Petition for Writ of Certiorari — Heidi E. Washington, Director, Michigan Department of Corrections, Petitioner v. James Harrison Fox, et al.

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PETITION APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Sixth Circuit

Opinion in 21-1694

Issued June 26, 2023 .................................. 001a–011a

United States District Court

Western District of Michigan

Case No. 1:13-cv-1003

Memorandum Opinion

Issued October 29, 2021.............................. 012a–029a

United States Court of Appeals

for the Sixth Circuit

Opinion in 19-1398

Issued February 6, 2020 ............................. 030a–054a

United States Court of Appeals

for the Sixth Circuit

Judgment in 19-1398

Issued February 6, 2020 ....................................... 055a

United States District Court

Western District of Michigan

Case No. 1:13-cv-1003

Memorandum Opinion

Issued March 27, 2019 ................................ 056a–077a

United States District Court

Western District of Michigan

Case No. 1:13-cv-1003

Memorandum Opinion and Order

Issued May 7, 2015 ..................................... 078a–083a

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United States District Court

Western District of Michigan

Case No. 1:13-cv-1003

Report and Recommendation

Issued May 7, 2015 ..................................... 084a–107a

Memorandum

To McKee from Leach

Signed request for recognition

August 3, 2017 ............................................ 108a–109a

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RECOMMENDED FOR PUBLICATION

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

File Name: 23a0136p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES HARRISON FOX;

SCOTT DAVID PERREAULT,

Plaintiffs-Appellants,

No. 21-1694

v.

HEIDI E. WASHINGTON,

Director of the Michigan

Department of Corrections (MDOC),

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Michigan

at Grand Rapids.

No. 1:13-cv-01003—Phillip J. Green,

Magistrate Judge.

Argued: April 5, 2023

Decided and Filed: June 26, 2023

Before: SUTTON, Chief Judge; GRIFFIN and

STRANCH, Circuit Judges.

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_________________

COUNSEL

ARGUED: Breia Lassiter, MICHIGAN STATE UNIVERSITY, East Lansing, Michigan, for Appellants.

Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Daniel E. Manville, MICHIGAN

STATE UNIVERSITY, East Lansing, Michigan, for

Appellants. Michael R. Dean, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

GRIFFIN, Circuit Judge.

Plaintiffs are adherents to Christian Identity, a

religion that is “explicitly racist.” Fox v. Washington,

949 F.3d 270, 273 (6th Cir. 2020). In its view, Caucasians are “God’s chosen people.” Id. at 274 (internal

quotation marks omitted). After the Michigan Department of Corrections refused to recognize Christian

Identity as a religion for purposes of the Michigan

prison system, plaintiffs brought this declaratory

judgment action under the Religious Land Use and Institutionalized Person Act of 2000, 42 U.S.C. § 2000cc

et seq. (RLUIPA), requesting that the Department be

directed to recognize Christian Identity as a religion.

The district court affirmed the Department’s denial,

and plaintiffs appealed.

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In Fox, we held that plaintiffs satisfied the first

two parts of the three-part RLUIPA test, but we remanded to the district court for the Department to

sustain its “heavy burden” under a strict scrutiny

analysis to show that its refusal to recognize Christian

Identity as a religion furthered a compelling governmental interest, and, if so, that its denial was the least

restrictive means of furthering such a compelling interest. 949 F.3d at 283.

On remand, the district court concluded that the

Department met its burden and that refusing to recognize Christian Identity was the least restrictive

means to ensure its compelling governmental interest. We disagree and hold that the Department failed

to satisfy its burden of showing that its denial of recognition was the least restrictive means of furthering a

compelling governmental interest. Alternatives, other

than to simply accept or reject recognition, were available and included in the Department’s policies, but

never considered by it.

Accordingly, we reverse the judgment of the district court and remand for entry of judgment in plaintiffs’ favor.

I.

Following our previous decision, the district court

held an evidentiary hearing during which the Department produced additional evidence regarding the potential security threat posed by Christian Identity.

The Department’s principal witness at the hearing

was Todd Bechler, a “senior intelligence analyst with

the emergency management section.” Bechler testified that Christian Identity “tends to be more towards

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a white supremacist-type of ideological perspective.”

He acknowledged that the Christian Identity religion

itself was not directly responsible for violence but

noted that “there is significant evidence to suggest

that the leaders of most [of] the significant white supremacist organizations are adherent to Christian

Identity.” He opined that Christian Identity should

not be recognized by the Department “based solely on

the separation of the racial component.” In Bechler’s

view, recognizing Christian Identity as a religion

would likely increase racial tensions in the Department’s facilities. That was an important consideration

because minimizing racial tensions reinforces facility

security. According to Bechler, it was the Department’s “position” that “Christian Identity is a racial[ly] motivated movement that possessed [sic] a

threat to the overall security of our institution.” Bechler also testified about “security threat groups,” noting

that, although entire groups could be labeled as a “security threat group,” that designation normally attached to specific individuals. In theory, the entire

Christian Identity group could be designated as a security threat group. No such designation was made

here.

