Petition for Writ of Certiorari — Mario Cavin, Petitioner v. Heidi E. Washington, Director, Michigan Department of Corrections, et al.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 16-2621

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Sep 12, 2017

DEBORAH S. HUNT, Clerk

MARIO CAVIN,

Plaintiff-Appellant,

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

MICHIGAN

DANIEL H. HEYNS, Director; JEFFREY

WOODS, Warden,

Defendants-Appellees.

ORDER

Before: GUY, BATCHELDER, and COOK, Circuit Judges.

Mario Cavin, a Michigan prisoner proceeding pro Se, appeals the district court's grant of

summary judgment in favor of the defendants in his civil rights action, brought pursuant to 42

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

U.S.C. § 2000cc-1. Cavin has moved this court for the appointment of counsel. This case has

been referred to a panel of the court that, upon examination, unanimously agrees that oral

argument is not needed. See Fed. R. App. P. 34(a).

In March 2015, Cavin commenced this action by filing a complaint against defendants

Daniel Heyns, director of the Michigan Department of Corrections ("MDOC"), and Jeffrey

Woods, then-warden of the Chippewa Correctional Facility ("URF"). In his amended complaint,

Cavin stated that MDOC, through defendant Heyns, has instituted a policy giving wardens

discretion over whether to allow inmates on toplock status the right to attend religious services.

He alleged that "Woods has abused that discretion by instituting a 'blanket ban' on all religious

No. 16-2621

-2services for prisoners on toplock." Cavin further alleged that, as a result of the ban, he was

denied the right to attend two Wiccan religious services while on toplock status at URF. Gavin

asserted that the defendants' policies and actions have violated his rights under the First and

Fourteenth Amendments and RLUIPA. He requested declaratory relief and compensatory and

punitive damages. When he filed his initial complaint, Gavin was no longer housed at URF.

The defendants moved for summary judgment, arguing that Cavin's request for injunctive

relief under RLUIPA was moot because he was no longer incarcerated at URF, they were

entitled to qualified immunity, and Gavin's substantive due process claim under the Fourteenth

Amendment should be dismissed because the First Amendment offers a source of protection for

prisoners' religious rights. A magistrate judge recommended that the defendants' motion be

granted, finding that Gavin's RLUIPA claim for declaratory and injunctive relief—the only relief

available to a prisoner bringing a RLUIPA claim against prison officials, see Haight v.

Thompson, 763 F.3d 554, 568 (6th Gir. 2014)—was moot as against defendant Woods and unripe

as against defendant Heyns; that the defendants were entitled to qualified immunity on Gavin's

First Amendment claim; and that Gavin's substantive due process claim is covered by the First

Amendment. Over Gavin's objections, the district court adopted the magistrate judge's report

and recommendation and granted summary judgment to the defendants.

Gavin now appeals. In his appellate brief, he argues that the district court erred by

rejecting his First Amendment claim on qualified immunity grounds because his right to attend

religious services while on toplock was clearly established and there is a genuine issue of

material fact as to whether the blanket ban was arbitrary, without a factual basis, and "an

exaggerated response to prison concerns." Gavin does not challenge the district court's dismissal

of his claims for injunctive relief on mootness and ripeness grounds or the dismissal of his

substantive due process claims. He has therefore waived appellate review of those rulings. See

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Gir. 2005); see also Bouyer v. Simon,

22 F. App'x 611, 612 (6th Cir. 2001).

We review a district court's grant of summary judgment de novo, viewing the facts in the

light most favorable to the non-moving party. Flagg v. City of Detroit, 715 F.3d 165, 178 (6th

No. 16-2621

-3Cir. 2013). Summary judgment is appropriate "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); see Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 761 (6th Cir.

2010). The moving party bears the burden of showing "that there is an absence of evidence to

support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The

party opposing a motion for summary judgment "may not rest upon the mere allegations or

denials of his pleading, but

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must set forth specific facts showing that there is a genuine issue

for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank

of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see Fed. R. Civ. P. 56(c).

