Opinion
Case No. 11–13765.
2013-09-27
Okechukwu UDUKO, Plaintiff, v. Stephen E. COZZENS, et al., Defendants.
Okechukwu Uduko, Philipsburg, PA, pro se. Lynn Marie Dodge, U.S. Attorney's Office, Detroit, MI, for Defendants.
Okechukwu Uduko, Philipsburg, PA, pro se. Lynn Marie Dodge, U.S. Attorney's Office, Detroit, MI, for Defendants.
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND OVERRULING DEFENDANTS' AND PLAINTIFF'S OBJECTIONS
VICTORIA A. ROBERTS, District Judge.
I. INTRODUCTION
Okechukwu Uduko (“Uduko”) filed this pro se prisoner complaint alleging civil rights violations against Defendants. Uduko alleges fourteen separate causes of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Religious Freedom Restoration Act of 1993 (“RFRA”), the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), as well as conspiracy under 42 U.S.C. §§ 1985(3) and 1986, based on a series of events from August 2008 through March 2010.
This case was referred to the Magistrate Judge for pretrial matters. Defendants Cozzens, Curtis, Aviles, Ellis, Brown, Cheatham, Toney, Duby, Dolber, Downing, Murdock, Bozeman, Gubbins, and Zych (“served Defendants”) filed a motion to dismiss. (Dkt. 52). Defendants Rick Smith, Michelle Doty, and Phillip Guittierrez filed their motions to dismiss joining, in the served Defendants' motion and adopting their arguments. (Dkt. 59 and 71, respectively).
The Magistrate Judge filed a Report and Recommendation (“R & R”) recommending that Defendants' motions to dismiss be granted in part and denied in part. The Court ADOPTS the R & R.
II. STATEMENT OF FACTS
The Magistrate Judge's R & R has a thorough and accurate account of the factual allegations in the Complaint. ( See Dkt. 96).
III. PROCEDURAL POSTURE
Uduko and Defendants each filed objections to the R & R. These objections are fully briefed.
IV. STANDARD OF REVIEW
A. Motion to Dismiss
The Magistrate Judge's R & R is dispositive. The Court conducts a de novo review pursuant to 28 U.S.C. § 636(b)(1)(b). This Court may accept, reject, or modify, in whole or in part, the findings or recommendations to which objection is made. 28 U.S.C. § 636(b).
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss a plaintiff's complaint for failure to state a claim upon which relief may be granted. In order to survive a 12(b)(6) motion to dismiss, a plaintiff must satisfy the pleading requirements of Fed.R.Civ.P. 8(a)(2): requiring “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While a complaint need not allege detailed factual allegations, a plaintiff is required to plead “more than labels and conclusions” and the facts must be sufficient enough to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
Uduko filed his Complaint pro se. A pro se complaint is entitled to a liberal construction and “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted). The Court must assume the complaint's factual allegations to be true, but legal conclusions are to be disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The factual allegations must allow the Court to make a plausible inference that the Defendants are liable for their conduct. Id.
V. ANALYSIS
A. Uduko's Conspiracy Claims
1.) Count 1 ( Bivens conspiracy )
The Magistrate Judge recommends that the Bivens conspiracy claim in Count 1 be dismissed. Uduko alleges that Cozzens, Curtis, and Magulick conspired to retaliate and discriminate against Uduko because he protested the cancellation of the Protestant retreat and filed a complaint against Cozzens. The retaliation is described as recruiting inmate coconspirators to supply false allegations against Uduko which led to a false report and investigation. Uduko alleges he was sent to the Special Housing Unit (“SHU”) as a result.
In their motion to dismiss, Defendants argue that Uduko's conspiracy allegations are too vague and conclusory to state a claim. The Magistrate Judge rejected this argument, finding that Uduko satisfied the pleading requirements and Defendants failed to explain why or how Uduko's allegations are conclusory.
Defendants first object to the Magistrate Judge's finding that Uduko satisfied the pleading requirements for a Bivens conspiracy. They argue that it is just as plausible—if not more plausible—that inmates made false allegations against Uduko without any involvement of Cozzens, Curtis, or Magulick. Defendants contend that “where a complaint 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.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
But, Uduko not only alleges the conspiratorial objective and the overt acts taken in furtherance of that objective; he also alleges circumstantial facts which support the inference of a plausible conspiracy. Uduko alleges that Magulick failed to give him an Administrative Detention Order which details why he was placed in administrative detention, and why he was cleared of all allegations against him after he was removed. Failure to provide an Administrative Detention Order (an alleged violation of Federal Bureau of Prisons (“FBOP”) policy), coupled with the other allegations in Count 1, shows plausibility of a conspiracy sufficient to survive a motion to dismiss.
Defendants also argue Count 1 should be dismissed on statute of limitations grounds. The statute of limitations is an affirmative defense. Defendants did not raise this argument before the Magistrate Judge, either in their initial motions to dismiss or reply briefs. The Sixth Circuit holds that issues raised for the first time in objections to an R & R are deemed waived. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, ... it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.2000). Hence, Defendants' failure to raise their statute of limitations argument before the Magistrate Judge constitutes waiver.
The Court ADOPTS the R & R concerning Count 1.
2.) Count 13 ( Bivens conspiracy )
Uduko alleges that 19 Defendants conspired to retaliate and discriminate against him to deprive him of his constitutional rights because he filed complaints and grievances. He alleges their actions included restricting his “active” participation in religious acts of significance; removing and destroying 117 books from his locker; refusing to give him priority on the Unicor (prison employment) hiring list; writing several false incident reports; sanctioning his commissary; threatening to transfer him to the inside housing unit; removing personal items from his locker; falsifying visiting records; and, confiscating his “doo-rag.”
Among African Americans, a “doo-rag” is a scarf or cloth, commonly polyester, worn on the head to protect a processed hairstyle; (more generally) any close-fitting cloth on the head. Do-rag Definition,Oxford English Dictionary Online, http:// www. oed. com/ view/ Entry/ 249907 (last visited Sept. 25, 2013).
The Magistrate Judge found that Uduko failed to allege sufficient facts to allow the Court to infer the existence of a conspiracy, and recommends that Uduko's Count 13 conspiracy claim be dismissed.
In his first objection, Uduko argues that the Magistrate Judge incorrectly analyzed Count 13 and applied a heightened pleading requirement, improperly requiring him to prove his conspiracy at the pleading stage. The Court agrees with the Magistrate Judge's finding regarding this claim.
To state a claim for a Bivens conspiracy, Uduko must allege an agreement between two or more persons acting in concert to deprive a person of his constitutional rights, and an overt act done in furtherance of the conspiracy causing injury. Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.1985). Uduko need not show an express agreement among all the conspirators. Id. Facts should include “which defendants conspired, how they conspired, and how the conspiracy led to a deprivation of constitutional rights[.]” Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir.1997).
The Magistrate Judge found that Uduko failed to plead a conspiracy with sufficient specificity and that his vague and conclusory allegations unsupported by facts are insufficient to state a claim. See Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987). He also found that Uduko only alleged a series of acts by different Defendants and asserted that these acts were part of a conspiracy. The Court agrees.
The Court ADOPTS the R & R concerning Uduko's Bivens conspiracy claim in Count 13.
3.) Count 14
(§ 1985(3) conspiracy)
Uduko alleges that over a two-year period, 19 Defendants conspired to retaliate and discriminate against him because of his race, religion, and national origin. The Magistrate Judge found that Uduko failed to allege facts to support the existence of a “single plan,” or that Defendants acted in concert to injure Uduko. In his objection, Uduko argues that he is only required to plead conspiracy, not prove it.
To state a claim for a § 1985(3) conspiracy, a plaintiff must show “(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an overt act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.” Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994). The plaintiff must also show that the conspiracy was motivated by a class based animus. Id. The Court agrees with the Magistrate Judge that Uduko failed to allege sufficient facts to support the inference of a conspiracy among the 19 defendants.
The Court ADOPTS the R & R concerning Uduko's § 1985(3) conspiracy in Count 14.
B. Uduko's Retaliation Claims
In their motions to dismiss, Defendants labeled Counts 4, 6, 7, 9, 10, and 12 as retaliation claims and moved to dismiss all of them. The Magistrate Judge construed the Complaint to allege Bivens retaliation claims in Counts 1, 2, 4–9, 12, and 13, Bivens conspiracy claims in Counts 1 and 13, First Amendment/RFRA/RLUIPA claims in Counts 3, 10, and 11, discrimination claims in Counts 13 and 14, and a § 1985(3) conspiracy claim in Count 14. The Court does the same. Defendants object to the Magistrate Judge's recommendation that all of the retaliation claims survive the motions to dismiss.
Defendants make several arguments in their objections for the first time. Any arguments made for the first time in objections to an R & R are deemed waived. See Murr v. United States, 200 F.3d at 902 n. 1.
