Opinion

Tolliver v. Ohio Department of Rehabilitation and Corrections

Court: District Court, S.D. Ohio
Filed: Apr 18, 2023
Cited by: 0 cases
Authority: More cited than 28.4%

standing encompasses, among other things, “the general prohibition on a litigant’s raising another person’s legal rights”

How later courts described this case

standing encompasses, among other things, “the general prohibition on a litigant’s raising another person’s legal rights”
“The Constitution does not mandate comfortable prisons.”
“Unless a deprivation of some federal constitutional or statutory right has occurred, § 1983 provides no redress even if the plaintiff’s common law rights have been violated and even if the remedies available under state law are inadequate”
under the rule, “a pro se prisoner’s complaint is deemed filed when it is handed over to prison officials for mailing to the court.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEVIN A. TOLLIVER,

Plaintiff,

Civil Action 2:22-cv-4567

Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

OHIO DEPARTMENT OF REHABILITATION

AND CORRECTIONS, et al.,

Defendants.

REPORT AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding without the assistance of counsel, has filed a civil

rights complaint with this Court. (Doc. 3). He seeks declaratory and injunctive relief under 42

U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc-1 for alleged religious rights violations. (Id.). The case is currently before the Court for

the initial screening of the Complaint as required by law. 28 U.S.C. § 1915(e)(2); 28 U.S.C. §

1915A(a). For the reasons that follow, the Undersigned RECOMMENDS that the Court

DISMISS:

a. all claims against the Ohio Department of Rehabilitation and Corrections raised under 42

U.S.C. § 1983;

b. all claims raised on behalf of other Muslim inmates;

c. all claims raised on behalf of groups of which Plaintiff is not a member;

d. all claims under § 1983 based on alleged violations of ODRC policy; and

e. the claim alleging a denial of Halal or Kosher meals.

The Court should ALLOW the remaining claims to PROCEED at this time, and the parties should

be prepared to address the issues raised in Section III.F through III.H.

I. Initial Screening Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or

employee of a governmental entity,” and is proceeding in forma pauperis (see Doc. 2), the Court

is required to conduct an initial screening of his Complaint. 28 U.S.C. § 1915A(a) and 28 U.S.C.

§ 1915(e)(2). The Court must dismiss the Complaint, or any portion of it, that 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. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

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 v. Hernandez, 504 U.S. 25, 32 (1992); 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).

Further, a complaint must also be dismissed if it fails to state a claim on which relief may

be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). To state a claim for relief, a

complaint must set forth “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must construe the complaint in plaintiff’s

favor, accept all well-pleaded factual allegations as true, and evaluate whether the complaint

contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, a

complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

In the interest of justice, this Court is also required to construe a pro se complaint liberally

and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing

Fed. R. Civ. P. 8(f) [now (e)]). Even with such a liberal construction, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements

do not suffice.” Iqbal, 556 U.S. at 678.

II. Parties and Claims

Plaintiff Kevin A. Tolliver is currently incarcerated at Grafton Correctional Institution

(GCI). (Complaint,1 PageID 40). He sues the Ohio Department of Rehabilitation and Corrections

(ODRC) and/or Annette Chambers-Smith, its Director. (Id.). This Report and Recommendation

1 For better readability, the Undersigned will cite to Plaintiff’s Complaint in this case, of record as Docket Entry 3,

simply as the Complaint. The Complaint was initially submitted as an attachment to Plaintiff’s Application to proceed

in forma pauperis (see Doc. 1-1) but was filed separately on the docket when the Application was granted. (See Doc.

2, 3). All PageID references to the Complaint refer to Docket Entry 3. Where other documents are cited, document

numbers (and case numbers, if applicable) are provided.

will assume without holding that Plaintiff has named both as Defendants.2 The Director is sued in

her official capacity only. (Id.).

Plaintiff initially submitted the Complaint (and related papers) in Kevin Tolliver v. Warden

Noble, Case No. 2:16-cv-1020, a separate case pending before this Court. (See Doc. 208 therein).

The Clerk of Court later opened this case, and docketed Plaintiff’s submissions in it. The two

cases are proceeding separately at this time. The earlier case will be referred to as the “2016 Case”

in this Report and Recommendation.3

Plaintiff describes the Complaint in this action as “a direct challenge to practices and

policies of the [ODRC].” (Complaint, PageID 40). As noted above, Plaintiff is proceeding under

42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42

U.S.C. § 2000cc-1. He alleges violations of his “First Amendment rights under the United States

Constitution in regard to freedom of religion and violations of protections against establishment

of religion.” (Complaint, PageID 39). More specifically, he asserts that the ODRC policies and

practices are ineffective and insufficient to lead to the hiring of qualified contractors/service

providers to serve the Islamic community within Ohio’s prisons. (See Complaint, PageID 41–42).

This leads, says Plaintiff, to the denial of certain religious services, and “constitute[s] religious

persecution, denial or infringement of religious rights, and an establishment of religion in favor of

2 Plaintiff describes the named Defendants as follows:

5. Defendants: The Ohio Department of Rehabilitation and Corrections (ODRC), Annette

Chambers-Smith (Director), 4545 Fisher Road, Columbus, Suite D, Ohio 43228. Standing in her

official capacities for the fiction ODRC as signatory and/or administrators over the ODRC Policies

for the purposes of Declaratory Judgments and injunctive Relief.

6. Sued in their: official capacities for declaratory judgments, injunctive relief, and “appropriate

relief” for the constitutional violations and RLUIPA claims.

(Complaint, PageID 40).

3 A third case concerning parole proceedings has been docketed as Kevin A. Tolliver v. Ohio Parole Board, Case No.

2:22-cv-4566, and is also proceeding separately.

both Christianity and the [WD Muhammad] style of practice, which is an ongoing harm to Plaintiff

and all similarly situated mainstream adherents to the Islamic faith in Ohio prisons.” (Complaint,

PageID 42, ¶ 19).

Plaintiff appears to base this conclusion, at least in part, on the fact that there are “no

Muslim employees anywhere in the Religious Services Departments of ODRC, qualified by

advanced education in Islamic studies (M.A. or Ph.D.) or similar religious accreditations (A’lim,

Mufti, or Shaykh), [and that] there is no one on staff to properly oversee hiring of contractors

and/or to administer and supervise policy issues on behalf of one of ODRC’s principal faith group.”

