# Abdul-Azziz El Bey v. Kehr

> District Court, S.D. Ohio · February 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10381799

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STEVEN-AZZIZ EL BEY, Case No. 1:19-cv-693

Plaintiff,
Dlott, J.
vs. Bowman, M.J.

THOMAS KEHR, et al.,

Defendants.

AMENDED REPORT AND RECOMMENDATION
Pursuant to local practice, this prisoner civil rights case has been referred to the
undersigned magistrate judge. On September 3, 2021, the undersigned filed a Report
and Recommendation (“R&R”) that recommended that Defendants’ motion for summary
judgment be granted. (Doc. 22). However, the Court set aside that R&R and remanded
to the undersigned for further development of the record. Based upon the supplemented
record, the undersigned again recommends that summary judgment be granted.
I. Procedural Background
Plaintiff, who proceeds pro se, filed a complaint against multiple defendants while
he was incarcerated at the Warren Correctional Institution (“WCI”). Included in the
complaint are allegations that two prison officials denied his requests to engage in group
worship with other members of Plaintiff’s religion, the Moorish Science Temple of America
(“MSTA”). Defendant Thomas Kehr is the Chaplain at WCI, whereas Defendant Mike
Davis is the Religious Services Administrator for the Ohio Department of Rehabilitation
and Corrections (“ODRC”). After initial screening, the undersigned filed a Report and
Recommendation that concluded:
[T]he complaint may proceed … 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.

(Doc. 6 at 7, PageID 35, adopted at Doc. 11).
After discovery, Defendants moved for summary judgment and the undersigned
recommended that motion be granted. (Docs. 15, 22). When no timely objections were
filed, the Court adopted that R&R and entered final judgment on September 20, 2021.
(Docs. 23, 24).
Plaintiff did not appeal. Instead, Plaintiff filed a “writ to amend judgment” on
November 1, 2021, in which he alleged he had been unable to file objections due to his
transfer from WCI to the Allen Oakwood Correctional Institution (“AOCI”) three months
before the R&R was filed. (See Doc. 25). Prior to filing his “writ,” Plaintiff failed to notify
the Court of his change of address. Although many courts hold that a pro se litigant’s
failure to keep the court informed of his current address amounts to a failure to prosecute,1
the Court exercised its discretion in this case to vacate the adoption of the R&R and to
reopen the objection period.2 (Doc. 27).

1Plaintiff is forewarned that any future failure to notify the Court of a change in address may be so treated
as a failure to prosecute. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (holding that a pro se
litigant has an affirmative duty to diligently pursue the prosecution of his cause of action); Barber v. Runyon,
No. 93–6318, 1994 WL 163765, at *1 (6th Cir. May 2, 1994) (holding that a pro se litigant has a duty to
supply the court with notice of changes in his address); Theede v. U.S. Dep't. of Labor, 172 F.3d 1262,
1265 (10th Cir. 1999) (holding that failure to object to a magistrate judge's R&R because of party's failure
to bring to the court's attention a change in address constitutes failure to object in a timely manner, and that
because the R&R was mailed to the last known address, it was properly served and party waived right to
appellate review); El Bey v. Wisecup, Case No. 1:21-cv-678 (S.D. Ohio, July 20, 2022) (rejecting argument
that Plaintiff had not timely received copy of the R&R, holding that Plaintiff had failed to prosecute where
R&R mailed to Plaintiff at his last known address was returned as not deliverable).
2The vacatur of the Order adopting the R&R (Doc. 23) is presumed also to have vacated the Entry of
Judgment. Although Plaintiff’s “writ” admits to actual receipt of the September 2021 R&R on October 6,
2021, the Court expanded the time for filing objections to January 31, 2022.
Under the “mailbox rule,” Plaintiff timely filed objections on February 3, 2022.3
(Doc. 29). Reconsidering the R&R in light of those objections, the Court concluded that
the record was insufficiently developed to warrant summary judgment. (Doc. 31). The
Court cited factual disputes concerning “whether the lack of MSTA congregate services
substantially burdens Plaintiff’s practice of religion, the extent to which holding MSTA

services would create administrative burdens, and whether Defendants can prove that
requiring MSTA adherents to worship in congregation with other Islamic inmates is based
on legitimate penological interests or is the least restrictive means available to achieve
their compelling interests.” (Id. at 11, PageID 296). The Court further noted that neither
party had addressed the significance of Plaintiff’s transfer to AOCI.4 (Id.) In finding the
record insufficiently developed concerning the potential burden on Plaintiff’s religious
practice, the Court focused on the parties’ “factual assertions about the MSTA religious
faith and its relationship with Islam.” (See Doc. 31 at 13-14, PageID 298-299). The Court
remanded to the undersigned for further proceedings.

At the Court’s suggestion, the undersigned reopened discovery and permitted the
filing of supplemental briefs regarding the still-pending motion for summary judgment.
Informed by that supplemental briefing, the undersigned again recommends that
Defendants’ motion be GRANTED.

3Plaintiff delivered his objections to prison authorities within the deadline, as evidenced by the January 31,
2022 postal stamp on the envelope in which the objections were mailed. See generally United States v.
Smotherman, 838 F.3d 736, 737 (6th Cir. 2016) (holding a prisoner’s notice of appeal to be timely when
delivered with prepaid postage to prison authorities for mailing to the clerk of court).
4The Court expressed curiosity about “what religious congregate services are held at [AOCI]” and whether
Plaintiff has sought to engage in congregate MSTA services at AOCI. (Doc. 31 at 11, 14). For the reasons
explained below, the issues in this lawsuit should be limited to WCI.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment is proper, “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). A dispute is “genuine”
when “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, 106 S. Ct. 2505 (1986). It is
the moving party that has the burden of showing an absence of evidence to support the
nonmoving party’s case, see Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548
(1986), and the court must view the evidence and draw all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348 (1986).
After a moving party has carried its initial burden of production, the burden shifts
to the non-moving party to present specific facts demonstrating a genuine issue for trial.
Matsushita Elec. Indus. Co., 475 U.S. at 586-87. He must “designate specific facts in

affidavits, depositions, interrogatories, or other factual material” from which a reasonable
jury could find in his favor. Maston v. Montgomery Cty. Jail Med. Staff Pers., 832
F.Supp.2d 846, 849 (S.D. Ohio 2011). “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v.
Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). There must be more than “some
metaphysical doubt as to the material facts.’” EEOC v. Ford Motor Corp., 782 F.3d 753,
770 (6th Cir. 2015) (en banc).
The Court’s prior Order found the factual record to be insufficiently developed
under Rule 56. The Court permitted both parties to supplement the record, carefully
explaining to Plaintiff his obligation to present probative countervailing evidence should
Defendants carry their initial Rule 56 burden of production. Before re-addressing the
merits of Defendants’ motion, the undersigned first: (1) clarifies the scope of Plaintiff’s
claims; and (2) explains why Plaintiff’s supplemental memorandum fails to satisfy Rule
56(c) and (e).