Accordingly, the following objections are waived: (1) Objection 2, to Count 2; (2) Objection 3, to Count 4; (3) Objection 4, to Count 5; (4) Objection 5, to Count 6; (5) Objection 6, to Count 7; (6) Objection 7, to Count 8; (7) Objection 8, to Count 9; (8) Objection 9, to Count 10; (9) Objection 10, to Count 12.
1.) Count 1 and Count 13 ( Bivens retaliation )
Defendants do not object to the recommendation that these claims survive the motions to dismiss.
The Court ADOPTS the R & R concerning Counts 1 and 13.
2.) Count 2 ( Bivens retaliation )
Uduko alleges that Cozzens, acting on behalf of Curtis, Guidry, Toney, Smith, Magulick, Guittierrez, Doty, and Zych, restricted his “active” participation in religious activities to deprive him of his constitutional rights in retaliation for filing a complaint and grievance against Cozzens. The Magistrate Judge concluded that Defendants failed to analyze Uduko's specific retaliation claims or to articulate their deficiency. He also found that Defendants broadly argued—without sufficient factual analysis—that Uduko's retaliation claims are too vague and conclusory to state a claim. The Magistrate Judge reasoned that the Court is not obligated to make Defendants' arguments for them, and a skeletal and conclusory argument is insufficient to support such a motion. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.1997); Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). The Court agrees.
The Court ADOPTS the R & R concerning Count 2.
3.) Count 4 ( Bivens retaliation )
Uduko alleges that Defendants confiscated his “doo-rag” and wrote a false incident report against him for engaging in the protected conduct of filing grievances. The Magistrate Judge found that Defendants broadly argued without sufficient factual analysis, that all of Uduko's retaliation claims are too vague and conclusory to state a claim. The Magistrate Judge reasoned that it is insufficient for a party to simply mention an argument without articulating specific facts in its support. See McPherson, 125 F.3d at 995–96;Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
The Court ADOPTS the R & R concerning Count 4.
4.) Count 5 ( Bivens retaliation )
Uduko alleges he engaged in the protected conduct of filing grievances against 19 defendants, that he was placed in the SHU, and that the filing of false incident reports leading to administrative detention was motivated at least in part because he filed grievances. Again, the Magistrate Judge found that Defendants broadly argued that all of Uduko's retaliation claims were too vague and conclusory to state a claim, but without sufficient factual analysis. The Court agrees.
The Court ADOPTS the R & R concerning Count 5.
5.) Count 6 ( Bivens retaliation )
Uduko alleges Aviles and Brown retaliated against him for freely exercising his religion and access to the court (by filing grievances), by destroying 117 of his religious books while he was in the SHU, and placing him at the bottom of the Unicor (prison employment) hiring list. The Magistrate Judge found that Defendants did not support their conclusory argument to dismiss, and Defendants failed to satisfy their burden in a 12(b)(6) motion. See McPherson, 125 F.3d at 995–96; Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
The Court ADOPTS the R & R concerning Count 6.
6.) Count 7 ( Bivens retaliation )
Uduko alleges that Aviles, Brown, and Cheatham wrongfully denied him the opportunity to call witnesses, receive 24 hours notice of the charges against him, and other due process violations, and retaliated against him for engaging in the protected conduct of appealing the Unit Disciplinary Committee (“UDC”) decision by removing him from the preferred housing unit to the inside yard unit. The Magistrate Judge found that Defendants failed to analyze the deficiencies in Uduko's retaliation claims with specificity, and that the Court need not find facts that might support their motion. See McPherson, 125 F.3d at 995–96;Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
In their sixth objection, Defendants argue that while Uduko is entitled to some due process in prisoner disciplinary hearings, the lesser penalties he sustained (loss of commissary and cell restrictions) do not entitle him to full due process guarantees. Defendants did not previously raise this argument, and thus they waive it. See Murr, 200 F.3d at 902 n. 1. Nevertheless, Defendants' argument fails on the merits. Uduko does not allege a due process violation; he alleges a retaliation claim.
The Court ADOPTS the R & R concerning Count 7.
7.) Count 8 ( Bivens retaliation claim )
Uduko alleges that 8 Defendants conspired to deny him a visit with one individual and falsified his visitor record in retaliation for filing grievances. Although Uduko mentions a conspiracy within his Count 8 allegations, this Court construes Count 8 to allege a Bivens retaliation claim. The Magistrate Judge found that Defendants failed to analyze the specific deficiencies in Uduko's retaliation claims. See McPherson, 125 F.3d at 995–96;Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
This Court ADOPTS the R & R concerning Count 8.
8.) Count 9 ( Bivens retaliation )
Uduko alleges Brown, Ellis, Toney, and Cozzens retaliated against him for the protected conduct of seeking access to the Court by filing grievances. He says they confiscated personal property from his locker. The Magistrate Judge found that Defendants broadly claimed Uduko's retaliation claims were argumentative and conclusory, without specific factual analysis. He reasoned that the Court is not obligated to make Defendants' case for them. See McPherson, 125 F.3d at 995–96;Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
In their eighth objection, Defendants argue that because property loss is not a constitutional claim, Uduko failed to adequately plead an access to the court violation. Defendants did not raise this claim in their initial motions to dismiss nor in their reply briefs. This argument is waived. See Murr, 200 F.3d at 902 n. 1. Nonetheless, this argument fails on the merits. Uduko does not allege an access to the Court violation; he makes a retaliation claim; he says the removal of personal property was motivated at least in part by his protected conduct of filing grievances.
The Court ADOPTS the R & R concerning Count 9.
9.) Count 12 ( Bivens retaliation )
Uduko alleges that Cozzens, acting on behalf of 13 Defendants, retaliated against him for filing grievances by prohibiting him from prophesying (“speaking by divine inspiration”), and laying hands on and praying for anyone, including inmate Corey Schulz on January 2, 2010. The Magistrate Judge found that Defendants' generalized arguments failed to analyze any specific deficiencies in any specific claims, and that the Court need not make a party's case for them. See McPherson, 125 F.3d at 995–96;Little, 71 F.3d at 641;InterRoyal Corp., 889 F.2d at 111. The Court agrees.
The Court ADOPTS the R & R concerning Count 12.
C. Uduko's First Amendment/RFRA/RLUIPA Claims
1.) Count 10 ( First Amendment/RFRA/RLUIPA )
Uduko alleges that Cozzens and Curtis violated his right to freely exercise his religion when they cancelled a Christmas Day Protestant worship service in 2009, without a compelling governmental interest. In their motions to dismiss, Defendants argued they are entitled to qualified immunity on Uduko's claims concerning his removal as leader of the Protestant faith group. Defendants did not move to dismiss any of Uduko's First Amendment claims, and the Magistrate Judge did not address those claims except in the context of qualified immunity (discussed infra ).
The Court will address Uduko's and Defendants' objections to the Magistrate Judge's R & R with respect to the First Amendment/RFRA/RLUIPA claims in Counts 3, 10, and 11 under the subheading Qualified Immunity (discussed infra ).
D. Uduko's Discrimination Claims
1.) Count 13 ( Discrimination )
Defendants do not object to the recommendation that this claim survives the motions to dismiss.
The Court ADOPTS the R & R concerning Count 13's discrimination claim.
2.) Count 14 ( Discrimination )
Defendants did not specifically address Uduko's Count 14 discrimination claim in either their initial motion or reply brief; Defendants simply moved to dismiss the individual conspiracy claims, retaliation claims, and the Complaint as a whole for failing to meet the pleading requirements of Fed.R.Civ.P. 8(a)(2). The Magistrate Judge found that plaintiff's Complaint satisfied the pleading requirements of Fed.R.Civ.P. 8(a)(2).
In their eleventh objection, Defendants assume that since the conspiracy claim in Count 14 was dismissed in the R & R and Uduko only makes specific allegations of discrimination against Cozzens, that claim remains pending only against Cozzens. The Court agrees with Defendants. Defendants also argue that Uduko does not plead facts showing Cozzens' conduct was motivated by a racial, religious, or class based animus and the claim should be dismissed.
To successfully make a claim under the Equal Protection Clause, the actor must have “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Admn'r of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Although the use of a racial epithet alone is insufficient to show an Equal Protection violation, “ ‘[t]he use of racially discriminatory language can provide some evidence of a discriminatory purpose when that language is coupled with some additional harassment or constitutional violation.’ ” Taylor v. City of Falmouth, 187 Fed.Appx. 596, 601 (6th Cir.2006) (quotation omitted).
Uduko alleges sufficient factual allegations of harassment (threats restricting his “active” religious participation) to satisfy the additional conduct needed to properly plead an Equal Protection violation to survive a motion to dismiss.
The Court ADOPTS the R & R concerning Count 14's discrimination claim.