To prevail on a § 1983 claim, a "plaintiff must prove that some conduct by a person

acting under color of state law deprived the plaintiff.

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of a right secured by the Constitution or

other federal laws." Foy v. City of Berea, 58 F.3d 227, 229 (6th Cir. 1995). Here, he must also

overcome the defense of qualified immunity, which protects government officials from liability

if "their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known." Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Generally, "[a] two-part test is used

to determine[] whether qualified immunity applies: '(1) whether, considering the allegations in a

light most favorable to the party injured, a constitutional right has been violated, and (2) whether

that right was clearly established." Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010)

(quoting Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)). A right is

"clearly established" if its contours are "sufficiently clear that a reasonable [government official]

would understand that what he is doing violates that right." Id. (quoting Harris v. City of

Circleville, 583 F.3d 356, 366-67 (6th Cir. 2009)). This standard is satisfied only if the

unlawfulness of the challenged conduct would be apparent "in the light of pre-existing law."

Anderson v. Creighton, 483 U.S. 635, 640 (1987). To make this determination, the court looks

"first to the decisions of the Supreme Court, then to the decisions of this court and other courts

within our circuit, and finally to decisions of other circuits." Toms v. Taft, 338 F.3d 519, 525

(6th Cir. 2003) (quoting Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002)).

No. 16-2621

-4The MDOC policy that Cavin is challenging is Policy Directive 03.03.105, which

addresses prisoner discipline. The section of the Policy Directive concerning toplock—when a

prisoner is confined to his own cell, room, or bunk and bunk area as a disciplinary sanction—

states, in relevant part, "[p]risoners shall be released from toplock for regular showers, visits,

medical care (including individual and group therapy), school, and law library. The Warden or

designee Day authorize prisoners on toplock to go to the dining room, work assignments, and/or

other specified activities, including group religious services." MDOC Policy Directive

03.03.105 1 000. Pursuant to this Policy Directive, defendant Woods issued a URF Operating

Procedure on toplock, which provides, in relevant part, "[p]risoners on top lock sanction may be

authorized to go to the dining room and attend Vocation/Academic School. Prisoners on Top

Lock may attend Law library on a Top Lock Law Library Callout. Prisoners are not allowed to

attend religious services or work assignments." URF Operating Procedure 03.03.10513 (eff.

06/23/2012). There is no dispute that, as a result of this operating procedure, Cavin missed two

Wiccan group services.

Inmates retain First Amendment protections while incarcerated, including their right to

the free exercise of their religion. See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam).

Those rights are necessarily limited by the fact of incarceration and may be restricted in order to

maintain prison security or to serve other penological goals. 0 'Lone v. Estate of Shabazz, 482

U.S. 342, 349 (1987). "[W]hen a prison regulation impinges on inmates' constitutional rights,

the regulation is valid if it is reasonably related to legitimate penological interests." Turner v.

Safley, 482 U.S. 78, 89 (1987). "While courts should generally defer to the expertise of prison

officials in matters involving prison administration, this deference is only afforded 'in the

absence of substantial evidence in the record to indicate that the officials have exaggerated their

response." Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001) (quoting Bell v. Wolfish,

441 U.S. 520, 548 (1979)). Factors relevant to determining reasonableness include: (1) whether

there is a "valid, rational connection' between the prison regulation and the legitimate

governmental interest put forward to justify it"; (2) whether a prisoner has alternative means of

exercising the asserted right; (3) the impact that accommodating the right will have on guards,

No. 16-2621

-5other prisoners, and the allocation of prison resources; and (4) whether there are alternatives

available that accommodate the prisoner's rights at a minimal cost to penological interests.

Turner, 482 U.S. at 89-91 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).

