a fundamental

tenet of [his] faith to fellowship with persons of the Natsarim
faith on the Sabbath and High Sabbath Holy Days.”
p. 7 of 19, ¶44).

(Doc. 6-1 at

Prison policy prohibits inmate-led religious

services and requires group religious services to be led by or
under the immediate control of a chaplain or approved religious
services provider.

(Doc. 3-1 at page 186-87; see also 72-REG-01,

available at
http://www.drc.ohio.gov/web/drc_policies/drc_policies.htm).

Mr.

Krzywkowski has been denied the right to Saturday Sabbath
Services because the chaplain will not come in on Saturdays to
oversee the services and will not make other arrangements in
order to permit Saturday Sabbath Services.
19, ¶¶ 20-22, 49).

(Doc. 6-1 at p. 4 of

Defendants do not dispute those facts, but

merely point out Mr. Krzywkowski’s other opportunities to
participate in Messianic Jewish activities including Messianic
Jewish services every other Sunday.

(Doc. 15-1 at ¶6).

Mr. Krzywkowski has enough evidence of a likelihood of
success on the merits to require a hearing.
22

The parties’

materials show that there is a dispute about whether this
restriction is related to a legitimate penological interest.
Mr. Krzywkowski has provided evidence that the GCI chapel is
often open on Saturdays for secular events and that on one
occasion a Christian event took place on a Saturday.
at p. 6 of 19, ¶¶34-35).

(Doc. 6-1

Similarly, the evidence thus far does

not demonstrate a strong showing that the denial of Sabbath
services is in furtherance of a compelling governmental interest
or that it is the least restrictive means of furthering that
interest.
Because even minimal infringement upon First Amendment
values constitutes irreparable injury and because others cannot
be said to be harmed by enjoining an unconstitutional practice
and it is always in the public interest to prevent violation of a
party’s constitutional rights, the other factors could weigh in
favor of a preliminary injunction here.

Accordingly, this

request for relief cannot be denied as a matter of law, and a
hearing should be held on this issue.
3.

Disruptions and Barriers to Freely Exercise Religion

Mr. Krzywkowski has asked the Court to order Defendants to
“cease and desist causing disruptions and/or unjust barriers
preventing Plaintiff the right to freely exercise his religion.”
In his motion for preliminary injunction, he provides examples
such as delays in processing forms, the loss of forms, failure to
answer grievances in a timely manner if at all, and refusing to
contact an outside Messianic minister in order to permit Saturday
worship.

(Doc. 6 at 4).

The refusal to contact an outside Messianic minister is part
of the previous claim regarding Saturday worship.

Likewise, the

delays and losses of forms, and the delays in responding to or
failure to respond to grievances, relate to the underlying
religious accommodations sought.
23

For example, some of Mr.

Krzywkowski’s evidence regarding certain lost paperwork had to do
with his request for access to the Passover/Seder service.
Doc. 6-1 at p. 2 of 19, ¶¶ 10-15).

(See

To the extent there have been

certain disruptions to Mr. Krzywkowski’s right to free exercise
of his religion, in order to obtain injunctive relief, he had to
provide evidence specific to the exercises of religion upon which
the disruptions are infringing.
to this claim as it is stated.

He has not done so with respect
Accordingly, he has not

demonstrated a strong likelihood of success as to the merits of
this claim, nor has he demonstrated an irreparable injury.
There is not enough evidence as to the remaining two
factors.

Defendants have made a general argument that all of the

requests for preliminary injunctive relief would cause
substantial harm to Defendants’ penological interest and would be
against the public interest in prison security, but they do not
make arguments specific to the particular requests (indeed, those
arguments do not appear to be relevant to all of the requests)
and they also provide no evidence in support of their position.
There are no relevant disputes of fact, so a hearing is not
necessary as to this request for relief.

Mr. Krzywkowski has

failed to meet his burden as to this request for relief.
4.

Recognition of Religious Calendar

Mr. Krzywkowski seeks recognition of his religious calendar
as distinct from the Jewish Orthodox religious calendars in order
to ensure that he receives his Holy Day meals on the correct
days.