E. Qualified Immunity (Counts 3, 10, and 11)
In Counts 3, 10 and 11, Uduko alleges Defendants intentionally restricted his “active” participation in any Protestant service, Bible study group, or prayer meeting group; banned him from attending and participating in any and all religious services and programs held in the chapel area; cancelled a Christmas Day worship service for all Protestant inmates; and prohibited him from prophesying (“speaking by divine inspiration”); laying hands on and praying for anyone during Bible study group, prayer meeting group, and other services.
The Magistrate Judge concludes that Defendants are entitled to qualified immunity to the extent Uduko claims that Defendants violated his right to serve as inmate representative for the Protestant faith group, because an inmate does not have a clearly established right to be the inmate leader of a particular religious group. See Spratt v. Wall, No. 06–2038, 2005 WL 348315, at *4 (D.R.I. Jan.13, 2005); Johnson–Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir.1988); Phelps v. Dunn, 965 F.2d 93, 101 (6th Cir.1992).
In his third objection to the R & R, Uduko cites three Sixth Circuit cases ( Shabazz v. Norris, 934 F.2d 322 (6th Cir.1991) (unpublished); Phelps, 965 F.2d 93;Akridge v. Wilkinson, 178 Fed.Appx. 474 (6th Cir.2006)), none of which firmly establishes the right of an inmate to lead religious services. However, the Magistrate Judge correctly found that Uduko does not assert this right to lead the Protestant faith group as a First Amendment claim; Uduko's removal as inmate representative is alleged as a retaliatory action in his retaliation claims; Counts 3, 10, and 11 only outline other alleged restrictions on Uduko's religious activity. Uduko claims these restrictions substantially burdened his ability to perform religious acts of significance to his faith, requiring him to abandon precepts of his religion. The Court agrees.
Uduko has properly alleged a First Amendment/RFRA/RLUIPA claim in Counts 3, 10, and 11. See Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Since Uduko does not allege any First Amendment claims specifically for his removal as the leader of the Protestant community, Defendants twelfth objection is overruled and they are not entitled to qualified immunity; since “[c]onduct that does not independently violate the Constitution can form the basis for a retaliation claim if ... done with an improper retaliatory motive.” Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.2005).
F. Defendants' Objection # 13
Since the conspiracy claims are recommended for dismissal (except Count 1), Defendants argue that the only thread between claims has been broken and each separate claim must be brought in separate lawsuits.
Under Fed.R.Civ.P. 20(a), a plaintiff may join multiple defendants in a civil action if the plaintiff asserts at least one claim against each defendant jointly, or severally, and those claims arise out of the same transaction or occurrence and involve the same questions of law or fact. In determining whether claims arise out of the same transaction, courts may consider the timing during which the allegations occurred, whether the acts are related to one another, whether the same supervisors were involved, or whether defendants were in the same geographical location. Nali v. Michigan Dep't of Corrections, No. 07–10831, 2007 WL 4465247, at *3 (E.D.Mich. Dec. 18, 2007) (citation omitted).
All of Uduko's claims allegedly developed after he complained against Cozzens, after Cozzens threatened to remove him from his leadership position of the Protestant faith group for protesting the cancellation of the retreat. All of Uduko's grievances and complaints in response to disciplinary action and allegedly false incident reports stem from the first alleged incident on August 5, 2008. All Defendants work at the same institution, and all of Uduko's claims involve the same series of facts. Uduko would be barred by the doctrine of res judicata if forced to file separate claims against the multiple Defendants, given the entangled nature of the facts.
Uduko satisfies Fed.R.Civ.P. 20(a) and 18(a) and may bring these claims together against Defendants.
VI. CONCLUSION
The Magistrate Judge's R & R is ADOPTED. Defendants' objections are OVERRULED. Uduko's objections are OVERRULED.
The following claims are dismissed:
1.) Bivens conspiracy claim in Count 13.
2.) § 1985(3) conspiracy claim in Count 14.
The following claims will proceed to trial:
1.) All retaliation claims (Counts 1, 2, 4–9, 12, and 13).
2.) All First Amendment/RFRA/RLUIPA claims (Counts 3, 10, and 11).
3.) Bivens conspiracy claim in Count 1.
4.) Discrimination claims (Counts 13 and Count 14–against Cozzens only).
Defendants are not entitled to qualified immunity on Uduko's First Amendment/RFRA/RLUIPA claims or retaliation claims.
IT IS ORDERED.
REPORT AND RECOMMENDATION MOTIONS TO DISMISS (Dkt. 52, 59, 71)
MICHAEL HLUCHANIUK, United States Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff, a prisoner in the custody of the federal Bureau of Prisons, filed this prisoner civil rights action on August 29, 2011. (Dkt. 1). Plaintiff alleges that he states claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Religious Freedom Restoration Act of 1993 (“RFRA”), the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and conspiracy under 42 U.S.C. §§ 1985(3) and 1986, based on events starting in August 2008 and continuing through March 2010. On September 12, 2011, this case was referred to the undersigned for pretrial matters by District Judge Victoria A. Roberts. (Dkt. 7).
On January 18, 2013, defendants Stephen E. Cozzens, Mukhtar Curtis, Arturo Aviles, Brett W. Ellis, Bryce Brown, John Cheatham, Kevin Toney, Tim Duby, David Dolber, Dave Downing, Katie Murdock, Anthony Bozeman, R. Gubbins, and Christopher Zych (the “served defendants”) filed a motion to dismiss. (Dkt. 52). Plaintiff filed a response to that motion on February 1, 2013. (Dkt. 56). The served defendants filed a reply brief on February 15, 2013 (Dkt. 58), and plaintiff filed a sur-reply brief on February 28, 2013. (Dkt. 63).
On February 19, 2013, defendants Rick Smith and Michelle Doty filed their motion to dismiss in which they relied on the arguments in the served defendants' motion to dismiss and reply brief. (Dkt. 59). Plaintiff filed a response to defendant Smith and Doty's motion to dismiss on March 8, 2013 (Dkt. 64), and a reply brief in support of his opposition on March 15, 2013. (Dkt. 66).
On April 1, 2013, defendant Phillip Guittierrez filed a motion to dismiss, relying on the arguments in the served defendants' motion to dismiss and reply brief. (Dkt. 71). Plaintiff filed his opposition to defendant Guittierrez's motion on April 12, 2013. (Dkt. 71). These matters are now ready for report and recommendation.
For the reasons set forth below, the undersigned RECOMMENDS that the defendants' motions to dismiss be GRANTED in part and DENIED in part.
II. FACTUAL BACKGROUND
A. Plaintiff's Complaint
Plaintiff brings this complaint against numerous defendants, asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Religious Freedom Restoration Act of 1993 (“RFRA”), the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), and conspiracy under 42 U.S.C. §§ 1985(3) and 1986, based on events starting in August 2008 and continuing through March 2010. (Dkt. 1). The following facts are based solely on the allegations in plaintiff's complaint. See Ashland, Inc. v. Oppenheimer & Co., Inc., 648 F.3d 461, 467 (6th Cir.2011) (noting that in a motion to dismiss, the court “constue[s] the complaint in the light most favorable to the plaintiff,” and “accept[s] all well-pleaded factual allegations as true.”) (internal quotation marks and citation omitted).
Plaintiff was an inmate representative for the Protestant faith group at the Federal Correctional Institution in Milan, Michigan. During a meeting with defendant Cozzens on August 5, 2008, plaintiff objected to Cozzens's cancellation of a Protestant community retreat planned and scheduled for August 15 through 17, and threatened to lodge a complaint against Cozzens regarding the cancellation of the retreat. Cozzens responded by threatening to remove plaintiff as the inmate representative for the Protestant faith group and making derogatory statements to plaintiff regarding his race, national origin and religious denomination. Plaintiff lodged a complaint against Cozzens with defendant Curtis the next day, and because of this protected conduct, defendants Cozzens and Curtis, along with recruited inmate co-conspirators, retaliated and discriminated against plaintiff on or about August 22, 2008, by supplying false allegations against plaintiff, which Cozzens used to prepare a false investigation report and defendant Magulick then used to prepare a detention order and remove plaintiff from the general population to administrative detention in the Special Housing Unit (“SHU”) on September 3, 2008. Plaintiff was accused of using his position as the inmate representative for the Protestant community to solicit illegal financial investments from other inmates and their family members, and losing about $5,000.00 of an inmate's sister's money in the stock market. Plaintiff denied the allegations and he was eventually cleared of all allegations against him on October 2, 2008, and released back to the general population on October 3, 2008.
On October 6, 2008, the day after plaintiff had addressed the Protestant congregation and stated that the allegations levied against him were false, defendant Cozzens had a meeting with plaintiff and informed him that an agreement had been reached with other defendants that (1) plaintiff will no longer serve as the inmate representative or spokesperson for the Protestant community, (2) he will not teach or preach to the Protestant community, (3) he will not instruct Bible study group or lead in any Bible study discussion, (4) he will not facilitate any services or Bible study group as other inmates do, (5) he will not answer questions about the Bible or offer any other Biblical interpretation of the beliefs he holds and of the Biblical text, and (6) he will not “lord over” the Protestant community. Plaintiff was told that he is only allowed to attend and participate in the services if he so desires. Cozzens would not put these restrictions in writing. Defendant Curtis agreed to these restrictions “because of the issues concerning the investigation that led to [plaintiff] being placed in the (SHU).”