III. The Scope of Plaintiff’s Claims at WCI
In clarifying the scope of Plaintiff’s claims, the undersigned acknowledges that the
Court’s May 5, 2022 Order raised the issue of whether religious practices at AOCI might
also be considered; the parties have attempted to address that issue in their supplemental
memoranda. However, the parties only provided minimal information in the supplemental
memoranda on this issue.
Pro se litigants are not exempt from the requirements of the Federal Rules of Civil
Procedure. In the context of prisoner litigation, the scope of a pro se litigant’s claims is
typically developed upon initial screening or upon review of a motion to dismiss. On initial

screening here, Plaintiff’s complaint was liberally construed and permitted to proceed to
discovery on only two § 1983 and RLUIPA claims against two Defendants based solely
upon their denial of Plaintiff’s request for religious accommodations at WCI. Discovery on
Plaintiff’s WCI claims concluded more than two years ago and the Defendants thereafter
moved for summary judgment. After the Court set aside the initial grant of summary
judgment for further development of the record under Rule 56, the Court reopened
discovery. However, at no time did Plaintiff ever seek to amend his complaint.
The Sixth Circuit has held that courts should not “abrogate basic pleading
essentials in pro se suits.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A court’s
“duty to be ‘less stringent’ with pro se complaints does not require us to conjure up unpled
allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted); see
also Brown v. Matauszak, 415 Fed. Appx. 608, 613 (6th Cir. 2011) (“[A] court cannot
create a claim which [a plaintiff] has not spelled out in his pleading,”) (internal quotation
marks omitted); Payne v. Sec'y of Treas., 73 Fed. Appx. 836, 837 (6th Cir. 2003)

(affirming sua sponte dismissal of complaint, stating, “[n]either this court nor the district
court is required to create Payne's claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231,
124 S.Ct. 2441 (2004) (“District judges have no obligation to act as counsel or paralegal
to pro se litigants.”); Young Bok Song v. Gipson, 423 Fed. Appx. 506, 510 (6th Cir. 2011)
(“[W]e decline to affirmatively require courts to ferret out the strongest cause of action on
behalf of pro se litigants” because it would be “overly burdensome” and “would transform
the courts from neutral arbiters of disputes into advocates for a particular party.”).
The Prison Litigation Reform Act (“PLRA”) contains a mandatory exhaustion
requirement. See 42 U.S.C. § 1997e(a). On its face, Plaintiff’s complaint is limited to

allegations concerning his religious exercise at WCI, with no allegations that relate to
AOCI. Construing Plaintiff’s original complaint to include – at the summary judgment
phase – unpled new claims concerning AOCI would circumvent Defendants’ opportunity
to raise any reasonable affirmative defenses, including but not limited to the defense of
administrative exhaustion.5 See generally, Harbin v. South Carolina Dept. of Corrections,

5Defendants do not dispute that Plaintiff fully exhausted the administrative grievance process at WCI, (Doc.
1 at ¶38, PageID 6; Doc. 15-3, 15-4). However, Davis attests that Plaintiff has never made a request for
religious accommodation at AOCI since being transferred there in June 2021. (Doc. 41-1 at ¶ 28). Although
Plaintiff’s brief is not evidence, he newly alleges in his supplemental memorandum that he requested group
MSTA services at AOCI in “August of 2022” and has not received a response. (Doc. 42 at 17, PageID 576).
There are no allegations regarding the completion of the 3-step grievance process. Contrast Byrd v. Haas,
17 F.4th 692, 698 (6th Cir. 2021) (holding that multi-year failure to acknowledge requests amounted to
denial).
2014 WL 4955200, at *13 (D.S.C. 2014) (granting summary judgment on new claim that
had not been exhausted prior to filing amended complaint). In addition, First Amendment
and RLUIPA claims in the prison context require close scrutiny of specific institutional
facts. Religious items or practices that may raise safety concerns at a high-security
institution may pose little concern at a low-security institution. Space and staffing also

may differ. Based upon the limited and fully exhausted claims that this Court permitted to
proceed after initial screening, the instant complaint is not reasonably construed to state
any claim against either Defendant following Plaintiff’s transfer to AOCI on June 3, 2021.
In short, Plaintiff’s allegations and corresponding claims should be limited to his requests
for religious accommodations at WCI beginning in May 2017.
In the interest of clarity, the undersigned further defines the religious exercise at
issue. Plaintiff alleges that he requested MSTA “religious services” at WCI, such as
congregate services, prayer services, meetings and study classes. (Complaint, Doc. 1 at
¶10, PageID 2). He specifically seeks “some type of service i.e. congregate services,

prayer services, meetings, study classes either [led] by or under the immediate control of
a chaplain or religious service provider.” (Id. at ¶ 12, PageID 3, emphasis added; see also
id. at ¶B1, PageID 7).6 In short, it is clear that Plaintiff’s request is for MSTA-specific
“religious services” – a request that both Defendants and this Court have reasonably
construed to mean sectarian congregate services. (See Doc. 1 at ¶31, PageID 5; Doc. 31
at 1, 9, characterizing claim as the denial of “the right to participate in congregate religious
services with his [MSTA] faith group.”).

6Plaintiff does not define “religious services” beyond broad categorical descriptors. Whereas the meaning
of “study classes” is self-explanatory, the difference between “congregate services” “worship services” and
“prayer service” is not. But all of the identified religious practices are communal in nature.
IV. Plaintiff’s Failure to Cite to Evidence Under Rule 56
Plaintiff’s supplemental memorandum was filed beyond the October 8 deadline
and was unaccompanied by any evidentiary exhibits, despite the fact that the Court’s May
5, 2022 Order clearly explained that arguments alone were insufficient under Rule 56.7
Rule 56(c) provides that a non-moving party must “cit[e] to particular parts of materials in

the record” to demonstrate the existence of a genuine dispute of material fact, or
otherwise “show[ ] that the materials cited” by the moving party do not demonstrate that
no disputed issue of material fact exists. In other words, the non-moving party must
“designate specific facts in affidavits, depositions, interrogatories, or other factual
material” from which a reasonable jury could find in his favor. Maston., 832 F.Supp.2d at
849 (S.D. Ohio 2011); see also Rule 56(c)(4); S.D. Ohio Civ. R. 7 .2(e) (“Evidence shall
be presented, in support of or in opposition to any motion, using affidavits,
declarations pursuant to 28 U.S.C. § 1746, deposition excerpts, admissions, verified
interrogatory answers, and other documentary or electronic exhibits.”).

