Byrd v. Haas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD BYRD,

Case No. 2:17-cv-11427

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.

RANDALL HAAS, et al.,

Defendants.

/

OMNIBUS OPINION AND ORDER

Plaintiff Gerald Byrd filed a pro se prisoner complaint in 2017 that alleged

Defendants had violated his constitutional rights and the Religious Land Use and

Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc, et seq. ECF 1. The

complaint identified eight Defendants: Randall Haas, David Leach, John Doe, Leroy

White, Heidi Washington, Jane Doe Taylor, Darrell Steward, and Richard Russell.

Id. at 1. In August 2017, Byrd filed a supplemental complaint and added Defendants

Kenneth McKee and Cyril Umeh and terminated Defendant John Doe. ECF 24. The

Court referred all pretrial matters to Magistrate Judge Stephanie Dawkins Davis.

ECF 9. The Court later dismissed Defendants Taylor, White, Russel, Steward, and

Washington. ECF 63. And in December 2019, the case was reassigned to Magistrate

Judge Michael J. Hluchaniuk.

On January 29, 2020 the remaining Defendants—Haas, Leach, McKee, and

Umeh—moved for summary judgment. ECF 80. Then, in May 2020, Magistrate Judge

Hluchaniuk submitted a report and recommendation ("Report") and recommended

that the Court grant in part and deny in part Defendants' motion for summary

judgment. ECF 98. Both Defendants and Byrd raised timely objections. ECF 102, 103.

The Court has thoroughly reviewed the Report, the summary judgment motion, and

the objections. For the reasons below, the Court will adopt in part and reject in part

the Report and will grant the motion for summary judgment in part. The Court will

address the RLUIPA claims in a separate order.

BACKGROUND

As an initial matter, Defendants objected to the Report's recitation of the facts

of the case. ECF 103, PgID 2710. Defendants claimed the Report "homes [sic] in on

one factual scenario it believes should permit Byrd to proceed." Id. at 2709–10. For

this reason, the Court will provide a brief recitation of the facts, viewed in the light

most favorable to Byrd as required by Federal Civil Procedure Rule 56.

Byrd is a Michigan Department of Corrections ("MDOC") inmate. ECF 98,

PgID 2588. In 2015, Byrd made a religious declaration to MDOC as an adherent of

the Ifa religion. ECF 80-5, PgID 860. Ifa is also known as "Yoruba,"1 and refers to a

cultural group from West Nigeria that predominantly practices Ifa. Id. Although

MDOC recognized Yoruba as a religion, it did not authorize its adherents to conduct

group religious services. ECF 80-2, PgID 774. Under MDOC's policies, adherents of

Yoruba may possess one set of sixteen cowrie shells, one strand of white consecrated

beads, and one unframed picture of The Orisha. Id.

1 Because MDOC used the word "Yoruba" to describe adherents of Ifa, the Court will

do the same for consistency and clarity.

Yet, according to Byrd, to properly practice Yoruba he needed to possess

several other religious items and attend group services. ECF 80-5, PgID 873. In

September 2015 Byrd sent a request to Defendant David Leach, the Special Activities

Coordinator at Saginaw, and requested group services and additional religious items

for Yoruba adherents. ECF 80-3, PgID 776–79.

But in December 2015, Byrd was transferred from the Saginaw Correctional

Facility to the Macomb Correctional Facility. While at Macomb, Byrd received

Defendant Leach's response to his initial September 2015 request. ECF 80-6.

Defendant Leach explained that MDOC Policy Directive 05.03.150 required requests

for religious items to be submitted in writing to the prison warden.2 Id. at 892. And

because of the requirement, Byrd's request was "returned for submission in

accordance with PD [Policy Directive] 05.03.150." Id.

In January 2016, Byrd took his original request that was addressed to

Defendant Leach, added a handwritten "cc" portion, and sent out several copies—one

to Defendant Randall Haas (warden at Macomb), a copy to Kenneth McKee (Deputy

Director of MDOC), and an additional copy to Defendant Leach. ECF 87-4, PgID

1393–94.

