The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEVEN ABDUL-AZIZ
EL BEY, also known as
Steven L. Smith, Case No. 1:19-cv-693
Plaintiff,
Dlott, J.
vs. Bowman, M.J.
THOMAS KEHR, et al., ORDER AND REPORT
Defendants. AND RECOMMENDATION
Plaintiff, an inmate at the Warren Correctional Institution (WCI), in Lebanon, Ohio, has
filed a pro se civil rights complaint against defendants WCI Chaplain Thomas Kehr, WCI
Deputy Warden of Special Services Kimberly Mockabee, Religious Service Administrator Mike
Davis, WCI Deputy Warden of Special Services Casey Barr, and WCI Warden Shea Harris.1
(Doc. 1). Plaintiff alleges violations of his rights under the free exercise clause of the First
Amendment, the Fourteenth Amendment, and the Religious Land Use and Institutionalized
Persons Act (RLUIPA). By separate Order, plaintiff has been granted leave to proceed in forma
pauperis.
This matter is before the Court for a sua sponte review of the complaint to determine
whether the complaint or any portion of it should be dismissed because it is frivolous, malicious,
fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant
who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.
§ 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant
1Although not named as a defendant in the case caption, plaintiff names Institutional Inspector Cynthia Hill
as a defendant in the body of the complaint. (See, e.g., Doc. 1, at PageID 5). For ease of reference, the Clerk of
Court is Directed to update the docket sheet in this case to include Hill as a defendant.
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as
frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or
law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a legal interest which clearly does not
exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations
are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at
32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are
“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d
468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). 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 v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at
470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff alleges that he is a member of the Moorish Science Temple. (See Doc. 1, at
PageID 2). He contends that between May 12, 2017 and an unspecified time after January 24,
2018, he communicated with defendant Kehr about receiving religious services at WCI in
accord with his religious preference of Moorish Science Temple. (Doc. 1, at PageID 2-6).
Plaintiff claims that a Moorish Science volunteer provided religious services at WCI on
November 22, 2017, but that the volunteer had been approved as a guest only. (Doc. 1, at
PageID 4).
During the same time, plaintiff filed an informal complaint requesting religious
services, which defendant Mockabee denied. (Doc. 1, at PageID 4). Plaintiff filed a grievance
related to his informal complaint, which defendant Hill denied on November 30, 2017. (Doc.
1, at PageID 4). Plaintiff alleges that he was unable to timely appeal the denial of his
grievance because Hill was on vacation and plaintiff did not have the appeal forms. (See Doc.
1, at PageID 4-5). Plaintiff asserts that non-defendant Suzanne Evans2 told plaintiff that his
electronic appeal had been improperly filed. (Doc. 1, at PageID 5). Plaintiff alleges that his
wife contacted non-defendant Chief Inspector Roger Wilson, who allegedly contacted Hill.
(See Doc. 1, at PageID 5). Plaintiff asserts that upon her return Hill informed plaintiff that the
appeal deadline would not be an issue. (Doc. 1, at PageID 5).
Plaintiff asserts that he submitted a religious accommodation form to defendant Davis,
but Davis denied congregate services on January 24, 2018, stating that “the institution currently
has an appropriate religious provider for your faith group.” (Doc. 1, at PageID 5).
Plaintiff alleges that on February 12, 2018, he received a letter from non-defendant
Candace Henry, stating that additional time would be required before a decision could be made
concerning his grievance. (Doc. 1, at PageID 6). Plaintiff alleges that he sent a letter
requesting additional information, but other than receiving a time-stamped copy of his letter he
received no additional information. (Doc. 1, at PageID 6).
Plaintiff sues defendants Kehr and Mockabee in their individual capacities and
defendants Davis, Barr, and Harris in their official and individual capacities. (Doc. 1, at
PageID 1).3 Plaintiff seeks monetary, declaratory, and injunctive relief. (Doc. 1, at PageID 7-
8).
Liberally construed and without the benefit of briefing by the parties, the complaint is
2A number of plaintiff’s allegations are asserted against non-defendant third parties. To the extent that
plaintiff asserts claims against non-defendants, those claims are subject to dismissal.
3Plaintiff does not indicate the capacity in which he is suing defendant Hill.
deserving of further development and may proceed at this juncture against defendants Kehr and
Davis, in their individual capacities, under the free exercise clause of the First Amendment and,
to the extent the complaint seeks declaratory and injunctive relief, under RLUIPA. To the extent
that plaintiff seeks declaratory and injunctive relief, plaintiff’s First Amendment free exercise
and RLUIPA claims may also proceed at this juncture against defendant Davis in his official
capacity. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). However, plaintiff’s remaining claims
should be dismissed for failure to state a claim upon which relief may be granted.
First, plaintiff’s claims against any defendant in his or her official capacity must be
dismissed to the extent that plaintiff seeks monetary damages. Absent an express waiver, a state
is immune from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, 506 U.S. 139 (1993); Edelman v. Jordan, 415 U.S. 651 (1974). An action
against a state official in his or her official capacity is the equivalent of an action against the
State he or she represents. Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Michigan Dep’t. of
State Police, 491 U.S. 58, 70-71 (1989). Therefore, all the individual defendants in their official
capacities are immune from suit to the extent that plaintiff seeks monetary damages.
