Opinion
22-cv-12725
12-09-2024
KEVIN ARNAZ WHALEY-EL, Plaintiff v. JOHN DORRIS, et al., Defendants
Honorable George Caram Steeh Judge.
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 46)
ELIZABETH A. STAFFORD United States Magistrate Judge.
I. Introduction
Plaintiff Kevin Arnaz Whaley-El, a prisoner of the Michigan Department of Corrections (MDOC), filed this pro se civil rights action under 42 U.S.C. § 1983, alleging violation of his religious rights under the First and Fourteenth Amendments. ECF No. 1. The Honorable George Caram Steeh referred the case to the undersigned for all pretrial matters under 28 U.S.C. § 636(b)(1). ECF No. 18.
Defendants John Dorris and Jeremy Bugbee, both MDOC employees, move for summary judgment. ECF No. 46. Whaley-El did not respond, even after the Court ordered him to show cause why his claims should not be dismissed. ECF No. 48. When a plaintiff fails to respond or to otherwise oppose a defendant's motion, the Court may consider the plaintiff to have waived opposition to the motion. Humphrey v. U.S. Att'y Gen.'s Office, 279 Fed.Appx. 328, 331 (6th Cir. 2008). Still, a defendant bears the burden of showing its motion has merit even if the plaintiff fails to respond. Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). For the reasons below, the Court RECOMMENDS that defendants' motion be GRANTED.
II. Background
Whaley-El's religious designation with the MDOC is the Moorish Science Temple of America. ECF No. 44-1, PageID.230. In March 2022, defendants saw Whaley-El wearing a kufi, a religious cap. ECF No. 46-4; ECF No. 46-5. Because a kufi is not an approved head covering for Moorish inmates under MDOC policy, defendants confiscated the cap as contraband. ECF No. 46-4; ECF No. 46-5. Bugbee completed the required forms and informed Whaley-El that a hearing would be held to determine whether the kufi was contraband. ECF No. 46-4; ECF No. 46-5; ECF No. 1, PageID.16-17.
Because a fez, and not a kufi, is the approved head covering for Moorish inmates under MDOC policy, the hearing officer concluded that Whaley-El's kufi was contraband. ECF No. 1, PageID.18. The officer rejected Whaley-El's argument that his kufi did not present a threat, emphasizing that the policy only authorizes the personal religious property listed in an attachment to the policy. Id. Whaley-El was given the option to mail the kufi to someone outside the prison or to have it destroyed. Id.
Whaley-El claims that defendants violated his right to free exercise of religion under the First Amendment and his right to equal protection under the Fourteenth Amendment. Id., PageID.4. Defendants seek summary judgment on both claims.
III. Analysis
A.
“The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court's function at the summary judgment stage “is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and must specify the portions of the record that show the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies this burden, the burden shifts to the non-moving party to go beyond the pleadings and set forth specific facts showing a genuine issue for trial. Id. at 324. The Court must view the factual evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007).
B.
The First Amendment guarantees that “Congress shall make no law prohibiting the free exercise [of religion].” U.S. Const. amend. I (cleaned up). Prison inmates retain the protections of the Free Exercise Clause, but those rights must be balanced against the prison's need to maintain security and order. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987).
To succeed on a free exercise claim, a plaintiff must show that “(1) the belief or practice he seeks to protect is religious within his own ‘scheme of things,' (2) that his belief is sincerely held, and (3) the [d]efendant's behavior infringes upon this practice or belief.” Porter v. Caruso, 479 F.Supp.2d 687, 697 (W.D. Mich. 2007) (citing Kent v. Johnson, 821 F.2d 1220, 1224-25 (6th Cir. 1987)). But even if a plaintiff makes that threshold showing, a prison regulation that impinges on a constitutional right “is valid if it is reasonably related to legitimate penological interests.” Maye v. Klee, 915 F.3d 1076, 1083 (6th Cir. 2019) (cleaned up).
Defendants argue that Whaley-El cannot prove the second or third elements of his claim: that wearing a kufi is a sincerely held religious belief or that their behavior infringed on his beliefs. ECF No. 46, PageID.264-268. The Court evaluates those two elements in turn.
1.