Following the heading “SUPPLEMENTAL BRIEF Relating to Defendants’ motion
for summary judgment,” the title page of Plaintiff’s brief includes a somewhat cryptic
subheading: “Affidavit of Fact.” (Doc. 42 at 1, PageID 560). Plaintiff’s additional reference
to 28 U.S. C. § 1746 at the conclusion of the 19-page brief suggests that Plaintiff may be
under the mistaken impression that he can convert his entire “BRIEF” into probative

7In its Order, the Court questioned whether Plaintiff had any “proof …that an MSTA volunteer completed
paperwork to serve as a religious services provider or a minister of record?” (Doc. 31 at 13). The Court
suggested “that Plaintiff obtain a sworn statement from a potential MSTA religious services provider to both
explain MSTA beliefs and to explain the steps he took to volunteer to lead services at Warren CI,” and
advised Plaintiff that “any sworn statement, including Plaintiff’s own statements of fact, must be signed,
dated, and explicitly made ‘under penalty of perjury’ in accord with 28 U.S.C § 1746.” (Id.)
evidence.8 But even if the Court considers his supplemental brief to be timely filed,9 his
cursory references are insufficient to alter the essence of his legal memorandum.10
First, the brief is not an “Affidavit” because it is not notarized. In Peters v. Lincoln
Elec. Co., 285 F.3d 456, 475 (6th Cir. 2002), the Sixth Circuit succinctly explained the
difference between a formally notarized “Affidavit” and an unsworn “Declaration” made

under penalty of perjury:
While an “affidavit” is required to be sworn to by the affiant in front of an
“officer authorized to administer oaths,” see Black's Law Dictionary 54 (5th
ed.1979), 28 U.S.C. § 1746 allows for “unsworn declarations under penalty
of perjury” to support any matter that legally requires an affidavit to support
it. According to § 1746, the declaration must comport to the following form:
“I declare (or certify, verify or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date).” 28 U.S.C. § 1746(2).
Id.
The brief also is not an unsworn Declaration that comports with 28 U.S.C. § 1746
and Rule 56(c)(4). Merely labeling a 20-page memorandum as a qualifying “Declaration”
does not make it so. Fed. R. Civ. P. 56(c)(4) states that “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to

8On the same page as his certificate of service, Plaintiff includes the following verbiage: “Under Penalty of
Perjury in accord with 28 U.S.C. § 1746 Without Malice. Affiant / Creditor / Heir: Steven Abdul-Azziz El
Bey Moorish American Sovereign National, Aboriginal, Indigenous, Divine Being - Manifested in human
flesh, do hereby Declare by virtue of Divine Law; under the Zodiac Constitution (Natural Law); and upon
my Fore-Mothers and Fore-Fathers that the above is the Truth, the Whole Truth and nothing but the Truth
to the best of my knowledge and honorable intent.” (Doc. 42 at 19, PageID 578 (emphasis original)).
9The envelope bears the postage date of October 12, 2022, and a certificate of service that states that
Plaintiff delivered it “to the staff member in charge of electronic filing or deposited this document in the
appropriate outgoing legal mailbox” on October 7. (Doc. 42 at 19-20, PageID 578-79). But for the mailbox
rule to apply, the certificate of service itself must be made under penalty of perjury and state that the inmate
has included the necessary postage. See Williams v. Rewerts, 2019 WL 1620808, at *1 (6th Cir. Jan 10,
2019) (citing Price v. Philpot, 420 F.3d 1158, 1166-67 (10th Cir. 2005)); Kline v. Michigan, No. 1:06-cv-
776, 2007 WL 295020, at *1 (W.D.Mich. Jan.25, 2007).
10This Court previously noted that Plaintiff has twice before (mis)labeled entire briefs as “Affidavits of Fact.”
(Doc. 31 at 2, n.1, PageID 287).
testify on the matters stated.” Id. (emphasis added). Plaintiff’s brief is replete with hearsay
and piecemeal quotations11 and contains few (if any) statements of fact made on the basis
of personal knowledge on which Plaintiff is competent to testify. Instead, it consists almost
entirely of recitations of beliefs comingled with argument.12 The undersigned does not
doubt the sincerity of Plaintiff’s beliefs. But “[b]elief, no matter how sincere, is not

equivalent to knowledge.” Townsend v. Rhodes, Case No. 14-10411, 2015 WL 5675749,
at *6 (E.D. Mich. Sept. 28, 2015) (affirming summary judgment and magistrate judge’s
failure to consider inmate affidavit not made on basis of personal knowledge).
When a so-called “affidavit” strays from admissible facts, the Sixth Circuit has held
that a trial court has discretion to strike the affidavit in whole or in part, depending upon
the ease with which it can “distinguish between knowledge and belief for each of the
affidavit's averments.” Ondo v. City of Cleveland, 795 F.3d 597, 605 (6th Cir. 2015). Here,
the burden of trying to ferret out statements of fact from argument would be extraordinary.
Therefore, the undersigned rejects the Supplemental Brief insofar as it purports to contain

any probative evidence. Rather, the undersigned limits its consideration to the argument
it presents. See generally, Balimunkwe v. Bank of America, N.A., Case No. 1: 14-cv-327,
2016 WL 75084, at *13 (S.D. Ohio, Jan 6, 2016) (rejecting plaintiff’s affidavits as “replete
with inadmissible legal arguments, hearsay, speculation, and statements that are not
within plaintiff’s personal knowledge”); Brautigam v. Damon, Case No. 1:11-cv-551, 2015
WL 11018199, at *14 (S.D. Ohio Nov. 17, 2015) (disregarding “affidavit” that “largely

11See, e.g., Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007) (disregarding hearsay in affidavit).
12The brief begins with extensive discussion of Plaintiff’s beliefs about the origins of words used to describe
racial or ethnic groups, and about the history of North America. (See Doc. 42 at 2-10; see also id. at 4,
PageID 563) (“Moors (Africans) were settled and trading with in the Americas long before the voyage of
Christopher Columbus”). He then segues into a discussion of why Plaintiff believes that “Moors” were
historically distinct from a Sunni Muslim group, before turning at last to an explanation of why Plaintiff
believes that his present practice of MSTA is distinct from orthodox Islam.
rehash[es] plaintiff’s memorandum” and consists of “inadmissible argument, speculation,
and hearsay” with “few ‘facts’ based on plaintiff’s first-hand knowledge.”); Atkins v.
Christiansen, Case No. 1:08-cv-972, 2011 WL 4527364, at *5 (W.D. Mich. June 6, 2011)
(Despite “cryptic” reference to 28 U.S.C. § 1746, memorandum contained a mixture of
“legal arguments, opinions and factual statements” that were “conclusory or not relevant”

and insufficient to preclude summary judgment).
V. Findings of Fact
When a party fails to properly address another party’s assertion of fact, a court
may consider the fact undisputed. See Fed. R. Civ. P. 56(e)(2). Based upon the record
presented, the undersigned finds the following facts undisputed:
1. At the time he filed this lawsuit on August 1, 2019 until around June 3, 2021, Plaintiff
was incarcerated at WCI, a close security male prison. Defendant Kehr was the
chaplain assigned to WCI. Defendant Davis is the Religious Services Administrator
for all ODRC institutions including WCI.

