Petition for Writ of Certiorari — Boaz Pleasant-Bey, Petitioner v. Shelby County, Tennessee, et al.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 18-6063

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BOAZ PLEASANT-BEY,

Plaintiff-Appellant,

V.

SHELBY COUNTY; COMMANDER ROY

RODGERS; CHAPLIN J. HAWKINS; CHIEF

JAMES E. COLEMAN; CHIEF ROBERT L.

MOORE; CHIEF ROD BOWERS; CHARLINE

MCGHEE,

Defendants-Appellees.

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Nov 07, 2019

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED

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THE WESTERN DISTRICT OF

TENNESSEE

ORDER

Before: BATCHELDER, STRANCH, and LARSEN, Circuit Judges.

Boaz Pleasant-Bey, a pro se Tennessee prisoner, appeals a district court’s judgment

dismissing his civil rights suit filed pursuant to 42 U.S.C. § 1983; the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq.\ the Religious Freedom

Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. \ and the Civil Rights of Institutionalized

Persons Act (“CRIPA”), 42 U.S.C. § 1997, et seq. For the reasons explained below, we affirm the

district court’s judgment in part, reverse in part, and remand for further proceedings.

I. Facts and Procedural History

Seeking monetary and equitable relief, Pleasant-Bey filed suit in 2011 against the Shelby

County (Tennessee) Jail, the County Sheriff, a former sheriff, and numerous jail officials.

Pleasant-Bey, a Muslim then housed on the fourth floor of the Jail, asserted that the defendants

violated his civil rights by: (1) not hiring an imam to conduct weekly Jumu’ah services, while

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providing chaplains for Christian services; (2) forbidding inmates from leading religious services

and being elected as imam; (3) classifying Islam as a “gang” and allowing only nine inmates from

the fourth floor to attend prayer gatherings that lasted a mere five to ten minutes; (4) requiring the

Gang Intelligence Unit (“GIU”) to be present at Muslim prayer gatherings, but not at Christian

services; (5) not providing a feast at the end of Ramadan; (6) failing to respond to mail regarding

the issue of the feast; (7) providing inadequate portions at the two daily meals served during the

month of Ramadan; (8) failing to have spiritual counseling available; and (9) conspiring to retaliate

against him for using the grievance process. Pleasant-Bey moved to amend his complaint to add

a claim that (10) the defendants had violated his right of access to the courts by refusing to copy

grievances to allow him to prove exhaustion.

The district court granted Pleasant-Bey’s motion to amend, construed his claims against

the Jail as claims against the County, and entered a partial dismissal order.

§§ 1915(e)(2)(B)(ii), 1915A(b)(l).

See 28 U.S.C.

Reasoning that supervisors could not be held liable for

subordinates’ actions under § 1983 pursuant to a theory of respondeat superior, the court dismissed

the current and former sheriffs. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Claims 6, 9, and

10 were dismissed for failure to state a claim. See id. at 678. Last, the district court held that

Pleasant-Bey’s transfer to a different facility rendered moot his claims for injunctive relief. See

Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).

The remaining defendants moved for summary judgment, prompting Pleasant-Bey to file

a hybrid response and motion for judgment on the pleadings. He also filed a second motion to

amend his complaint. The district court denied Pleasant-Bey’s motion to amend. It granted the

defendants’ motion on the grounds that the claims were time-barred as to events occurring before

February 15, 2010, and that the timely parts of the claims were not exhausted. See 42 U.S.C.

§ 1997e(a); Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005) (discussing the one-year

limitations period applicable to § 1983 civil rights claims filed in Tennessee).

On appeal, we upheld the dismissal of the time-barred parts of the claims and the claims

against the sheriffs. Pleasant-Bey v. Luttrell, No. 12-6223 (6th Cir. Oct. 17, 2013) (order).

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However, we vacated the district court’s judgment in part upon finding that there were genuine

factual disputes regarding exhaustion, and because the district court had not considered the merits

of Pleasant-Bey’s claims under RLUIPA, RFRA, and CRIPA. Id., slip op. at 4. We also vacated

the denial of the second motion to amend. Id, slip op. at 5.

On remand, the defendants moved again for summary judgment, reiterating their

exhaustion argument and contending, as they had in their initial motion to dismiss, that they were

entitled to qualified immunity. Pleasant-Bey filed a response, a summary-judgment motion, and

three motions to amend his complaint.

The district court denied the three new motions to amend because the discovery and motion

deadlines had expired and some claims were time-barred, but held that Pleasant-Bey had exhausted

his administrative remedies.

Then, without addressing the defendants’ qualified-immunity

argument, the court granted summary judgment in favor of the defendants, concluding for three

reasons that Pleasant-Bey was not entitled to relief under statutes other than § 1983. First, CRIPA

did not provide for a private cause of action. See 42 U.S.C. § 1997a(c) (requiring that complaint

be signed by Attorney General); Rudd. v. Polsner, No. 99-4466, 2000 WL 1206516, at *1 (6th Cir.