On October 7, 2008, after plaintiff's release from SHU, he discovered that about 117 of his religious books had been removed from his cell and destroyed while he was in administrative segregation. Defendant Aviles told plaintiff: “That's what you get for going to the (D–Block).” Later that same day, plaintiff asked defendant B. Brown that his name be placed back on the Unicor prior hiring list, but Brown refused and instead placed plaintiff's name at the bottom of the general Unicor hiring list because, Brown stated, he had to expend valuable time packing plaintiff's property out of his old cell when he was placed in SHU. Brown also stated that plaintiff should not have voluntarily left Unicor in the first place.
Plaintiff participated in a Protestant interactive Bible study group on October 11, 2008, and subsequently was issued an incident report by defendant Ellis for failing to obey Cozzens's orders. Plaintiff was told that if he continued to fail to comply with Cozzens's orders, then he would be prohibited from attending and participating in any and all religious services and programs held in the chapel area. This incident report was subsequently expunged, but the restrictions on plaintiff's participation in religious services continued, although Cozzens still refused to put the restrictions down in writing. Plaintiff attempted to seek an informal resolution of the restrictions in meetings with Cozzens several times between October 2008 and January 2009, but Cozzens refused to lift the restrictions. On January 28, 2009, plaintiff informed Curtis that he intended to file a grievance over the restrictions, but Curtis urged plaintiff to try to resolve the matter with Chaplain L. Brooks first. On January 31, 2009, inmate co-conspirator McCray wrote a false incident report against plaintiff. After several meetings, plaintiff was informed that the restrictions imposed by Cozzens were permanent, and plaintiff then filed a complaint against Cozzens on February 16, 2009, for staff misconduct and abuse of authority. Plaintiff filed a second complaint against Cozzens on February 21, 2009, regarding Cozzens's conduct at a meeting the day before. Plaintiff attended an appreciation service on behalf of another inmate that same day, and was informed by defendant Ellis later that afternoon that another incident report had been written against plaintiff for disobeying Cozzens's orders, based on plaintiff's participation in the appreciation service. Ellis then ordered plaintiff (1) not to participate in religious services held in the chapel area, (2) not to be seen around the chapel area, and (3) not to step foot in the chapel, or he would be sent to SHU.
At the February 23, 2009, Unit Disciplinary Committee (“UDC”) hearing on the February 21 incident report, plaintiff was found guilty and sanctioned to 30 days loss of commissary. Plaintiff notified the UDC that he would appeal the decision, and defendant Aviles told plaintiff not to fight it or he would be moved out of his housing unit and into the inside yard unit, which is a dormitory and violent and filthy. Plaintiff was informed that he was being moved to the inside unit about 10 minutes later because he had been found guilty of disobeying an order, and subsequently was moved to the inside unit on February 26, 2009. Plaintiff filed a grievance regarding Cozzens's restrictions on February 27, 2009, grievances challenging the UDC decision, the false incident reports dated October 11, 2008 and February 21, 2009, and the three additional sanctions by Ellis on March 11, 26, and 30 2009, and a grievance regarding Cozzens's verbal orders on March 26, 2009. On April 3, 2009, in retaliation for filing the grievances, defendants removed plaintiff from the general population to Administrative detention. Plaintiff subsequently learned that the February 21 incident report had been expunged, and plaintiff was released from the SHU back to the general population on June 3, 2009.
On November 7, 2009, plaintiff discovered that documents and legal materials had been removed from his locked locker, in retaliation for filing grievances. After plaintiff attended a Protestant service on November 21, 2009, Cozzens told plaintiff he was not allowed to prophesy, lay hands on or pray for anyone in service, Bible study group and prayer meeting group. Plaintiff learned on December 2, 2009 that his approved visitor list had been altered and that his sister, Venonica Hill, had been removed from the list and replaced with Vick Venonica Chable, an alleged unescorted volunteer. Plaintiff was told that defendants Cozzens and Doty are the persons who handle volunteer information.
Plaintiff received a false incident report on December 15, 2009, written by Ellis, charging plaintiff with stealing food and refusing an order of staff, and was found guilty at the UDC hearing and sanctioned to removal from the preferred housing unit (H) to the inside unit for one year. Plaintiff appealed that sanction, and the UDC decision was reversed and the false incident report expunged on December 22, 2009. Plaintiff's doo-rag was confiscated on December 16, 2009, and plaintiff was not allowed to attend a Christmas worship service on December 25, 2009. Defendant Cozzens did not allow plaintiff to pray for another inmate, Corey Schulz, on January 2, 2009, and threatened to write plaintiff up if he refused to adhere to the restriction. On February 26, 2010, Warden Christopher Zych, responding to plaintiff's request to staff, lifted the restrictions on plaintiff and stated that plaintiff may practice the religious activities of leading a Bible study, including prayer, and prophesying, but only under the direct supervision and oversight of the Chaplaincy Staff. Warden Zych also reinstated plaintiff as one of the inmate representatives. In retaliation, defendants Cozzens, Ellis, Toney and Dolber had plaintiff removed from his housing unit (H) to the SHU on a false investigation charge. Plaintiff was released from the SHU back to H unit on March 24, 2010.
Plaintiff alleges that these facts give rise to fourteen separate claims of retaliation, discrimination, violation of the RFRA and RLUIPA, and conspiracy against the defendants.
B. Defendants' Motions to Dismiss
This section includes all defendants' arguments, even though the defendants filed three separate motions to dismiss at issue here. The “served defendants” filed their motion to dismiss on January 18, 2013. (Dkt. 52). Defendants Rick Smith and Michelle Doty and defendant Phillip Guittierrez subsequently filed separate motions to dismiss, but they merely joined in the served defendants' motion to dismiss and also relied on the served defendants' reply brief. The Smith, Doty and Guittierrez defendants did not offer any additional arguments. (Dkt. 59, 71).
Defendants argue that plaintiff's complaint is lengthy (alleging that the complaint is 81 pages and 191 paragraphs long, containing 14 causes of action) and confusing and does not meet the pleading requirements of Rule 8(a)(2), which requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” or Rule 8(d)(1), which directs that “[e]ach averment of a pleading shall be simple, concise, and direct.” Defendants contend that plaintiff “attempts to weave numerous alleged actions ranging over a two year period by twenty different defendants into an elaborate plot of conspiracy against him,” including conspiring with inmates to make false accusations against plaintiff, violating his First Amendment right to practice his religion, changing his approved visitor list to deny him a visitor, falsely accusing him of stealing, confiscating a “doo-rag” from him, destroying his books and other property, and improperly transferring him to different housing units. Defendants generally argue plaintiff's claims are conclusory, argumentative and confusing, and that defendants should not be “required to expend time and effort searching through large masses of conclusory, argumentative, evidentiary and other extraneous allegations in order to discover whether the essentials of claims asserted can be found in such a mélange.” (Dkt. 52, citing Schied v. Daughtrey, 2008 WL 5422680, at *1 (E.D.Mich. Dec. 29, 2008)).
Defendants also argue that plaintiff's allegations that defendants participated in a conspiracy against him are too vague and conclusory to state a claim. According to defendants, a conspiracy claim under § 1985(3) must “allege both a conspiracy and some class-based discriminatory animus behind the conspirator's actions.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 (6th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 282, 184 L.Ed.2d 150 (2012). In addition, “conspiracy claims must be pled with some degree of specificity and ... vague and conclusory allegations unsupported by material facts will not be sufficient to state a claim.” Id. (citation omitted). According to defendants, plaintiff alleges that a conspiracy is shown in Claims 1, 2, 3 and 5 merely because some of the charges against plaintiff turned out to be baseless, and because some of the defendants agreed with defendant Cozzens to take adverse actions against plaintiff. Defendants argue that these allegations are too conclusory and argumentative to state a claim. Defendants further argue that Claims 8 (falsification of plaintiff's visitor's list) and 11 (limiting plaintiff's participation in religious services) fail to state a claim for conspiracy because plaintiff fails to allege how defendants conspired against him in those claims. Defendants also contend that plaintiff fails to provide more than bare assertions and conclusory statements in support of Claim 13 that nineteen defendants participated in an elaborate plot of conspiracy against plaintiff over a two-year period. Defendants further argue that Claim 14 fails because plaintiff provides no evidence that any other defendant was aware of any alleged animus defendant Cozzens bore against plaintiff, other than a statement Cozzens allegedly made to plaintiff regarding his race, national origin and religion, or that seven of the other defendants agreed with Cozzens to restrict plaintiff's religious activities. This statement, defendants argue, only shows that the other defendants agreed with Cozzens, not that they conspired with him against plaintiff. Thus, defendants conclude, plaintiff's conspiracy claims should be dismissed for lack of specificity and to avoid protracted and disruptive litigation.