In February 2016, Byrd sent Defendant Haas another letter and explained that

he practiced Yoruba and that Defendant Leach directed him to submit a copy of his

2 The Court notes that the process for requesting group religious services mirrors the

process for requesting additional religious items, contrary to Report's statement. ECF

98, PgID 2587; ECF 87-3, PgID 1284. Byrd's objection to the factual statement is

therefore affirmed.

request directly to his warden. ECF 80-7. Byrd also enclosed Defendant Leach's

response and his requests for additional religious items. Id. The record indicates that

Defendant Haas then forwarded Byrd's note to Chaplain Leroy White and asked him

to discuss the request with Byrd. ECF 87-15, PgID 2161.

In March 2016, Byrd sent his request letter again, this time to Defendants

Leach and McKee. ECF 87-20, 87-22. In response, Defendant Leach asked Chaplain

White to discuss the request with Byrd because the "proposal has to reach [him]

through the chain of command first." ECF 87-14, PgID 2156. Chaplain White told

Defendant Leach that Byrd had sent the request to Defendant Haas in September

2015, to which Leach responded, "That should be fine." Id. Then, in June 2016 Byrd

wrote to Defendant Haas for a status update, ECF 87-16, and Byrd claimed that he

spoke with Chaplain White again in July. ECF 24, PgID 95.

Defendant McKee did not recall ever receiving a letter from Byrd, and there is

no dispute that McKee did not receive a request from the Chaplain's Advisory

Council, as required by the chain of command (that is laid out in the Policy Directive).

ECF 80-11, PgID 1081, 1085.

A year later, Cyril Umeh packed up Byrd's cell after he was sent to segregation.

ECF 87-4, PgID 1448. At an MDOC facility, when a cell is packed up due to a transfer,

the officer completes a "transfer pack up slip" itemizing everything, including

anything that looks like trash, that was found in the cell. ECF 80-12, PgID 1142. All

the items are then placed in a bag or bin in storage. Id. Defendant Umeh did not

recall the specifics of packing Byrd's cell, but insisted that he never threw away any

property without permission. Id. at 1177–78. To the contrary, however, Byrd insisted

that Defendant Umeh intentionally threw away his four cowrie shells. ECF 87-4,

PgID 1448. The shells were not included on the inventory packing list completed by

Defendant Umeh.

Byrd sued in 2017 and claimed that various officers at MDOC had violated the

First Amendment Free Exercise clause, RLUIPA, and the Fourteenth Amendment.

ECF 24, PgID 104–05. He asked for both injunctive relief and money damages. Id. at

112. Defendants filed a series of motions to dismiss that were ultimately denied. ECF

27, 28, 49, 55, 63. After discovery, Defendants moved for summary judgment. ECF

80. Byrd responded, ECF 87, and the Report was issued. ECF 98.

LEGAL STANDARD

Federal Civil Rule 72(b) governs the review of a magistrate judge's report. A

district court's standard of review depends on whether a party files objections. The

Court need not review any portion of a Report to which no party has objected. Thomas

v. Arn, 474 U.S. 140, 153 (1985). A de novo review is required, however, if the parties

"serve and file specific written objections to the proposed findings and

recommendations." Fed. R. Civ. P. 72(b)(2). In conducting a de novo review, "[t]he

district judge may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions."

Fed. R. Civ. P. 72(b)(3).

DISCUSSION

I. Objections to Report Regarding § 1983 Claims Against Haas

A. First Amendment Free Exercise Claim

The Report recommended denying summary judgment to Defendant Haas on

Byrd's First Amendment Free Exercise claim. ECF 98, PgID 2609. Defendants

objected to the Report and argued that Haas was entitled to qualified immunity and

summary judgment. See ECF 103.