(Complaint, PageID 42, ¶ 18). Plaintiff has had conflicts with the contractors providing such

religious services, as discussed at length in the 2016 Case. See, e.g., Tolliver v. Noble, No. 2:16-

cv-1020, 2022 WL 843573, at *1 (S.D. Ohio Mar. 22, 2022), appeal dismissed sub nom. Tolliver

v. Foley, No. 22-3382, 2022 WL 2919958 (6th Cir. May 18, 2022) (“Mr. Tolliver had conflicts

with Imams Abdul Rahman Shahid and Sunni Ali Islam, independent contractors providing

religious services to Muslim inmates for the [ODRC]. Plaintiff adheres to a different sect of Islam

than the contractors and disagreed with how the Imams provided services and interacted with

Muslim inmates who disagreed with their religious views and practices.”).

In fact, nearly all of the allegations in the Complaint here repeat or echo Plaintiff’s prior

allegations. (See, e.g., Amended Complaint, Doc. 30, PageID 200–09, 225; Motion for

Preliminary Injunction, Doc. 34, PageID 259–60; Reply in Support of Motion for Preliminary

Injunction, Doc. 58, PageID 418–19; Response to Motion for Judgment on the Pleadings, Doc. 84,

PageID 558, 563; Motion for Leave to File Second Amended Complaint, Doc. 100 and 100-1,

PageID 661–72, 685–88, 691); Motion for Declaratory Judgment, Doc. 110, PageID 737–42;

Judicial Notice of Denial of Religious Services, Doc. 130, PageID 899–901; Memorandum in

Opposition to Summary Judgment, Doc. 161, PageID 1152–53, 1158–59, 1162–63, 1166–67;

Motion for Leave to File Second Amended Complaint, Doc. 165 and 165-1, PageID 1240–42,

1245–46, 1248–49, 1258–62; Motion for Declaratory Judgment, Doc. 167, PageID 1268–72,

1275–76; Memorandum in Opposition to Summary Judgment, Doc. 204, PageID 1471–73, all in

Case No. 2:16-cv-1020). Plaintiff has described these policy issues as “inextricably linked” to the

retaliation issues raised in 2016 Case. (See, e.g., Doc. 161, PageID 1152–53 in Case No. 2:16-cv-

1020).4

4 For example, Plaintiff argued, in a 2021 Memorandum filed in the 2016 Case:

For decades the ODRC has been involved in a Denial of Religious Rights, Establishment of

Religion, Religious Persecution, and is violating the Religious Land Use Institutionalized Persons

Act (RLUIPA). These Constitutional issues are maintained in Sections B and C of his complaint

(doc. 30) where he requested relief in ¶ 140, ¶ 142 and ¶ 143.

Therein it is argued Plaintiff was forced to address these ongoing issues in grievances starting in

2012. From long before that time until present, ODRC has knowingly allowed, encouraged, and

facilitated individual Contractors for Islamic services in failing to providing services for which they

are contracted. This is a statewide systematic denial of services and programming to Muslim

inmates. The purpose being to keep official numbers of Muslims participating in authorized

religious activities down and thereby conserve resources for use on Christian inmates and for

Christian faith based programming.

The ODRC’s contracting practices and policies for Islamic Service, management of these contracts

and Contractors, are meant to establish and maintain a system of underqualified candidates who

cannot, or will not, perform on contracts. Contractors who will not work toward providing

conventional services, proportionally, nor on par with those offered to Christian inmates. This is

clearly a denial of services, establishment of religion, and a RLUIPA case.

In the [Amended] Complaint (doc 30) it is argued that ODRC has deliberately established a group

of Contractors from a minority sect, with ties to the black nationalist group Nation of Islam (NOI),

as the preferred Contractors in a majority of Ohio’s prisons. That these Contractors regularly

conduct themselves in a manner offensive to mainstream practitioners by not performing mandatory

religious rites and rituals. Contractors who are often openly hostile to non-blacks, or those from

mainstream Islamic communities (e. g. : Arabs, Indo-Pakistanis, Turks, etc. ). Their enmity extends

to African American Muslims from non-NOI derived communities who reject the teachings of

Black-Nationalism as Anti-Islamic[.]

. . .

That said, his lawsuit is foremost about those issues of Sections B and C (stated above) inextricably

linked to the Retaliation of Section D.

(Doc. 161, PageID 1152–53 in Case No. 2:16-cv-1020). This Court may take judicial notice of court records that are

available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v.

Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

In his new case, Plaintiff appears to seek declaratory and injunctive relief only.

(Complaint, PageID 43, 51–52). He requests declaratory judgment with respect to fourteen

“Counts” or statements, as articulated in the right column and renumbered by the Court in the left

column, below:

Count

No.

1 1.) Classification of all denominations (groups or sects) of the Islamic faith under one

policy without recognition of major differences in the rites and rituals thereof

results in an ineffective policy that denies religious services to Muslim Inmates.

2 a. The terms “largest religious catchment” and “broadest range of adherents” in

72-REG-125 must mean mainstream Sunni practice or is too vague to

accommodate normative Sunni Muslims. Because Sunni orthodoxy alone

serves all major Islamic communities.

3 b. Shia Muslims have significant religious differences to Sunni Muslims and thus

deserve their own policy or subsection.

4 c. The nation of Islam (NOI) is a group with little in common with mainstream

Sunni Muslims and thus deserve their own policy or subsection.

5 d. The Moorish Science Temple of America (MST) is a group with little in

common with mainstream Sunni Muslims and thus deserve their own policy

or subsection.

5 The quoted terms do not appear in ODRC Policy No. 72-REG-12, entitled “Muslim Religious Practices.” See

https://drc.ohio.gov/about/resource/policies-and-procedures/religious-services-programming/muslim-religious-

practices (accessed April 4, 2023). The terms do appear in the more general ODRC Policy No. 72-REG-01, entitled

“Institutional Religious Services.” See https://drc.ohio.gov/about/resource/policies-and-procedures/religious-

services-programming/institutional-religious-services (accessed April 4, 2023). This Policy says, among other things:

Selection of a contract religious provider shall ensure coverage for the largest religious catchments

in the facility.