With respect to the first factor of the Turner reasonableness test, the defendants asserted

that 'there is a reasonable basis to restrict prisoners' access to group services while they are on a

disciplinary sanction." They explained that they "withhold certain privileges to ensure that

prisoners like Cavin behave themselves in the future." Rehabilitation of prisoners is a valid

penological interest. See O'Lone, 482 U.S. at 348. And, in Beard v. Banks, 548 U.S. 521, 530

(2006), the Supreme Court held that the very reason cited by the defendants in this case—the

need to provide increased incentives for better prison behavior—was an adequate justification for

a prison's policy denying certain prisoners in a long-term segregation unit access to newspapers,

magazines, and photographs.

Cavin argued that the defendants' stated reason for the policy was unreasonable because

it amounted to nothing more than punishment for bad behavior. But this misconstrues the

defendants' position. According to the defendants, the rationale behind the denial of group

religious services for prisoners on toplock is to incentivize prisoners to behave better, not to

impose further punishment. Cavin also argued that the policy was arbitrary because it prevents

toplock inmates from attending group religious services, but allows them to go to the law library

and school. Given the deference owed to the prison officials in issues of prison administration,

the fact that the policy withholds certain privileges over others does not call into question the

defendants' stated justification. Indeed, Cavin pointed to no evidence in the record to show that

the defendants "exaggerated their response." Flagner, 241 F.3d at 483.

Cavin further argued that the policy was not reasonable because the defendants failed to

show that it "was actually viewed as preventing threats to security." But as the district court

explained, Turner requires that prison regulations that restrict an inmate's First Amendment

rights bear some reasonable relationship to legitimate penological interests. Prison security is

but one penological interest that may justify a restrictive regulation. Here, the defendants have

cited another legitimate interest, i.e., prisoner rehabilitation.

No. 16-2621

-6And finally, Cavin asserted that the URF Operating Procedure is unreasonable because it

"fails to consider individual prisoners or the misconduct involved" and instead imposes a blanket

ban. Citing cases from other circuits, he stated that "[c]ourts continually conclude that these

'blanket bans' are unreasonable." But we have previously upheld as reasonable a blanket ban

that limited access to group religious services for all inmates in administrative segregation. See

Walker v. Mintzes, 771 F.2d 920, 930 (6th Cir. 1985).

With respect to the remaining three Turner factors, the magistrate judge concluded, and

the district court agreed that, on balance, they weighed in favor of the reasonableness of the

policy. With respect to factor two, the record supports the magistrate judge's finding that Cavin

had alternative means of exercising his Wiccan faith, even if he claimed not to know how to

practice the religion on his own. Although Cavin stated at his deposition that he "was not that

aware of what needed to be done on [his] own to do it," he also stated that he had a book and a

study and admitted that no one told him that he was not allowed to practice the religion on his

own. Moreover, as the magistrate noted, even if Cavin lacked an alternative means to practice

his faith, this was not "conclusive." Beard, 548 U.S. at 532. As for the third factor, the

defendants explained that "allowing Cavin to attend group services would have an impact on

prison resources, albeit a mild one, because it would require staff to let him out of his cell to

attend group services." And finally, with respect to the third and fourth factors, it is inherent in a

policy that deprives prisoners of a right in order to encourage better behavior that a negative

impact will result by accommodating the asserted constitutional right. See id. ("If the [p]olicy

(in the authorities' view) helps to produce better behavior, then its absence (in the authorities'

view) will help to produce worse behavior."). As the magistrate judge stated, "[T]he valid

penological interest in [Cavin's] case was to provide incentives for [Cavin] to conform his

behavior to prison rules by withholding privileges such as participation in group religious

activities. This interest would be defeated if the privilege of group services was granted to

[Cavin.]" Although a weighing of the second, third, and fourth Turner factors is difficult when

analyzing a prison regulation that deprives inmates of a privilege to encourage better behavior

No. 16-2621

-7because they are "in a sense logically related to the [p]olicy itself," id., to the extent it can be

done here, it supports the reasonableness of the MDOC and URF policies.