1. Monetary Damages

Here, Byrd alleged that Defendant Haas personally violated his First

Amendment right to freely exercise his religion by refusing to approve group religious

services and possession of certain religious personal property. ECF 24, PgID 92. Byrd

specifically alleged that Defendant Haas ignored and did not pass along his request

for group religious services and personal religious items. Id. at 95–96; ECF 80, PgID

722. Before reaching the merits of Byrd's First Amendment claim, the Court must

determine whether Defendant Haas was entitled to qualified immunity. See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (finding that government officials sued in their

individual capacity are entitled to seek qualified immunity unless their actions

violated "clearly established statutory or constitutional rights of which a reasonable

person would have known"); see also Colvin v. Caruso, 605 F.3d 282, 291 (6th Cir.

2010).

First, the Court must properly define the constitutional right at issue. Here,

Byrd described the rights violation as "restricting Plaintiff from freely practicing his

religion by refusing to approve group religious services and personal religious

property. . . ." ECF 24, PgID 92. The Court will frame the question differently: Do

prison officials violate inmates' Free Exercise rights when they do not approve group

religious services or expansions of personal religious property through an appropriate

process?

A qualified immunity analysis requires a two-pronged inquiry. First, the Court

considers whether the facts, "when taken in the light most favorable to the party

asserting the injury, show the [defendant's] conduct violated a constitutional right[.]"

Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Saucier v. Katz, 533

U.S. 194, 201–02 (2001)). Second, the Court determines whether the right was

"clearly established such 'that a reasonable official would understand that what he is

doing violates that right.'" Id. (quoting Saucier, 533 U.S. at 201–02). The Court may

use its discretion to determine which prong to analyze first. Id. (citing Pearson v.

Callahan, 555 U.S. 223, 236 (2009)). Ultimately, "[p]laintiff bears the burden of

showing that defendants are not entitled to qualified immunity." Maben v. Thelen,

887 F.3d 252, 269 (6th Cir. 2018) (citing Chappell v. City of Cleveland, 585 F.3d 901,

907 (6th Cir. 2009)).

To determine whether a constitutional violation occurred here, the Report

applied the four-part balancing inquiry established by the Supreme Court's decision

in Turner v. Safley, 482 U.S. 78 (1987). ECF 98, PgID 2601–02. But Turner addresses

facial challenges to prison regulations and not as-applied challenges against the

officials implementing those valid regulations. 482 U.S. at 99–100. Reliance on

Turner was misplaced because Byrd did not challenge the facial validity of the MODC

Regulation. Instead, Byrd only argued that the regulation—as applied by Haas—

violated his constitutional rights.

Given Byrd's as-applied challenge, the Sixth Circuit, in related contexts,

seemed to explain that "isolated incident[s]" or actions resulting from "confusion or

miscommunication," do not violate the First Amendment. See Maye v. Klee, 915 F.3d

1076, 1083 (6th Cir. 2019) (citing, in part, Beebe v. Birkett, 749 F. Supp. 2d 580, 597

(E.D. Mich. 2010)); Colvin, 605 F.3d at 293–94. Here, Byrd has not alleged that

Defendant Haas's failure to approve his request for group religious services or

personal religious property was anything more than either an isolated incident or the

result of confusion or miscommunication. And, as the Report explained, the record

indicated that Defendant Haas was not the decisionmaker with authority to grant or

deny Byrd's ultimate request. ECF 98, PgID 2596. As a result, Defendant Haas's

failure to act did not violate Byrd's First Amendment Free Exercise rights, and he is

therefore entitled to qualified immunity as to the monetary damages under this

claim.

2. Injunctive Relief

Because Byrd also sued for injunctive relief as to his First Amendment Free

Exercise claim, the Court must consider whether Defendant Haas is entitled to

summary judgment on the injunctive relief claim as well. Summary judgment is

proper if there is no genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Generally, the defense of

qualified immunity is unavailable for "§ 1983 cases against individuals where

injunctive relief is sought instead of or in addition to damages." Pearson v. Callahan,

555 U.S. 223, 242 (2009). But because the Court found that Defendant Haas's actions

do not violate Byrd's constitutional rights, i.e., that there has been no constitutional

violation, Defendant Haas is entitled to judgment as a matter of law. Thus, Defendant

Haas is entitled to summary judgment as to injunctive relief under the First

Amendment Free Exercise claim. The Court will therefore sustain Defendant's

objection to the First Amendment claim and overrule the Report's recommendation

denying summary judgment and qualified immunity on the First Amendment claim.