…

All contract religious providers shall be advised that they should appeal to the broadest range of

adherents in the faith group. They should emphasize the common, fundamental teachings of the

faith.

. . .

Volunteers shall be informed that in all of their teaching they are to appeal to the broadest possible

range of persons in the faith group. Sectarian distinctions are to be avoided by appealing instead to

the common, fundamental teachings of the faith.

ODRC Policy 72-REG-01, Sections VI.C.1, VI.C.3, and VI.E.4.

6 e. The Nation of Gods and Earths (5%’s) are not a religion recognized by ODRC

and should not be considered under the policy for Islam.

7 2.) As its written 72-REG-01, 02 and 12 lack sufficient detail for establishment of

what “Jummuah Services” are and what rites and rituals must be observed to make

it valid for mainstream Muslims.

8 3.) Failure to contract Islamic Services Providers from mainstream communities,

and/or to have criteria in place to ensure contractors are able, willing, and

qualified to perform rites and rituals necessary to perform their duties results in a

denial of services to Muslim Inmates from conventional communities.

9 4.) Issuing multiple contracts to one Islamic Services Provider at several different

ODRC facilities denies services to Muslim Inmates around Ohio.

10 5.) Failure to employ any properly educated/credentialed Imams as staff members

anywhere within the Religious Services Department of ODRC (i.e.: Central

Office, Regional Catchment Areas, nor any of the 36 Ohio prisons):

11 a. Prevents contracting quality Islamic Services Providers from mainstream

communities at the individual prisons;

12 b. Precludes a criteria ensuring services contracted for conform to rites and

rituals of normative practice throughout the State; and,

13 c. Results in a denial of services to Muslim Inmates from conventional

communities.

14 6.) Plaintiff Tolliver’s life-long adherence to the Shafi’i school of Islamic

Jurisprudence and Naqshbandi Sufism places him in a higher category of dietary

requirements than the general Muslim population covered under 72-REG-01

through 12. His Halal (or Kosher) diet must be re-established and maintained.

(Complaint, PageID 51–52). Plaintiff sought the same or similar relief in the 2016 Case. (See,

e.g., Motion for Declaratory Judgment, Doc. 110 in Case No. 2:16-cv-1020, PageID 737–42; see

also Doc. 117 (denying the Motion)).

Here, in addition to these declarations, Plaintiff also seeks a permanent injunction

“requiring Defendants to cease implementation of their errant policy and make appropriate

corrections under the supervision of this Court.” (Complaint, PageID 52, ¶ 57).

III. Discussion

The Undersigned reads Plaintiff’s Complaint as raising claims under 42 U.S.C. § 1983 for

violations of the Free Exercise and Establishment Clauses of the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment, as well as a claim under RLUIPA. Plaintiff

appears to raise these claims against both the ODRC and its Director. Some of the claims should

not proceed, for the reasons discussed in the following sections. Others should proceed at this

time, subject to the concerns outlined in the final sections.

The Undersigned begins the discussion with the parties who are sued, and the persons on

whose behalf they are sued.

A. Section 1983 Claims Cannot Be Raised Against the ODRC

To state a cause of action under § 1983, a plaintiff must allege: “(1) a deprivation of a right

secured by the Constitution or laws of the United States (2) caused by a person acting under color

of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008)

(emphasis added). The ODRC is not a “person” for purposes of this statute. See Vizcarrondo v.

Ohio Dep’t of Rehab. & Corr., No. 1:18-cv-1255, 2019 WL 6251775, at *5 (N.D. Ohio Nov. 22,

2019) (noting “multiple courts have found that ODRC is not a ‘person’ subject to suit under 42

U.S.C. § 1983.”); Peeples v. Ohio Dep’t of Rehab. & Corr., 64 F.3d 663 (6th Cir. 1995) (affirming

the district court’s dismissal of suit against the ODRC that held that “the ODRC is not a ‘person’”)

(unreported table case). Plaintiff therefore fails to state a § 1983 claim against the ODRC upon

which relief may be granted. His claims under the First Amendment or any other

constitutional provision, which are raised against the ODRC under § 1983 should be

dismissed.

B. Plaintiff Cannot Raise Claims on Behalf of Other Inmates

Throughout his Complaint, Plaintiff alleges that ODRC policies harm “Muslim Inmates”

in addition to, or along with, himself. (See, e.g., Complaint, PageID 41 (asserting that ODRC

practices have “harmed Muslim Inmate recipients” and referring to the “denial of the Muslim

Inmate’ basic religious rights statewide”); PageID 42 (alleging that “many prisons only get

Jummuah once a month” and that policies present “an ongoing harm to Plaintiff and all similarly

situated mainstream adherents to the Islamic faith in Ohio prisons.”)).

While a non-attorney plaintiff may raise claims on his own behalf, he cannot bring claims

in federal court on behalf of others. Specifically, “[a] prisoner cannot bring claims on behalf of

other prisoners. A prisoner must allege a personal loss and seek to vindicate a deprivation of his

own constitutional rights.” Corn v. Sparkman, 82 F.3d 417, 1996 WL 185753, at *1 (6th Cir. Apr.

17, 1996) (citation omitted) (unpublished table case).