A court may not question the validity of a religious belief, but it may assess whether the belief is sincerely held. Ackerman v. Washington, 436 F.Supp.3d 1002, 1012 (E.D. Mich. 2020). Yet “while sincerity is important, it must be handled with a light touch, or judicial shyness,” as the “inquiry is almost exclusively a credibility assessment.” Id. (cleaned up). Thus, courts rarely grant summary judgment in cases involving state of mind issues like sincerity. Id.; Beebe v. Birkett, 749 F.Supp.2d 580, 594-95 (E.D. Mich. Sept. 3, 2010).
Whaley-El testified during deposition that he held Moorish beliefs. ECF No. 44-1, PageID.230. And he stated that the Moorish headgear is a fez but that men may also wear a kufi. Id., PageID.230-231. This testimony is sufficient to show that Whaley-El's Moorish beliefs are sincerely held. Whether that testimony is credible must be resolved at trial. See Porter, 479 F.Supp.2d at 697 (“A decision on whether a particular religious belief is sincerely held cannot generally be made in advance of a hearing allowing for the presentation of testimony.” (cleaned up)).
Citing Wilson v. Horton, defendants contend that Whaley-El cannot show that his beliefs are sincerely held because he did not follow MDOC procedures for requesting an accommodation allowing him to wear a kufi. ECF No. 46, PageID.265. But Wilson did not hinge on the sincerity of the plaintiff's beliefs. As discussed below, the court instead focused on the third element of the claim, concluding that the defendants did not infringe on the plaintiff's religious beliefs. No. 2:18-cv-198, 2022 WL 943653, at *4-5 (W.D. Mich. Feb. 22, 2022), adopted, 2022 WL 912073 (W.D. Mich. Mar. 29, 2022). Defendants cite no other authority explaining how Whaley-El's failure to invoke those procedures undermines the sincerity of his beliefs.
Defendants also argue that wearing a kufi is an option but not a requirement of the Moorish faith. ECF No. 46, PageID.265-266. Again, this issue bears on whether defendants infringed on Whaley-El's beliefs but is irrelevant to the sincerity of those beliefs. See Wilson, 2022 WL 943653, at *2 (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005)) (whether a belief is “central” to a prisoner's religion “is not open to question, rather the question is whether the objector's beliefs are truly held”). Instead, courts evaluate whether the practice is religious in the prisoner's own “scheme of things.” See Dawson v. Burnett, 631 F.Supp.2d 878, 882 (W.D. Mich. May 4, 2009); Horacek v. Burnett, No. 07-11885, 2008 WL 4427825, at *7 n.10 (E.D. Mich. Aug. 19, 2008), adopted in relevant part, 2008 WL 4427792 (E.D. Mich. Sept. 30, 2008). But defendants do not dispute Whaley-El's ability to prove that element of his claim. ECF No. 46, PageID.264.
2.
A defendant does not infringe on a prisoner's free exercise unless he “places a substantial burden on the observation of a central religious belief or practice.” Evans v. Washington, No. 1:19-cv-953, 2019 WL 6974735, at *5 (W.D. Mich. Dec. 20, 2019) (quoting Hernandez v. C.I.R., 490 U.S. 680, 699 (1989)) (cleaned up). “The ‘substantial burden' hurdle is high,” and the plaintiff must show that the defendant “place[d] more than an inconvenience on religious exercise.” Living Water Church of God v. Charter Twp. of Meridian, 258 Fed.Appx. 729, 734, 739 (6th Cir. 2007) (cleaned up). Government action that merely makes religious exercise more expensive or difficult does not suffice. Id. Rather, a substantial burden arises when that action pressured the plaintiff to “modify his behavior and to violate his beliefs.” Id. at 734 (cleaned up).
Whaley-El has not shown that defendants' confiscation of his kufi substantially burdened his free exercise. Under MDOC Policy Directive (PD) 04.07.112, “contraband” means “any personal property that is not specifically authorized by this policy,” and prison staff must confiscate any items believed to be contraband. ECF No. 46-2, PageID.284, ¶¶ DD, FF. PD 05.03.150 authorizes prisoners to possess only the religious property listed on Attachment A to the policy. ECF No. 46-3, PageID.309, ¶ II. The attachment permits Moorish men to have a red fez but not a kufi. ECF No. 1, PageID.19. But the policy permits prisoners to submit written requests to possess religious property not already listed on the attachment. ECF No. 46-3, PageID.309, ¶ JJ. Such requests must describe the religious item and explain its significance to the prisoner's designated religion. Id.