Aug. 18, 2000) (affirming dismissal of action because prisoner had no private right of action under

CRIPA). Second, a RFRA claim could not be brought against non-federal defendants. See

Gonzales'v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 & n.l (2006).

And, finally, RLUIPA “provided for only injunctive relief, which had been previously denied. See

Haight v. Thompson, 763 F.3d 554, 568—70 (6th Cir. 2014).

The district court next determined that Pleasant-Bey was not entitled to relief under § 1983.

The court declined to consider alleged violations of the Establishment Clause that Pleasant-Bey

raised for the first time in his summary-judgment motion. The court then concluded that PleasantBey could not prevail on his claim under the Free Exercise Clause because: security concerns

justified limitations on religious services; he failed to produce evidence of an inadequate diet

during Ramadan; it was within the defendants’ discretion not to provide a feast after Ramadan due

to a lack of funds; and the defendants had tried to hire an imam and ultimately did in 2012. Finally,

No. 18-6063

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the court held that the defendants did not violate Pleasant-Bey’s rights under the Equal Protection

Clause by not providing a feast after Ramadan because the decision was rationally related to the

Jail’s legitimate governmental interest in allocating its funds to support its penological mission.

In his timely appeal, Pleasant-Bey reasserts his claims, as enumerated above, that the

defendants violated his civil rights by: (1) not hiring an imam to conduct weekly Jumu’ah services

but providing chaplains for Christian services; (2) forbidding inmates from leading religious

services or being elected as imam; (3) classifying Islam as a “gang” and allowing only nine inmates

from the Jail’s fourth floor to attend prayer gatherings that lasted a mere five to ten minutes;

(4) requiring the GIU to be present at Muslim prayer gatherings but not at Christian services; (5)

refusing to provide a feast at the end of Ramadan; and (7) providing inadequate portions at the two

daily meals served during the month of Ramadan. He relies on RLUIPA, the Free Exercise Clause,

the Establishment Clause, and the Equal Protection Clause.

II. Analysis

As an initial matter, we note that Pleasant-Bey does not reassert Claims 6, 8, 9, or 10 in his

appeal or argue that he is entitled to relief under RFRA or CRIPA. He also does not assert that the

district court erred by denying his second or subsequent motions to amend. Issues raised in the

district court but not on appeal are considered abandoned and are not reviewable. Turner v. City

of Taylor, 412 F.3d 629, 639 (6th Cir. 2005). Thus, we will not consider these claims. Likewise,

we decline to review Pleasant-Bey’s new claim asserting a violation of the Establishment Clause.

The claim was not raised in his amended complaint, and no exceptional circumstances exist that

merit its consideration. See Dealer Comput. Servs., Inc. v. Dub Herring Ford, 623 F.3d 348, 357

(6th Cir. 2010).

We also note that Pleasant-Bey arguably brought Claims 1, 4, and 5 pursuant to both the

Free Exercise and Equal Protection Clauses, but the district court analyzed Claims 1 and 4 solely

under the Free Exercise Clause. To the extent that Pleasant-Bey intended to bring Claims 1 and 4

under the Equal Protection Clause as well, we deem them to be implicitly denied and conclude

that we have appellate jurisdiction over them. See United, States v. Dubrule, 822 F.3d 866, 884-

No. 18-6063

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85 (6th Cir. 2016) (citing Ford. Motor Co. v. Transp. Indent. Co., 795 F.2d 538, 542—43 (6th Cir.

1986)).

We review a grant of summary judgment de novo. Peeples v. City of Detroit, 891 F.3d

622, 630 (6th Cir. 2018). Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). And we “must view the facts and any inferences reasonably drawn from

them in the light most favorable to the party against whom judgment was entered.” Kalamazoo

Acquisitions, L.L.C. v. Westfield Ins. Co., 395 F.3d 338, 342 (6th Cir. 2005). We note that

Pleasant-Bey filed his complaint subject to penalty of perjury. A verified complaint such as this

may serve as an opposing affidavit and response to a motion for summary judgment. See 28 U.S.C.

§ 1746; King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017).

A. RLUIPA Claim

Upon review, we conclude that the district court properly determined that Pleasant-Bey

was not entitled to relief under RLUIPA. The Act simply does not permit claims for monetary

damages. Sossamon v. Texas, 563 U.S. 277, 288 (2011); Haight, 763 F.3d at 567—70. And

Pleasant-Bey’s request for injunctive relief became moot once he was transferred from the Jail.

See Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010).