B. Fourteenth Amendment Equal Protection Claim

Next, the Report recommended that summary judgment be granted in favor of

Defendant Haas on the Fourteenth Amendment Equal Protection claim. Id. at 2610,

2620. Byrd objected to the Report's recommendation. ECF 102, PgID 2700. Byrd

alleged that Defendant Haas violated his Fourteenth Amendment equal protection

rights because Haas knew that the MDOC policy allowed other religious believers to

gather for group services or to possess personal items similar to those Byrd requested.

ECF 87, PgID 1275. Byrd did not challenge the MDOC policy itself, but rather Haas's

implementation of it.3 The Report recommended granting summary judgment to

Defendant Haas on the claim because Byrd failed to show that any alleged differential

treatment resulted from "intentional or purposeful discrimination by Haas." ECF 98,

PgID 2605 (emphasis in original). The Court agrees.

3 The Court notes that none of the remaining Defendants hold policymaking authority

within MDOC and therefore a claim about the constitutionality of the policy itself is

not before the Court.

1. Monetary Damages

There is no evidence in the record that showed Defendant Haas's failure to

forward Byrd's request for group religious services or personal religious property

stemmed from any animus for Yoruba or followers of Ifa. Byrd did not offer any

evidence that Defendant Haas treated other religions—conventional or otherwise—

any differently than Yoruba. Without that sort of evidence, all that is left is Byrd's

speculation that Defendant Haas's failure to act stemmed from discriminatory intent.

But "speculations or intuitions" cannot survive summary judgment. Frazier v. USF

Holland, Inc., 250 F. App'x 142, 148 (6th Cir. 2007) (citing Mulhall v. Ashcroft, 287

F.3d 543, 552 (6th Cir. 2002)). And without proof of discriminatory intent,

discriminatory enforcement, or animus there is no equal protection violation. See Vill.

of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977) ("Proof

of . . . discriminatory intent or purpose is required to show a violation of the Equal

Protection Clause."); see also Romer v. Evans, 517 U.S. 620, 632 (1996) (asserting that

laws created out of animus towards a class violate the Equal Protection Clause); Yick

Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (explaining that the Equal Protection

Clause is violated if a facially valid law is administered unequally).

Byrd also encouraged the Court to look to the Sixth Circuit's recent decision in

Koger v. Moher to evaluate his equal protection claim. 964 F.3d 532 (6th Cir. 2020).

But the present case is distinguishable from Koger in at least one very important

respect. The court in Koger evaluated an Equal Protection claim about "'a facially

discriminatory distinction between' Islam and Rastafarianism." Koger, 964 F.3d at

545 (emphasis added) (quoting Maye, 915 F.3d at 1086). Unlike the claims in Koger,

Bryd did not allege any discriminatory MDOC policy, he merely alleged

discriminatory enforcement of a facially neutral policy.

In short, without a constitutional violation, Defendant Haas is entitled to

qualified immunity as to Byrd's Fourteenth Amendment Equal Protection claim for

monetary damages.

2. Injunctive Relief

Defendant Haas is entitled to summary judgment for injunctive relief as to the

Fourteenth Amendment Equal Protection claim as well. As set forth above, Byrd's

claim that Defendant Haas acted with discriminatory intent when he failed to

forward along Byrd's request for additional religious items and group religious

services is speculative at best. And Byrd has not shown that Defendant Haas

administered the MDOC Policy Regulation in an unequal manner. Speculation is

insufficient to survive summary judgment. See Frazier, 250 F. App'x at 148 (citing

Mulhall, 287 F.3d at 552). Defendant Haas is therefore entitled to summary

judgment as to the injunctive relief under the Fourteenth Amendment Equal

Protection claim. The Court will overrule Byrd's objection and will adopt the Report's

finding that there was no Fourteenth Amendment Equal Protection violation against

Defendant Haas entitled to injunctive relief.