He has provided evidence that his faith adopts the Hebrew

Religious Holiday Calendar, but that he was permitted to
fast/feast in accordance with the Orthodox Jewish religious
calendar, which violated his beliefs based on “the written
ordinances of the Torah.”
46).

(Doc. 6-1 at pp. 7-8 of 19, ¶¶ 45 &

Defendants do not dispute these facts, but rather argue

that “[i]t is a logistical impossibility for GCI to adopt every
24

calendar for every religious group.”

(Doc. 15 at 9-10).

In

support, Defendants provide evidence that there are approximately
25 different religious groups at GCI and over 2,000 inmates.
They assert that as of December, 2014, there were six Hebrew
Israelites and six Messianic Jews.

Further, they point out that

the religious calendar is generated out of the ODRC Central
Office and the number of religions and sects means that GCI
“cannot have a different calendar for each.”
9, 10, 15).

(Doc. 15-1 at ¶¶8,

Mr. Krzywkowski disputes the facts set forth by

Defendants, providing evidence that the ODRC only recognizes ten
religious groups and that there are fewer than 1,300 inmates at
GCI.

(Doc. 19 at pp. 5-6; Doc. 19-1 at pp. 3 & 5 of 31, ¶¶ 8-9).
Mr. Krzywkowski has provided some evidence that the refusal

to recognize his religious calendar is not related to a
legitimate penological interest because ODRC recognizes multiple
other religious calendars.

(Doc. 19-1 at p. 3 of 31, ¶12).

Furthermore, there is a factual dispute about whether the refusal
to add this religious calendar is the least restrictive means of
furthering any legitimate penological interest.

Accordingly,

there are relevant factual disputes related to whether Mr.
Krzywkowski has a strong likelihood of success on the merits.
Because even a minimal infringement upon First Amendment
values constitutes irreparable injury and because others cannot
be said to be harmed by enjoining an unconstitutional practice
and it is always in the public interest to prevent violation of a
party’s constitutional rights, the other factors could weigh in
favor of a preliminary injunction here.

Accordingly, this

request for relief cannot be denied as a matter of law, and a
hearing is needed on this issue.
5.

Official Recognition of Natsarim Faith

Mr. Krzywkowski argues that the fact that he is recognized
as belonging to the Messianic Jewish faith is not sufficient to
25

address his religious needs.

He claims that the ODRC should be

required to recognize the Natsarim faith as a subcategory of the
Messianic Jewish faith.

He asserts that the failure to recognize

the Natsarim faith on the computer system is the reason that he
cannot obtain dietary provisions for the Holy Days and Fasts
“which he observes from the Biblically correct Hebrew Calendar.”
(Doc. 6 at p. 5).
To the extent that he is correct, this issue can be raised
at the hearing regarding his request for recognition of his
religious calendar.

Otherwise, he has failed to provide evidence

that the label assigned to his faith in the ODRC computer system
violates and burdens his right to free exercise of his religion,
nor has he demonstrated an independent irreparable injury.
is not enough evidence as to the remaining two factors.

There

There

are no relevant disputes of fact, so a hearing is not necessary
as to this request for relief.

Accordingly, Mr. Krzywkowski has

failed to meet his burden as to a freestanding request for
preliminary injunctive relief regarding the categorization of his
faith in the computer system, although this relief may be
considered when the Court considers his request for recognition
of his religious calendar.
6.

Dietary Accommodations and Sack Meals

While Mr. Krzywkowski’s request for dietary accommodations
and sack meals makes it sound as though he is currently being
denied Kosher meals, he does not provide evidence in support of
that argument and, in fact, one of the documents he attaches to
his complaint is a decision approving Mr. Krzywkowski’s request
for kosher meals on April 14, 2014.

(Doc. 3-1 at p. 36).

Accordingly, it appears that the preliminary injunctive relief
sought is for sack meals on Friday evenings providing a day’s
worth of food for the Sabbath.

