Gerald Byrd v. Randall Haas

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0255p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

GERALD BYRD,

│

Plaintiff-Appellant, │

> No. 20-2286

│

v. │

│

RANDALL HAAS, Warden, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 2:17-cv-11427—Stephen J. Murphy, III, District Judge.

Argued: October 19, 2021

Decided and Filed: November 9, 2021

Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Jeffrey A. Crapko, MILLER, CANFIELD, PADDOCK AND STONE, PLC,

Detroit, Michigan, for Appellant. Jennifer A. Foster, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Jeffrey A. Crapko,

Amanda Rauh-Bieri, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Detroit,

Michigan, for Appellant. Jennifer A. Foster, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

THAPAR, Circuit Judge. Six years ago, Robert Byrd requested that the Michigan

Department of Corrections allow him to worship with other members of his Ifa faith and to

No. 20-2286 Byrd v. Haas, et al. Page 2

obtain certain religious property fundamental to that faith. But to this day, many of his requests

remain unanswered. Since such a long delay is tantamount to a denial, we reverse and remand.

I.

We divide this section into three parts. First, we outline the Department’s policy. Then

we trace Byrd’s journey, taking the evidence in the light most favorable to Byrd. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And last, we describe the case’s procedural

history.

A.

Both parties agree the Department’s policy lays out the framework that governs an

inmate’s religious requests. That policy recognizes “[r]eligious freedom is a constitutionally

guaranteed right” that prisoners may enjoy “within the constraints necessary for the safety,

security, and good order of the facility.” R. 80-2, Pg. ID 758. Inmates may hold formal group

services or possess certain religious property only if the Department has formally recognized

their faith. Buddhists, for example, may own one strand of meditation beads and a single picture

of the Buddha. Muslims meanwhile are allowed a prayer rug, a strand of dhikr beads, a star-and-

crescent pendant that may be worn as a necklace, and either a kufi cap or a hijab. Ifa adherents

may keep a set of sixteen cowry shells, one strand of white consecrated beads, and one picture of

the Orisha, a group of important deities in the faith.1 Though the Department recognizes the Ifa

faith, it is one of only three recognized religions that was denied group services. The record

doesn’t tell us why. But the policy tells us a group is not guaranteed religious services if there

are “less than five prisoners within the same security level” in a facility.2 Id. at 761. And the

Department adds that it may bar group services if they may pose “safety and security” concerns.

Appellees’ Br. 6 (citing R. 80-2, Pg. ID 761).

1

Both the Defendants’ briefing and Department policy documents repeatedly refer to the Ifa faith as

“Yoruba.” Byrd, however, believes this is incorrect because Yoruba is a region in western Africa, and Ifa should not

be considered “coextensive with Yoruban culture,” though “many [Yoruban people] practice Ifa.” Appellant’s Br. 3

n.1. For that reason, we also refer to Byrd’s faith as Ifa.

2

Byrd’s counsel notes that there were at least five Ifa prisoners at Byrd’s current facility as of March 12,

2019. R. 87-21, Pg. ID 2284.

No. 20-2286 Byrd v. Haas, et al. Page 3

The parties also agree that the policy offers a straightforward path for inmates to request

group-worship rights and religious property. The inmate’s role is minimal. He need only submit

a request “in writing to the Warden or designee and include a description of the religious item

along with an explanation of its significance” to his faith. R. 80-2 at 763. As the Department

concedes, once the prisoner submits this request, there is “no further role for the prisoner to

play.” R. 87-9, Pg. ID 1763. The duty then shifts to the warden (here, Randall Haas) or his

designee to “forward the request and any supporting documents to the [] Special Activities

Coordinator through the appropriate chain of command.” R. 80-2, Pg. ID 763. And this duty is

a mandatory one. The warden has no “discretion over whether or not to forward” Byrd’s request

to the special activities coordinator. R. 87-9, Pg. ID 1762.

The policy likewise circumscribes the special activities coordinator’s role. Upon

receiving the request, the special activities coordinator (here, David Leach) must study it before

making a recommendation to the Department’s deputy director. As part of this review, the

special activities coordinator typically forwards the request to the Chaplaincy Advisory Council,

a volunteer group of local religious leaders who help him assess religious claims. Both the

council and the special activities coordinator are tasked with evaluating whether an inmate’s

requested religious property “is necessary to the practice of [the prisoner’s] religion.” R. 87-11,

Pg. ID 2030–36. They then file separate recommendations with the deputy director (here,

Kenneth McKee).