Defendants further argue that, to the extent Claims 4, 6, 7, 9, 10 and 12 allege that defendants retaliated against plaintiff for exercising his right to religious expression, or for accessing the prison grievance system, those claims should be dismissed because plaintiff provides only bare and conclusory statements in support of those claims.
Finally, defendants argue, even if plaintiff's complaint can be construed to state a claim, defendants are protected by the doctrine of qualified immunity with respect to plaintiff's claim concerning his removal as the leader of the Protestant faith group. Defendants contend they are not aware of any First Amendment right of a particular inmate, or even a private citizen, to lead religious services. Defendants recognize the prison inmates have a right to the free exercise of their religion, but argue that plaintiff points to no legal authority that would give him the right to serve as the leader of a faith group, and if no such right exists, it is not clearly established enough to make it sufficiently clear to defendants that denying plaintiff the right to lead a faith group would be unconstitutional. Therefore, defendants conclude, plaintiff's claims against defendants regarding his removal as leader of the faith group should be dismissed.
C. Plaintiff's Response
Plaintiff responds that his complaint did comply with Rules 8(a)(2) and 8(d)(1), and gave defendants fair notice of the claims asserted against them and the grounds upon which the claims rest. Plaintiff contends he set forth the chronology of events from which his retaliation, discrimination, and conspiracy claims can be inferred. Further, plaintiff argues that he is required to plead and prove all the essential elements of his claims to avoid dismissal. And plaintiff, as a pro se litigant, is entitled to have his complaint liberally construed. Plaintiff argues that his complaint and the 19 exhausted administrative grievances attached gave all defendants fair notice of the allegations and claims against them individually and collectively. Plaintiff avers that this finding is supported by this Court's prior ruling on defendants' “three strikes” motion, where the Court rejected defendants' assertion that plaintiff's complaint was incomprehensible and thus frivolous. (Dkt. 33, Pg ID 799–801).
Plaintiff further argues that he has pleaded sufficient facts to state claims of retaliation, discrimination, violation of free religious speech, free religious exercise, and conspiracy to entitle him to relief. Plaintiff contends that the Sixth Circuit has held that the conclusory nature of particular allegations cannot alone justify the dismissal of a complaint. See Back v. Hall, 537 F.3d 552, 558 (6th Cir.2008) (citing Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)), cert. denied,555 U.S. 1098, 129 S.Ct. 904, 173 L.Ed.2d 108 (2009). According to plaintiff, to state a claim of retaliation, a plaintiff must plead that he engaged in protected conduct; that an adverse action was taken against him that is capable of deterring a person of ordinary firmness from continuing to engage in the protected conduct; that a causal connection existed between the protected conduct and the adverse action; and that the adverse action was motivated at least in part by the protected conduct. See Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) ( en banc ). Plaintiff argues that he satisfies the notice pleading requirement to state a claim of retaliation in Claims 1, 2, 4–9, 12, and 13.
Plaintiff argues that to state a claim of discrimination, he must plead that a state or federal actor treated him differently than others, who were similarly situated; and that such unequal treatment was the result of intentional or purposeful discrimination because of plaintiff's membership in a protected class, such as race, national origin, or religious discrimination. Plaintiff argues that he satisfied the notice pleading requirement to state a claim of discrimination in Claims 13 and 14.
According to plaintiff, a conspiracy claim under § 1983 or Bivens more broadly covers conspiracies to deprive persons of Constitutional rights. Plaintiff contends that to state a claim of conspiracy under § 1983 or Bivens, he must plead that he engaged in protected conduct; that an adverse action was taken against him that is capable of deterring a person of ordinary firmness from continuing to engage in the protected conduct by the conspirators; that a causal connection existed between plaintiff's protected conduct and the adverse action taken against him; and that the adverse action was motivated at least in part because of his protected conduct. Plaintiff argues he satisfied the notice pleading requirements for a Bivens conspiracy claim in Claims 1 and 13 of his complaint. Plaintiff argues Claim 14 satisfies a claim for conspiracy under § 1985(3), which requires plaintiff to plead a conspiracy involving two or more persons; for the purpose of depriving, directly or indirectly, a person or class of persons the equal protection of the laws; and an overt act in furtherance of the conspiracy, which causes injury to person or property, or a deprivation of a right or privilege of a United States citizen.
Plaintiff argues that Claims 3, 10 and 11 of his complaint state free exercise claims under the First Amendment and under the Religious Freedom Restoration Act of 1993 (“RFRA”) and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). According to plaintiff, the First Amendment claims require plaintiff to plead that he was engaged in a protected conduct of free religious speech and free religious exercise; that the practice he seeks to protect is religious in his own “scheme of things”; that his religious conviction is sincerely held; and that the behavior of the defendants' infringed and burdened his sincerely held religious practice or belief without any valid penological interest advanced. The RFRA/RLUIPA claims require plaintiff to plead that he was engaged in a protected conduct of free religious speech and free religious exercise; that the practice he seeks to protect is religious in his own “scheme of things”; that his religious conviction is sincerely held; that the behavior of the defendants substantially burdened his sincerely held religious practice or belief without a compelling interest advanced by the use of the “least restrictive means.”
Plaintiff further argues that defendants are not entitled to qualified immunity regarding plaintiff's conspiratorial and retaliatory removal as the inmate representative for the Protestant faith group. Plaintiff contends that Program Statement 5360.09 provides for inmate-led services in section 7(d): Supervision of inmates—“ordinarily the level of supervision of inmate religious groups in secure facilities involving worship, study or meetings. Inmate-led religious programs require constant staff supervision.” Also, according to plaintiff, conduct that does not independently violate the Constitution can form the basis for a retaliation claim, if that conduct is done with an improper motive, citing Hoskins v. Lenear, 395 F.3d 372 (7th Cir.2005). Plaintiff argues that he was engaged in protected conduct when he protested defendant Cozzens's intent to cancel a religious retreat, Cozzens's threat to remove plaintiff from his position as inmate representative and use of racial slurs against plaintiff, his race, national origin and religious denomination, and that when he lodged a complaint against Cozzens for those actions, defendants retaliated by removing him as inmate representative for his faith group.
Plaintiff further contends that dismissal on the basis of qualified immunity is generally made pursuant to a Rule 56 summary judgment motion, not Rule 12(b)(6) motion to dismiss, and plaintiff has not yet had an opportunity to initiate necessary discovery on this issue and thus dismissal is premature and should be denied. Plaintiff goes on to argue that defendants are not entitled to qualified immunity because plaintiff pled that his rights that were violated were clearly established at the time of defendants' conduct.
Finally, plaintiff renews his request in his complaint that this Court suspend the rules in this case due to plaintiff's prisoner status, that the Court deny defendants' motions to dismiss and enter a scheduling order for discovery prior to the filing of a motion for summary judgment.
D. Defendants' Reply Brief
Defendants again argue that plaintiff's complaint fails to provide a short and plain statement of his claims as required by the Rules, and that it is unclear which of plaintiff's claims apply to which statutes, how all of the events in his statement of facts are related, and how all of the defendants are linked to the allegations against them. Rather, defendants contend that the “crux” of plaintiff's claims appears to be that all of the defendants joined together in a conspiracy against plaintiff that was somehow triggered by his dispute with defendant Cozzens. Defendants further argue that the fact that the Bureau of Prisons was able to respond to plaintiff's numerous administrative claims does not establish that he has a plausible claim against defendants. Defendants contend they should not be required to expend time and effort searching through the conclusory, argumentative and other extraneous allegations to discover the essential claims asserted. And, defendants argue that plaintiff's contention that defendants are not entitled to qualified immunity fails because the cases on which he relies, Thaddeus–X v. Blatter, 175 F.3d 378 (6th Cir.1999) and Newsom v. Norris, 888 F.2d 371 (6th Cir.1989), do not control as both concern access to the court issues, not the right to lead religious services. In addition, defendants assert that the Sixth Circuit “drew back” from the Newsom decision in Pickelhaupt v. Jackson, 364 Fed.Appx. 221, 226 (6th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 218, 178 L.Ed.2d 131 (2010), and stated that prisoners did not have any constitutionally-protected interest in a position of employment. Thus, defendants argue, there is no First Amendment right of a prisoner to lead religious services.
E. Plaintiff's Sur–Reply Brief
Plaintiff again argues the defendants have failed to satisfy their burden of coming forward with sufficient facts to show how plaintiff's complaint is “a rambling or melange document,” and that if defendants truly believe that plaintiff's complaint is so unclear, defendants could have filed a motion for more definite statement under Rule 12(e), but they did not. Plaintiff asserts that his complaint pleads enough facts to state a claim to relief, and the merits of the claims are not at issue on a motion to dismiss. Plaintiff further argues that the fact that the Bureau of Prisons responded to plaintiff's 19 grievances that form the basis of this lawsuit indicates that all the defendants had fair notice of the claims against them and the grounds upon which they rest.