2. A “catchment” is a term used by ODRC to categorize similar religions or faiths. During
the time that Plaintiff was housed at WCI, ODRC recognized nine generic religious
catchments: Protestants; Jehovah Witness Religious Services; Jewish Religious
Services; Buddhist Religious Services; Wiccan Religious Policy; Asatru Religious
Policy; Roman Catholic-Orthodox Religious Services; Muslim Religious Practices; and
Native American Religious Policy. ODRC has policies for each catchment that provide
guidance for practices within each catchment. Guidance for Muslim Religious
Practices is contained in Policy 72-REG-12. (Doc. 41-2 at PageID 435-438).
3. While at WCI, Plaintiff identified himself as a member of the Moorish Science Temple
of America (“MSTA”). (See Doc. 1, at PageID 2).
4. ODRC has classified MSTA under the umbrella catchment of Muslim Religious
Practices (hereinafter the “Muslim catchment”) based upon the self-identification of
the MSTA religion as a form of Islam, the understanding of the ODRC Religious

Advisor and contract religious providers that MSTA shares central beliefs with Islam,
scholarly articles and similar sources that describe MSTA’s relationship to Islam, and
the same classification by other penal institutions such as the Bureau of Prisons. (See
generally, Doc. 41-1 at ¶¶ 16, 18-21 (Davis Supp. Decl.); 41-2 at 1, PageID 347 (MSTA
Constitution); Id. at PageID 178-179 (MSTA missionary pamphlet); Id. at PageID 453-
489 (scholarly articles); Id. at 180-188 (BOP materials); Doc. 41-4 at ¶ 12, PageID 551
(Engle Decl.); Doc. 41-6 at ¶ 6, PageID 554 (Abdul-Rahim Decl.); Doc. 41-7 at ¶ 7,
PageID 556 (Hansbhai Decl.). In addition to MSTA, recognized sects under the
Muslim catchment include Islam (formerly Black-Muslim), Islam (no specified

denomination), Shiite, Hanafi, Nation of Islam, and Sunni denominations. (See Doc.
41-1 at ¶21, PageID 345.).
5. Plaintiff submitted a request for MSTA sectarian congregate services at WCI. In his
administrative request, Plaintiff identifies himself as: “Moslem.” (Doc. 15-4 at 9,
PageID 120);
6. Plaintiff’s requests for sectarian services were denied in part because non-sectarian
congregate services were already being provided for the Muslim catchment by a
religious service provider. (See Doc. 15-3, PageID 116, stating that MSTA “falls under
the umbrella of Islam and receives services from the Imam; having their own leader
or worship is not needed.”).
7. ODRC houses approximately 43,134 incarcerated individuals at all of its institutions.
Of those, approximately 0.46% of the inmate population identify as adherents of
MSTA. (Doc. 41-2 at 98, PageID 444).

8. While Plaintiff was at WCI, there were approximately 136 individuals who self-
identified as followers of one of the religions classified within the Muslim catchment.
As of November 2, 2017, 9 individuals at WCI identified specifically as followers of
MSTA. (Doc. 41-2 at 103, PageID 449, Kehr email (Nov. 2, 2017)).13
9. ODRC Policy 72-REG-01 requires the selection of contract religious providers who
can “ensure coverage for the largest religious catchments in the facility.” (Doc. 41-2
at 25, PageID 371; see also Doc. 41-1 at ¶13, PageID 344). Although the hiring and
supervision of the contract religious providers falls to the assigned deputy warden in
consultation with the ODRC religious services administrator, he/she may designate

the institutional Chaplain as the monitor and informal point of contact. (Doc. 41-2 at
25, PageID 371).
10. Congregate services of any faith require either the supervision of the Chaplain or an
outside volunteer (not an inmate) who has been properly vetted and passed all
security clearances. (72-REG-01, Doc. 41-2 at 22, 25, PageID 368, 371). To become
an approved religious services provider, an individual must submit the necessary
paperwork and then typically be interviewed by the Chaplain and/or Deputy Warden
of Special Services. (Doc. 15-1, PageID 95; Doc. 15-2, PageID 102). The religious

13Defendants refer to a second Kehr email that reflects an increase in MSTA membership at WCI to 18 in
September 23, 2018, but the cited exhibit is not included in the record before this Court.
service provider must be in good standing within a congregation or credentialing body.
(Doc. 15-1, PageID 95).
11. Imam Yahya Hansbhai serves as the Muslim catchment contract religious provider at
WCI. Consistent with ODRC policy, he is required “to appeal to the broadest range of
adherents in the Muslim faith group by teaching the central tenets of the faith.” (Doc.

41-7, Hansbhai Decl. at ¶ 5, PageID 556). Imam Hansbhai is “familiar with the Moorish
Science Temple and their practices” through reading and speaking with, and working
directly with, MSTA adherents. (Id. at ¶¶ 4, 7, PageID 556-557).
12. Pursuant to 72-Reg-12, WCI provided two weekly “congregate services or activities”
for the Muslim catchment: “Jumah” defined as “congregational prayer on Fridays, and
“Taleem” defined as religious education or studies. (Doc. 41-2 at 90, PageID 436).
However, Plaintiff did not attend any Muslim catchment congregate services at WCI,
nor did Plaintiff ever speak with the Muslim catchment Imam. (Doc. 41-7, Hansbhai
Decl. at ¶¶9-10, PageID 557; Doc. 15-4 at 5, PageID 116).

13. An inmate may make a request for the approval of additional congregate services.
However, pursuant to ODRC Policy 72-Reg-02, ¶ H(2), a request for additional
congregate services must be made by at least five (5) documented members of that
group not already receiving such services, and the request must be referred to the
Religious Services Administrator for final decision. (Doc. 41-2 at 38, PageID 384).
14. Religious volunteers, subject to ODRC Policy 71-REG-01, and with the proper
religious and security oversight, may provide additional religious services. Religious
volunteers also must appeal to “the broadest possible range of persons in the faith
group,” and avoid “[s]ectarian distinctions …by appealing… to the common,
fundamental teachings of the faith.” (Doc. 41-2 at 26, PageID 372). In addition,
volunteers are advised to refer “[q]uestions that may generate controversy” to the
Institutional Chaplain. (Id.)
15. After the denial of his request for MSTA sectarian services, Plaintiff identified a
community volunteer alleged to be willing to serve at WCI. The volunteer, Michael R.

Doles-Bey, led an MSTA meeting at WCI on October 22, 2017,14 but was approved
as a guest volunteer on that date only. (Doc. 15-4 at PageID 112-114; Doc. 41-2 at
11, PageID 357 (defining “guest volunteer”)).
16. A total of 17 inmates attended the October 2017 meeting, following which Plaintiff
alleges that Mr. Doles-Bey offered to provide additional “prayer services, congregate
services etc.” in the future. (Doc. 1 at ¶¶ 20-21; Doc. 41-2 at 103, PageID 449 (Kehr
email)). However, neither Mr. Doles-Bey nor anyone else affiliated with MSTA
completed the requisite paperwork to become a volunteer religious services provider
at WCI. (Doc. 15-1 at ¶ 9, PageID 95-96).

17. Inmates may designate and receive visits from their clergy of record in order to
receive sectarian religious instruction on a one-by-one basis as provided in ODRC
Policy 76-VIS-01 (Doc. 41-3; Doc. 41-1 at ¶ 26, PageID 345). Defendant Kehr
informed Plaintiff that the volunteer could be a “minister of record” if he completed the
requisite paperwork. (Doc. 15-4, PageID 116). No completed paperwork was returned
by Mr. Doles-Bey and Plaintiff did not designate any other clergy of record to visit him
at WCI. (Id.; Doc. 15-1 at ¶ 8, PageID 95).