Cavin failed to overcome the defendants' claim of qualified immunity because he did not

show that "a balancing of the Turner factors

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clearly established that the prison officials were

violating his constitutional right to [attend group religious services while on toplock status.]"

Iswed v. Caruso, 573 F. App'x 485, 490 (6th Cir. 2014). Given the state of the law, the

defendants could have reasonably believed that the need to incentivize better behavior on the part

of toplock inmates justified the denial of group religious services for those inmates. The district

court therefore properly ruled that the defendants were entitled to qualified immunity on Cavin' s

First Amendment claim and properly granted summary judgment in their favor.

Accordingly, we DENY Cavin's motion for appointment of counsel and AFFIRM the

district court's judgment.

ENTERED BY ORDER OF THE COURT

dd 5;-t~uw

Deborah S. Hunt, Clerk

I1PPG/ubiX

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

MARIO CAVIN,

Plaintiff,

Case No. 2:15-cv-44

V.

HON. ROBERT HOLMES BELL

D

DANIEL

HEYNS et al.,

Defendants.

ORDER APPROVING AND ADOPTING

REPORT AND RECOMMENDATION

On July 8, 2016, Magistrate Judge Timothy P. Greeley issued a Report and

Recommendation ("R&R") recommending that the Court grant Defendants' motion for

summary judgment. (ECF No. 71.) Plaintiff has filed objections to the R&R. (ECF No. 75.)

This Court is required to make a de novo review of those portions Of a R&R to which

specific objections are made, and may accept, reject, or modify any or all of the Magistrate

Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Mootness

Plaintiff objects to the Magistrate Judge's determination that his claim for injunctive

and declaratory relief is moot as it pertains to the warden of Chippewa Correctional Facility

(URF), Defendant Woods, because Plaintiff has been transferred to a different facility.

Plaintiff argues that his claim is not moot because he could be transferred back to URF at any

time, and is likely to be transferred there again at some point during his remaining sentence.

Plaintiff's claim is directed toward a URF policy that prevents prisoners from attending

religious services while they are confined in "toplock." (R&R at 3.) Plaintiff contends that

this policy prevented him from attending two group services of the Wicca religion when he

was confined in toplock.

The Court discerns no error in the determination of the Magistrate Judge. The fact that

Plaintiff may be transferred back to URF at some unknown time in the future does not

present "sufficient immediacy andrealit" to sustain his claim. Preiser v:Newkirk, 422 U. S.

395, 402 (1975): This is especially irue considering that Plaintiff is only affected by the

policy when he is confined in toplock. At all other times, the policy has no impact. Eën.if'

Plaintiff was transferred back to URF today, his claim would still be moot unless he is placed.

in toplock. See S'by v. Caruso, 734 F.3d 554, 561(6th Cir; 2013) (finding that prisoner's

RLUTPA claim challenging restrictions on attendinggroup services for prisoners confined

in administrative segrbgation.became.:moo±.when the prisoner was released into - the general

population);

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anexcèption' to the mootness doctrine for claims that are capable of

repetition, yet evade feVIew.'Frdette v Hem inaji, 65 F. App'x 929, 931 (6th..Cir.2003).

This exception requires that "the challenged action Wa in its duration too short, to be fully...

litigated prior to its cessatiOn Or expiration" and that;"there was a reasonable expectation that

the'same complaining party would be subjected to the same. action aain" Id. (emphasis in.

oriinal internal quotation marks and citation omitted): This' exception does not apply

becaus& Plaintiff has no..shown that there is a reasonable expectation that he will be....

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transferred back to URF, placed in toplock, and prevented from attending the group services

for his faith. It is not enough for him to speculate that he might be transferred back to URF

someday. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (an allegation of a.

likelihood of transfer back to the same facility is not enough to satisfy the capable-ofrepetition exception to mootness).