Whaley-El admits that he did not make a written request to wear a kufi. ECF No. 44-1, PageID.235. Since no evidence suggests that such a request would have been denied, Whaley-El has not shown that defendants burdened his free exercise. Koger v. Mohr is instructive. 964 F.3d 532, 539 (6th Cir. 2020). In that case, the plaintiff claimed that the prison's grooming policy violated his Rastafarian belief that he must grow his hair in dreadlocks. Id. The grooming policy permitted inmates to wear dreadlocks less than half an inch in thickness, but inmates whose locks exceeded half an inch could request an exemption and an individualized determination that their hair was searchable. Id. at 539-40, 543. Because the plaintiff did not request an exemption and offered no evidence that the prison would have denied a request because his hair was unsearchable, he failed to show that the policy substantially burdened his religious practice. Id.
Whaley-El also admitted that, while the Moorish faith permits wearing a kufi, the customary headgear is a fez. ECF No. 44-1, PageID.231. There is no dispute that Whaley-El would have been permitted to wear a fez under MDOC policy; he simply preferred to wear a kufi. Defendants' failure to honor Whaley-El's preference when he had an alternative did not cause him to violate his beliefs and amounted to a mere inconvenience.
These facts are like Wilson, in which the court granted summary judgment because the plaintiff could not show that the defendant's confiscation of his prayer beads substantially burdened the free exercise of his Moorish beliefs. 2022 WL 943653, at *4-5. The court noted that the prayer beads were “a matter of personal preference” and that Moorish adherents could pray without them. Id. at *3, 5. The plaintiff also had a ready alternative, as he had made his own prayer beads using toilet paper and dental floss. Id. at *5. Last, the court reasoned that the plaintiff did not try to request an accommodation for his prayer beads under PD 05.03.150(JJ). Id. at *3.
Although this final point was made in the court's analysis of the plaintiff's claim under the Religious Land Use and Institutionalized Person Act (RLUIPA), the “substantial burden” analysis is the same for First Amendment free exercise and RLUIPA claims. Justice v. Dove, No. 1:22-cv-1080, 2023 WL 1228177, at *4 (W.D. Mich. Jan. 31, 2023).
As in Koger and Wilson, summary judgment is warranted given that Whaley-El cannot prove that his religious practice was substantially burdened.
C.
“The hallmark of the Equal Protection Clause is that ‘all persons similarly situated should be treated alike.'” Ryan v. City of Detroit, 174 F.Supp.3d 964, 976 (E.D. Mich. 2016) (quoting City of Cleburne v. City of Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To prove an equal protection claim, a plaintiff must show that the defendants treated him “disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011). The plaintiff must also show facts allowing an inference of discriminatory intent or purpose. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003).
Whaley-El alleges that defendants violated his right to equal protection by favoring MDOC policy over his religious beliefs. ECF No. 1, PageID.4. But he does not allege or offer evidence that he was treated differently than any other similarly situated inmate. For example, he does not show that defendants applied MDOC policy more harshly against him than to inmates of other faiths. If Whaley-El asserts that PD 05.03.150 itself makes a facially discriminatory distinction between Moorish adherents and members of other faiths who are allowed to possess kufis, that claim also lacks merit. Although the policy permits inmates of two other faiths to have kufis, it also allows Moorish inmates to have a fez-which Whaley-El admits is the religious headgear for his faith. ECF No. 44-1, PageID.231. Moorish inmates are thus permitted the appropriate religious head covering, as are inmates of other faiths.
Nor does Whaley-El present any evidence showing that defendants acted, or that the policy was created, with a discriminatory purpose. See Robinson v. Jackson, 615 Fed.Appx. 310, 314-15 (6th Cir. 2015) (rejecting an equal protection claim when the plaintiff offered no evidence that a policy providing Kosher meals to Jewish inmates but not Halal meals to Muslim inmates was motivated by discriminatory intent); Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 816 (8th Cir. 2008) (same).
Summary judgment is also warranted on Whaley-El's equal protection claim.
IV. Conclusion
The Court RECOMMENDS that defendants' motion for summary judgment be GRANTED (ECF No. 46).
NOTICE TO THE PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this report and recommendation, any party may serve and file specific written objections to this Court's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). If a party fails to timely file specific objections, any further appeal is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And only the specific objections to this report and recommendation are preserved for appeal; all other objections are waived. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).
Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Within 14 days after service of objections, any non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections lack merit, it may rule without awaiting the response.
CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel of record and any unrepresented parties via the Court's ECF System to their email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on December 9, 2024.