Plaintiffs also testified at the hearing. Both testified that Christian Identity advocated for nonviolence

and that any violence based on racism conflicted with

Christian Identity teachings. They also testified that

they would permit non-Caucasians to attend Christian Identity services and advise them ahead of any

service of the tenets of the Christian Identity religion.

In addition, plaintiffs testified that, if an individual at

a service acted aggressively toward another, they

would ask the aggressor to leave.

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The district court issued a written order concluding that the Department’s recognition of Christian

Identity as a religion would likely threaten the safety

and security of the Department’s facilities. In doing

so, it held that the Department has a compelling interest in prison safety and that recognizing an “explicitly racist” religion like Christian Identity would

likely increase the risk of violence in the Department’s

facilities. Then, in a single paragraph, it found that

not recognizing Christian Identity was the least restrictive means to further the Department’s safety interest because “[f]ormal recognition of a faith group is

a binary question.” Significantly, the court did not address any alternatives to lessen the potential security

threat posed by recognizing the religion. Accordingly,

the district court again granted judgment in the Department’s favor on plaintiffs’ RLUIPA claim. This

second appeal followed.

II.

On appeal, we review the court’s factual findings

for clear error and its legal conclusions de novo. Fox,

949 F.3d at 276. “A finding is clearly erroneous when,

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” Id. (citation omitted). That said, we review de

novo the question of whether a substantial burden on

religious exercise “serves a compelling interest in the

least restrictive means.” Ackerman v. Washington, 16

F.4th 170, 180 (6th Cir. 2021).

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III.

We remanded this case for the Department to

demonstrate that it had a “compelling governmental

interest” in not recognizing Christian Identity as a religion and that it employed the “least restrictive

means” in doing so. Fox, 949 F.3d at 282. The Department “face[d] a heavy burden” in this inquiry. Id. at

283. We agree with plaintiffs that the Department did

not sustain its burden.

Under RLUIPA, “the government cannot discharge [its] burden by pointing to broadly formulated

interests.” Ramirez v. Collier, 142 S. Ct. 1264, 1278

(2022) (internal quotation marks omitted). “It must

instead demonstrate that the compelling interest test

is satisfied through application of the challenged law

to the particular claimant whose sincere exercise of

religion is being substantially burdened.” Id. (internal

quotation marks and brackets omitted); see also id. at

1281 (“RLUIPA, however, requires that courts take

cases one at a time, considering only the particular

claimant whose sincere exercise of religion is being

substantially burdened.”) (internal quotation marks

omitted). This individualized inquiry also applies

when an inmate seeks permission to engage in group

religious services. Byrd v. Haas, 17 F.4th 692, 694,

699–700 (6th Cir. 2021); see also Haight v. Thompson,

763 F.3d 554, 563–64 (6th Cir. 2014) (applying the individualized-inquiry standard to a request for a sweat

lodge that would be used for group services). Moreover, speculation cannot carry the Department’s burden because RLUIPA requires a case-by-case inquiry.

Ramirez, 142 S. Ct. at 1280. Similarly, “[b]ecause the

focus is on the interest in burdening the specific

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prisoner, the state’s interest in merely avoiding other

and additional accommodations—a slippery slope—is

usually insufficient.” Ackerman, 16 F.4th at 187.

Crucially, the Department bears the burden of

demonstrating there are no less restrictive means to

ensure facility security than refusing to recognize

Christian Identity. Ramirez, 142 S. Ct. at 1281. This

is an “exceptionally demanding” standard—the government must “show that it lacks other means of

achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting

party. If a less restrictive means is available for the

Government to achieve its goals, the Government

must use it.” Holt v. Hobbs, 574 U.S. 352, 364–65

(2015) (internal quotation marks, alterations, and internal citations omitted). Finally, “[c]ourts must hold

prisons to their statutory burden, and they must not

assume a plausible, less restrictive alternative would

be ineffective.” Id. at 369 (internal quotation marks

omitted). “[I]n the absence of evidence demonstrating

(as opposed to lawyer arguments speculating) that the

prison considered and rejected alternatives more tailored to its security interest, the prison’s prohibition

cannot withstand [the least-restrictive-means] aspect

of strict scrutiny.” Haight, 763 F.3d at 564.

The district court framed the Department’s decision on whether to recognize Christian Identity as a

binary choice: recognize Christian Identity and allow

group worship, or not. Because, in its view, not recognizing Christian Identity was the safer of the two options, the district court held that not recognizing it

was the least restrictive means to ensure facility security. This framing, of course, implicates the

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requirement that the Department show it considered

alternatives before denying plaintiffs’ request. But the

Department’s own policy and lack of individualized inquiries in this matter demonstrate options more than

an either/or decision.