Ripeness

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Next;: Plaintiff objects. to the Magistrat J,udge's. 4etenninaion that his claim;

concerning Michigan Department•of corrections (MDOC) Policy Directive 03.03.1 05j5 not:

ripe. The policy provides that the warden of a facility 'may" provide authorization for

prisoners: confined in toplock to attend out-of-cell, activities, including group worship

services.-MDOC Policy Directive 03.03.105 ¶ 000 (Apr 9, 2012). The Court agrees with

the R&R that any possible injury to Plaintiff arising from this policy directive is too remote

to give rise to a claim. Plaintiff does notcontend- thathe is presentlyconfinedin toplock or,

that prisoners at his current facility are prevented from attending group worship, services.

Plaintiff contends that his claim concerns a dispute that is "likely to reoccur,".because other

wardens are likely to use the MDOC policy as an opportunity imposp restrictions likethose

at .URF. (Objections at 3, ECF No. 75,) This isnerespecilation.

Plaintiff also contends that if the Court does not permit his claim to proceed, then the

MDOC could protect itself from liability by relying on the, defenses of res judicata or

equitable estoppel. That is not the case. Dismissing Plaintiff's claim as unripe does not mean

that challenged policies are:valid; rather, it means that the prospect of a,

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conflict is too

remote to be resolved at this time. Another prisoner, or even Plaintiff himself, facing an

inability to attend group services would not be barred by res judicata or equitable estoppel

frOm proceeding on similar claims

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Qualified Immunity

Plaintiff contends that the R&R erred in granting qualified immunity when it failed

to consider the "novelty" aspect of the qualified-immunity analysis. (Id.) In other words, for

a right to be cleaflyestablished "{a] courtneed.nothive.previously held illegal, the conduct

in the precise situation at issue because officials can, still be on noticë that their conduct,

violates established liaw' even in novel factual circumstances." Sutton V. Metro. Gvt of

Nashville & Davidson Cnty. 700 F3d 865, 876 (6th Cir. 2012) (quoting Sample v. Bailey,

,

409 F.3d 689, 699 (6th Cir. 2005)) (emphasis added).

There are twoprongs to the qualified4mmunity'analysis. The first is whether the facts

alleged or shown make cat a constitutional violation, and the second is whether the right that:

was violated was clearly, established. See Saucier.-v., Katz, 533 U.S. 194; 201 (2001). If one

or both of these prongs is not met, then thdefendant is entitled to.4ua1ified immunity.. The

R&R appears to have rested its decision prithari1y on the first prong...: Plaintiff s objection.

goes to the . second: prong. Thtth'even; if.Plaintiff:is correct, :his obj ectio'nj would not change

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the outcome of the case.

In any event,: the Court discerns no. . , error ':in the conclusion that it is not clearly

established that restricting access to group religious activities- for prisoners on top lock is a

First Amendhteut violation. In order to prcvail,. Plaintiff must, .show that the balancing of the..:

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factors in Turner v. Safley, 482 U.S. 78 (1987) clearly established that a policy like the one

at URF is unreasonable. .See Iswed v. Caruso, 573 F. App'x 485, 490 (6th Cir. 2014).

Plaintiff cites persuasive authority from the Second Circuit, none of which compels the

conclusion that the URF policy violated his constitutional rights. In Ford v. McGinnis, 352

F.3d 582 (2d Cir. 2003), the first case cited by Plaintiff, the prisoner, alleged that prison

officials were not serving religious meals to prisoners in segregation. Rather,than decide the

First Amendment claim and the issue of iqualifiedimmunity, however, the court remanded

the matter to resolve factual disputes. Id. at 538.. Similarly, in Salahuddin v. .Coughlin, 993

F.2d 306 (2d Cir. 1993), the court recognized that confinement in keeplock does not deprive

prisoners of the right to participate in group religious services, but it remanded the matter for

further development of the record as to whether the defendants" 'actions were reasonable. Id.

at 310. Finally, in Maw.'hinney v. Henderson, 542 F.2d 1,(2d Cir. 1976), the court merely held

that an allegation. that prisoners .in punitive segregation. and "1ceeplocic" are denied

participation in chapel services Wassufficient. to ,state,av1airn. Id. :at,. 3.,

court then

remanded the matter for further factual. development and: a determination of the

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reasonableness. of the defendants' actions. Id.: Thus, even assuming that the foregoing.cases

are factually applicable, none-of them actually held that the defendan& conduct, violated the

First Amendment.