Next, plaintiff’s claims against any defendant under RLUIPA should be dismissed to the
extent plaintiff seeks monetary damages because there is no cause of action for damages under
RLUIPA. See Hendricks v. Aramark, Inc., No. 2:14-cv-2015, 2015 WL 1809361, at *4 (S.D.
Ohio Apr. 21, 2015) (citing cases).
Plaintiff’s claims against defendants Mockabee and Hill should be also dismissed.
Plaintiff seeks to hold these defendants liable based on their alleged handling of his grievances.
However, “[a] prisoner does not have a constitutionally protected right to an effective grievance
procedure.” Valladolid v. Mich. Dep’t of Corr., No. 15-1930, 2017 WL 3528221, at *3 (6th Cir.
Feb. 14, 2017) (citing Hewitt v. Helms, 459 U.S. 460, 467 (1983), abrogated on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir.
2003)). See also Greenberg v. Hill, No. 2:07-cv-1076, 2009 WL 890521, at *3 (S.D. Ohio Mar.
31, 2009) (“In order to establish liability under RLUIPA (and section 1983), a plaintiff must
prove, among other things, the personal involvement of each defendant in the alleged
violation.”).
Plaintiff’s claims against defendants Barr and Harris are also subject to dismissal.
Plaintiff does not provide a factual predicate for his otherwise conclusory allegations in his
“Claims for Relief” that Barr failed to “take disciplinary or other action to curb the known
pattern of discriminatory; prejudicial actions of chaplain Kehr” and Harris upheld Davis’s
“discriminatory and prejudicial” decision. (Doc. 1, at PageID 6-7). Plaintiff’s claims against
these defendants amount to mere conclusory assertions. Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 555.
Additionally, to the extent Plaintiff alleges that he and other inmate-members of the
Moorish Science Temple were not notified of the November 22, 2017 Moorish Science Temple
meeting until November 20, 2017 and that there was no institutional notice of the meeting (Doc.
1, at PageID 4), plaintiff does not claim to be an attorney and thus cannot represent other inmates
in court. See 28 U.S.C. § 1654; Eagle Assoc. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir.
1991). Any claims brought by plaintiff on behalf of other inmates should be dismissed. Further,
to the extent that plaintiff attempts to raise a due process claim based on these allegations, the
Fourteenth Amendment is not the proper basis for a First Amendment claim. See Luther v.
White, No. 5:17-cv-138, 2019 WL 4918770, at *2 (W.D. Ky. Oct. 4, 2019) (finding that
plaintiff’s Fourteenth Amendment religious freedom claim was “better analyzed under the
explicit protection of the First Amendment”); Strickland v. Godinez, No. 14-cv-962, 2014 WL
4979822, at *3 (S.D. Ill. Oct. 6, 2014) (“It appears that Plaintiff is merely attempting to attach
additional labels to a single claim—his First Amendment claim.”).
Finally, to the extent that plaintiff also intends to raise an Eighth Amendment claim (see
Doc. 1, at PageID 6-7), he has failed to state a claim upon which relief may be granted. “To
prove an Eighth Amendment violation, an inmate must show that he has been deprived of the
minimum civilized measures of life’s necessities.” Estep v. Million, No. 98-6322, 1999 WL
776202, at *1 (6th Cir. Sept. 24, 1999) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Plaintiff fails to present facts from which the Court can infer that plaintiff was deprived of the
minimum civilized measures of life’s necessities. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S.
at 555, 557.
Accordingly, in sum, the complaint may proceed at this juncture against defendants Kehr
and Davis, in their individual capacities, under the free exercise clause of the First Amendment
and, to the extent the complaint seeks declaratory and injunctive relief, under RLUIPA. To the
extent that plaintiff seeks declaratory and injunctive relief, plaintiff’s First Amendment free
exercise and RLUIPA claims may also proceed at this juncture against defendant Davis in his
official capacity. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Having found that the remaining
allegations in the complaint fail to state a claim upon which relief may be granted, plaintiff’s
remaining claims should be dismissed.
However, plaintiff has failed to provide service copies, summons, or United States
Marshal forms so that service may be issued on defendants Kehr and Davis. Plaintiff is therefore
ORDERED to submit a service copy of the complaint, a summons form, and a United States
Marshal form for defendants Kehr and Davis within thirty (30) days of the date of this Order.
Plaintiff is advised that failure to comply with this Order may result in the dismissal of this
action for want of prosecution.
IT IS THEREFORE RECOMMENDED THAT:
The complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff’s individual capacity First
Amendment free exercise claim against defendants Kehr and Davis, plaintiff’s official capacity
First Amendment free exercise claim for declaratory and injunctive relief against defendant
Davis, and plaintiff’s RLUIPA claim for declaratory and injunctive relief against defendants
Kehr and Davis.
IT IS THEREFORE ORDERED THAT:
1. Within thirty (30) days of receipt of this Order, plaintiff is ORDERED to submit
service copies of the complaint, as well as completed summons and United States Marshal forms
for defendants Kehr and Davis.
2. The Clerk of Court is DIRECTED to send to plaintiff a copy of the complaint, a
summons form, and a United States Marshal form for this purpose. Upon receipt of the service
copies and completed summons and United States Marshal forms, the Court shall order service
of process by the United States Marshal in this case.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STEVEN ABDUL-AZIZ
EL BEY, also known as
Steven L. Smith, Case No. 1:19-cv-693
Plaintiff,
Dlott, J.
vs. Bowman, M.J.
THOMAS KEHR, et al.,
Defendants.
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).