In support of this argument, he

explains that his faith does not permit him to assist others in
26

breaking the Sabbath by preparing or cooking his meals on a
Sabbath.

(Doc. 6 at p. 5).

While his declaration does not

specifically support this argument, his motion for preliminary
injunction is signed by him under penalty of perjury and may
constitute evidence.
Defendants provide some evidence that they have a compelling
interest in not providing sack meals.
6-10).

(Doc. 15-2, ¶¶

Mr. Krzywkowski provides a declaration of another inmate

that disputes Defendants’ evidence.

(Doc. 19-1 at p. 18 of 31,

¶7).
While there is very little evidence before the Court on this
issue, that evidence is disputed and relevant to the question of
whether Mr. Krzywkowski will be able to establish that the
refusal to provide sack meals violates and burdens his right to
free exercise of his religion.

Accordingly, this request for

relief cannot be denied as a matter of law, and a hearing is
needed on this issue.
7.

Expungement of Conduct Report

Mr. Krzywkowski seeks a preliminary injunction requiring
that Defendants expunge the conduct report that was issued when
he observed a rest day on the Sabbath rather than reporting to
work.

There is no dispute that Defendants have now approved Mr.

Krzywkowski’s request for a work proscription for the Sabbath.
(Doc. 3-1 at pp. 43-44). Accordingly, the only question is
whether the conduct report issued before his work proscription
was officially approved should be expunged.
There is very little evidence provided as to the likelihood
of success on the merits on this issue. This is not an ongoing
violation, and there is no evidence or argument as to why it
matters if the question of expungement is addressed at this stage
in the litigation or at a later stage. Accordingly, the question
of irreparable injury weighs against preliminary injunctive
relief. Mr. Krzywkowski has not provided evidence as to the
27

remaining two factors, and it appears that they would depend to
some degree on whether he could succeed on the merits, but he has
not demonstrated a strong likelihood that he would succeed on the
merits. There are no relevant disputes of fact, so a hearing is
not necessary as to this request for relief.

Accordingly, Mr.

Krzywkowski has failed to meet his burden as his request for a
preliminary injunction requiring expungement.
8.

Timely Delivery of Mail

Mr. Krzywkowski seeks a preliminary injunction ordering
Defendants to provide his incoming mail to him, including
religious mail, without withholding it or rerouting it for
unusual delays.

In support of this request for relief, he states

that he has “regularly received [his] religious mail sometimes 710 days later than normal.”

(Doc. 6-1 at p. 8 of 19, ¶48).

He

was informed by another inmate that his incoming regular and
religious mail were being screened by Defendant Smith and by his
agents.

(Id.)

He stated that “[i]n mid-July of 2014 [his]

religious leader sent 19 Messianic Instructional DVD’s for the
Messianic Community in care of [Defendant Smith],” and Defendant
Smith said that the DVDs were missing.
¶38).

(Doc. 6-1 at p. 3 of 19,

The DVDs were “suddenly ‘found’” after the outside

religious leader who sent the DVDs called.

(Id.)

He also stated

that in September of 2014, three DVDs were missing and only two
were found, but he does not state that those DVDs were lost in
the mail.

(Id.)

Defendants do not dispute the facts set forth

by Mr. Krzywkowski.

Rather, they argue that those facts do not

set forth a violation of constitutional or federal law.
“It is well settled that ‘[a] prisoner's right to receive
mail is protected by the First Amendment.’”

Muhammad v. Pitcher,

35 F.3d 1081, 1084-85 (6th Cir. 1994) (quoting Knop v. Johnson,
977 F.2d 996, 1012 (6th Cir. 1992) (additional citations
omitted)).

“Generally, mail sent to a prisoner may be screened

28

or censored pursuant to regulations and practices ‘reasonably
related to penological interests.’”

Martucci v. Johnson, 944

F.2d 291, 295 (6th Cir. 1991) (quoting Turner v. Safley, 482 U.S.
at 89).

Incoming mail, even religious mail, can be rejected if

justified by a legitimate penological interest.