Plaintiff also raises an objection regarding.the first prongof the analysis He contends

that he has shown a constitutional violation because the ban on group religious services for

prisbners in.toplock is, not based on any ','security justifications." (Objections: at 4;)As the

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R&R discussed, however, the relevant question is whether the policy was supported by a

valid penological interest justifying the temporary restriction on Plaintiff's First Amendment

rights. Security concerns are just one example of a penological interest The R&R cited

another: the, need for an incentive for better behavior. Thus, Plaintiff's objection is without

merit.:

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ttot entitled to qualified ithmuititywith;.

Plaintiff furtherOntends that; Defendänts

respect to hi RLUIPA ëlaint The R&R did not make a finding of qualified.inimunity

regarding this claim.- Rather, it deterniined that this claim is moot as it pertains to Defendant

Wood and not ripe as it pertains to Defendant Heyns.

First Amendment

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Plaintiff offers several other objections to the R&R' s determination that Plaintiff does

not state a constitutional 'iolation. :P1jfitjff claims; that a decision cited in the R&R, Walker

v. Mintzes, 771 F.2d'920(6thCir. 1985), is distinguishable. That, is, frue.. In Walker, the

prison implemented a blanketban On group services for inmates in administrative segregation

's (prison riots) which are not presentin Plaintiff case..Nevertheless, :.

düCto security 6bnce M

as discussed above, the R&R cited a valid penological interest, which. is what Turner v.

Safley, 482 U.S. 78 (1987) requires.

Plaintiff also objects to the determination that Plaintiff failed to cite any evidence

undermining Defendants' contention that the blanket ban served legitimate government

purposes. Plaintiff ostensibly contends that punishment is not a legitimate purpose, but the

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R&R relied on Beard v. Banks, 548 U.S. 521 (2006). Plaintiff cites the dissenting opinion

in that case, but obviously the dissenting opini9n is not controlling.

Turner analysis'

Plaintiff also objects to the determination that he failed to specify the materials that

he lacked in order to conduct solitary rituals as an alternative means of exercising his

religion. Plaintiff contends that he specified these materials in his complaint,' in his

deposition; and in anaffidavit.B.ut all ofthese refer to the, same materials,that hew, ou1d have

needed'to'conduct a

service

onhisown, as!areplacement for the sort of service to which he

was:'denied access. In his deposition; hedid:not deny that no one prevented him from

practicing his religion in other ways in his celL Rather, he acknowledged his inability to

practice in his cell was due, in part, to a personal lack of knowledge about what to do.

Summary Judgment

Finally, Plaintiff contends, that there: are genuine issues pffactregardiig the Turner

factors,' including the availability ofalernative means 'oFP1aint1ff to practice :his religion.

But even if there are no alternative means for •Plaintiff to,practice 11is religi,9.n, the &R is

correct that this factoris';not "conclusi,ve,' and'that th balance of factors supports the',

reasonableness of the policy. (R&R 1.1-12.)

Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs objections (ECF No. 75) are DENIED.

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 17)

is APPROVED and ADOPTED as the opinion of the Court, except that the Court declines

to certify that an appeal would not be in good faith.

IT IS FURTHER ORDERED that Defendants' motion for summary judgment (ECF

No. 65) is GRANTED.

A judgment will enter consistent with this order.