This is a question of standing. See Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 126 (2014) (standing encompasses, among other things, “the general prohibition on

a litigant’s raising another person’s legal rights”) (citations omitted). This is so because a prisoner

does not have standing to bring a § 1983 claim on behalf of other prisoners. See Barnett v. Luttrell,

414 F. App’x 784, 787 (6th Cir. 2011) (citing Jones v. Caruso, 569 F.3d 258, 276-77 (6th Cir.

2009) (also noting that “it is well-settled that a party whose conduct is legitimately regulated by a

statute or regulation lacks standing to challenge it on the basis that it is unconstitutional as applied

to others.”)). And, a claim under RLUIPA is subject to the general rules of standing under Article

III of the United States Constitution. See 42 U.S.C. § 2000cc-2(a) (“Standing to assert a claim or

defense under this section shall be governed by the general rules of standing under article III of

the Constitution.”). This means that a prisoner who is Muslim lacks standing to make “general

assertions on behalf of the entire Muslim inmate community at [a prison].” Pleasant-Bey v. Shelby

Cnty. Gov’t, No. 2:17-cv-2502, 2019 WL 1601495, at *5 (W.D. Tenn. Apr. 15, 2019) (quoting

Jacobs v. Strickland, No. 2:08-cv-680, 2009 WL 2476896, at *3 (S.D. Ohio Aug. 11, 2009) (“The

Magistrate Judge…correctly concluded that [plaintiff] could not assert the claims of other Sunni

Muslims who were allegedly deprived of their rights under RLUIPA and the United States

Constitution.”)).

Thus, to the extent that Plaintiff attempts to raise claims on behalf of other Muslim

inmates, those claims and requests for relief should be dismissed. Id., see also Williams-Bey

v. Smith, No. 1:20-cv-828, 2020 WL 1954140, at *1 (N.D. Ohio Apr. 23, 2020) (“[T]o the extent

the Plaintiff purports to represent a class or anyone other than himself, his Complaint must be

dismissed.”); Marcum v. Jones, No. 1:06-cv-108, 2006 WL 543714, at *1 (S.D. Ohio Mar. 3, 2006)

(and cases cited therein) (holding that a pro se inmate “may bring his own claims to federal court

without counsel, but not the claims of others”); Garrison v. Michigan Dep’t of Corr., 333 F. App’x

914, 919 (6th Cir. 2009) (“[A] pro se litigant may represent himself on his own claims, but [he]

may not act in a representative capacity,” or represent a class of inmates in class action litigation).

Plaintiff’s claims and arguments in this case should therefore be “limited to alleged violations of

his own constitutional rights.” Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008); see

also Lowe v. Oppy, No. 2:14-cv-535, 2015 WL 1439345, at *2 (S.D. Ohio Feb. 10, 2015), report

and recommendation adopted, 2015 WL 1439325 (S.D. Ohio Mar. 27, 2015) (“to the extent that

Plaintiff intends to assert claims on behalf of other inmates of the Rastafarian religion, his claims

must fail.”).

The Undersigned next considers whether Plaintiff’s claims and arguments in this case

allege a “concrete and particularized” injury to Plaintiff specifically, sufficient to give him

standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

C. The Court Can Construe the Allegations About Injuries to Plaintiff

“To have standing, a plaintiff must allege (1) an injury in fact (2) that’s traceable to the

defendant’s conduct and (3) that the courts can redress.” Gerber v. Herskovitz, 14 F.4th 500, 505

(6th Cir. 2021) (citing Lujan, 504 U.S. at 559-61). To establish a cognizable injury in fact:

the claimant must establish the “ ‘invasion of a legally protected interest’ that is

‘concrete and particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’ ” Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1548, 194

L.Ed.2d 635 (2016) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). To qualify

as particularized, an injury “must affect the plaintiff in a personal and individual

way,” Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130, not in a general manner that

affects the entire citizenry, Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194,

167 L.Ed.2d 29 (2007). . . .

A “concrete” injury is one that “actually exist[s].” Spokeo, 136 S. Ct. at 1548. In

the case of an intangible injury like this one, the claimant must establish “a close

relationship to a harm that has traditionally been regarded as providing a basis for

a lawsuit in English or American courts.” Id. at 1549; see TransUnion LLC v.

Ramirez, ––– U.S. ––––, 141 S. Ct. 2190, 2204, 210 L.Ed.2d 568 (2021).

Gerber, 14 F.4th at 505-506.

Plaintiff’s Complaint in this case appears to be drafted primarily as a critique of ODRC

policies, deeming them “ineffective” and concluding that they are unconstitutional. (See, e.g.,

Complaint, PageID 41–42). After describing the ODRC’s “system of contracting independent

Islamic Services Providers as institutional Imams at all Ohio prisons” as “unserviceable” and

“constitutionally unfair” (id., PageID 41), he asserts that “[t]he Policies, Contracts, Contractors, as

well as the screening for qualifications, ability & fitness are inadequate in Ohio prison’s and

therefore causing on going harm to Plaintiff and all similarly situated mainstream normative

adherents to the Islamic faith[.]” (Complaint, PageID 42, ¶ 20). He gives some examples of

problems that have allegedly arisen that have denied “the Muslim Inmates’ basic religious rights

statewide”:

Examples of this are: [1] the Tradition of Lamb Meat on the Eid al-Adha, which

used to be budgeted for, but not ordered nor served at WDM contractor facilities.;

[2] Coordination of Islamic prayer during Ramadan, which has been denied

(delayed past its required time) upon opinions given by WDM Contractors (i.e.:

inmates were forced to choose between eating the “Iftar” evening meal or praying

“Magrib” evening prayer).; [3] The requirements of recitation of the “Kutba al-

Hijr” in Arbic at the beginning of every Jummuah.; [4] The failure to order, or even

accept donations of books, to support the proper education and spiritual

development when those books do not support a Contractor’s minority views.;

Among many other issues.

(Complaint, PageID 41, ¶ 14 (numbers inserted)). Reading the Complaint liberally, the

Undersigned can infer that Plaintiff is alleging that he has faced these four issues. So construed,

Plaintiff identifies harm to himself sufficient to survive a preliminary standing inquiry for purposes

of this initial screening. He cannot, however, raise these issues on behalf of other inmates.

Plaintiff’s fourteen requested declarations seek to address problems he sees with the

ODRC’s policies and the contractors operating under the policies. One Count clearly identifies a

harm to Plaintiff—Count 14, which says:

Plaintiff Tolliver’s life-long adherence to the Shafi’i school of Islamic

Jurisprudence and Naqshbandi Sufism places him in a higher category of dietary

requirements than the general Muslim population covered under 72-REG-01

through 12. His Halal (or Kosher) diet must be re-established and maintained.

(Complaint, PageID 49–50, 52).6 But not all Counts do.