14Plaintiff’s complaint identifies the date as November 22, 2017 but Defendants have provided evidence
that the date was October 22, 2017. (Doc. 41-2 at 103, PageID 449).
18. In addition to participating in non-sectarian services and/or designating clergy of
record, inmates may read and maintain religious materials in their prison cells, and
perform individual religious exercises. (Doc.41-1 at ¶ 11, PageID 343).
VI. Analysis
Plaintiff seeks monetary and injunctive relief against both Defendants in their

individual capacities, as well as declaratory and injunctive relief against Defendant Davis
in his official capacity.(Docs. 6, 11). Plaintiff’s claims are twofold: that Defendants have
violated his free exercise rights under the First Amendment and that Defendants have
violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). As
discussed below, significant distinctions exist between the First Amendment and RLUIPA
claims, but Defendants are entitled to judgment as a matter of law on both claims.
A. All RLUIPA and § 1983 Claims for Injunctive Relief at WCI are Moot
Plaintiff was permitted to proceed on claims for declaratory and injunctive relief
under both RLUIPA15 and 42 U.S.C. § 1983 based upon Defendant Kehr’s denial of

religious accommodations to Plaintiff at WCI and Davis’s affirmance of that decision.
Specifically, Plaintiff seeks an order permitting sectarian MSTA “religious services” in
designated building space at WCI. (Doc. 1 at PageID 7-8). Since all prospective relief
sought in the complaint is directed to MSTA congregate services at WCI without reference
to any other institution, Plaintiff’s transfer to AOCI on June 3, 2021 renders all such claims
moot. See generally, Dellis v. Corr. Corp. of Am., 257 F.3d 508, 510 n.1 (6th Cir. 2001))
(holding that injunctive and declaratory relief are moot when a defendant is no longer
incarcerated at the facility that is the subject of his complaint); Colvin v. Caruso, 605 F.3d

15No cause of action for monetary damages exists 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).
272, 289 (6th Cir. 2010) (inmate's RLUIPA claims and other claims for injunctive relief
were moot after his transfer to a different facility); Berryman v. Granholm, 343 Fed. Appx.
1, at *3 (6th Cir. 2009) (same); Pleasant-Bey v. Shelby Cnty., Case No. 18-6063, 2019
WL 11769343, at *3 (6th Cir. Nov. 7, 2019) (RLUIPA claims moot after transfer from jail);
Turner v. Schofield, Case No. 18-5849, 2019 WL 3824185 (6th Cir. Aug. 2, 2019); Davis

v. Michigan Dept. of Corrections, Case No. 2:18-cv-6, 2019 WL 4686426, at *3 (W.D.
Mich. Sept. 26, 2019).
B. Plaintiff’s First Amendment Claims at WCI
Although Plaintiff’s claims for prospective relief at WCI are moot, he also seeks
monetary damages under 42 U.S.C. § 1983 for the Defendants’ alleged violation of the
Free Exercise Clause of the First Amendment. In relevant part, the First Amendment
states that the government “shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” U.S. Const. I. In evaluating whether Defendants are
entitled to summary judgment on this remaining free exercise claim, this Court must

continuously bear in mind the critical differences that exist between the protections of the
First Amendment and the much greater protections that exist under RLUIPA in general,
as well as the unique standards that apply to constitutional claims that arise within prison
walls. See Firewalker-Fields v. Lee, Case No. 19-7497, 2023 WL 192737, at *3, ___ F.4th
___ (4th Cir. Jan. 17, 2023) (“while RLUIPA requires a form of strict scrutiny in the prison
context, 42 U.S.C. § 2000cc-1(a), the First Amendment provides less robust protection.”);
Turner v. Safley, 482 U.S. 78 (1987). In the case presented, the latter context is
determinative.
1. Plaintiff’s Threshold Showing
Before addressing the prison context of Plaintiff’s claim, the undersigned first
considers Plaintiff’s threshold showing of a free exercise violation. See Kennedy v.
Bremerton School District, 142 S.Ct. 2407, 2421-22 (2022) (“[A] plaintiff may carry the
burden of proving a free exercise violation in various ways.”).

a. Plaintiff’s Claim Under the “Substantial Burden” Test
In its prior consideration of summary judgment, this Court applied the threshold
test set forth in Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987), in which an inmate is
required to show: (1) that the “belief or practice asserted is religious in [his] own scheme
of things”; (2) that the belief or practice is “sincerely held”; and (3) that Defendants'
conduct infringes upon his belief or practice. Id., 821 F.2d at 1224 (citations omitted). The
Court found the record insufficient on the third element – the extent to which “the lack of
MSTA congregate services” “infringes” upon or “substantially burdens Plaintiff’s practice
of religion.” (Doc. 31 at 11, PageID 296). Defendants had argued that Plaintiff’s MSTA

beliefs were not substantially burdened because he could attend generic Muslim services.
However, as the Court framed the issue, “the theme underlying [Plaintiff’s] arguments is
that MSTA is sufficiently different from Islam that it warrants its own congregate religious
services.” (Id.)
In practice, due to textual distinctions between the First Amendment’s focus on the
“exercise” of “religion” and RLUIPA’s different emphasis on “religious exercise,” courts
often appear to apply a more rigorous “substantial burden” test under the First
Amendment. Technically, however, the test “has the same meaning under RLUIPA” as it
does for First Amendment free exercise claims. See Dykes v. Corizon, Inc., Case No.
2:22-cv-113, 2022 WL 2900892, at *5 (W.D. Mich. July 22, 2022). In a recent RLUIPA
case, the Sixth Circuit defined “substantial burden” this way:
The Government substantially burdens an exercise of religion when it
places substantial pressure on an adherent to modify his behavior and to
violate his beliefs or effectively bars his sincere faith-based conduct. This is
an individualized inquiry. The substantial-burden question turns on the
impact of a government regulation on the individual inmate, not the
centrality of those beliefs to canonical texts as interpreted by judges or
prison officials.

Fox v. Washington, 949 F.3d 270, 278 (6th Cir. 2020) (cleaned up); see also,
generally, Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (defining substantial burden
under First Amendment).
At least arguably, the unrebutted supplemented record now shows that Plaintiff’s
practice of MSTA is not substantially burdened by the lack of sectarian services. For
example, MSTA self-identifies as an Islamic movement founded by Noble Drew in 1913.
(See Doc. 41-2 at PageID 178-179 (MSTA missionary pamphlet containing section “What
is Islam.”). Consistent with other faiths in the Muslim catchment, MSTA adherents
participate in Friday congregate services, worship Allah, and recognize the Prophet
Mohammed. (Doc. 41-2 at 1, PageID 347; see also Federal Bureau of Prisons Manual at
https://www.bop.gov/foia/docs/moorishsciencetemplemanual.pdf (accessed on January
31, 2023). The Imam who provides generic services for the Muslim catchment attests to
his familiarity with MSTA, “through reading and through speaking with adherents of the
Moorish Science Temple” and has “worked with” inmates of various sects “including
adherents of the Moorish Science Temple.” (Doc. 41-7 at ¶¶4, 7, PageID 556).
Despite arguments that stress theological differences between Plaintiff’s MSTA
beliefs and other religions within the Muslim catchment,16 Plaintiff identifies himself as
“Moslem.” (Doc. 15-4 at 9, PageID 120). The generic Muslim congregate services are
designed to broadly appeal to all faiths within that catchment. There is no evidence that
the Imam who led the non-sectarian services did so in a manner that was antithetical to