Begin with the Department’s “policy directive” for

“religious beliefs and practices of prisoners.” It plainly

does not allow unfettered group worship simply because the Department recognizes a religion. Instead,

it requires continuous staff supervision of services in

Level II facilities and random staff supervision in

Level I facilities; forbids inmates from guarding the

door during services or engaging in “[m]ilitaristic type

behavior”; notes that failure to comply with the policy

can lead to ending the service or individual removal

from the service; and allows the Department to “prohibit a religious practice . . . if it is a threat to custody

and security.” Put differently, it expressly places limits on group worship by Christian Identity adherents.

The Department, however, put forth no evidence supporting why this policy was insufficient to address its

concerns about facility security.

To the extent the Department faced a binary

choice because its decision to recognize Christian

Identity as a religion would apply to all facilities, that

is a problem created by its policy. A religious accommodation cannot be denied based solely on a policy.

See Fox, 949 F.3d at 277. So, the Department cannot

hide behind the broad language of its policy that

makes plaintiffs’ request for recognition apply to all

the Department’s facilities. The Department has not

explained why recognition must apply to all facilities

at once. Nor has it addressed whether the policy could

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be changed in this or any other way to facilitate plaintiffs’ request while maintaining facility security.

Based on the record before us, it appears that the Department never even considered doing so.

And even if the Department did consider appropriate alternatives, it wholly failed to link its reasons

to deny recognition to plaintiffs and instead justified

its denial with the broad brush of Christian Identity

being a racist religion that posed a potential security

threat. RLUIPA nevertheless requires an individual

inquiry even when group worship is the sought accommodation. See Byrd, 17 F.4th at 694, 699–700 (“demand[ing] a tailored inquiry that turns on the individual inmate’s case” on remand even though the inmate

sought permission to participate in group worship);

Haight, 763 F.3d at 563–64. Indeed, each plaintiff testified that he was nonviolent and would prevent others from acting aggressively at group services. The

Department offered silence in response—it did not, for

example, present any evidence that plaintiffs or any

other inmates who follow Christian Identity are violent. True, Bechler linked Christian Identity to racial

violence outside the prison setting. But nothing in the

record links plaintiffs to any prison violence, racially

motivated or otherwise. In short, the Department presented evidence regarding Christian Identity as a

whole, but not concerning plaintiffs. In failing to conduct an individualized inquiry, the Department’s decision-making process was deficient.

In an effort to counter these defects in its decisionmaking process, the Department pushes back on a few

fronts. It faults plaintiffs for failing to prove that

Christian Identity was not a security threat. But such

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an argument misconstrues the burden. Plaintiffs were

not required to offer any potential restrictions that

could further the Department’s interest in facility security; the burden to show that refusing to recognize

Christian Identity was the least restrictive (and given

the denial at issue, the only) option to ensure facility

security falls on the Department’s—not plaintiffs’—

shoulders. Ramirez, 142 S. Ct. at 1281.

The Department next contends Christian Identity

is simply too dangerous to recognize. In the Department’s view, recognizing Christian Identity would

lead to an increase in racial tension in its facilities because it cannot prevent nonwhites from attending

Christian Identity services. This concern appears to

rely on an assumption that nonwhite inmates might

“identify” Christian Identity as their religion under

the policy and attend Christian Identity services in

bad faith to increase racial tensions. Yet, the Department’s own policy tempers that fear by restricting inmates to attending group religious services for only

the one religion to which they belong and limiting the

changing of religion to no more than twice a year. All

this means that an inmate attending a Christian

Identity service would not only need to change his religion, but he would also be unable to attend services

for his actual religion. The Department’s concerns,

therefore, are already mitigated by its policy, which,

on its own terms, limits Christian Identity services to

those that actually practice the religion. This is not an

inherently dangerous setup. And the Department has

not contradicted plaintiffs’ testimony that they would

allow nonwhites at their services and expel any attendees who were aggressive toward others.

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As for Christian Identity’s connection to white supremacist groups outside the prison setting, that

alone cannot fulfill the least-restrictive-means analysis. Although the record links Christian Identity to

white nationalist groups, nothing in the record addresses how many Christian Identity adherents are

members of those groups. The Department has the

burden to show that refusing to recognize Christian

Identity is the least restrictive means to advance facility security. Ramirez, 142 S. Ct. at 1281. It cannot

meet that burden by simply gesturing toward some

Christian Identity adherents being members of white

supremacist groups and rely on this court to fill in the

gaps. See Byrd, 17 F.4th at 699–700; Haight, 763 F.3d

at 563–64.

Because the Department failed to conduct an individualized inquiry or consider alternatives to refusing to recognize Christian Identity, the district court

erred by granting judgment in the Department’s favor. 1

For these reasons, we reverse the district court’s

judgment and remand for entry of judgment in plaintiffs’ favor.