Plaintiff seeks declarations that the ODRC’s policies should be interpreted in specific ways

consistent with Plaintiff’s views of his and others’ religions. (See, e.g., Complaint, PageID 43, 45

(asking this Court to declare that “Sunni orthodoxy alone serves all major Islamic communities”

and “The Moorish Science Temple of America (MST) is a group with little in common with

mainstream Sunni Muslims…” and “The Nation of Gods and Earths (5%’s) are not a religion

recognized by ODRC and should not be considered under the policy for Islam.”)). Some of these

assertions concern groups from which Plaintiff takes pains to separate himself. He describes

6 Although it appears Plaintiff has standing to bring Count 14, the adequacy of this claim is addressed below in Section

III.E.

himself instead as a life-long adherent “to the Shafi’i school of Islamic Jurisprudence and

Naqshbandi Sufism.” (Complaint, PageID 49, 52). The Complaint appears to indicate that

Plaintiff identifies as part of the Sunni Muslim tradition. (Complaint, ¶¶ 26, 51).

Several Counts of the Complaint describe Plaintiff’s views on which groups are, and are

not, part of the “mainstream” or “normative” Muslim religion. (Complaint, PageID 43–45, 51).

He posits that ODRC Policy 72-REG-12 (concerning “Muslim Religious Practice”) must be

interpreted in accordance with these views, apparently to serve only “mainstream Sunni practice.”

(Complaint, PageID 43). He says that certain Muslim groups should have their own separate

policies (Shia Muslims, Nation of Islam, Moorish Science Temple, but not the Nation of Gods and

Earths (5%’s)) and further suggests that these groups should be excluded from participation in the

mainstream Sunni practice provided for (in his view) in ODRC Policy 72-REG-12. (See, e.g.,

Complaint, PageID 45 (“Sunni’s do not consider NOI variant beliefs or services valid. Sunni

Muslims, when aware of the NOI’s divergent beliefs, find their participation in Jummuah (Friday

Prayer) disrespectful and consider it a ‘braking of the ranks’ (i.e.: A gap in prayer line which needs

to be closed).”)).

To the extent that Plaintiff asks this Court to declare that groups in which he is not a

member “deserve” to have the ODRC write them their own policies, he lacks standing to raise

these claims. Counts 3, 4, 5, 6 should be dismissed on this basis. (Complaint, PageID 44–45,

51).

The remaining Counts for declaratory judgment can conceptually be divided into two

groups: those alleging that the Policies are, as written, unconstitutional; and those alleging or

suggesting that the Policies have been violated. As discussed next, the former group conceivably

could state a claim to be pursued here under § 1983, while the latter group does not.

D. Alleged Violations of ODRC Policy are not Actionable under § 1983

To the extent that Plaintiff alleges that the contractors providing services to him as a

Muslim inmate have violated ODRC Policies, such claims under § 1983 must be dismissed, for (at

least) two reasons. First, no contractors are named as defendants in this case. (Complaint, PageID

39). Plaintiff did sue two contractors in the 2016 Case; the claims against one were dismissed

while a retaliation claim remains pending as to the other. (See Doc. 183 in Case No. 2:16-cv-

1020). Whether Plaintiff gets another chance to make these claims—against anyone—is discussed

in the later section about res judicata.

Second, alleged violations of ODRC policy do not state a claim under § 1983. That is,

Section 1983 does not provide a remedy for violations of state laws or regulations. See Williams

v. Burgess, No. 5:21-cv-99, 2021 WL 5816830, at *4 (W.D. Ky. Dec. 7, 2021) (citing Laney v.

Farley, 501 F.3d 577, 580 n.2 (6th Cir. 2007)) (“The purpose of § 1983 is to remedy violations of

federal law, not state law.”); Lewellen v. Metro. Gov’t of Nashville, 34 F.3d 345, 347 (6th Cir.

1994) (“Unless a deprivation of some federal constitutional or statutory right has occurred, § 1983

provides no redress even if the plaintiff’s common law rights have been violated and even if the

remedies available under state law are inadequate”).

Moreover, “[c]ourts routinely have recognized that a prisoner does not enjoy any federally

protected liberty or property interest in state procedure.” White v. Perron, No. 2:20-cv-247, 2021

WL 3855589, at *9 (W.D. Mich. Aug. 30, 2021) (citing Olim v. Wakinekona, 461 U.S. 238, 250

(1983) and other cases). Thus, “Defendants’ alleged failure to comply with [a state] administrative

rule or policy does not itself rise to the level of a constitutional violation.” Williams v. Burke, No.

2:08-cv-123, 2009 WL 1788374, at *1 (W.D. Mich. June 18, 2009) (collecting cases); Burgess,

2021 WL 5816830, at *4 (“to the extent that Williams identifies state policies as conferring a right

for a § 1983 claim, the Court dismisses that claim”).

Plaintiff’s suggestion that Defendants or others violated ODRC policy should

therefore be dismissed for failure to state a claim on which relief may be granted under §

1983. See Brown v. Mahlman, No. 1:22-cv-239, 2022 WL 17817615, at *3 (S.D. Ohio Dec. 19,

2022) (dismissing alleged violations of ODRC policy because they “fall outside the scope of §

1983”). This includes arguments that the ODRC failed to hire contractors who represent the

“largest religious catchment” and “broadest range of adherents” and thus violated ODRC Policy

No. 72-REG-01, or any claims that the contractors failed to comply with that policy or other

policies. These arguments, which may be part of Counts 2 and 8, fail to state a claim under § 1983.

E. Plaintiff’s Allegation That He Was Denied Halal Meals Does Not State

a Claim for a Violation of RLUIPA, the First Amendment, or the

Equal Protection Clause

Plaintiff alleges in his Complaint that:

[his] life-long adherence to the Shafi’i school of Islamic Jurisprudence and

Naqshbandi Sufism places him in a higher category of dietary requirements than

the general Muslim population covered under 72-REG-01 through 12. His Halal (or

Kosher) diet must be re-established and maintained.