Plaintiff’s beliefs.17 In fact, Plaintiff does not deny that he never attended any of the
generic Muslim catchment services while at WCI, and never spoke with the WCI Imam.
(Doc. 41-7 at ¶¶ 9-10, PageID 557). Thus, Plaintiff has not shown that having to worship
at non-sectarian services among followers of other religions placed within the Muslim
catchment substantially detracts from his ability to participate in, or “impinges” upon, his
MSTA religion. Accord Blair-Bey v. Nix, 963 F.2d 162, 164 (8th Cir. 1992) (policy of
providing a single Islamic advisor does not unreasonably impinge on MST inmates' ability
to practice their religion” because non-sectarian advisor was “an authority on the Islamic
religion” and “qualified by education and experience to serve all the Islamic inmates”

including MSTA adherents); see also Abdur-Rahman v. Mich. Dept. of Corrections, 65
F.3d 489, 491 (6th Cir. 1995) (holding policy that prevented attendance at sectarian
service did not violate First Amendment). And yet, Defendants are not entitled to summary

16Plaintiff argues that “orthodox” and “Sunni” sects believe that there will be “no Prophet after Muhammad,”
whereas Plaintiff believes that MSTA’s founder was a Prophet after Muhammed. He asserts that the generic
WCI services are silent about “the Prophet Noble Drew Ali” and his book, “The Circle 7 Holy Koran of the
Moorish Science Temple of America,” which differs from the orthodox Koran. (Doc. 42Iat 14, 16, PageID
573, 575).
17In finding MSTA to be generally aligned with the Muslim catchment, the undersigned does not deny the
existence of theological differences. Defendant’s own exhibits confirm some tensions exist between MSTA
(as well as NOI) and more orthodox Islam groups. (See e.g., Doc. 41-2 at 112, PageID 458; Levinson,
David, “The Moorish Science Temple in the Upper Housatonic Valley National Heritage Area.”). However,
the mere existence of sectarian differences does not prove that the offering of only non-sectarian services
substantially burdens Plaintiff’s exercise of MSTA.
judgment on this threshold issue based on Plaintiff’s ability to satisfy an alternative test
that establishes his threshold free exercise claim.
b. Plaintiff’s Threshold Claim Under the Neutral and Generally
Applicable Test

In Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022), the Supreme Court
re-affirmed that a threshold free exercise claim is stated if a plaintiff demonstrates “that
a government entity has burdened his sincere religious practice pursuant to a policy that
is not, by its content, either ‘neutral’ or ‘generally applicable.’” Id., at 2422-23, quoting
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879-881
(1990); see also Fulton v. City of Philadelphia, Pennsylvania, 141 S.Ct. 1868, 1877
(2021). On the record presented, the religious “catchment” policies and the denial of
sectarian services within the Muslim catchment were both policies whose “object” is to
limit the exercise of religious activity. Id. Therefore, the enforcement of the referenced
policies is sufficient to establish Plaintiff’s threshold claim. Once a plaintiff establishes his
threshold claim, the focus shifts to the defendants to justify the challenged action.
2. The Unique Context of Constitutional Claims by Prisoners
The “rational basis” test established in Turner v. Safley applies to free exercise
claims filed in the prison context. Any other conclusion would be contrary to decades of
well-established case law that holds that constitutional rights are subject to reasonable
restrictions in the prison context. See generally, Beard v. Banks, 548 U.S. 521, 528, 126

S.Ct. 2572 (2006) (plurality opinion) (“[T]he Constitution sometimes permits greater
restriction of such rights in a prison than it would allow elsewhere.”). Turner applies
whenever “a prison regulation impinges on inmates' constitutional rights.” O'Lone v.
Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400 (1987) (citing Turner, 482 U.S. at
89); Firewalker-Fields v. Lee, ___ F.4th ___, 2023 WL 192737, at *4 n.2 (4th Cir. Jan. 17,
2023).
In Turner, the Supreme Court established that a challenged prison rule that
actually impinges upon an inmate’s constitutional rights remains valid so long as “it is
reasonably related to legitimate penological interests.” Id., 482 U.S. at 89. Turner

emphasizes that deference must be afforded to prison officials, particularly where a state
penal system is involved. See id. at 85 (“Where a state penal system is involved, federal
courts have… additional reason to accord deference to the appropriate prison
authorities.”). “[S]uch a standard is necessary if ‘prison administrators ..., and not the
courts, [are] to make the difficult judgments concerning institutional operations.’” Id., 482
U.S. at 89 (quoting Jones v. North Carolina Prisoner's Union, Inc., 433 U.S. 119, 128
(1977)); see also Kent, 821 F.2d at 1225 (“[T]he determination of state prison authorities
as to what are legitimate penological objectives and what regulations and practices further
them is entitled to great deference.”) (additional citations omitted)).

Under Turner, this Court considers four factors. The first - whether there is a “‘valid
rational connection’ between the prison regulation and the legitimate governmental
interest put forward to justify it” – is the most important. Id. at 89. A regulation cannot
stand if “the logical connection between the regulation and the asserted goal is so remote
as to render the policy arbitrary or irrational.” Id. at 89-90, 107 S. Ct. 2254 (internal citation
omitted). However, the Defendants’ burden to articulate reasons for its policies is “slight”
and “may be a matter of common sense.” Sharp v. Johnson, 669 F.3d 144, 156 (3rd Cir.
2012). And once the Defendants have articulated a legitimate governmental interest,18

18In its last Order, the Court noted that Defendants “have not provided specific facts about the administrative
burdens created by holding an MSTA congregate service.” (Doc. 31 at 13-14, PageID 298-299). However,
the burden shifts back to the Plaintiff to disprove it. Overton v. Bazzetta, 123 S.Ct. 2162,
2168, 539 U.S. 126, 132 (2003) (“The burden… is not on the State to prove the validity
of prison regulations but on the prisoner to disprove it.”).
a. The First Turner Factor Favors Summary Judgment
The purpose of the prison regulation “must be a legitimate and neutral one.”19

Turner, 482 U.S. at 90. On the record presented, Defendants have carried their initial
burden to articulate legitimate governmental interests for the ODRC policies of: (1)
grouping religions within catchments; (2) placing MSTA within the Muslim catchment, and
(3) offering only non-sectarian congregate services for the Muslim catchment.
Defendants’ denial of Plaintiff’s request for sectarian services based on the referenced
policies conforms with “legitimate and neutral” penological objectives: (1) the minimization
of sectarian conflicts and violence between inmates; and (2) the allocation of scarce
institutional resources.
i. ODRC’s Safety and Security Objectives