Plaintiff also contends that he has not asserted a claim for a First Amendment right of a particular inmate to lead religious services, and that defendants mischaracterize his complaint and have failed to identify which of plaintiff's claims presented such an allegation. Rather, plaintiff asserts that he alleges sufficient facts that he engaged in protected conduct of free religious speech, free religious exercise and the right to lodge a complaint, that defendants conspired to retaliate against him in response to that protected conduct, that he suffered an adverse action, that there is a causal connection between his protected conduct and the adverse action, and that the adverse action was substantially motivated at least in part by his protected conduct, and he therefore clearly stated claims for conspiracy, retaliation and discrimination. Plaintiff argues that defendants' qualified immunity defense fails because he has stated a clearly established right to free religious speech and free exercise of religious belief without any fear of retaliation, discrimination or conspiratorial response. Further, plaintiff contends that because qualified immunity is an affirmative defense, he is not required to anticipate it to state a claim, and that the court may dismiss plaintiff's complaint only if it is clear that no violation of a clearly established constitutional right could be found under any set of facts that could be proven consistent with the allegations or pleading.
Plaintiff also disputes that the Sixth Circuit “drew down” from the Newsom decision in Pickelhaupt, 364 Fed.Appx. 221, because in Pickelhaupt, the plaintiff's case was predicated on due process claims, not First Amendment claims, and Pickelhaupt did not overrule Newsom's holding that an individual, who has been subjected to direct and intentional retaliation for having exercised the protected right of expression, continues to suffer irreparable injury even after termination of some tangible benefit such as employment.
III. ANALYSIS AND CONCLUSION
A. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first comply with Rule 8(a)(2), which requires “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A plaintiff is also obliged “to provide the grounds of his entitlement to relief,” which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations and internal quotation marks omitted)). And, while a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation and internal quotation marks omitted)); see also League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (emphasis in original) (the factual allegations in a complaint need not be detailed but they “must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.”).
The Sixth Circuit recognized that in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), “a case decided just two weeks after Twombly, the Supreme Court clarified Twombly by holding that a prisoner bringing a § 1983 claim against his captor is not required to state [s]pecific facts in their complaint; and Twombly itself suggests that its holding may be limited to cases likely to produce sprawling, costly, and hugely time-consuming litigation.” U.S. v. Ford Motor Co., 532 F.3d 496 (6th Cir.2008) (citations and internal quotation marks omitted). The Sixth Circuit applied a more stringent pleading standard in U.S. v. Ford because a fraud claim was involved, which requires the application of the heightened pleading standard set forth in Rule 9(b), rather than the more liberal pleading standard found in Rule 8(a)(2). A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citation omitted). Thus, when applying Twombly, except as to a claim of fraud, the Court must still read plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Erickson, 551 U.S. at 93–94, 127 S.Ct. 2197 (The Court of Appeals improperly departed “from the liberal pleading standards set forth by Rule 8(a)(2)” and failed to liberally construe the pro se complaint at issue.).
B. Analysis
1. Plaintiff's complaint does not violate the pleading requirements of Fed.R.Civ.P. 8(a)(2) and 8(d)(1)
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court applied Twombly in a prisoner civil rights lawsuit in Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). That Court reiterated that a plaintiff is not required to plead specific facts; instead, the statement need only “ ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson, 551 U.S. at 93, 127 S.Ct. 2197 (citation omitted). In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Id.
Defendants argue that plaintiff's 78 page, 191 paragraph complaint is lengthy and confusing and thus fails to meet the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). The undersigned acknowledges that when a pleading is so verbose that neither the court nor the defendants can readily identify the claims asserted, the complaint should be dismissed for failure to comply with the Federal Rules of Civil Procedure. See e.g., Flayter v. Wisconsin Dep't of Corrs., 16 Fed.Appx. 507, 509 (7th Cir.2001). However, the undersigned finds that while plaintiff's complaint is lengthy, on review of the complaint as a whole and considering the undersigned's obligation to read plaintiff's pro se complaint indulgently, plaintiff's complaint is not confusing or unreasonably prolix. Rather, the complaint contains a chronological, detailed statement of facts followed by fourteen separate causes of action, each listing the elements of the claims asserted and the facts supporting each element of the claim. Although the fourteen causes of action are not labeled, plaintiff has since affirmatively stated in his response that Claims 1, 2, 4–9, 12 and 13 state Bivens retaliation claims, Claims 13 and 14 state discrimination claims, Claims 1 and 13 also state Bivens-conspiracy claims, Claim 14 states a § 1985(3) conspiracy claim, and Claims 3, 10 and 11 state First Amendment and RFRA/RLUIPA claims. (Dkt. 56, Pg ID 968–71). The Court will hereafter construe plaintiff's complaint to assert those specific claims. Plaintiff's complaint thus gives fair notice of the claims asserted and the grounds upon which the claims rest. The complaint does not violate Rule 8(a)(2), and should not be dismissed on this basis.
2. Plaintiff's conspiracy claims—Claims 1, 13 and 14
Defendants argue that plaintiff's allegations that defendants participated in a conspiracy against him are too vague and conclusory to state a claim. Defendants contend that it appears that the majority of plaintiff's claims allege that defendants joined together with defendant Cozzens in an elaborate plot of conspiracy against plaintiff, and that various overt actions taken against him over a two-year period constitute overt acts in furtherance of that conspiracy. Plaintiff asserted 14 separate “Claims” against defendants, but did not label those claims. Although defendants argue that Claims 1, 2, 3, 5, 8, 11, 13 and 14 all fail to state a claim for conspiracy, plaintiff has stated in his response to defendants' motion to dismiss that only Claims 1 and 13 state a claim of conspiracy under Bivens, and that only Claim 14 states a claim of conspiracy under § 1985(3). (Dkt. 56, Pg ID 970–71). Plaintiff thus does not assert that Claims 2, 3, 5, 8 or 11 state a conspiracy claim. Accordingly, the undersigned will address defendants arguments only as to Claims 1, 13 and 14.
a. Plaintiff's Bivens conspiracy claims (Claims 1, 13)
To state a claim for a Bivens
conspiracy, plaintiff must allege an agreement between two or more persons to act in concert to deprive a person of his Constitutional rights, and an overt act done in furtherance of that goal, causing damages. See Fuller v. Shartle, 2012 WL 1068805, at *5 (N.D.Ohio Mar. 29, 2012) (citing Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.1985) (addressing a section 1983 conspiracy claim)). Express agreement among all the conspirators is not necessary to find the existence of a conspiracy. Id. Conspiracy claims must be pled with a degree of specificity. Id. (citing Hamilton v. City of Romulus, 409 Fed.Appx. 826, 835–36 (6th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 2934, 180 L.Ed.2d 225 (2011)). While vague and conclusory allegations unsupported by material facts are insufficient, circumstantial evidence of an agreement among all conspirators may provide adequate proof. Id.
In Bivens, the Supreme Court established a cause of action against federal officials for the violation of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. Harlow v. Fitzgerald, 457 U.S. 800, 814–20, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id.
In Claim 1, plaintiff asserts that defendants Cozzens, Curtis and Magulick conspired and agreed to retaliate and discriminate against plaintiff for exercising free religious speech and religious beliefs in protesting the cancellation of the planned religious retreat and for lodging a complaint against Cozzens to Curtis regarding Cozzens's threats and racial slurs, by recruiting inmate co-conspirators on or about August 22, 2008 to supply false allegations to prepare a false report to initiate false investigations against plaintiff. Plaintiff claims that, as a result, he was removed from his housing unit (H) to the SHU on September 3, 2008, where his privileges were highly restricted, and that he spent 30 days in segregation on the false allegations. (Dkt. 1, ¶¶ 79–84). Defendants argue that plaintiff's allegations in Claim 1 are too conclusory and argumentative to state a claim for conspiracy. However, other than this bare assertion, defendants fail to provide any further explanation or argument as to why or how plaintiff's allegations are conclusory and/or argumentative. A complaint filed by a pro se litigant is to be liberally construed. Erickson, 551 U.S. at 94, 127 S.Ct. 2197. The undersigned finds that, although it is a close call, taking plaintiff's allegations as true, plaintiff has adequately plead the elements of a Bivens conspiracy claim in Claim 1 of his complaint-an agreement between two or more persons to act in concert to deprive plaintiff of his Constitutional rights, and an overt act done in furtherance of that goal, causing damages. Plaintiff put defendants on notice of the relevant time period, the names of the alleged conspirators, and the object and purpose of the alleged conspiracy. Defendants' motion to dismiss as to this claim should be denied.