51. Plaintiff is a second generation Muslim American, raised by his mother in the

Shafi’i school of jurisprudence (madhab) and Naqshbandi school of spiritual

purification (tasawwuf). His father, a retired Imam (Islamic priest), ensured

Plaintiff received a formal education in religion as a child and all of Mr. Tolliver’s

life he has endeavored to live in accordance with his strongly held beliefs. As it

relates to this declaratory judgment action he has maintained a halal diet his entire

life. He applied for and received a Kosher accommodation that were periodically

challenged but never interrupted until it was taken at Belmont Correctional Institute

(BeCI) in 2011.

52. Mr. Tolliver has been without his religiously necessary diet all this time due to

an unjust policy that does not recognize Muslims are not one homogeneous group.

A policy that is further unfair because it allows for some similarly situated

Christians to receive a Kosher diet (e. g.: Sabatarians, House of Yahway, Messianic,

etc. . The members of these small Christian subsets are able to receive Kosher meals

even though the main body of Christians cannot. (See: Exhibit-3)

53. This disparate treatment cannot stand under the First Amendment and RLUIPA

between three Abrahamic religions. Jews, Christians, and Muslims are all following

Moses to varying extents and it would stand to reason that some of the adherents in

each group require stricter standards than others.

54. It is ODRC’s position that cost is the main factor in denying Muslims the dietary

respect given other groups. That position should be ineffective. Tolliver is one of

only eight (8) Muslims incarcerated in Ohio adhering to the Shafi’i madhab and the

only follower of Naqshbandi tasawwuf. Hence, his dietary standard exceeds even

that of other Sunni’s within his Shafi’i judicial methodology due to his Naqshbandi

spiritual requirements.

[Note; Evidence taken from Plaintiff by Defendants as documented in Tolliver v.

Noble (Case No. 2:16-cv-1020) included ODRC and AIRMARK’s statistical

information showing that of all the Jews incarcerated by ODRC very few choose

the Kosher diet. Hence, there is no reason to assume that there would be a run on

the far inferior frozen MRE’s of the ODRC’s Kosher meal plan offered by

AIRMARK if an appropriate policy correction does occur. Other evidence

indicated that the cost differential between Kosher diet and regular meal is actually

less than 30 cents per tray and as low as 17 cents on some meals.]

(Complaint, PageID 49–50).

As his new Complaint suggests, Plaintiff raised this issue in the 2016 Case, in the context

of a Motion for Preliminary Injunction. (See, e.g., Motion, Doc. 34, PageID 259–60; Reply in

Support of Motion, Doc. 58, PageID 418–19; Judicial Notice: Evidentiary Exhibit in Support of

Pleadings for Restoration of Halal/Kosher Diet, Doc. 60, all in Case No. 2:16-cv-1020). This

Court rejected his request. (See Report and Recommendation, Doc. 61, PageID 466–70; Order

Adopting Report and Recommendation, Doc. 67 in Case No. 2:16-cv-1020). Plaintiff appealed

(Doc. 70), and the United States Court of Appeals for the Sixth Circuit concluded that this issue

on appeal was frivolous and not deserving of further argument or consideration. See Tolliver v.

Collins, No. 19-3761 (6th Cir. Jan. 29, 2020) (Order, p.4). The appeal was ultimately dismissed

on Plaintiff’s motion after the Sixth Circuit denied his request to proceed on appeal in forma

pauperis. See Tolliver v. Collins, No. 19-3761, 2020 WL 4590269, at *1 (6th Cir. Mar. 17, 2020).

The Sixth Circuit so concluded in light of its previous decision in Robinson v. Jackson, 615

F. App’x 310 (6th Cir. 2015), noting that “Ohio prisons offer vegetarian meals, which this court

has held to be [H]alal and not substantially burden a Muslim’s free exercise of religion.” Tolliver

v. Collins, No. 19-3761 (6th Cir. Jan. 29, 2020) (Order, p.4). In Robinson, the Sixth Circuit

rejected claims under RLUIPA, the First Amendment, and the Equal Protection Clause made by a

“devout Muslim who sincerely adheres to the Islamic faith.” Id. at 311. The Sixth Circuit said:

Robinson’s first claim is that Jackson violated his rights under the RLUIPA when

she denied him Halal meals. Under the RLUIPA,

No government shall impose a substantial burden on the religious exercise

of a person residing in or confined to an institution ... even if the burden

results from a rule of general applicability, unless the government

demonstrates that imposition of the burden on that person—(1) is in

furtherance of a compelling governmental interest; and (2) is the least

restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc–1(a); see also Holt v. Hobbs, ––– U.S. ––––, 135 S.Ct. 853,

860, 190 L.Ed.2d 747 (2015). Accordingly, “[i]f a plaintiff produces prima facie

evidence to support a claim alleging a violation of [the RLUIPA], the government

shall bear the burden of persuasion[.]” 42 U.S.C. § 2000cc–2(b).

Robinson notes that the legislative history accompanying the RLUIPA suggests a

concern to protect a prisoner who is denied Halal meals during his incarceration.

See Cutter v. Wilkinson, 544 U.S. 709, 716 n. 5, 125 S.Ct. 2113, 161 L.Ed.2d 1020

(2005). However, by Robinson’s own definition, a meal containing no meat or

alcohol qualifies as Halal. According to the defendants, the vegetarian meals

provided to him by the prison meet this definition. Robinson has not alleged

otherwise.

We have explicitly held that vegetarian meals are, in fact, Halal. Abdullah v. Fard,

173 F.3d 854, at *1 (6th Cir.1999). In Abdullah, a Muslim man incarcerated in Ohio

sued prison officials, alleging that they would not provide him Halal meat and that

their failure to do so violated his right to equal protection. Id. The district court

granted summary judgment to the defendants. On appeal, we first considered

Abdullah’s claim that the prison was serving him non-Halal meals, and rejected this

argument:

Abdullah averred that a prohibition against non-Halal meat was

fundamental to his religion. However, he can comply with this prohibition

by eating vegetarian meals. Thus, Abdullah’s First Amendment claim fails

because the disputed policy did not force him to violate his religion.

Id. citing Abdur-Rahman v. Mich. Dep’t Corrs., 65 F.3d 489, 491 (6th Cir.1995).