C. Fourteenth Amendment Due Process

As to the final claim against Defendant Haas, the Report found that to the

extent that Byrd had intended to raise a Fourteenth Amendment procedural due

process claim based on a property interest, it failed, and Haas was entitled to

summary judgment. ECF 98, PgID 2610. The Report also recommended denying

summary judgment to Defendant Haas as to Byrd's liberty interest claim, finding

that "Haas'[s] improper processing of the request effectively imposed an atypical and

significant hardship on plaintiff, and his improper handling of the request took away

what process [Byrd] had [] under prison policy." Id. at 2609. Defendants objected to

the Report's determination and argued that no constitutional violation occurred and

that Haas was therefore entitled to qualified immunity on the claim. ECF 103, PgID

2723–24. In response, Byrd clarified that he had only claimed that Defendants

violated his liberty interest to "practice his religion." ECF 105, PgID 2756.

1. Monetary Damages

To prove a violation of a person's procedural due process rights, a plaintiff must

show: "1) a liberty . . . interest protected by the due process clause, 2) a deprivation

of that protected interest within the meaning of the due process clause; and 3)

defendant's failure to afford adequate procedural rights prior to the deprivation."

Russell v. Wilkinson, 79 F. App'x 175, 178 (6th Cir. 2003). In the context of the liberty

interests owed to a prisoner, the "inmate must show that the actions of prison officials

either had the effect of altering the length or term of imprisonment or amounted to

'atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life.'" Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Thus, to find

a constitutional violation, the Court must determine whether Defendant Haas's

actions created an "atypical and significant hardship" for Byrd.

The Report accurately noted, "[w]hat constitutes an atypical and significant

hardship is not clearly defined, at least not in the context of a free exercise claim like

[P]laintiff's." ECF 98, PgID 2607. Neither the parties, nor the Report, nor the Court's

research have revealed any Supreme Court or Sixth Circuit case law that outlines

that a warden's ineffective processing of a prisoner's request for group religious

services as an "atypical and significant hardship." Russell, 79 F. App'x at 178. See

also Hearring v. Sliwowski, 712 F.3d 275, 280 (6th Cir. 2013) (citing Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)) ("In determining whether a right was clearly

established, we look first to decisions of the Supreme Court, then to our own

precedents, and then to decisions of other courts of appeal, and we ask whether these

precedents 'placed the . . . constitutional question beyond debate.'"). The Court also

does not believe Defendant Haas's action or inaction is clearly established based on a

"general statement[] of law" or general obviousness. Hearring, 712 F.3d at 280

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))

As a result, Defendant Haas's actions cannot have violated a "clearly

established right" and therefore, Haas is entitled to qualified immunity as to

Plaintiff's Fourteenth Amendment Due Process claim for monetary damages. Id. at

279 (quoting Harlow, 457 U.S. at 818) ("[Q]ualified immunity shields officials from

liability insofar as their conduct does not violate clearly established . . . constitutional

rights of which a reasonable person would have known.") (internal quotations

omitted). Defendants' objection is therefore affirmed and the Report is overruled as

to the due process claim for monetary damages.

2. Injunctive Relief

The Court must consider whether to grant summary judgment to Defendant

Haas on Byrd's injunctive relief as to the Fourteenth Amendment Due Process claim

based on an alleged liberty interest violation. Unlike the Free Exercise and Equal

Protection claims when qualified immunity was appropriate based on prong one, the

lack of a constitutional violation, the Court granted qualified immunity based on

prong two: a lack of clearly established law. Because answering prong two provides

less insight into whether the moving party is entitled to a judgment as a matter of

law, the Court must engage in a more thorough summary judgment analysis for the

Due Process claim.

And the Court must grant summary judgment "if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(a). The moving party must identify specific

portions of the record that "it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving

party has met its burden, the nonmoving party must present "specific facts showing

that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis omitted).

