Opinion
1:22-cv-1135
01-23-2025
JOSHUA LOPP #654488, Plaintiff, v. HEIDI WASHINGTON, et al., Defendants.
REPORT AND RECOMMENDATION
SALLY J. BERENS U.S. Magistrate Judge
Plaintiff Joshua Lopp, a prisoner currently incarcerated with the Michigan Department of Corrections (MDOC) at the Cooper Street Correctional Facility, has sued several Defendants, including Chaplaincy Advisory Council (CAC) members Victor Muhammad, Robert Brown, Paul Duby, Euphemia Franklin, Tricia Worrell, Steve Johnson, Robert Wilcoxson Bey, David Nelson, Sani Abbas, and James Vander Schaff, pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a) concerning events that occurred at the Lakeland Correctional Facility from 2020 to 2022. Following initial review of Plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c), his remaining claims against the CAC members are his official capacity RLUIPA and First and Fourteenth Amendment equal protection claims. (ECF Nos. 7 and 8.)
Presently before me is the motion to dismiss filed by CAC members Brown, Franklin, Worrell, Wilcoxson-Bey, Nelson, Abbas, and Vander Schaff's. (ECF No. 28.) Plaintiff has filed a response, and Defendants have filed a reply. (ECF Nos. 30 and 32.) For the following reasons, pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the motion be GRANTED and the CAC Defendants be dismissed from this action.
Although Defendants Muhammad, Duby, and Johnson have yet to appear and, therefore, are not part of the instant motion, the Court may consider the motion to dismiss as it applies to them pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c) for failure to state a claim.
Plaintiff filed an unauthorized surreply (ECF No. 40), which I have not considered.
I. Background
A. Plaintiff's Allegations
Plaintiff alleges that he is an adherent of the cultural group Nation of Gods and Earths (NOGE). (ECF No. 1 at PageID.3.) He alleges that Defendants are denying him and others opportunities to practice their religious beliefs by denying them the rights to participate in congregative meetings and honor day celebrations and to adhere to their dietary requirements. (Id.) Plaintiff alleges that all Defendants “are agents of the . . . [MDOC] [and] perform their duties at various correctional facilities and main office of the MDOC.” (Id. at PageID.4.)
Plaintiff claims that “Defendants allow prisoners whose path to God is religious the freedom to [l]ove and [h]onor God because they agree with them but they disagree with how . . . Plaintiff[] [l]ove[s] and [h]onor[s] God.” (Id. at PageID.6.) Plaintiff further alleges that “Defendants' excessive entanglement allow[s] religious groups to congregate weekly[,] celebrate Honor days (Holidays), contribute to their external organization, and adhere to their divine laws, diets, and possess their publications, but deny the same to Plaintiff[] because they disagree with how Plaintiff[] love[s] and honor[s] God.” (Id.)
Plaintiff alleges that he submitted a request to “the Warden's Office of Defendant Bryan Morrison” for “recognition of the [NOGE] adherents to have congregate meetings, celebrate honor days, adhere to their dietary restrictions, purchase from a NOGE vendor, and pay tribute to the NOGE. (Id. at PageID.8) Defendant Chaplain Hollingsworth sent Plaintiff's request to Defendant Dirschell, the MDOC's special activities coordinator (SAC), but in a memorandum dated April 21, 2020, Defendant Dirschell and the members of the CAC “recommended that the NOGE be denied recognition.” (Id.) Defendant Deputy Director Bush “concurred with the [SAC] and the [CAC], and denied [Plaintiff]'s request.” (Id.) On September 5, 2021, Defendant Chaplain Hollingsworth “responded to Plaintiff by memorandum denying the request for recognition of the NOGE, referencing the [April 21, 2020] memo [from the CAC and Defendants Bush and Dirschell].” (Id.)
Defendant Morrison has been dismissed from this action. (ECF No. 8.)
On January 1, 2022, Plaintiff submitted another request for NOGE recognition, including the ability to meet collectively, celebrate honor days, contribute to NOGE's external organization, and adhere to their dietary requirements. (Id. at PageID.10.) On January 11, 2022, Defendant Chaplain Hollingsworth sent Plaintiff a memo responding to Plaintiff's request for information from the SAC and advising Plaintiff that the CAC, the SAC, and the Deputy Director all believed that NOGE fit more “as an organization not a religion.” (ECF No. 1-1 at PageID.38.) The SAC and the CAC met during the week of May 17, 2022, to review Plaintiff's request. On August 7, 2022, in response to Plaintiff's inquiry about the status of his request, Defendant Chaplain Hollingsworth advised Plaintiff that the SAC and CAC would “discuss the recognition of the NOGE in the fall.” (ECF No. 1. at PageID.10.)