In Claim 13, plaintiff asserts that nineteen defendants—Cozzens, Curtis, Guidry, Aviles, Ellis, Brown, Cheatham, Smith, Toney, Guittierrez, Duby, Dolber, Downing, Magulick, Doty, Murdock, Bozeman, Gubbins and Zych—all conspired and agreed to deprive plaintiff of his rights, privileges and immunities for lodging complaints and filing various grievances from August 6, 2008 to September 10, 2010, by restricting plaintiff's “active” participation in Protestant services, Bible study group and prayer meeting group, and by actually prohibiting plaintiff from prophesying and laying hands on and praying for inmate Corey Schulz on January 2, 2010. (Dkt. 1, ¶¶ 163–72). Plaintiff alleges that the defendants engaged in a series of overt acts over a two-year period of time as part of a single plan to injure him, including the acts alleged in Claim 1, as well as removing 117 books from his locker and destroying them, refusing to give him priority on the Unicor hiring list, writing several false incident reports against him, sanctioning his commissary rights, banning him from attendance and participation in all religious services and programs in the Chapel at Milan FCI, threatening him with transfer to an undesireable housing unit, recruiting more inmate co-conspirators to make false accusations against plaintiff in April 2009, removing personal items from his locker in December 2009, falsifying his visiting records in November 2009 to deprive him of a visitor, confiscating his “doo-rag” from him in December 2009 and denying him a meal, and again recruiting inmates to make false reports against him in March 2010. ( Id. ¶ 164).
It is well-settled that civil conspiracy claims “must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987). The undersigned finds that plaintiff has not sufficiently alleged specific facts showing “the existence of an agreement or meeting of the minds to violate constitutional rights” or that the series of acts over the two-year time period were part of a single plan to unlawfully deprive plaintiff of his constitutional rights to survive a motion to dismiss. The facts pleaded in plaintiff's complaint do not support the existence of any such agreement and concerted action to violate plaintiff's constitutional rights. Plaintiff simply alleges a series of distinct acts committed by different defendants and attempts to lump those acts together in an alleged conspiracy to “conspire and agree with each other upon a single plan to injure plaintiff....” However, mere conclusory allegations of conspiracy ( i.e., a bare allegation that defendants “conspired” with each other) are insufficient to state a claim. See Harris v. Roderick, 126 F.3d 1189, 1195 (9th Cir.1997). And, it is insufficient to allege that “the end result of the parties' independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Novellino v. N.J. Dep't of Corr. Mountainview Youth, 2011 WL 3418201, at *15 (D.N.J. Aug. 3, 2011) (citing Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D.Pa.1997)). Rather, a plaintiff must allege “which defendants conspired, how they conspired and how the conspiracy led to a deprivation of his constitutional rights [.]” Harris, 126 F.3d at 1196. Plaintiff has failed to do so here, and the undersigned finds that Claim 13 fails to state a claim for a Bivens conspiracy and should be dismissed.
The undersigned notes that plaintiff also alleges that the facts stated in Claim 13 also give rise to Bivens retaliation and/or discrimination claims. (Dkt. 56). Although the undersigned recommends a finding that Claim 13 fails to state a Bivens conspiracy claim, that finding does not address whether Claim 13 states a claim for Bivens retaliation and/or discrimination claims.
b. Plaintiff's section 1985(3) conspiracy claim (Claim 14)
To state a claim for conspiracy to violate civil rights under § 1985(3), a plaintiff must prove (1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any rights or privileges of a citizen of the United States. Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994); see also Moniz v. Cox, 512 Fed.Appx. 495, 499–500 (6th Cir.2013), petn. for cert. filed (May 24, 2013). The plaintiff must allege that the conspiracy was motivated by racial or other class-based invidiously discriminatory animus. Johnson, 40 F.3d at 839.
Plaintiff alleges in Claim 14 that, from August 5, 2008 to March 24, 2010, defendants Cozzens, Curtis, Guidry, Aviles, Ellis, Brown, Cheatham, Smith, Toney, Guittierrez, Duby, Dolber, Downing, Magulick, Doty, Murdock, Bozeman, Gubbins and Zych conspired and agreed with recruited inmate conspirators William McCray, Jerome Bass, and “others” to retaliate and discriminate against plaintiff on the basis of race (Black), religious denomination (Pentecostal), and national origin (Nigerian), and that they agreed on a “single plan to injure plaintiff and cause injury to his person and property” with the unlawful objective of depriving him of his constitutional rights. (Dkt. 1, ¶¶ 173–79). As evidence for this conspiracy, plaintiff refers to numerous statements allegedly made by Cozzens regarding plaintiff's race, religion and national origin, and that Curtis told him that Cozzens had animus toward plaintiff because plaintiff preached against the Seventh Day Adventists and that Cozzens wanted plaintiff restricted. ( Id. ¶ 175). Plaintiff asserts that Cozzens coupled his threats with actual restrictions of plaintiff's protected rights, which he asserts revealed the conspiratorial agreement by the defendants, and asserts that Cozzens told plaintiff of an agreement among defendants to restrict plaintiff's protected rights. ( Id.). The undersigned finds that plaintiff's complaint fails to state a § 1985(3) conspiracy claim. Plaintiff merely alleges that defendant Cozzens made various derogatory statements to plaintiff about his race, national origin and religion, and that the other defendants agreed with Cozzens's decision, on October 6, 2008, to restrict plaintiff's active participation in Protestant services, Bible study group and prayer meetings. (Dkt. 1, ¶ 178). Plaintiff fails to offer any facts to support his allegations that defendants acted in concert to violate plaintiff's constitutional rights, or any facts to support the existence of a “single plan,” and thus fails to provide anything more than conclusory allegations of an alleged “single plan to injury plaintiff.” Claim 14 thus is insufficient to state a cause of action for a § 1985(3) conspiracy against defendants and should be dismissed.
The undersigned again notes that plaintiff also alleges that the facts stated in Claim 14 also give rise to Bivens discrimination claim (Dkt. 56), and thus a finding that Claim 14 fails to state a § 1985(3) conspiracy claim does not address whether Claim 14 states a claim for Bivens discrimination. In addition, plaintiff alleged in his opening statement in his complaint that he was also bringing a conspiracy claim under 42 U.S.C. § 1986. Plaintiff, however, failed to identify any of his Claims as stating a § 1986 conspiracy claim. (Dkt. 56). In any event, a finding that the complaint does not state a claim under § 1985 also compels a finding that there is no liability under § 1986 because § 1986 establishes a cause of action against a person who has knowledge of a conspiracy under § 1985 and “having the power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir.2005). Because the undersigned recommends a finding that the complaint does not state a claim under § 1985, it necessarily follows that there can be no liability under § 1986. Id. at 316.
3. Plaintiff's retaliation claims
Defendants argue that to the extent Claims 4, 6, 7, 9, 10, and 12 allege that defendants retaliated against plaintiff for exercising his right to religious expression or for accessing the prison grievance system, those claims fail. Defendants broadly argue:
To the extent that plaintiff is attempting to claim retaliation, his claim must fail. He provides only bare and conclusory statements in support of his claim. Conclusory allegations are insufficient to establish a retaliation claim. Id., citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir.1996). Similarly, “bare allegations of malice are not enough” to establish the basis for a retaliation claim. Id., citing Crawford–El v. Britton, 523 U.S. 574, 588 [118 S.Ct. 1584, 140 L.Ed.2d 759] (1998). A plaintiff must establish that his exercise of a protected right was a motivating or substantial factor behind the defendant's decision to take an adverse action against him. Id., citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 [97 S.Ct. 568, 50 L.Ed.2d 471] (1977). Therefore, to the extent claims 4, 6, 7, 9, 10 and 12 are based upon a theory of retaliation, they should be dismissed.
(Dkt. 52, Pg ID 918–19). Defendants fail to analyze the specific claims at issue or to otherwise articulate how those claims are deficient. It is not sufficient for a party to mention a possible argument “in a most skeletal way, leaving the court to ... put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.1997). Indeed, a court need not make a party's case by scouring the various submissions to piece together appropriate arguments. Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995). And, the court is not obligated to make defendants' case for them or to “wade through and search the entire record” for some specific facts that might support their motion. InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). Simply, defendants have not satisfied their burden of coming forward with an analysis of plaintiff's complaint on which the court could possibly recommend dismissal of Claims 4, 6, 7, 9, 10 and 12 for failure to state a claim of retaliation. Accordingly, defendants' motions to dismiss these retaliation claims should be denied.
4. Qualified Immunity
Defendants assert that they are entitled to qualified immunity on plaintiff's claim concerning his removal as leader of the Protestant faith group. The doctrine of qualified immunity means that “ ‘[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Caldwell v. Moore, 968 F.2d 595, 599 (6th Cir.1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Defendant bears the burden of pleading qualified immunity, but plaintiff bears the burden of showing that the defendant's conduct violated a right so clearly established that a reasonable official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir.2002) (citation omitted) (explaining that “[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity”).