A fact is material if proof of that fact would establish or refute an essential

element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174

(6th Cir. 1984). A dispute over material facts is genuine "if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary

judgment, the Court must view the facts and draw all reasonable inferences "in the

light most favorable to the non-moving party." 60 Ivy St. Corp. v. Alexander, 822 F.2d

1432, 1435 (6th Cir. 1987) (citations omitted).

Defendants argued that Byrd "had no constitutional right to have his request

forwarded" and that "prison regulations [do not] create a protected liberty interest."

ECF 80, PgID 742. Thus, Defendant argued that because the Due Process Clause did

not cover Byrd's claims, the claims fail as a matter of law. Id. To the contrary, Byrd

argued that the MDOC policy acts as a complete denial of his ability to practice his

faith, outside the bounds of the "ordinary incidents of prison life." ECF 87, PgID 1276.

The question before the Court, therefore, is whether Defendant Haas failed to

forward Byrd's requests because MDOC policy prevented him from forwarding a

defective request or because Defendant Haas negligently failed to forward Byrd's

properly submitted requests. If Byrd's requests were defective, then Defendant Haas

was merely enforcing the MDOC policy by not forwarding them. See ECF 80-2, PgID

763. In his deposition testimony, Defendant Haas testified that he did not recall

receiving any requests for new religious items or requests for group religious services

during his time at Macomb Correctional Facility. ECF 80-10, PgID 1007–08. Even so,

there is evidence in the record that at least one of Byrd's requests, though perhaps

defective, was received. ECF 80-7, PgID 894; ECF 87-21, PgID 2283–88. Thus, there

is a genuine dispute of material fact over the requests sent by Byrd, the requests

received by Defendant Haas as warden, and why such requests were never forwarded.

Defendant's objection is therefore overruled and the Report is affirmed as to the due

process claim for injunctive relief.

II. Byrd's Objection to the Grant of Qualified Immunity to McKee

Next, the Report found that "qualified immunity should attach to Defendant

McKee for the First and Fourteenth Amendment claims against him." ECF 98, PgID

2599. Byrd objected and argued that Defendant McKee should be denied qualified

immunity and held liable under a theory of supervisory liability. ECF 102, PgID

2694–99.

As a Deputy Director of MDOC, Policy Directive 05.03.150 tasked Defendant

McKee with "the final decision as to whether the religious item will be approved. . ."

but only after such a request had gone to the prisoner's warden, the SCFA Special

Activities Coordinator, and the Chaplain's Advisory Committee. ECF 80-2, PgID 763.

There is no dispute that Byrd's requests never reached Defendant McKee. The Report

recommended granting Defendant McKee qualified immunity because he did not

have a duty to act on Byrd's request until it reached him through the chain of

command—an event that never occurred. ECF 98, PgID 2599. Byrd objected and

argued that Defendant McKee was not entitled to qualified immunity because he is

"liable for [employees'] constitutional violations as the[ir] supervisor." ECF 102, PgID

2695.

Under Sixth Circuit precedent:

[Section] 1983 liability of supervisory personnel must be based on more

than the right to control employees. Section 1983 liability will not be

imposed solely upon the basis of respondeat superior. There must be a

showing that the supervisor encouraged the specific incident of

misconduct or in some other way directly participated in it. At a

minimum, a § 1983 plaintiff must show that a supervisory is at least

implicitly authorized, approved or knowingly acquiesced in the

unconstitutional conduct of the offending subordinate.

Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005) (emphasis added) (quoting

Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). Thus, supervisory liability

under § 1983 only arises if the subordinates in question have participated in

unconstitutional behavior. See DeMerrell v. City of Cheboygan, 206 F. App'x 418, 430

(6th Cir. 2006) ("[I]f there is no unconstitutional conduct by an offending subordinate,

as in the instant case, a plaintiff cannot make the required [supervisory liability]

showing."). Because the Court has found that Defendant McKee's subordinates did

not commit unconstitutional behavior, Byrd failed to prove supervisory liability under

§ 1983. The Court overrules Plaintiff's objection and adopts the Report's finding that

Defendant McKee is entitled to qualified immunity, and therefore the claim for

monetary damages is dismissed.