Is! Robert Holmes Bell

Dated: October 27, 2016

ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

MARIO CAVIN,

Case No. 2:15-cv44

Plaintiff,

V.

HON. ROBERT HOLMES BELL

DANIEL HEYNS et al.,

Defendants.

JUDGMENT

In accordance with the order entered this date,

IT IS HEREBY ORDERED that Plaintiffs action is DISMISSED.

Dated: October 27, 2016

Is! Robert Holmes Bell

ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE

JYD 2OVL1n

'Aw

mm"

'Case 2:15-cv-00044-RHB-TPG ECF No. 66-3 filed 04/01/16 Page 11 of 14 PagelD.318

DOCUMENT TYPE

POLICY DIRECTIVE

EFFECTIVE DATE

1 04/09/2012

NUMBER

03.03.105

_J PAGE

10 OF 13

prejudice to the charged prisoner. If the prisoner is found guilty, the hearing officer may assign only the

sanctions of loss of privileges and/or restitution, as appropriate; if loss of privileges is ordered, the

privileges to be withheld shall be determined by the Director of the Corrections Mental Health Program

or designee.

JJJ.

Whenever a Misconduct Report is not written or processed due to the prisoner's mental disability,

including if it is not processed because the disciplinary process is determined to be detrimental to the

prisoner's treatment needs, the prisoner's behavior shall be documented in the prisoner's health record

and addressed therapeutically. If the prisoner's behavior was violent or assaultive or related to an

attempt to escape, the incident shall be discussed in the prisoner's discharge summary and other

appropriate reports (e:g., Special Problem Offender Notice) to ensure that it is brought to the attention of

facility staff. Such behavior also shall be included in the Parole Eligibility/Lifer Review Report (CSJ-123)

in accordance with PD 06.05.103 "Parole Eligibility/Lifer Review Reports".

MISCONDUCT SANCTIONS

KKK. Upon a finding of guilt in a misconduct hearing, the hearing officer shall impose one or more of the

sanctions set forth in Attachment D. The hearing officer or, for Class II misconducts, the Hearing

Investigator shall assign the dates for which the sanctions are to be imposed. Except for detention and

extra duty, sanctions imposed shall begin and end at 6:00 a.m. at the conclusion of any previous

misconduct sanctions remaining to be served; except for extra duty, sanctions imposed shall run on

consecutive days. Hearing officers may consider all relevant information in determining a sanction,

including the prisoner's prior record of misconduct guilty findings, any mitigating or aggravating

circumstances, and, for prisoners for whom a Misconduct Sanction Assessment (CSJ-331) was

completed, information provided by the QMHP and/or special education teacher on that form.

LLL.

A hearing officer may give a prisoner credit for time spent in temporary segregation or on toplock

pending a hearing but is not required to do so. The sanction given by the hearing officer, and the time

during which the sanction is to be served, shall not be changed by the facility except as set forth in

Paragraph RRR.

TOPLOCK

MMM. A prisoner on toplock is restricted to his/her own cell, room, or bunk and bunk area. For purposes of this

section, "bunk area" is defined as the prisoner's bunk and the floor area next to the prisoner's bunk

which extends to the mid-point between the adjacent bunks on all sides. If a prisoner is housed in a

multiple occupancy cell or room, toplock may consist of placement in a cell/room which is designated as

a toplock cell/room. If placed in such a cell/room, the prisoner shall be given the same access to his/her

property which would be provided if housed in his/her own cell/room and shall be treated in all other

respects as being on toplock.

NNN. A prisoner on toplock shall not leave his/her cell, room, or bunk area for any reason without specific

authorization from the appropriate staff person. The prisoner may be deprived of use of his/her

television, radio, tape player, and portable media player while on toplock as provided in the facility

operating procedure.