B. § 1983 Claims

We next consider the § 1983 claims. Generally, “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (alteration in

original) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Specifically, the Turner test has four

factors:

First, there must be a valid, rational connection between the prison regulation and

the legitimate governmental interest put forward to justify it. If not, the regulation

is unconstitutional, and the other factors do not matter. Unlike the first factor, the

remaining factors are considerations that must be balanced together: (2) whether

there are alternative means of exercising the right that remain open to prison

inmates; (3) the impact that accommodation of the asserted constitutional right will

have on guards and other inmates, and on the allocation of prison resources

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-6generally; and (4) whether there are ready alternatives available that fully

accommodate the prisoner’s rights at de minimis cost to valid penological interests.

Colvin, 605 F.3d at 293 (quoting Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999)).

Pleasant-Bey presses five claims of constitutional violation in this appeal.

1. Failure to Hire Imam

Pleasant-Bey claims the defendants violated his rights under the Free Exercise and Equal

Protection Clauses by failing to hire an imam to conduct the weekly Jumu’ah services required by

his faith. The defendants provided a volunteer imam, who conducted only three Friday services

on the fourth floor during all of 2010. These services lasted approximately fifteen minutes and did

not meet the Islamic requirements for a Jumu’ah service. Christian chaplains provided weekly

services for Christian prisoners.

The defendants explained that there was no policy not to hire an imam and that their failure

to hire an imam was not due to a discriminatory purpose. In his affidavit, Chief Jailer Robert

Moore stated that the Jail endeavored to provide religious leaders for as many religions as possible

and that the volunteer imam conducted services as his schedule allowed. Attempts to recruit

additional volunteer imams had been unsuccessful, and the Jail was still seeking to hire an imam

at the time of the defendants’ first summary-judgment motion. Ultimately, in 2012, the Jail was

able to do so. Pleasant-Bey did not present any evidence showing that the earlier inability to hire

an imam was deliberate and he conceded that the limited services provided by the volunteer imam

were due to the imam’s schedule. In sum, even viewing the evidence in Pleasant-Bey’s favor, the

defendant’s failure to hire an imam did not violate his constitutional rights.

2. Prohibition of Prisoner-Led Religious Groups

Pleasant-Bey also contends that Jail policy violated his Free Exercise rights by prohibiting

prisoners from conducting religious services, which deprived him of his religious “right” to elect

a qualified prisoner to be the imam and deprived him personally of the opportunity to be elected

imam. Defendant Moore averred in his affidavit that Jail policy prohibits any and all prisoners

from having a position of religious leadership or authority oyer other prisoners or religious services

so as to maintain all prisoners on an equal basis for security purposes.

No. 18-6063

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The prohibition on prisoner-led religious “groups necessarily exists to avoid the risks that

would rise from unsupervised inmate activity and the creation of an alternate, inmate-led power

structure in the prison, and, thus, clearly has a valid, rational connection to [the Jail’s] interest in

maintaining prison security.” Spies, 173 F.3d at 405-06; id. at 406 (explaining that prison security

is “central to all other corrections goals”) (quoting Thornburgh v. Abbott, 490 U.S. 401, 415

(1989)). This court upheld the same policy as constitutionally valid in Spies, see id. at 405-06;

Pleasant-Bey has offered no reason for distinguishing that binding precedent here. Consequently,

the policy did not violate the Free Exercise Clause.

3. Restrictions on Islamic Services

Pleasant-Bey claims the defendants violated his rights to Free Exercise and Equal

Protection by imposing restrictions on Islamic services that they did not impose on Christian

services. Specifically, Pleasant-Bey alleged that the prison classified Islam as a gang, such that

only three inmates from each of the three pods on the fourth floor could attend a Friday prayer

gathering offered in lieu of a Jumu’ah service, but at Christian worship services on the fourth floor,

twenty to thirty inmates were regularly allowed to attend. Pleasant-Bey further alleged that prison

, officials limited Islamic services to between five and ten minutes (which did not meet the

requirements of Jumu’ah), whereas Christian services lasted over an hour. Pleasant-Bey also

alleged that the GIU was present at the Friday prayer gatherings but not at Christian services, even

though there were gang members at both. And he presented affidavits from fellow inmates

corroborating his allegations.

Defendant Moore averred in his affidavit that all fourth-floor religious services generally

could last about one hour and be attended by twenty inmates but that participation could be limited

pursuant to Jail policy for security purposes. He further explained that the fourth floor housed

inmates who were the highest security risks, had a history of assaultive behavior, or both. He

denied that Muslim inmates were considered'to be gang members, although some had been

identified as such. He also acknowledged that the GIU provided security at Jumu’ah services but

stated that it did not intervene in the absence of an institutional violation.