The Report failed to make any recommendation as to whether Byrd was

entitled to injunctive relief for the actions of Defendant McKee. Instead, the Report

is limited to a brief, qualified immunity analysis. ECF 98, PgID 2599. But because

Byrd requested injunctive relief against all defendants and claims for injunctive relief

are excluded from qualified immunity, the Court must consider the claim as well. As

previously stated, summary judgment is proper if there is no genuine dispute as to

any material fact and the moving part is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56. There is no genuine dispute of material fact as to the actions of

Defendant McKee. It is clear that Defendant McKee became responsible for requests

in the MDOC system only after such a request had gone to the warden, the Special

Activities Coordinator, and the Chaplain's Advisory Council. ECF 80-2, PgID 763.

There is no dispute that Byrd's request never went past the initial step. ECF 98, PgID

2599. Thus, Defendant McKee can only be held liable under a theory of supervisory

liability. But because the Court finds that Defendant McKee's subordinates' actions

do not violate Byrd's constitutional rights, there is no supervisory liability and

Defendant McKee is entitled to judgment as a matter of law. Therefore, Defendant

McKee is also entitled to summary judgment as to the injunctive relief claimed

against him.

III. Defendants' Objection to the Report Regarding the RLUIPA Claim

The Report recommended denying summary judgment to Defendants Haas,

Leach, and McKee under RLUIPA because "[q]uestions of fact remain as to whether

these defendants substantially burdened [P]laintiff's religious practice." ECF 98,

PgID 2611–12. The Court will address the RLUIPA claims in a separate order.

IV. Objection to Report Regarding Claims Against Umeh

The Report recommended denying summary judgment to Defendant Umeh on

Byrd's First Amendment Free Exercise claim but granting summary judgment to

Defendant Umeh on Byrd's Fourteenth Amendment Due Process and RLUIPA

claims. ECF 98, PgID 2620. Neither party objected to the Report's recommendation

granting Defendant Umeh summary judgment on the Fourteenth Amendment

claims, so the Court will adopt the Report and grant summary judgment as to that

claim.

Defendants did, however, object to the Report's recommendation that Plaintiff

had a viable First Amendment claim against Defendant Umeh. See ECF 103. The

Report found that Defendant Umeh was not entitled to qualified immunity as to the

Free Exercise claim against him because "it was clearly established in June 2017 that

[Byrd] had the right to the free exercise of his religion unless that exercise posed a

security risk in the prison." ECF 98, PgID 2619. Defendants objected and argued that

no evidence supported a First Amendment claim against Defendant Umeh. ECF 103,

PgID 2729.

A. Monetary Damages

Like the claim against Defendant Haas, the Report alluded to the four-part

balancing test in the Supreme Court's decision in Turner as the means to addressing

whether Defendant Umeh's actions constituted a constitutional violation. ECF 98,

PgID 2619. But again, Turner addresses facial challenges to prison regulations, not

as-applied challenges brought against individual officers who implement those valid

regulations. Again, like the claim against Defendant Haas, Byrd did not challenge

the constitutionality of the MDOC regulation that Defendant Umeh allegedly failed

to follow.

So, as set forth above, the Sixth Circuit has illustrated that "isolated

incident[s]" or as the result of "confusion or miscommunication" do not violate the

First Amendment. See Maye, 915 F.3d at 1083 (citing, in part, Beebe, 749 F. Supp. 2d

at 597); Colvin, 605 F.3d at 293–94. The facts viewed in the light most favorable to

Byrd, show that Byrd left some cowrie shells on his altar on his desk when he went

into segregation. ECF 80-5, PgID 883. Defendant Umeh was later tasked with

packing up Byrd's cell. ECF 87-23, PgID 2346–47. And when Byrd returned from

segregation the cowrie shells were gone. ECF 87-4, PgID 1448–49. The reasonable

inference, therefore, is that Umeh lost or threw away the shells during the packing

up process. And Umeh denies that conduct. Regardless, Byrd has failed to show that