000. Prisoners shall be released from toplock for regular showers, visits, medical care (including individual

and group therapy), school, and law library. The Warden or designee may authorize prisoners on

toplock to go to the dining room, work assignments, and/or other specified activities, including group

religious services; prisoners not released from toplock for store and Securepak orders shall have store

and Securepak orders delivered to them. Prisoners on toplock shall have a minimum of one hour per

day of out-of-cell activity, which may include all out-of-cell activities authorized by this paragraph.

LOSS OF PRIVILEGES

PPP. Attachment E identifies those privileges that may be lost by a prisoner as a result of a loss of privileges

sanction. Unless the hearing officer identifies specific privileges to be lost, a loss of privileges sanction

includes all privileges identified in Attachment E. If all privileges are lost, the hearing officer need only

identify the number of days and dates during which the sanction will run.

fPf 3

t1)< t

Case 2:15-cv-00044-RHB-TPG ECF No. 66-4 filed 04/01/16 Page 2 of 4 PagelD.323

EFFECTIVE DATE

NUMBER

MICIflGAN DEPARTMENT OF CORRECTIONS

03.03.1053

URF Chippewa Correctional Facility

-

OPERATING PROCEDURE

L°6'23'2012

SUPERSEDES

OP URF 03.03.10513 (Dated 03/22/2011

SUBJECT

PD 03.03.105

TOPLOCK

ACA Standards

4-4226; 4-4235; 4-4255

PAGE

1

OF

3

OBJECTIVE:

To ensure prisoners placed on top lock status are treated with consistent guidelines for top lock" only.

FORMS:

CSJ-228, Misconduct Report

CSJ24013, Class I Misconduct Hearing Report

CSJ-229, Class II and Ill Misconduct Hearing Reports

CSJ-363, Program & Work Assignment Evaluation

Housing Unit Sanction Book

DEFINITIONS:

TOP LOCK Restriction of a prisoner to his own cell/room/bunk area.

BUNK AREA: Bunk area is that floor area next to the prisoner's bunk which extends to the midpoint between the

adjacent bunks on all sides.

INFORMATION:

If a prisoner is housed in a multiple occupancy room, cell or cube, top lock may consist of placement in a cell or

room which is designated as a top lock cell/room. A prisoner on top lock sanction shall not leave his cell, room,

cube or bunk area, for any reason without specific authorization from a staff person. Prisoners on top lock

sanction may be authorized to go to the dining room and attend Vocation/Academic School. Prisoners on Top

Lock may attend Law library on a Top Lock Law Library Callout. Prisoners are not allowed to attend religious

services or work assignments. Prisoners shall be provided regular showers, visits, medical care, individual and

group therapy and Law Library unless books are brought to the prisoner. Prisoners on top lock sanction shall

have a minimum of one hour per day "out-of-cell activity" and shall be allowed reasonable access to bathroom

facilities. This may include visits, meals and other required activities. Prisoners who repeatedly violate their Top

Lock sanctions may be assigned to a Top Lock Cell.

Top Lock sanction begins and ends at 0600 hours on the start/end date of the misconduct report.

If confined on top lock status for more than 30 consecutive days, a prisoner shalt have a seven (7) day break of

one hour of yard per day from when yard is called at the end of dinner meals during the winter months or from

the beginning of the second half of night yard during the summer months. This is from approximately 1915 hours

through 2020 hours, each day. Level IV prisoners will have yard from 0700 to 0800 or from 1200 to 1300,

according to wing schedule.

Any top lock period of seven calendar days will result in the removal from work assignment

A prisoner who is placed on non-bond top lock (pending hearing) is not permitted to attend any programming

activities and may or may not be permitted to leave their housing unit for meats at the Reviewing Officer's

discretion. Refer to O.P. URF 03.03.105A, Class I Misconduct Hearings. The Unit Officer will ensure meats are

ordered, to be delivered to the unit for all prisoners on non-bond top lock status, meals in.

In addition to the above, prisoners on Top Lock will be denied the following:

TV room, day rooms, yard, telephone, microwaves, gym, general library; personal televisions, tape