The Supreme Court had established a two-part test in order to determine whether qualified immunity is applicable to a particular situation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The first part of the test involved a determination of whether the facts of the case, viewed in the light most favorable to the plaintiff, “show the officer's conduct violated a constitutional right.” Id. If the first question was resolved in the affirmative, then the court would decide “whether the right was clearly established.” Id. If both questions are resolved in the affirmative, then the doctrine of qualified immunity does not apply and the case can proceed.
The Supreme Court revisited its decision in Saucier and concluded that mandatory order of the two part test for determining if qualified immunity applied was no longer sound based on several factors including judicial economy. Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). While not modifying the factors that should be considered in such a decision, the Court held that sometimes it makes sense to allow the second part of the test to be decided first and that such a decision may resolve the controversy without having to address the first part of the test. Id. In Pearson, the § 1983 claim of the plaintiff was based on an allegedly unlawful search conducted by the defendant police officers. Without having to engage in the perhaps more complicated decision of determining whether plaintiff's constitutional rights had been violated, the Court found that the constitutional right claimed by plaintiff was not clearly established where lower court case law was consistent with the conduct of the officers and “principles of qualified immunity [should] shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law.” Id. at 244–45, 129 S.Ct. 808. “This generally means that ‘we are free to consider those questions in whatever order is appropriate in light of the issues before us.’ ” Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir.2009) (quoting Moldowan v. City of Warren, 570 F.3d 698, 720 (6th Cir.2009)).
Defendants argue that they are protected by qualified immunity only with respect to plaintiff's claim concerning his removal as leader of the Protestant faith group. Defendants do not assert that they are entitled to qualified immunity as to plaintiff's claims concerning any of the other restrictions allegedly imposed by defendants. Defendants assert that they are not aware of any First Amendment right of a particular inmate, or even a private citizen, to lead religious services. Thus, defendants argue that a right to act as leader and inmate representative of a religious group is not a clearly established right, and plaintiff's claims against them regarding his removal as leader of the Protestant faith group should be dismissed.
The first step in determining whether a right was clearly established is to define the right itself, which requires honing in on the proper level of generality. At the broadest level, plaintiff claims that defendants violated his right to freely exercise his religion and access to the courts. Of course, those rights are clearly established. However, if courts define rights at such a broad level, qualified immunity will virtually cease to exist. Therefore, in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the Supreme Court directed courts to define the right “in a more particularized, and hence more relevant, sense.” Id. at 639, 107 S.Ct. 3034. Courts must focus on the “particular action” that the defendants took and inquire whether the “contours of the right [were] sufficiently clear that a reasonable official would understand that what he [was] doing violates that right.” Id. at 640, 107 S.Ct. 3034. Thus, in Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the Court's qualified immunity analysis asked “whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful,” instead of the more generalized question of whether the plaintiff's Fourth Amendment right against unreasonable searches and seizures was clearly established. Id. at 615, 119 S.Ct. 1692. Similarly, in Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009), the Court asked whether a thirteen-year-old student's right not to have her bra and underpants searched based on reasonable suspicion that she had prescription drugs was clearly established, instead of whether the more general Fourth Amendment right was clearly established. Id. at 366–67, 377, 129 S.Ct. 2633. In both cases, the answer was no, and the government officials received qualified immunity. Wilson, 526 U.S. at 615, 119 S.Ct. 1692;Redding, 557 U.S. at 377, 129 S.Ct. 2633.
Applying this principle, courts confronting free exercise claims have inquired whether a reasonable officer would have known that a particular action or deprivation would interfere with a plaintiff's religious practices. Compare Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir.2001) (granting defendants qualified immunity because Hasidic Orthodox Jewish inmate's right to grow his beard and side locks in contravention of prison grooming regulations was not clearly established) with Rasul v. Rumsfeld, 433 F.Supp.2d 58, 59, 61 (D.D.C.2006) (denying defendants qualified immunity because Muslim detainees' right not to have their religious beards forcibly shaven or their Korans thrown in the toilet was clearly established). Thus, the relevant right at issue here is not plaintiff's general right to freely exercise his religion, but rather his specific right to be the inmate representative for the Protestant faith group.
While it is well-established that prison officials violate a prisoner's free exercise of rights when they needlessly and intentionally prevent him from performing religious acts of central significance to his faith, Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), the undersigned notes that courts in other jurisdictions have found that an incarcerated individual “has no First Amendment right to lead or preach at religious services held for inmates.” See, e.g., Spratt v. Wall, 2005 WL 348315, at *4 (D.R.I. Jan. 13, 2005) (granting summary judgment on plaintiff's First Amendment claims because plaintiff can pray and participate in religious services, but he simply may not lead or preach at them) (citing Johnson–Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir.1988) (a prison need not permit “convicted felons, frocked or unfrocked, to conduct religious services in the prison”)); see also Phelps v. Dunn, 965 F.2d 93, 101 (6th Cir.1992) (“[I]n the absence of quite specific evidence of concrete discrimination on an impermissible ground, federal courts should not become involved in determining questions of selection of lay people for liturgical participation.”). The undersigned similarly finds that an inmate does not have a constitutionally-protected right to be the inmate representative for a certain religious group, so long as that restriction does not needlessly and intentionally prevent him from performing religious acts of significance to him. Thus, to the extent plaintiff claims here that defendants violated his right to be the inmate representative for the Protestant faith group, defendants should be entitled to qualified immunity on that specific claim.
Plaintiff responds, however, that defendant's qualified immunity argument fails because plaintiff has not made a specific claim that he has a right to lead religious services. As plaintiff confirmed in his response brief, he has only asserted three claims for violation of his free exercise rights under the First Amendment–Claims 3, 10 and 11. In Claim 3, plaintiff alleges that defendants purposefully and willfully restricted plaintiff's “active” participation in any Protestant service, Bible study group, or prayer meeting group on October 6, 2008 (which included a restriction on serving as inmate representative, among five other restrictions), and “banned” plaintiff's attendance and participation in any and all religious services and programs held in the chapel at Milan FCI on February 21, 2009. (Dkt. 1, ¶¶ 93–96). In Claim 10, plaintiff alleges that defendants unlawfully denied plaintiff's Christmas day worship service on December 25, 2009 without a valid or reasonable penological interest. ( Id. ¶¶ 147–51). And, in Claim 11, plaintiff alleges defendants purposefully and willfully restricted plaintiff's “active” participation in Protestant services, Bible study group, and prayer meetings on November 21, 2009, and denied plaintiff the exercise of his protected rights on January 2, 2010, when he was restricted from prophesying (speaking by divine inspiration), laying hand on and praying for anyone in services, Bible study group and prayer meeting group. ( Id. ¶¶ 152–55). Thus, while plaintiff does allege that defendant Cozzens threatened to remove plaintiff from the inmate representative position on August 5, 2008, and removed plaintiff as the inmate representative on October 6, 2008, plaintiff thus does not assert a specific First Amendment claim to lead the Protestant faith group.
Rather, plaintiff's removal as inmate representative of the Protestant faith group is only one of the many alleged restrictions in his complaint. Plaintiff asserts that he complained about Cozzens's threat to remove him as inmate representative and use of racial slurs against him, his race, national origin and religious denomination. Plaintiff, however, does not allege that as a First Amendment claim. Rather, he alleges that in retaliation for making those complaints, defendants informed him that he would no longer serve as the inmate representative and that he cannot: teach or preach to the Protestant community, instruct Bible study group or lead in any Bible study discussion, facilitate any services of Bible study group, answer questions about the Bible or offer any other Biblical interpretation of the belief he holds and of the Biblical text, and he will not “lord over the Protestant community.” (Dkt. 1, ¶ 22). The defendants have failed to assert they are entitled to qualified immunity as to plaintiff's remaining claims regarding these other restrictions, or from the later alleged restrictions from participating in religious services held in the chapel area, from being seen around the chapel area or stepping foot in the chapel area. (Id. ¶ 50). Further, as plaintiff argues in his opposition brief, even if he does not have a constitutional right to be leader of the Protestant faith group, as defendants argue, “[c]onduct that does not independently violate the Constitution can form the basis for a retaliation claim, if that conduct is done with an improper, retaliatory motive.” Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.2005) (citing Babcock v. White, 102 F.3d 267, 275 (7th Cir.1996)). Plaintiff here alleges that defendants filed false reports resulting in his placement in administrative segregation as the retaliatory action for his complaint against Cozzens' actions of threatening to remove him as inmate representative and using racial slurs. Thus, the fact that plaintiff may not have a clearly established constitutional right to act as leader of the Protestant faith group is not fatal to his retaliation claims.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that defendants' motion to dismiss be GRANTED in part and DENIED in part.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir.1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
Date: July 26, 2013