See, e.g.,

Winburn v. Bologna, 979 F. Supp. 531, 534 (W.D. Mich. 1997)
(upholding regulation rejecting incoming religious mail promoting
violence and racial supremacy and finding that the mail policy
does not deprive prisoners of all means of expression of
religion).
While there is no evidence about the purpose of any
screening done to Mr. Krzywkowski’s mail, there is also no
evidence that any of Mr. Krzywkowski’s mail was rejected, nor has
he demonstrated a likelihood of success on the merits even if he
had experienced delays in receiving religious mail.

Mr.

Krzywkowski has also not demonstrated any irreparable injury that
he would suffer absent the injunction.

While neither of the

parties has addressed the remaining two factors, if the delay in
delivering mail is related to a legitimate screening process, it
could indeed cause substantial harm to others and the public
interest if safety is compromised in order to expedite the
delivery of Mr. Krzywkowski’s mail.

There are no relevant

disputes of fact, so a hearing is not necessary as to this
request for relief.

Accordingly, Mr. Krzywkowski has failed to

meet his burden as to his request for a preliminary injunction
ordering Defendants to provide his incoming mail to him,
including religious mail, without withholding it or rerouting it
for unusual delays.
9.

Cell Location

Mr. Krzywkowski seeks an order enjoining Defendants from
moving him to new cell locations without just cause.

He stated

that on December 8, 2013, he gave Defendant Smith a written
29

request to be moved to the Faith-Based Housing Unit, and
Defendant Smith “assured [Mr. Krzywkowski] that [he] would be
placed on the ‘fast track.’”

(Doc. 6-1 at p. 3 of 19, ¶19).

However, later the same month, instead of being moved to the
Faith-Based Housing Unit, Mr. Krzywkowski was moved “to a
notorious, chaotic open dorm with 240 other inmates, and moved to
a bunk location where water often leaked ....”

In or about the

second week of January, 2014, he was moved to the Faith-Based
Housing Unit.
This evidence is not sufficient to demonstrate a likelihood
of success on any claim that Defendants moved him to new cell
locations (or that they intend to do so) without just cause in
violation of his constitutional or federal rights.

Although

there are instances where retaliatory cell transfers can rise to
the level of a constitutional violation, see, e.g., LaFountain v.
Harry, 716 F.3d 944, 949 (6th Cir. 2013) (holding that
allegations of a retaliatory transfer of plaintiff to a cell with
a mentally ill prisoner who threatened to knife plaintiff and
defendants’ refusal to grant plaintiff’s requests for a different
cell in light of the threats stated a claim for violation of
plaintiff’s First Amendment rights), absent “extraordinary
circumstances,” decisions about “[c]ell assignments are a normal
part of prison life, and thus typically do not amount to an
adverse action.”

Id.

Here, Mr. Krzywkowski has failed to meet his burden of
demonstrating a strong likelihood of success on the merits as to
his claim regarding the location of his cell.

Mr. Krzywkowski

has also not demonstrated any irreparable injury that he would
suffer absent the injunction.
remaining factors.

There is no evidence about the

There are no relevant disputes of fact, so a

hearing is not necessary as to this request for relief.
Accordingly, Mr. Krzywkowski has failed to meet his burden as his
30

request for a preliminary injunction ordering Defendants to
refrain from moving him to new cell locations without just cause.
10.

Threats to Label Plaintiff a Security Threat Group Member
This request for relief is encompassed by Mr. Krzywkowski’s

final request for relief, so the Court will combine the two and
address them together.
11.

(See no. 12 below).
Retaliatory Transfer

Mr. Krzywkowski seeks a preliminary injunction ordering
Defendants to refrain from transferring him from his current
place of confinement to another prison for engaging in protected
conduct.

This is distinct from Mr. Krzywkowski’s final request

for relief below because it seeks to enjoin the transfer rather
than the threat of transfer and because the threats in the final
request for relief are broader than just threatening transfer to
another prison.

The only evidence that he has presented to

demonstrate that he is at some risk of such transfer is evidence
that an inmate passed along a threat from Defendant Smith that he
could be sent to another prison if he kept writing grievances
about Defendant Smith.