No. 18-6063

-8Moore’s affidavit addressed restriction on fourth-floor worship services in general. It does

not explain the alleged disparate treatment of Islam, namely, the more onerous restrictions

allegedly placed on Islamic but not Christian services. And the district court overlooked the

salience of the alleged discriminatory treatment of Islam, focusing instead on the reasonableness

of worship restrictions generally. Viewing the evidence in the light most favorable to PleasantBey, material fact disputes preclude summary judgment on these claims. If these allegations are

proven to be true—and absent adequate justification for the restrictions and the alleged difference

in treatment—such disfavored treatment would likely violate both Free Exercise and Equal

Protection. See Colvin, 605 F.3d at 293.

4. Id U1 Fitr Meal

Pleasant-Bey claims the defendants violated his rights to Free Exercise and Equal

Protection by refusing to provide a feast, known as Id U1 Fitr,1 to celebrate the completion of

Ramadan but provided a Christmas holiday meal for all inmates. Defendant Moore averred that

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the Jail did “not have the funds to provide a Ramadan feast, which lasts for three (3) days.”

Pleasant-Bey averred that only one meal was necessary for Id U1 Fitr and that the traditional

foods were turkey, lamb, chicken, rice, dates, and vegetables. The Jail provided a Christmas dinner

to all inmates, which included “turkey, dressing, sweet potatoes, cranberry sauce, sweet potato pie

(or other special des[s]ert) and juice.” Pleasant-Bey also alleged that some Christian prisoners had

the opportunity to participate in a three-day revival with food for Christian inmates only and that

the defendants required every pod and each internal wall to be decorated with Christmas

decorations. The defendants did not reply to these contentions.

Absent a legitimate penological justification, the lack of an opportunity to participate in Id

U1 Fitr could violate a Muslim prisoner’s Free Exercise rights. Id. Moreover, Pleasant-Bey

disputes Defendant Moore’s assertion that there were no funds. Some prisons do provide the feast,

1 Id U1 Fitr is sometimes referred to as Eid ul Fitr or Eid al Fitr. See, e.g., Totten v. Caldwell,

No. 11-12485, 2012 WL 3965045, at *4 (E.D. Mich. July 31, 2012) (unpublished report and

recommendation); Ford v. McGinnis, 230 F. Supp. 2d 338, 341 (S.D.N.Y. 2002), rev’d, 352 F.3d

582, 597 (2d Cir. 2003).

No. 18-6063

-9Ford, 352 F.3d at 596, and Moore himself stated “special diets will be approved if possible” for

inmates with religious dietary restrictions. Viewing the record in the light most favorable to

Pleasant-Bey, genuine issues of material fact exist as to whether the defendants had a legitimate

penological justification for not offering an Id U1 Fitr meal and whether they acted with

discriminatory intent by treating Muslims differently from Christians.

5. Nutritionally Adequate Ramadan Meals

Finally, Pleasant-Bey claims the two meals a day provided during the month of Ramadan

were insufficient because they were half of the size of normal meals, he lost ten pounds during

Ramadan, and the small portions made it difficult to maintain his fast and caused abnormal

stomach aches. Moore averred that “[a] nutritionist approves all inmate meals.”

A prisoner has a right under the Free Exercise Clause to a nutritious diet during Ramadan.

Welch v. Spaulding, 627 F. App’x 479, 483 (6th Cir. 2015); see Colvin, 605 F.3d at 290. “[T]he

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question of whether a prison official has knowingly provided a nutritionally inadequate diet is a

fact-specific inquiry that requires consideration of, inter alia, daily caloric content, duration of the

diet, and the nutritional needs of the prisoner.” Welch, 627 F. App’x at 483.

Here, the defendants did not allege that the meals Pleasant-Bey received during Ramadan

were nutritionally adequate; they allege only that “all inmate meals” were “approve[d]’- by a

nutritionist. The nutritionist was not identified, nor were the standards for approval defined.

Viewing the facts in the light most favorable to Pleasant-Bey, a genuine issue of material fact

exists as to whether he received a nutritionally adequate diet during Ramadan.

* * *

The above analysis requires that we reverse the district court’s disposition of PleasantBey’s claims regarding the allegedly disparate worship restrictions, the denial of the Id U1 Fitr

meal, and the adequacy of Pleasant-Bey’s meals during Ramadan. But that does not necessarily

mean that those claims will go to trial. In their initial motion to dismiss and again in their

supplemental summary-judgment motion, the defendants claimed that they were entitled to

qualified immunity. The qualified-immunity defense requires us to look to whether the officials’

No. 18-6063

- 10acts violated statutory or constitutional rights that were clearly established at that time, such that a

reasonable official would have understood that he was violating those rights. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Because the district court granted summary judgment to the defendants

on other grounds and, therefore, did not address qualified immunity in its ruling, the defendants

did not brief the issue on appeal. We decline to decide the defendants’ entitlement to qualified

immunity in the first instance on appeal. But the defendants may take up the issue on remand.

Accordingly, we AFFIRM the district court’s judgment in part, we REVERSE the

judgment in part, and we REMAND the action for further proceedings consistent with this order.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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