The deputy director must make the final decision. Besides considering the council’s and

special activities coordinator’s recommendations, he must also determine whether the requested

religious item “poses a threat to the custody and security of the facility.” R. 87-18, Pg. ID 2218.

If an inmate’s request survives both hurdles, then the deputy director must approve it.

B.

As far as bureaucracy goes, the policy seems simple. Discretion is minimal and requests

appear straightforward. But Byrd’s story paints a different picture. Between his conversion to

the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four

requests for Ifa group services and nine items that he considers essential to the Ifa faith. These

No. 20-2286 Byrd v. Haas, et al. Page 4

items include, among other things, a straw mat for prayer, herbs, and more beads. How did the

Department respond to these requests? It didn’t. Not one made its way to McKee for a final

decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t

fully resolved that request either.

First Request: While housed in the Saginaw Correctional Facility, Byrd sent his first

request in September 2015 to both Leach and his warden. Leach responded three months later,

telling Byrd that he must first send his request to the warden. But the Saginaw warden never

responded to Byrd’s request or forwarded the letter to Leach.

Second Request: Now at Macomb Correctional Facility, Byrd tried again. He sent his

second request in February 2016 to Haas, his new warden, along with Leach and McKee. For

good measure, Byrd attached a letter explaining that he had “sent one copy to [his] last facility’s

warden . . . and received no response so a response would be greatly appreciated.” R. 87-15,

Pg. ID 2162. He also copied each official listed under the policy to ensure that they all knew the

letter had reached Haas. Time stamps show that Haas received the letter no later than the end of

March 2016. In fact, Haas sent the request to the prison’s chaplain for advice. But he never

forwarded the request to Leach. Why? He didn’t “recall receiving this document.” R. 87-9,

Pg. ID 1797.

Third Request: After another month without a response from the defendants, Byrd sent

letters to both Leach and McKee. Byrd reminded Leach that he had submitted the same request

twice before to no avail despite making “every possible attempt to comply with [the policy].”

R. 87-22, Pg. ID 2291. He stressed once more that both group services and his requested

religious property are “necessary for the practice” of the Ifa faith, and that the Department was

violating the Constitution when it denied his requests while “similarly situated” prisoners were

allowed comparable privileges. Id. He closed by expressing his “sincere[] hope” that “this may

be resolved without” litigation. Id. Neither Leach nor McKee responded.

But Leach did ask Chaplain Leroy White if he knew anything about Byrd’s request. In

response, White interviewed Byrd in mid-May and then photocopied Byrd’s request. The

chaplain notified Leach that Byrd was still asking for personal religious items and group

No. 20-2286 Byrd v. Haas, et al. Page 5

services. R. 87-10, Pg. ID 1891. Thus, by May—almost nine months after Byrd’s first

request—Leach not only knew about the requests, but also knew that Byrd had fully complied

with the policy. Yet he still did not submit Byrd’s request to either the council or McKee. Nor

did he ask Haas about Byrd’s claims.

Fourth Request: Two more months passed without a response. So Byrd wrote a follow-

up letter to Haas in July 2016 seeking a status update. Haas again failed to respond to Byrd or

forward the request to Leach. Instead, he let the request sit after writing a note to discuss it with

White.

Fifth Request: After litigation began, Byrd sent yet another request to his warden in July

2019. And earlier this year—almost six years after Byrd’s first request—the acting special

activities coordinator notified Byrd that the Ifa faith would now be approved for group religious

services. He also stated that Byrd’s request for religious articles “will be sent back to the

[council] for recommendations on services and religious property.” Reply Br. 3 n.1. And yet,

according to Byrd, “[t]he policy has not been amended and group services are still not allowed.”

Id. On remand, the district court can monitor the state of Byrd’s fifth request and determine

whether these developments moot Byrd’s request for injunctive relief.

C.

After almost two years of having his religious-liberty claims ignored, Byrd sued various

Department officials for alleged violations of his statutory and constitutional rights. More

precisely, Byrd contends that Haas, Leach, and McKee have violated his rights under the

Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise Clause, and

the Equal Protection Clause. Byrd also alleges that Haas violated his Fourteenth Amendment

procedural-due-process rights.