(See discussion of threats below).

Defendants dispute that evidence, stating that Mr. Krzywkowski
“has not been threatened with a prison transfer and, therefore
his argument is premature.”

(Doc. 15 at 9).

Defendants next argue that there is no constitutional or
federal right for prisoners to be placed within any particular
prison.

Defendants are correct that, “[a]s a general matter, a

prison official's decision to transfer a prisoner from the
general population of one prison to the general population of
another is not considered adverse.”

LaFountain v. Harry, 716

F.3d 944, 948 (6th Cir. 2013) (citation omitted).

While the

Court of Appeals in LaFountain noted that extraordinary
circumstances (such as an existing settlement agreement) may, in
some instances, state a claim for retaliation in violation of the
31

First Amendment, Mr. Krzywkowski has not provided any evidence of
extraordinary circumstances.

As a result, Mr. Krzywkowski has

failed to meet his burden of demonstrating a strong likelihood of
success on the merits as to his claim regarding transfers between
prisons.

In light of his failure to demonstrate that a prison

transfer would constitute an “adverse” action for purposes of a
First Amendment retaliation claim, Mr. Krzywkowski has also not
demonstrated any irreparable injury that he would suffer if a
threat to transfer him were implemented.

There is no evidence

about the remaining factors.
The factual dispute as to whether Mr. Krzywkowski has been
threatened with transfer is not relevant to whether a preliminary
injunction should issue as to a prison transfer, because even
assuming his version of the facts are true, he has failed to meet
his burden as a matter of law.

Accordingly, a hearing is not

necessary as to this request for a preliminary injunction
ordering Defendants to refrain from transferring Plaintiff from
his current place of confinement to another prison.
12.

Retaliatory Threats

Finally, Mr. Krzywkowski seeks a preliminary injunction
ordering Defendant Smith to stop retaliating against him for
filing complaints or grievances.

The retaliation, according to

Mr. Krzywkowski, takes the form of direct or indirect threats.
The evidence that Mr. Krzywkowski provides includes some evidence
as to the threats and some evidence as to Defendant Smith’s
attitude toward grievances.

He recounts a meeting with Defendant

Smith in which Defendant Smith “scold[ed]” Mr. Krzywkowski for
filing a complaint against him, called Mr. Krzywkowski a liar,
demanded an apology, and generally spoke negatively toward him.
(Doc. 6-1 at p. 3 of 19, ¶16).

Mr. Krzywkowski has also provided

sworn statements from three other inmates - Ryan Salim, John
Thomas, and Lambert Dehler - regarding Defendant Smith’s threats
32

to other inmates and which indirectly threatened Mr. Krzywkowski.
As an example of this evidence, Mr. Salim states that
Defendant Smith threatened to have Mr. Salim classified as a gang
leader on the day Mr. Salim’s complaint was received.
at pp. 10 & 15 of 19).

(Doc. 6-1

He also stated that Defendant Smith made

other threats at that time, including threatening to move him to
a another institution.

(Id.)

His family and he communicated

with the prison and explained the situation, and Mr. Salim stated
that he has not received any more threats even though he has had
to file additional grievances.

(Id.)

Mr. Thomas states that

Defendant Smith told him to pass the word to all the inmates
writing grievances that they would be labeled part of a Security
Threat Group, put in the “hole,” or sent to another prison if
they continued writing grievances about Defendant Smith.
6-1 at p. 17 of 19).

(Doc.

He and Mr. Krzywkowski both stated that Mr.

Thomas passed Defendant Smith’s threat on to him.
p. 6 of 19, ¶37; & p. 17 of 19).

(Doc. 6-1 at

Mr. Dehler states that

Defendant Smith retaliated against him for filing grievances,
including threatening to report him to the Ohio Parole Board and
indirectly threatening him through Mr. Thomas.
18 of 19).

(Doc. 6-1 at p.