B. The CAC
The CAC “exists to advise the MDOC regarding religious issues.” See https://www.michigan.gov/corrections/for-families/religious-programming-for-prisoners (last visited Dec. 23, 2024). With the exception of the SAC-the only CAC member employed by the MDOC-all CAC members are “volunteers, representing various faith groups and judicatories.” Id.; see also Mich. Dep't of Corr. Policy Directive 05.03.150 ¶ G (effective 10/01/2019), https://web.archive.org/web/20200420013159/https:/www.michigan.gov/documents/corrections/ 0503150Internet6826937.pdf (last visited Dec. 23, 2024). The CAC, including membership, is governed by the CAC's constitution and bylaws. Id. “Upon request of the Deputy Director or designee, the CAC or its individual members may assist in evaluating religious programming and the screening and selection of institutional Chaplains.” Id. ¶ H. The CAC may also be asked to assist in evaluating requests for religious accommodations. The SAC then forwards his or her own recommendation, along the CAC's recommendation, if any, to the Deputy Director for a final determination. Id. ¶ K. The Deputy Director is the final decision-maker for all religious-group recognition requests. Id. ¶ L.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court more recently held, to survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” If the complaint simply pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.”Id. at 678-79 (internal citations omitted).
In general, when deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court's review is limited to the four corners of the pleading at issue. Fed. R. Civ. P 12(d); see also Courser v. Michigan House of Representatives, 404 F.Supp.3d 1125, 1139 (W.D. Mich. 2019) (noting that “[i]n general, in deciding a Rule 12(b)(6) motion to dismiss the court is limited to considering only the pleadings”) (citing Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011)). Nonetheless, it is well established that, in some circumstances, a court may consider matters beyond the pleadings without converting the motion to one for summary judgment under Rule 56. Examples include “any exhibits attached [to the Complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).
III. Discussion
The CAC Defendants contend that Plaintiff's claims against them must be dismissed because they were not state actors who may be held liable under Section 1983 or RLUIPA and, because they are volunteers who merely provided recommendations to the MDOC Deputy Director, not MDOC employees, they have no authority or ability to grant Plaintiff the injunctive relief he requests under RLUIPA.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). In general, an individual who is not a state employee cannot be deemed to have acted under color of state law. Johnson v. Bentley, No. 905019, 1991 WL 191554, at *2 (6th Cir. Sept. 27, 1991) (citing Flagg Bros., Inc. v. Brooks 436 U.S. 149 (1978)). Private actors may be held liable under Section 1983 only if “the conduct allegedly causing the deprivation of a federal right [may] be fairly attributable to the State.” Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). Courts have found that RLUIPA's scope of coverage limited to a “government,” including a “person acting under color of State law,” 42 U.S.C. §§ 2000cc-1(a), -5(4)(A)(iii), is coextensive with Section 1983's “under color of state law” requirement. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921-22 (9th Cir. 2011); Buckner v. Vargas, 3:20-cv-562, 2020 WL 4446261, at *4 (M.D. Tenn. Aug. 3, 2020) (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012), and Cardinal v. Metrish, 564 F.3d 794, 798 (6th Cir. 2009) (citing 42 U.S.C. § 2000cc-5(4)(A)) (explaining that RLUIPA applies to “persons acting under color of State law”)); Yaacov v. Mohr, No. 1:16-CV-2171, 2021 WL 7286742, at *8 (N.D. Ohio Nov. 9, 2021), report and recommendation adopted, 2022 WL 556734 (N.D. Ohio Feb. 24, 2022) (noting RLUIPA's “color of State law” language “mirrors[] the language in § 1983”).
As an initial matter, MDOC Policy Directive 2.01.102, which Plaintiff cites to support is assertion that CAC members are state actors, is inapplicable to the CAC, as it applies to employees and former MDOC employees involved in litigation. As set forth above, CAC members (with the exception of the SAC) are private volunteers who are not employed by the MDOC or any other agency of the State of Michigan. Plaintiff also cites Mich. Comp. Laws § 691.1408, which provides, in pertinent part:
If a claim is made or a civil action is commenced against an officer, employee, or volunteer of a governmental agency for injuries to persons or property caused by negligence of the officer, employee, or volunteer while in the course of employment with or acting on behalf of the governmental agency and while acting within the scope of his or her authority, the governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer, employee, or volunteer as to the claim and to appear for and represent the officer, employee, or volunteer in the action....Mich. Comp. Laws § 691.1408(1). First, because the statute refers to “injuries . . . caused by . . . negligence of the . . . volunteer,” it is questionable that it applies to Plaintiff's RLUIPA and First Amendment free exercise claims, which require intentional conduct. See Hill v. Alger Maximum Corr. Facility, No. 2:20-cv-228, 2021 WL 733003, at *6 (W.D. Mich. Feb. 25, 2021) (“Numerous courts have recognized that a prison official's negligent interference with a prisoner's First Amendment rights does not violate the constitution.”); Mcgowan v. Beecher, No. 1:20-cv-851, 2020 WL 6390203, at *7 (W.D. Mich. Nov. 2, 2020) (noting that allegations sounding in negligence are insufficient to state a constitutional claim under Section 1983, as well as a claim under RLUIPA); Colvin v. Horton, No. 2:19-cv-122, 2019 WL 3927425, at *6 (W.D. Mich. Aug. 20, 2019) (holding that “liability under the RLUIPA is limited to intentional conduct”). Regardless, even if the statute applies, Plaintiff cites no authority that provision of a defense to volunteers in a Section 1983 or RLUIPA action renders them state actors for purposes of Section 1983. Moreover, as Defendants note, CAC members are not volunteer chaplains for the MDOC or volunteers for the MDOC in any other capacity. Rather, they are volunteer members of the CAC, which has its own constitution and bylaws.