Other district courts in this Circuit have since applied the logic of Abdullah in the

context of RLUIPA claims. See, e.g., Hudson v. Caruso, 748 F.Supp.2d 721, 729–

30 (W.D.Mich.2010) (holding that providing a Muslim inmate vegetarian entrees

without providing Halal meat entrees did not substantially burden free exercise);

Cloyd v. Dulin, No. 3:12-CV-1088, 2012 WL 5995234, at *4 (M.D.Tenn. Nov. 30,

2012) (citing Abdullah, 173 F.3d at *1) (“Muslim prisoners do not have a right

under the First Amendment or the RLUIPA to be provided [H]alal meat entrees;

rather, a correctional facility need only provide Muslim prisoners with food that is

not ‘haram’ (impermissible).”). Thus, as the district court found, Robinson is not

being denied Halal meals; he therefore fails to state a claim as a matter of law under

the RLUIPA.

Robinson’s First Amendment claim suffers a similar fate for similar reasons. Under

the First Amendment, inmates have the right to the free exercise of their religion.

Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). However,

like Abdullah, Robinson is receiving meals that do not violate his religion. And

while he may prefer to be served “[H]alal meat entrees rather than vegetarian

entrees and non-meat substitutes, his food preferences, as a prisoner, are limited.”

Cloyd, 2012 WL 5995234, at *4; see also Rhodes v. Chapman, 452 U.S. 337, 349,

101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (“The Constitution does not mandate

comfortable prisons.”). Prisoners have a constitutional right to meals that meet their

nutritional needs; indeed, they have a constitutional right to be served meals that do

not violate their sincerely-held religious beliefs. Colvin v. Caruso, 605 F.3d 282,

290 (6th Cir.2010). But there is no constitutional right for each prisoner to be served

the specific foods he desires—such as Halal meat—in prison. See Spies v. Voiovich,

173 F.3d 398, 406-07 (6th Cir.1999) (holding that providing a Buddhist prisoner

with a vegetarian diet but not a vegan diet was constitutionally permissible, and

“the fact that Plaintiffs dislike the alternate diet available does not render it

unreasonable or legally deficient.”).

We therefore agree with the district court that Robinson has not presented “factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged” for the simple reason he alleges no specific

misconduct. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Without a plausible allegation

that Jackson has violated Robinson’s free exercise of religion, Robinson fails to

state a First Amendment claim as a matter of law.

Robinson’s equal protection claim also fails on these grounds. Robinson argues

that, because the ODRC provides Kosher meals to Jewish inmates but does not

provide Halal meals to Muslim inmates, the department is discriminating against

him and those of his faith in violation of the Fourteenth Amendment. The Equal

Protection Clause provides that “[n]o state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. It is in

essence “a direction that all persons similarly situated should be treated alike.” City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d

313 (1985). Thus, to prevail on an equal protection claim, Robinson must

demonstrate that the ODRC’s provision of Kosher, but not Halal, meals constitutes

disparate treatment of similarly-situated individuals. See Abdullah, 173 F.3d at *2.

He must further prove that the disparate treatment in question is the result of

intentional and purposeful discrimination. Id.

Again, the rationale of Abdullah is on point. In addition to making a First

Amendment claim, Abdullah also alleged that the prison’s provision of Kosher

meals to Jewish inmates violated the Equal Protection Clause. In light of the fact

that the prison’s policy was “rationally related to legitimate penological

interests[,]” we found that “Abdullah’s equal protection claim lack[ed] merit, as he

did not show that the policy was motivated by discriminatory intent.” Id. at *2

(citing Thompson v. Kentucky, 712 F.2d 1078, 1081-82 (6th Cir.1983)). The same

is true in the case at bar. As discussed supra, Robinson’s complaint fails to allege

that he was, in fact, denied a diet consistent with Halal requirements. Assuming he

had done so, we must also find that Jewish and Muslim inmates are similarly-

situated in context—an assertion he does not develop other than to plainly state that

“Jewish inmates in ODRC custody receive Kosher meals.” Even assuming both of

those elements are met, Robinson fails to allege that the ODRC is not providing

Halal meals pursuant to intentional or purposeful discrimination. See Abdullah, 173

F.3d at *2; see also Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815-16 (8th

Cir.2008) (rejecting a Muslim prisoner’s equal protection claim on summary

judgment because he had not presented evidence that prison officials had refused

to provide Halal meals based on discriminatory intent). Therefore, Robinson fails

to state a valid equal protection claim as a matter of law. The district court’s

decision to grant judgment on the pleadings to Jackson was therefore not improper.

Robinson, 615 F. App’x at 313-15 (emphasis added and footnotes omitted).

A few months after his appeal was dismissed, Plaintiff raised the issue again in the 2016

Case, in a Motion for Declaratory Judgment. (See, e.g., Doc. 110 in Case No. 2:16-cv-1020,

PageID 741–42). Plaintiff’s requests were nearly verbatim to those raised in this new Complaint

(Id.). This Court rejected his claim in this context, too. (See, e.g., Report and Recommendation,

Doc. 112, PageID 804; Order Adopting Report and Recommendation, Doc. 117, PageID 832, all

in Case No. 2:16-cv-1020). Plaintiff appealed again. (Doc. 120 in Case No. 2:16-cv-1020). The

Sixth Circuit dismissed the appeal for a lack of jurisdiction. Tolliver v. Foley, No. 21-3250, 2021

WL 4205036, at *1 (6th Cir. Apr. 22, 2021).

In his Complaint here, Plaintiff again alleges that he has been denied Halal or Kosher meals

since 2011. (Complaint, PageID 49–50). But he does not allege that he has been denied

nutritionally adequate meals, and there is no suggestion that he is denied vegetarian meals. And,

as the apparently available “vegetarian meals are, in fact, Halal,” he does not state an actual injury

with respect to the denial of Halal meals. Robinson, 615 F. App’x at 313.