Altogether, the evidence that Mr. Krzywkowski has

presented is that Defendant Smith indirectly (through another
inmate) threatened to label him part of a Security Threat Group,
put him in the “hole,” or send him to another prison if he
continued writing grievances, and that this was consistent with
Defendant Smith’s attitude and practices.
Defendants argue that Mr. Krzywkowski “has not been labeled
[part of] a Security Threat Group.”

(Doc. 15 at 9).

They also

argue that Defendants cannot control what other prisoners say to
Mr. Krzywkowski and that he cannot prove a constitutional or
federal law violation based on these threats.

In the Court’s

view, these arguments do not really address Mr. Krzywkowski’s
33

claim.

He does not argue that he has actually been labeled part

of a Security Threat Group, but states that Defendant Smith has
indirectly (through another inmate) threatened to label him part
of such a group.

Similarly, the argument that Defendants cannot

control what other prisoners say is not relevant to Mr.
Krzywkowski’s claim that Defendant Smith asked an inmate to act
as his agent in passing along his threat.
To establish a First Amendment retaliation claim, “a
prisoner must prove that (1) he engaged in protected conduct, (2)
the defendant took an adverse action that is capable of deterring
a person of ‘ordinary firmness from continuing to engage in that
conduct,’ and (3) ‘the adverse action was motivated at least in
part by the [prisoner's] protected conduct.’”

Hill v. Lappin,

630 F.3d 468, 472 (6th Cir. 2010) (quoting Thaddeus–X v. Blatter,
175 F.3d 378, 394, 398 (6th Cir. 1999) (en banc)).

Mr.

Krzywkowski has provided evidence, not contested by Defendants,
that he engaged in protected conduct of filing grievances, and
that the threats he received were motivated by his filing of
grievances.

Accordingly, the question is whether he has

demonstrated a strong likelihood of success as to the second
element.
In considering whether an action would be capable of
deterring a person of ordinary firmness, the Court of Appeals
noted that “[a]ctual deterrence need not be shown.”

Hill v.

Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (quoting Harbin–Bey v.
Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (emphasis in original)
(citation omitted)).

“Even the threat of an adverse action can

satisfy this element if the threat is capable of deterring a
person of ordinary firmness from engaging in the protected
conduct.”

Hill, 630 F.3d at 472 (citation omitted).

The Court

of appeals has emphasized that “while certain threats or
deprivations are so de minimis that they do not rise to the level
34

of being constitutional violations, this threshold is intended to
weed out only inconsequential actions....”

Thaddeus–X, 175 F.3d

at 398 quoted in Hill, 630 F.3d at 472-73.

Furthermore, the

actions threatened do not need to violate constitutional rights;
rather, the “retaliation for the exercise of constitutional
rights is itself a violation of the Constitution.”

Hill, 630

F.3d at 473 (quoting Thaddeus–X, 175 F.3d at 394).

Therefore,

even though there is no constitutional right to remain free of
security classifications that would place inmates in segregation
or specialized units, Defendants “may not place the prisoner in
segregated housing” as a form of retaliation for exercising First
Amendment rights.

Hill, 630 F.3d at 473.

Because even minimal infringement upon First Amendment
values constitutes irreparable injury and because others cannot
be said to be harmed by enjoining an unconstitutional practice
and it is always in the public interest to prevent violation of a
party’s constitutional rights, the other factors could weigh in
favor of a preliminary injunction here.

Accordingly, this

request for relief cannot be denied as a matter of law, and a
hearing is needed on this issue.
IV.

Remaining Motions

The remaining motions relate in some way to Mr.
Krzywkowski’s motion for a preliminary injunction.

Mr.

Krzywkowski has filed a motion for a preliminary conference (Doc.
10), which seeks an informal conference in order to determine
“what additional proceedings are necessary - regarding the
Plaintiff’s Motion for Preliminary Injunction.”

Because any

issues which might be addressed in such a conference are covered
by this order, that motion (Doc. 10) will be denied.
Mr. Krzywkowski has also filed two motions seeking
appointment of counsel.

(Docs. 16 & 18).