A two-part test applies to determine whether a private party's actions causing the deprivation of a federal right are fairly attributable to the state. “First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.” Lugar, 457 U.S. at 937. “Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. See also Phelps v. Dunn, 965 F.2d 93, 102 (6th Cir. 1992) (applying Lugar's two-part test to determine whether the defendant volunteer prison chaplain's actions were attributable to the state). In Lugar, for example, a creditor sued a debtor and invoked the state's prejudgment attachment procedure to obtain the debtor's property. Pursuant to the state law, the creditor submitted an ex parte petition stating its belief that the debtor might dispose of his property, and the state court issued a writ of attachment, which was then executed by the sheriff. Lugar, 457 U.S. at 925. The judge later dismissed the attachment after a hearing, and the debtor sued his creditor under Section 1983 for depriving him of due process. Id. The Supreme Court found that under the first prong, the alleged deprivation was caused by the state-created right of attachment. Id. at 941. As for the second prong, the Court found that the creditor's “joint participation with state officials in the seizure of [the] disputed property” sufficed to characterize the creditor as a state actor. Id. Thus, the debtor alleged a valid Section 1983 claim. Id at 942.
Turning to the first prong of the Lugar test, the question is whether the alleged deprivation-here, the denial of recognition of NOGE as a new religious group and Plaintiff's right to practice his NOGE cultural beliefs (ECF No. 1 at PageID.13-15)-occurred because of some connection to the state as described in Lugar. Id. at 937. Plaintiff asserts that “CAC members agreed to operate under MDOC policies and procedures, and the color of State law.” (ECF No. 30 at PageID.231.) He contends that PD 05.03.150 satisfies the first prong (Id. at PageID.234), but that policy merely authorizes the Deputy Director or designee to seek assistance from the CAC in evaluating requests for religious accommodations; it does not authorize or require the CAC to do anything. Nothing therein governs the CAC's deliberative process in evaluating requests or imposes rules or guidelines for the CAC's recommendations. Rather, the policy merely provides that the Deputy Director may consider the CAC's recommendation in deciding whether to recognize a new religion.
This case is distinguishable from Phelps v. Dunn, 965 F.2d 93 (1992), in which a prisoner sued a volunteer prison chaplain who denied him participation in religious services based on his sexual orientation. The court found that the chaplain could be considered a state actor, in part, because the chaplain's “right to conduct services in the prison chapel was a privilege created by the state.” Id. at 102. In contrast, in making a recommendation, the CAC is not exercising any privilege created by the state; its members are not chaplains holding services in MDOC facilities. Instead, they rely on their various faith backgrounds to advise the MDOC on religious issues. As noted, the CAC is not a decisionmaker, and the MDOC has not delegated any of its responsibilities or functions to the CAC. Thus, as it pertains to the CAC, PD 05.03.150 cannot be said to have caused the alleged deprivation.
Even if Plaintiff could establish the first step of the Lugar analysis, he fails at the second step. Lugar requires “‘something more' than mere action pursuant to governmental authority.” Id. (quoting Lugar). The Sixth Circuit has recognized three tests to determine whether this requirement is met: “(1) the public function test; (2) the state compulsion test; and (3) the symbiotic relationship or nexus test.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000).
To satisfy the public function test, Plaintiff must show that the CAC and its members “exercise powers which are traditionally exclusively reserved to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). As noted in Carl v. Muskegon County, 763 F.3d 592, 595 (6th Cir. 2014), “The Sixth Circuit has interpreted this test narrowly; rarely have we attributed private conduct to the state.” See Romanski v. Detroit Entm't, LLC, 428 F.3d 629, 636 (6th Cir. 2005) (“Under the public function test, a private entity is said to be performing a public function if it is exercising powers traditionally reserved to the state, such as holding elections, taking private property under the eminent domain power, or operating a company-owned town.”). Plaintiff fails to show that the CAC's activities amount to exercising powers exclusively reserved to the state.