Plaintiff does allege here that he is in “a higher category of dietary requirements than the

general Muslim population.” (Complaint, PageID 49; Compare Doc. 204 in Case No. 2:16-cv-

1020, PageID 1471, where Plaintiff told this Court that he was “an ordinary adherent to Islam . . .

born in a regular American Muslim family that adheres to the mainstream doctrines of the religion

practiced by 2 billion Muslims worldwide.”). He does not articulate what those higher

requirements are in his Complaint,7 and his only requested relief is the re-establishment of a Halal

or Kosher diet. (Complaint, PageID 49-50, 52). As Plaintiff is not being denied Halal meals as

discussed in Robinson, he has failed to state a claim on which relief may be granted. Count

14 should be dismissed on this basis. (Complaint, PageID 49–50, 52).

The Undersigned notes that this is not a determination, at this initial screening stage, that

the previous decisions in the 2016 Case are (or are not) entitled to preclusive effect here. See

generally United States v. United Techs. Corp., 782 F.3d 718, 725-26 (6th Cir. 2015) (“To

establish issue preclusion, a party must show that: (1) the question in this case is the same as the

one raised in the earlier litigation; (2) the answer given in the earlier litigation was necessary to

the decision; (3) that decision was a final judgment on the merits; and (4) the affected party had a

7 In the 2016 Case, Plaintiff asserted:

Plaintiff is not a prison convert and has eaten halal/kosher all of his life. He was on kosher diet

throughout his incarceration until it was taken away after his punitive transfer to BeCI. Defendants

have refused to restore said meals offered to others. Because Plaintiff is a practicing “Sufi” he has

dietary consideration beyond the institutional “non-pork” diet. His beliefs are well known and

ardently held. No other option is available to him and the court should find balance of hardships

favors this order. It should also be noted that the so-called “non-meat” diet only means no actual

meat is served. The ingredients are not certified, nor even checked for other animal byproducts.

Such as lectin (from hair), amino acids, animal gelatins. lactic acids, and “natural flavorings.” But

as stated above Plaintiff’s argument is only to restore what was taken until conclusion of the suit.

(Motion for Preliminary Injunction, Doc. 34 in Case No. 2:16-cv-1020, PageID 260). Plaintiff does not develop this

argument in the Complaint in this case or articulate what his religious beliefs require.

‘full and fair opportunity’ to litigate the issue in the prior litigation. Issue preclusion applies to

issues litigated in prior disputes.”) (citations omitted) (emphasis in original). This is a

determination that the same law used by this Court and the Sixth Circuit to reject Plaintiff’s request

in the 2016 Case applies here as well and demonstrates why he has failed to state a claim.

The obvious overlap of issues between this case and the 2016 Case raises a few additional

concerns, which are discussed in the following sections. These concerns do not, at this time, lead

the Undersigned to conclude that the claims must be dismissed, but the Parties should be prepared

to address them in the future.

F. The Doctrine of Res Judicata May Bar this Action

“The doctrine of res judicata, or claim preclusion, provides that a final judgment on the

merits of an action precludes the ‘parties or their privies from relitigating issues that were or could

have been raised’ in [that] prior action.” Harris v. Ashley, No. 97-5961, 1998 WL 681219, at *2

(6th Cir. Sept. 14, 1998) (per curiam) (internal citations omitted). “The purposes of claim

preclusion are to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial

resources, prevent inconsistent decisions, encourage reliance on adjudication, and promote comity

between the state and federal courts.” Dubuc v. Green Oak Twp., 312 F.3d 736, 744 (6th Cir.

2002) (citing Allen v. McCurry, 449 U.S. 90, 94, 96 (1980)).

The doctrine applies not only to issues that were actually raised and litigated in a prior

action, but also to any issues “which the parties, exercising reasonable diligence, might have

brought forward at the time.” Harris, 1998 WL 681219, at *3 (internal citation and quotation

omitted); see also Parker v. Gibbons, 62 F. App’x 95, 96 (6th Cir. 2003) (citing J.Z.G. Res., Inc.

v. Shelby Ins. Co., 84 F.3d 211, 213 (6th Cir. 1996)) (“Under claim preclusion, a final judgment

on the merits bars any and all claims by the parties or their privies based on the same cause of

action, as to every matter actually litigated as well as every theory of recovery that could have been

presented.”) (emphasis added).

Consideration of a subsequent complaint is precluded under the res judicata doctrine if: (1)

a final decision was rendered on the merits in the first action by a court of competent jurisdiction;

(2) the subsequent action involves the same parties, or their privies, as the first action; (3) the

second action raises issues or claims which were either actually litigated or should have been raised

and litigated in the prior action; and (4) there is an “identity” between the causes of action to the

extent the “claims arose out of the same transaction or series of transactions, or . . . the same core

of operative facts.” Browning v. Levy, 283 F.3d 761, 771-72, 773-74 (6th Cir. 2002) (internal

citation and quotation omitted); see also Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528

(6th Cir. 2006).

As discussed above, Plaintiff made the same or similar claims in the 2016 Case in his

Amended Complaint and other filings. But as the 2016 Case is not yet complete, the Undersigned

declines to determine at this time whether res judicata would bar this action. The Undersigned

notes that “[t]he fact that the plaintiff now asserts alternative theories of recovery and seeks a

different remedy does not allow him to avoid claim preclusion, when these other theories could

have been asserted and remedies could have been sought in the earlier action.” Hamilton v. State

Farm Fire & Cas. Co., 127 F.3d 1102, 1997 WL 664772, *2 (6th Cir. 1997) (unpublished table

case); see also Wimber v. Jackson, No. 3:19-cv-663, 2019 WL 5555543, at *4 (M.D. Tenn. Oct.

28, 2019) (citing Gen. Elect. Med. Sys. Europe v. Prometheus Health, 394 F. App’x 280, 283 (6th

Cir. 2010)) (raising issue preclusion and noting that where “the precise issues were raised and

actually litigated in Plaintiff’s prior lawsuit[,] [t]he same claims cannot be relitigated by Plaintiff

in this or any other action in federal court, even if Plaintiff provides additional facts that he

previously did not provide.”).

Setting aside whether the doctrine of res judicata bars this action, the 2016 Case provides

another piece of insight into Plaintiff’s claims, specifically, about when his alleged injuries

occurred. That issue is discussed next.

G. The Statutes of Limitations May Bar These Claims

In Section III.C, the Undersigned noted that some of Plaintiff’s assertions could be

construed as alleging that he was personally harmed in order to provide him standing to sue.