Defendant Umeh's behavior was anything more than an "isolated incident" in which

his property was misplaced or thrown away. Byrd has not shown that Defendant

Umeh, or any other officer, regularly threw away religious items belonging to Yoruba

practitioners or any other faith tradition. Byrd has not shown that Defendant Umeh

understood that the cowrie shells were a religious item and that his actions were

deliberate, rather than the result of confusion. As a result, Defendant Umeh's failure

to act did not violate Byrd's First Amendment Free Exercise rights, and he is

therefore entitled to qualified immunity as to this claim for monetary damages.

Defendant's objection to the First Amendment claim is sustained, and the Report is

overruled as to the monetary damages.

B. Injunctive Relief

Because Byrd has failed to show Defendant Umeh's actions were deliberate

rather than the result of confusion, nor that they extended beyond an "isolated

incident," he has failed to show Defendant Umeh's actions constituted a First

Amendment violation. Nor is there any genuine dispute of material fact regarding

the incident with Defendant Umeh. Because the Court finds that Defendant Umeh's

actions do not violate Byrd's constitutional rights, i.e., that there has been no

constitutional violation, Defendant Umeh is entitled to a judgment as a matter of law.

Defendant Umeh is therefore entitled to summary judgment as to the injunctive relief

under the First Amendment Free Exercise claim. Defendant's objection to the First

Amendment claim is sustained, and the Report is overruled as to the monetary

damages.

V. Byrd's Motion for Leave to File Supplemental Authority

Byrd recently moved for leave to file supplemental authority for the proper

standard for evaluating an equal protection claim at the summary judgment stage.

ECF 107. Specifically, Byrd pointed to the Sixth Circuit's decision in Koger v. Moher,

964 F.3d 532 (6th Cir. 2020). ECF 107, PgID 3047. The Court will grant the motion

and has taken the precedent in Koger into consideration.

ORDER

WHEREFORE, it is hereby ORDERED that Defendants' objections [103] are

OVERRULED IN PART and AFFIRMED IN PART.

IT IS FURTHER ORDERED that Plaintiff's objections [102] are

OVERRULED.

IT IS FURTHER ORDERED that the Report and Recommendation [98] is

ADOPTED IN PART and OVERRULED IN PART.

IT IS FURTHER ORDERED that Defendant Haas is ENTITLED to

qualified immunity as to Plaintiff's First Amendment Free Exercise, Fourteenth

Amendment Equal Protection, and Fourteenth Amendment Due Process claims for

monetary damages.

IT IS FURTHER ORDERED that summary judgment is GRANTED in favor

of Defendant Haas on Plaintiff's First Amendment Free Exercise and Fourteenth

Amendment Equal Protection claims for injunctive relief.

IT IS FURTHER ORDERED that summary judgment is DENIED as to

Defendant Haas on Plaintiff's Fourteenth Amendment Due Process claim for

injunctive relief.

IT IS FURTHER ORDERED Defendant McKee is ENTITLED to qualified

immunity as to Plaintiff's First Amendment Free Exercise claim and Fourteenth

Amendment Due Process and Equal Protection claims for monetary damages.

IT IS FURTHER ORDERED that summary judgment is GRANTED in favor

of Defendant McKee as to Plaintiff's First and Fourteenth Amendment claims for

injunctive relief.

IT IS FURTHER ORDERED that Defendant Umeh is ENTITLED to

qualified immunity as to Plaintiff's First Amendment claim for monetary damages.

IT IS FURTHER ORDERED that summary judgment shall be GRANTED

in favor of Defendant Umeh on Plaintiff's Fourteenth Amendment claim and First

Amendment claim for injunctive relief.

The Court will refrain from ruling on the RLUPA claim and will address it in

a separate order.

SO ORDERED.

s/ Stephen J. Murphy, III

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 19, 2020

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on October 19, 2020, by electronic and/or ordinary mail.

s/ David P. Parker

Case Manager