Making recommendations, such as whether a particular belief system constitutes a religion, is not a function traditionally reserved to the state, exclusively or otherwise. In Boles v. Colorado Department of Corrections, No. 19-cv-01158, 2024 WL 4338020 (D. Colo. July 12, 2024), report and recommendation adopted, 2024 WL 4333645 (D. Colo. Sept. 27, 2024), a prisoner sued a nonprofit agency that had contracted with the Colorado Department of Corrections (CDOC) to provide advice on Jewish dietary law. Under the agreement, the contractor's rabbis visited CDOC facilities to monitor the kosher program, inspect kitchens, and speak with inmates regarding the kosher program, and then submitted a report to the CDOC containing their observations and suggestions. Id. at *10. The contractor and its rabbis only advised food services personnel regarding errors in preparation of kosher food and the corrective action they should take. The contractor was not responsible for ordering, supplying, or preparing kosher food served at the facility and had no authority to implement its suggestions and recommendations regarding the kosher diet. Id. The court found that the contractual arrangement failed to satisfy the public function test as there was no evidence that the CDOC delegated its constitutional duty regarding religious exercise to the contractor, and the plaintiff failed to show that the contractor's responsibilities were “traditionally . . . the ‘exclusive' prerogative of the state.” Id. at *10-11. As in Boles, the CAC merely makes a recommendation to the MDOC's Deputy Director, who has the final say on whether to recognize a religion. Because the CAC has no authority to implement its recommendations, the MDOC has not delegated any duty regarding religious exercise to the CAC. See Omnipoint Commc'ns Inc. v. Comi, 233 F.Supp.2d 388, 395 (N.D.N.Y. 2002) (holding that consultant retained by a municipality to prepare a telecommunications ordinance for municipality's consideration did not act under color of law under the public function test because while “Defendants may have been actively involved in the legislative process, . . . in the end, it was the Town that accepted Defendants' advice and enacted Local Law No. 1”).
For this reason, CAC members are not proper Defendants for purposes of injunctive relief because they have no authority to implement the injunctive relief Plaintiff requests.
“The state compulsion test requires that a state ‘exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state.'” Lansing, 202 F.3d at 829 (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). A state's “[m]ere approval of or acquiescence in” the private party's actions will not satisfy the requirements of this test. Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982). The compulsion test is not particularly relevant here, as the question is not whether the CAC's activity can be attributed to the MDOC, but rather whether CAC members engaged in activities that rendered them state actors. Moreover, although the SAC is a member of the CAC, Plaintiff alleges no fact indicating that the MDOC exercised coercive power over, or significantly encouraged, the CAC's recommendations.
The CAC also is not plausibly a state actor under the symbiotic relationship or nexus test. “Under the symbiotic relationship or nexus test, the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.” Wolotsky, 960 F.2d at 1336 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25 (1961)). “[T]he ties between the private party and the State must be substantial.” Jackim v. City of Brooklyn, No. 1:05 cv 1678, 2007 WL 893868, at *24 (N.D. Ohio Mar. 22, 2007) (citing Wolotsky, 960 F.2d at 1335). Moreover, the minority presence of public officials on the private-actor's decision-making board also does not satisfy the nexus test for state action. See Lansing, 202 F.3d at 831. Rather, the state must be “intimately involved in the challenged private conduct in order for that conduct to become attributable to the state for purposes of a § 1983 action.” Bier v. Fleming, 717 F.2d 308, 311 (6th Cir. 1983). Plaintiff fails to allege sufficient facts plausibly establishing that the CAC and the MDOC are so closely tied that the CAC and its private citizen members should be considered one and the same with the MDOC. The SAC's presence as a member of the CAC is, by itself, insufficient to satisfy this test, and there is no other basis to conclude that the MDOC was intimately involved in the CAC's recommendation.
Plaintiff also contends that the CAC members were state actors because he alleges in his amended complaint that the CAC members conspired with the MDOC to deny Plaintiff equal protection in the exercise of his religious freedom as guaranteed under the Fourteenth Amendment and RLUIPA. (ECF No. 30 at PageID.230, 233.) It is true that “[i]f a private party has conspired with state officials to violate constitutional rights, then that party qualifies as a state actor and may be held liable pursuant to § 1983....” Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir. 2000). However, for the reasons set forth in my Order regarding Plaintiff's request to amend and supplement his complaint, Plaintiff fails to allege a plausible conspiracy claim.
III. Conclusion
For the foregoing reasons, I recommend that the Court conclude that the CAC members are not state actors who may be sued under 42 U.S.C. § 1983 or RLUIPA, grant CAC members Brown, Franklin, Worrell, Wilcoxson-Bey, Nelson, Abbas, and Vander Schaff's Motion to Dismiss (ECF No. 28), and dismiss all Defendant-CAC members from this action.
NOTICE TO PARTIES
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).