The district court granted the defendants’ motion for summary judgment, finding

qualified immunity for the officials on Byrd’s constitutional claims. It also ruled that Byrd’s

RLUIPA claims against Haas and Leach were moot because they have retired since Byrd filed

suit, and granted summary judgment for McKee on Byrd’s remaining RLUIPA claim.

No. 20-2286 Byrd v. Haas, et al. Page 6

II.

In this case, framing is everything. Byrd alleges that the defendants have “restrict[ed]”

him “from freely practicing his religion by refusing to approve group religious services and

personal religious property.” R. 24, Pg. ID 92. As he puts it, his complaint “is not—and has

never been—just about the Defendants’ failure to forward his request.” Reply Br. 6 n.3. Instead,

Byrd characterizes this case as about the Department’s “outright refusal to even consider a

legitimate request for religious accommodation, the de facto perpetual denial of which left Byrd

unable to practice his religion.” Id.

The defendants, unsurprisingly, see things differently. They seek to downplay Byrd’s

multi-year saga as a minor breakdown of protocol. In their eyes, “Byrd’s allegations all stem

from an alleged failure to act,” and “generally a failure to act does not rise to the level of a

constitutional violation.” Appellees’ Br. 14. In the same vein, they note that Byrd’s “narrow

complaint” takes aim only at individuals’ actions rather than Department policy or an agency

action.3 Id.

So was the defendants’ failure to respond to Byrd’s religious requests a mere bureaucratic

oversight? Or did it deprive him of his constitutionally and statutorily protected rights of

worship?

The district court accepted the Department’s framing. That is, the court framed the issue

as one of process: “Do prison officials violate inmates’ Free Exercise rights when they do not

approve group religious services or expansions of personal religious property through an

appropriate process?” R. 109, Pg. ID 3061. And once the issue was framed, the case became an

easy one. In granting Haas summary judgment on Byrd’s free-exercise claim, for instance, the

court found that Haas’s failure to forward the letter was little more than “either an isolated

incident or the result of confusion or miscommunication.” Id. at 3062. To reach this conclusion,

3

The defendants argue that because Byrd complained only of individual employees’ actions, those claims

became moot when Haas and Leach retired. Not so. Byrd’s pro se complaint sued the defendants in their official

capacities. And in official-capacity suits, under Federal Rule of Civil Procedure 25(d), an action does not become

moot when an official resigns or retires. Instead, his or her successor is automatically substituted as the party. Fed.

R. Civ. P. 25(d).

No. 20-2286 Byrd v. Haas, et al. Page 7

the district court pointed out that “Haas was not the decisionmaker with authority to grant or

deny Byrd’s ultimate request.” Id. Likewise, the district court granted summary judgment for

Leach after holding that Byrd “did not have a clearly established right” to have Leach “reply to

or forward [his] request for Ifa group religious services and particular religious property.” R. 63,

Pg. ID 628. And the district court also granted McKee—the final decisionmaker—qualified

immunity. Here, the court determined that McKee did not have a duty to act until Byrd’s request

“reached him through the chain of command—an event that never occurred.” R. 109, Pg. ID

3070. All these rulings hinge on the district court’s decision to frame this case as a procedural

failure rather than a constructive denial.

But that framing is wrong. Under the Department’s theory of the case, prison officials

can effectively block an inmate from religious exercise by breaking up the approval process.

Consider a brief hypothetical. Suppose that the Department knows that under RLUIPA it would

likely have to grant a request from Jewish inmates to hold Yom Kippur services. But let’s say

the Department wants to bar them from doing so. By the Department’s lights, the officers could

simply sit on the request, claiming their failure to forward it to the final decisionmaker was a

procedural mishap. But a government agency cannot simply end-run judicial review by sitting

on its hands and allowing a claimant’s request to languish in a bureaucratic black hole.

Our own caselaw recognizes this. In Haight v. Thompson, a group of Native American

inmates requested access to a sweat lodge through their prison’s designated process. 763 F.3d

554, 560 (6th Cir. 2014). But the Kentucky Department of Corrections dragged its feet. Though

more than four years had passed, the commissioner of the department had not yet issued a final

statewide report on the matter. Id. Did that mean the inmates had failed to exhaust their

administrative remedies when they asked us to step in? Of course not. We held that

“[a]dministrative remedies are exhausted when prison officials fail to timely respond to a

properly filed grievance.” Id. at 561 (quoting Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996

(6th Cir. 2004)).