Pursuant to 72-REG-01, ODRC policy is “to ensure that inmates… may subscribe
to any religious belief they choose” while subjecting “Inmate religious practices, as
opposed to belief” to “reasonable time, place and manner restrictions.” (Doc. 41-2 at 22,

such “specific facts” are relevant only under RLUIPA, where the government must prove it is using the least
restrictive means to accomplish a compelling interest. Holt v. Hobbs, 135 S.Ct. at 864 (holding that RLUIPA
does not permit “unquestioning deference”); Yellowbear v. Lampert, 741 F.3d 48, 59-60 (10th Cir. 2014).
Defendants bear no such burden under the highly deferential Turner standard, in which the burden of
persuasion remains firmly on the plaintiff.
19Although lack of content neutrality is relevant to Plaintiff’s threshold claim, “Turner neutrality is not the
‘content neutrality’ we demand in other areas of First Amendment jurisprudence.” Jones v. Slade, 23 F.4th
1124, 1136-37 (9th Cir. 2022). Under Turner, a court looks at whether the stated purpose of the policy and
its application are “neutral” rather than the content of the policy. See Hanrahan v. Mohr, 905 F.3d 947, 956-
57 (6th Cir. 2018) (explaining “neutrality’s technical meaning in the Turner context,” and holding that
“[d]etermining that specific speech, based on its content, carries a security risk while other speech does not
and then drawing a distinction based on this legitimate penological objective satisfies Turner’s neutrality
requirement.”); see also Abu-Jamal v. Price, 154 F.3d 128, 133-34 (3d Cir. 1998) (“We analyze content
neutrality in the prison context differently than we do for non-inmates.”).
PageID 368). Under the same policy, “particular religious practices shall be subject to the
legitimate departmental or institutional interests and concerns, including security, safety,
health, discipline, rehabilitation, order, and the limitations of and allocation of resources.”
(Id. at 22, 24). Safety and security are not merely “reasonable” penological interests under
the Turner test but have been recognized to be “compelling” under RLUIPA standards

See Cutter v. Wilkinson, 544 U.S. 709, 722-725 (2005); see also Thornburgh v. Abbott,
490 U.S. 401, 415 (1989) (The legitimacy of the government's interest in prison security
is “beyond question.”)
Davis attests to the common-sense proposition that permitting any group of
inmates to gather for congregate services “poses a significant threat to the safety,
security, and good order within institutions,” including a “significant concern that these
services could be used to push a non-religious or political agenda or even for more
detrimental purposes including criminal behavior and racism.” (Doc. 41-1 at ¶11). Thus,
an “appropriate corrections officer” must be present at congregate services, which must
be held in a secure space.20 (Doc. 41-1 at ¶ 25). Congregate services also may not be

led by an inmate, and must be under the control of a chaplain or an approved religious
services provider who has undergone security screening and training. (Doc. 41-1 at ¶25).
It is undisputed that no one completed the requisite paperwork to provide MSTA religious
services at WCI during the time that Plaintiff was incarcerated there. (Doc. 15-1 at ¶9,
PageID 95-96).

20In his original Declaration, Defendant Davis expressed concerns about the potential for extremist beliefs
among MSTA members (Doc. 15-1 at ¶ 12; see also Doc. 41-1 at ¶17). However, Davis admits in his
Supplemental Declaration that the referenced sovereign citizenship ideology is endorsed only by a “radical
element” of MSTA followers. (Id. at ¶ 17). The undersigned finds no need to consider whether MSTA
congregate services pose any greater risk than other sectarian services because Defendants’ articulated
security concerns for the denial of all sectarian services within the Muslim catchment are reasonable,
rational and not arbitrary.
Davis further attests that “various Islamic sects, including MSTA” have requested
separate congregate services but that those requests have been denied for “security and
safety purposes.” (Doc. 41-1 at ¶ 26). Davis, who has a PhD in organizational leadership
and change management and has served as the Religious Services Administrator for 7
years, explains that concerns regarding sectarian tensions underlie the institutional

decision to provide only “generic” congregate services for religions within the Muslim
catchment:
Within the various religious communities there is always an element that
could potentially adhere to a more militant or radical approach to a particular
faith. There are well known tensions between the different sects found
within Muslim Religious Practices catchment. Those tensions create
security concerns within all of the institutions. Allowing one sect of the
Muslim Religious Practices catchment to have separate congregant
services would increase those tensions and create hostilities between the
various sects. Those hostilities will spill over into additional security
concerns, such as inmate fighting. The intent of policy 72-REG-0 1, which
requires religious providers to teach to the central tenets of a particular faith,
is designed with the intent of preventing the opportunity for discord along
sectarian distinctions and differences.

(Doc. 41-1 at ¶ 27, PageID 346). Plaintiff does not dispute that there are tensions among
the different religious communities within the Muslim catchment, nor does he offer any
evidence to refute Defendant Davis’s legitimate penological concerns that allowing
separate congregate services would increase such tensions and hostility.
ii. ODRC’s Allocation of Scarce Resources
In addition to safety and security concerns, Davis attests that the denial of
Plaintiff’s request pursuant to the referenced policies aligns with the penological goal of
reasonably allocating scarce resources. The policy of the organizing faiths within
catchments speaks to this well-recognized issue. Davis attests:
ODRC does not have the capacity to provide individualized congregate
services to all religions. Doing so would create a substantial burden on
institutions and staff and the required space is simply not available.
Furthermore, it is not feasible or economically possible for ODRC to employ
a sufficient number of Muslim Imams for each subsect of Islam to preside
at all ODRC institutions, and volunteers are not always available. The
burden placed on ODRC institutions by providing these services to
adherents to Islamic faith alone would be significant.

(Doc. 15-1 at ¶10, PageID 96; see also Doc. 41-1 at ¶¶ 22-23, attesting that WCI does
not have the resources “to hold separate congregate activities for each denomination of
each religion currently being practiced.”). “The Supreme Court has long recognized that
prisons make do with ‘limited resources for preserving institutional order’ and thus
deserve deference in how they allocate those resources.” Rodriguez v. Burnside, 38 F.4th
1324, 1331 (11th Cir. 2022) (quoting Turner, 482 U.S. at 90); see also Cruz v. Beto, 405
U.S. 319, 322 n.2 (1972) (holding that Buddhist inmate had established a threshold claim
but that the First Amendment does not require prisons to provide congregate services for
every religious sect).
As another court put it:
There is “valid, rational connection” in the management of facility space and
available staff to justify combining services for related faiths. The goal of
conserving those limited resources is neither remote, arbitrary, or irrational.
Muslim inmates are still able to exercise the right of religious expression,
but must do so with other persons who, while sharing general religious
believes, also have differing opinions. Indeed, from the dawn of time,
communal spiritual worship has frequently involved bringing together
people with common or general ideals, but with different views on specific
points. Very rarely will a group of people agree on every aspect of faith,
theology, and the practical application of such beliefs. Tolerance is required
between faith groups that meet within the confines of a prison's walls just
as it is required outside of those walls.
Watkins v. Jones, Case No. 4:12-cv-215, 2015 WL 5468647, at *15 (N.D. Fla. August 28,
2015), R&R adopted in relevant part and rejected in part at 2015 WL 5468648 (N.D. Fla.
Sept. 15, 2015) (granting injunctive relief to inmate on dietary claims).
Plaintiff protests that a volunteer could have provided additional MSTA sectarian
services. However, the identified individual never completed paperwork either to appear

regularly as a volunteer religious services provider or to be Plaintiff’s designated personal
clergy of record. And Plaintiff offers nothing to address Defendants’ additional concerns
with the limited availability of space and additional staff to provide security.
Similar penological justifications for the denial of sectarian services in favor of
generic congregate services have consistently been upheld as reasonable. See Watkins,
supra; Jones v. Shabazz, Civil Action No. H-06-1119, 2007 WL 2873042, at *20 (S.D.
Tex. Sept 28, 2007) (holding that plaintiff was allowed a reasonable opportunity to
practice his religion; prison’s structure of grouping multiple sects under the umbrella of
Islam was reasonably related to legitimate penological interests); Boxer X v. Donald, 169