He requests that the

Court appoint counsel because he is indigent and proceeding pro
35

se in a case that involves complex factual and legal issues.

The

Court of Appeals has stated:
[a]ppointment of counsel in a civil case is not a
constitutional right. It is a privilege that is
justified only by exceptional circumstances. In
determining whether “exceptional circumstances” exist,
courts have examined “the type of case and the
abilities of the plaintiff to represent himself.” This
generally involves a determination of the “complexity
of the factual and legal issues involved.”
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993)
(citations omitted).

In the instant case, Mr. Krzywkowski is

claiming violations of his constitutional and RLUIPA rights, and
seeking a preliminary injunction.

Because the Court recommends

that a hearing be held regarding portions of Mr. Krzywkowski’s
motion for a preliminary injunction, the case will enter a stage
of litigation where a pro se litigant will strongly benefit from
having counsel.
The Court may not require an attorney to accept an
appointment to represent a litigant in a civil case.
v. U.S. District Court, 490 U.S. 296 (1989).

See Mallard

The Court can only

request that an attorney meet with a party and enter an
appearance if the attorney and the party come to an agreement
about the representation.
request.

The Court will therefore make this

Mr. Krzywkowski will be advised when an attorney has

agreed either to accept the case or desires to meet with him
prior to making that decision.

The Court notes, however, that

appointment of counsel is conditioned on a final ruling by the
District Judge adopting the report and recommendation regarding
holding a preliminary injunction hearing.
Finally, Mr. Krzywkowski has moved to strike Defendants’
response and amended response to the motion for preliminary
injunction.

(Doc. 19).

That motion will be denied.

Mr.

Krzywkowski has also requested, in the same motion, an extension
36

of time to file a motion contra Defendants’ Response in
Opposition to Plaintiff’s Motion for Preliminary Injunction.

The

Court will deny this request without prejudice to Mr.
Krzywkowski’s renewal of that request at the evidentiary hearing,
at which time the Court may consider whether any additional
briefing is necessary.
V.

Recommendation and Order

Based on the above discussion, the Court RECOMMENDS that the
motion to dismiss (Doc. 12) be granted in part and denied in
part.

It is recommended that the motion be granted as to the

claims against Defendants Kelly and Foster in their individual
capacity.

It is recommended that the motion be denied as to the

claims against Defendants Mohr, White, and Roberts in their
individual capacity.
Regarding Plaintiff’s motion for a preliminary injunction
(Doc. 6), the Court RECOMMENDS withholding a ruling as to a part
of that motion and denying part of that motion.

Specifically,

the Court RECOMMENDS that a preliminary injunction hearing be
held in order to address the following requests for preliminary
injunction:
•

the request for a preliminary injunction directing
Defendants to open the chapel for Sabbath Services on
Saturdays;

•

the request for a preliminary injunction ordering Defendants
to recognize Plaintiff’s religious calendar in order to
ensure that he receives his Holy Day meals on the correct
days;

•

the request for a preliminary injunction ordering Defendants
to accommodate Plaintiff’s request for sack meals on Friday
evenings to provide a day’s worth of food for the Sabbath;
and

•

the request for a preliminary injunction ordering Defendant
Smith to stop retaliating against Plaintiff for filing
complaints or grievances by threatening him either directly
or indirectly.
37

The Court RECOMMENDS that the remaining requests for
preliminary injunction be denied without a hearing.
Plaintiff’s motion for a preliminary conference (Doc. 10) is
DENIED.
Plaintiff’s motions seeking appointment of counsel (Docs. 16
& 18) are GRANTED conditioned upon on a final ruling by the
District Judge adopting the report and recommendation regarding
holding a preliminary injunction hearing.
Plaintiff’s motion to strike Defendants’ response and
amended response to the motion for preliminary injunction (Doc.
19) is DENIED.

This denial is without prejudice to the renewal

of that request at the evidentiary hearing, at which time the
Court may consider whether any additional briefing is necessary.
VI.
A.

Procedure on Objections

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the

38

right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
B.

Procedure on Objections to Order

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

39