Here, the same is true. Byrd took every conceivable action to pursue his claim. He had

nowhere else to turn. Only the prison officials failed to bring it to fruition. Indeed, the

No. 20-2286 Byrd v. Haas, et al. Page 8

defendants left him in the dark; no official told him at any point until after briefing had begun

here that his request would be reviewed.

And in practical terms, this multi-year failure amounted to an outright denial of Byrd’s

requests.4 From Byrd’s perspective, there was no material difference between the Department

never processing his request and denying it. Cf. Env’t Def. Fund, Inc. v. Hardin, 428 F.2d 1093,

1099 (D.C. Cir. 1970) (“[W]hen administrative inaction has precisely the same impact on the

rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its

decision in the form of inaction rather than in the form of an order denying relief.”). In either

case, Byrd cannot worship with other Ifa adherents. Nor can he pray with objects critical to his

faith.

We have recognized constructive denials of this sort in other contexts. In Overlook

Mutual Homes, Inc. v. Spencer, for example, we noted that a housing provider’s “unreasonabl[e]

delays responding to a request for an accommodation . . . may amount to a denial.” 415 F.

App’x 617, 622 (6th Cir. 2011). Consider also Americans United for Separation of Church

& State v. City of Grand Rapids, 922 F.2d 303 (6th Cir. 1990). There, a Jewish group, Chabad,

moved to intervene in a case challenging Grand Rapids’s practice permitting the group to erect a

menorah on public property during the holiday of Hanukkah. Id. at 305. When the district court

scheduled its hearing on the motion for after the holiday, we held that “such a delay is the

practical equivalent of a denial of Chabad’s application.” Id. at 306. The same can be said here.

To be sure, constructive denials are—and should remain—rare. Only in an unusual case

such as ours should we recognize one. And when determining whether a constructive denial has

occurred, courts should take context as their guidepost. Cf. Barrios Garcia v. U.S. Dep’t of

Homeland Sec., 14 F.4th 462, 485 (6th Cir. 2021) (“A claim of unreasonable delay is necessarily

fact dependent.” (citation omitted)); see also Mashpee Wampanoag Tribal Council, Inc. v.

Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is

4

The exact length of the delay turns on the claim. When assessing the officers’ qualified-immunity

defense, the district court should consider the delay from the time of Byrd’s first request in September 2015 to the

day he filed his complaint. But when assessing his claims for injunctive relief, the district court should consider his

delay still ongoing.

No. 20-2286 Byrd v. Haas, et al. Page 9

ordinarily a complicated and nuanced task requiring consideration of the particular facts and

circumstances before the court.”). This may include considering the length of the delay, any

reasonable justification for the delay, and the nature of the interest involved.

Each of these considerations militates in Byrd’s favor. Here, various department

officials—Haas, Leach, and White to name just a few—were aware of Byrd’s requests. Yet the

Department did not even begin analyzing the request for more than five years. Indeed, Byrd did

not receive word that any process had begun until after briefing started in this case. And the

defendants have offered no justification for this delay. That’s especially troubling here because

Byrd’s request appears straightforward. Even though department officials were unfamiliar with

the Ifa faith, much of what Byrd is asking for resembles requests that the Department has granted

for other religious groups.

The best that the defendants offer is that “[n]othing surrounding new religious requests

happens quickly.” Appellees’ Br. 23. That may be true. But it took almost six years for the

Department to respond directly and substantively to Byrd. Nothing in the record excuses this

inactivity. And in the meantime, Byrd has been deprived of religious property and group

services—both of which he believes are necessary for his faith. As a result, we hold that the

Department’s extreme delay constructively denied Byrd’s requests. His RLUIPA and

constitutional claims must therefore be analyzed through that lens.5

5

Our circuit has held that litigants, like Byrd, cannot recover damages under RLUIPA. See Haight,

763 F.3d at 568. Thus, Byrd’s claim for monetary relief is permitted only under the First Amendment. Under the

Supreme Court’s test, the district court must ask whether the Department’s denial of Byrd’s request furthers a valid

penological interest. Turner v. Safley, 482 U.S. 78, 89–90 (1987). If the Department cannot make such a showing,

Byrd prevails. See Maye v. Klee, 915 F.3d 1076, 1083–84 (6th Cir. 2019). If the Department can make this

showing, however, the district judge must balance (1) whether Byrd possesses alternative avenues for exercising his

religion; (2) how accommodating his request would affect “guards and other inmates” or “the allocation of prison

resources generally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not

reasonable.” Turner, 482 U.S. at 89–91. The district court must relatedly perform a qualified-immunity analysis for

each of the officers if the Turner factors have been met.