Fed. Appx. 555, 2006 WL 463243, *3-4 (11th Cir. 2006) (no free exercise or equal
protection violations when prison denied sectarian services and instead provided
congregational religious services based on “generic abstractions” of actual
denominational faiths); Smith v. Cooley, Case No. 15-cv-2892, 2017 WL 5178920, at *3
(W.D. La., March 21, 2017), adopted at 2017 WL 5178820 (W.D. La. Nov. 7, 2017) (no
free exercise violation where NOI inmate was denied separate sectarian services); Weir
v. Nix, 890 F. Supp. 769, 788 (S.D.Iowa 1995), aff’d, 114 F.3d 817 (8th Cir. 1997) (failure
to provide sectarian chaplain or spiritual advisor did not violate free exercise clause).
b. The Remaining Turner Factors Favor Summary Judgment
Application of the remaining Turner factors leads to the same conclusion. The
second Turner factor is whether “there are alternative means of exercising the right that
remain open to prison inmates.” Id., 482 U.S. at 90. Here, the Supreme Court’s analysis
in O'Lone v. Estate of Shabazz is instructive. In O’Lone, the Court held that a policy that

prevented Muslim inmates from attending a weekly religious service that was central to
their faith did not violate the First Amendment in part because they could practice their
religion in other ways:
There are, of course, no alternative means of attending Jumu'ah;
respondents' religious beliefs insist that it occur at a particular time. But the
very stringent requirements as to the time at which Jumu'ah may be held
may make it extraordinarily difficult for prison officials to assure that every
Muslim prisoner is able to attend that service. While we in no way minimize
the central importance of Jumu'ah to respondents, we are unwilling to hold
that prison officials are required by the Constitution to sacrifice legitimate
penological objectives to that end. In Turner, we did not look to see whether
prisoners had other means of communicating with fellow inmates, but
instead examined whether the inmates were deprived of “all means of
expression.” Id., at 92, 107 S.Ct., at 2263. Here, similarly, we think it
appropriate to see whether under these regulations respondents retain the
ability to participate in other Muslim religious ceremonies. The record
establishes that respondents are not deprived of all forms
of religious exercise, but instead freely observe a number of
their religious obligations. The right to congregate for prayer or discussion
is “virtually unlimited except during working hours,” Tr. 182 (testimony of
O'Lone), and the state-provided imam has free access to the prison. Muslim
prisoners are given different meals whenever pork is served in the prison
cafeteria. Special arrangements are also made during the month-long
observance of Ramadan, a period of fasting and prayer. ... We think this
ability on the part of respondents to participate in
other religious observances of their faith supports the conclusion that the
restrictions at issue here were reasonable.

Id., 107 S.Ct. at 2406, 482 U.S. at 351-52.
While at WCI, Plaintiff was free to read and maintain religious materials in his
prison cell and could designate and receive visits from an MSTA clergy person of record.
“As long as a prisoner… retains ‘the ability to participate in other Muslim religious
ceremonies,’ the second [Turner] factor tips against him.” Rodriguez v. Burnside, 38 F.4th
at 1332 (quoting O'Lone, 482 U.S. at 352).
The third Turner factor considers “the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison

resources generally.” Id., at 90. The record strongly suggests that if Plaintiff’s request had
been granted, it would have had a negative impact on institutional space and staff, and
would have been likely to lead to other groups within the Muslim catchment (at a
minimum) seeking their own separate sectarian services. “Requesting such a ‘significant
reallocation’ of resources, the Supreme Court has explained, interferes with the smooth
functioning of a prison.” Rodriguez v. Burnside, 38 F.4th at 1332 (quoting Overton v.
Bazzetta, 539 U.S. 126, 135 (2003)); accord Watkins, 2015 WL 5468647, at *15.
The fourth Turner factor requires the court to determine if there are “ready
alternatives” to the regulation because “the existence of obvious, easy alternatives may

be evidence that the regulation is not reasonable.” Id. at 90. Here, Plaintiff offers no viable
alternatives. His “volunteer” religious provider did not complete the requisite paperwork.
And Plaintiff fails to address at all Defendants’ legitimate safety and security concerns
and other limitations on institutional resources. See DeMarco v. Bynum, 50 F.4th 479,
483 (5th Cir. 2022) (affirming grant of summary judgment where inmate had not pointed
to any alternative that fully accommodated his rights “at de minimis cost to valid
penological interests.”)
In sum, Defendants are entitled to summary judgment on Plaintiff’s free exercise
claim under Turner.
C. Equal Protection Claim
It is not entirely clear from the record whether Plaintiff asserts only a free exercise
claim under the First Amendment, as made applicable to the states by the Fourteenth
Amendment, or whether he is asserting a separate “equal protection” claim under the
Fourteenth Amendment. But to the extent that the Equal Protection Clause is at issue,

Defendants are entitled to judgment as a matter of law. Like the plaintiff in Jones v.
Shabazz, “Plaintiff has not shown an equal protection violation because he has not shown
purposeful discrimination by Defendants in their structuring of the Muslim generic
services.” Id., 2007 WL 2873042, at *20.
D. Qualified Immunity
Even if a reviewing court were to disagree with the foregoing analysis, the
undersigned alternatively would recommend that Defendants’ motion be granted on the
basis of qualified immunity. The purpose of qualified immunity is to provide governmental
officials with the ability “reasonably [to] anticipate when their conduct may give rise to

liability for damages.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012 (1984). Thus,
a governmental official performing discretionary functions will be entitled to qualified
immunity unless his actions violate “clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S. Ct. 2727, 2738 (1982). A governmental official is entitled to immunity if the
facts alleged do not make out a violation of a constitutional right, or if the alleged
constitutional right was not clearly established at the time of the defendant's alleged
misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). Once a defendant
has raised the defense of qualified immunity, the plaintiff bears the burden of proof to
show that the defendant is not entitled to that defense. See Garretson v. City of Madison
Heights, 407 F.3d 789, 798 (6th Cir. 2005).
No Supreme Court or controlling Sixth Circuit case law has ever held within the
prison context that providing generic congregate religious services while denying
sectarian congregate services based upon valid penological interests violates the free

exercise of the First Amendment. See generally, Taylor v. Nelson, No. 20-51051, 2022
WL 3044681, at *2 (5th Cir. 2022) (granting qualified immunity to prison officials who did
not promulgate the unconstitutional policy but merely enforced it against the plaintiff,
because “reasonable officials would not have understood that enforcing the hijab policy
was unconstitutional.” )
VII. Conclusion
For the reasons stated herein, it is herein RECOMMENDED THAT Defendants’
motion for summary judgment (Doc.15) be GRANTED and that this case be CLOSED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

STEVEN-AZZIZ EL BEY, Case No. 1:19-cv-693

Plaintiff,
Dlott, J.
vs. Bowman, M.J.

THOMAS KEHR, et al.,

Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10381799. Public record. Not legal advice.