Byrd also raises an Equal Protection Clause challenge. We reverse the district court’s decision to dismiss

the equal-protection claim and remand for further consideration. The court should consider whether defendants’

constructive denial of Byrd’s requests amounts to “a facially discriminatory distinction [that] would burden [Byrd’s]

fundamental rights to religious freedom under the First Amendment, which means an invidious purpose may be

inferred.” Koger v. Mohr, 964 F.3d 532, 545 (6th Cir. 2020) (internal quotation marks omitted) (quoting Maye v.

Klee, 915 F.3d 1076, 1086 (6th Cir. 2019)).

No. 20-2286 Byrd v. Haas, et al. Page 10

As we have laid out in earlier cases, RLUIPA operates as a “three-act play.” Cavin v.

Mich. Dep’t of Corr., 927 F.3d 455, 458 (6th Cir. 2019). At the first step, Byrd must show that

his request stems from a “sincerely held religious belief.” Holt v. Hobbs, 574 U.S. 352, 361

(2015). Next, he must demonstrate that the Department “substantially burdened” his religious

exercise when it effectively denied his request. Id. Though the record contains enough for us to

fill in the gaps for RLUIPA’s “first act” and “second act,” we do not know how this particular

story will end. That’s because the burden shifts to the Department for the final step. At this

stage, the Department must prove that its denial of Byrd’s request was the “least restrictive

means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)–(2).

During this step, courts must take prison officials’ decisions about prison security seriously.

After all, prison officials, not courts, are the experts in how to run a prison. See Holt, 574 U.S. at

364. Yet at the same time, we demand a tailored inquiry that turns on the individual inmate’s

case. Haight, 763 F.3d at 562–64. Thus, courts must “scrutinize the asserted harm” that the

Department will incur if it grants a “specific exemption” to Byrd in particular. Holt, 574 U.S. at

363 (cleaned up).

The record is spartan on these issues. On remand, the district court should “take

additional evidence as necessary,” knowing this is an exacting standard for the Department. Fox

v. Washington, 949 F.3d 270, 283 (6th Cir. 2020).

III.

For those who do not understand the Ifa faith, the deprivation of beads or a prayer mat

may seem insignificant. That, however, misses the entire point of our religious-liberty

jurisprudence. From our Founding, this Nation has made religious freedom a bedrock principle

of our ordered liberty. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1901 (2021)

(Alito, J., concurring in judgment) (noting that “critical state ratifying conventions approved the

Constitution on the understanding that it would be amended to” expressly protect rights

including religious liberty). Indeed, if anything, we must be especially solicitous of religious

Finally, Byrd claims that his procedural-due-process rights were violated because the Department never

processed his request. We leave this claim to the district court in the first instance by reversing and remanding for

further consideration in light of the determination that the delay in responding to Byrd’s requests amounts to a

constructive denial.

No. 20-2286 Byrd v. Haas, et al. Page 11

claimants who run against fashionable trends. Cf. Bible Believers v. Wayne County, 805 F.3d

228, 243 (6th Cir. 2015) (en banc) (noting that it is “the minority view . . . that most often needs

protection under the First Amendment”). Insulated from the rebukes of the electorate, it is our

constitutional duty to protect the religious freedom of minority adherents as vigorously as

anyone else’s.

And if the “Constitution cannot be put away and forgotten” “even in a pandemic,” Roman

Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam), then we certainly

cannot allow it to slip through mere bureaucratic cracks. Thus, this case should be analyzed as a

constructive denial of Byrd’s request for group religious services and religious property. The

defendants might still prevail on qualified immunity. But we are “a court of review, not of first

view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). So we reverse the judgment and

remand for the district court to reconsider its analysis.