1 Because the Department failed to show that it used the

least restrictive means in deciding not to recognize Christian

Identity, we do not address whether doing so furthered a compelling government interest. We also dismiss as moot plaintiffs’ motion to take judicial notice and decline to address their evidentiary concerns regarding the admissibility of Bechler’s testimony.

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES FOX #458647, et al.,

Plaintiffs,

Hon. Phillip J. Green

v.

Case No. 1:13-cv-01003-PJG

HEIDI WASHINGTON,

Defendant.

________________________________/

MEMORANDUM OPINION

This is a civil rights action brought by two state

prisoners pursuant to 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons

Act (RLUIPA), 42 U.S.C. § 2000cc, et seq. Plaintiffs

are prisoners James Fox and Scott Perreault. This

lawsuit arises out of conditions of their confinement.

When this action was filed, both plaintiffs were held

at the Richard A. Handlon Correctional Facility.

Currently, James Fox is a prisoner at Muskegon Correctional Facility and Scott Perreault is confined at

Lakeland Correctional Facility. Heidi Washington is

the director of the Michigan Department of Corrections (MDOC). The Court will henceforth refer to Defendant as the MDOC.

Plaintiffs challenge the MDOC’s denial of

their request to have the Christian Identity faith

– their faith – recognized. (Amend. Compl., ECF No.

15). Specifically, they allege that the MDOC has violated the Free Exercise Clause of the First

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Amendment and RLUIPA by: (1) denying them communal worship; (2) denying them full-body immersion

baptism; 1 and (3) denying them the ability to celebrate seven religious holidays that are recognized by

the Christian Identity faith. (Id., PageID.44). Plaintiffs are seeking injunctive relief requiring that

the MDOC recognize the Christian Identity faith.

On August 13, 2018, this Court conducted a

bench trial. (Minutes, ECF No. 139). Having considered the trial evidence and the parties post-trial

briefs, the Court found for the MDOC on both of

plaintiffs’ claims. (Mem. Op., ECF No. 152). The

Court entered judgment (ECF No. 153), and plaintiffs appealed (Notice, ECF No. 154). The Sixth Circuit reversed the decision of this Court regarding the

RLUIPA claim, and it remanded the case “for consideration and a ruling on whether the [MDOC]

satisfied the standard of strict scrutiny under

RLUIPA’s third step.” Fox v. Washington, 949 F.3d

270, 273 (6th Cir. 2020). The Sixth Circuit directed

this Court “to take additional evidence as necessary,

with the understanding that the [MDOC] will face a

heavy burden at this step.” Id. at 283. The MDOC is

limited to relying on the two previously-asserted bases

for denying Plaintiffs’ request for recognition of the

Christian Identity faith. See id.

This Court conducted an evidentiary hearing on

April 9, 2021, limited to the issues of whether the

MDOC’s denial of recognition of the Christian

1 The baptism issue is now moot, as the parties have stipulated

that plaintiffs “have both been provided with full immersion

baptisms in accordance with their religious beliefs.” (10/18/21

Stip., ECF No. 229).

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Identity faith serves a compelling government interest and whether it is the least restrictive means of furthering that compelling interest. (Minutes, ECF No.

216; Hrg Tr. at 3, ECF No. 219, PageID.2009). The

MDOC called two witnesses: Todd Bechler, a senior

intelligence analyst with the MDOC (Hrg Tr. at 8-41,

ECF No. 219, PageID.2014-47); and Steve Adamson, a

retired MDOC special activities coordinator (Hrg Tr.

at 43-58, PageID.2049-64). The MDOC also offered

the deposition of David Leach, a retired MDOC special activities coordinator. (Hrg Tr. at 58-59,

PageID.2064-65; 2/8/21 Leach Dep., ECF No. 221).

Plaintiffs each testified on their behalf. (Perreault,

Hrg Tr. at 60-70, ECF No. 219, PageID.2066-76; Fox,

Hrg Tr. at 70-74, PageID.2076-80). The Court has

also considered the testimony of the August 13, 2018,

bench trial, as well as the parties’ post-trial and post

evidentiary hearing briefs. (ECF No. 145, 150, 151,

220, 222, 223, and 227).

Relevant Factual Findings

1. Evidence Presented During August 13,

2013, Bench Trial

During the August 13, 2013, bench trial, the

parties offered the following evidence relevant to the

remaining issues, which the Court finds credible.

Plaintiff Scott Perreault testified that he had

been a practitioner of the Christian Identity (“CI”)

faith for 23 years. (Trial Tr. at 19, ECF No. 141,

PageID.1155). He believes that there are “two physical seed lines in the earth that are the age-old conflict

between good and evil.” (Id. at PageID.1157). “All of

the non- Caucasian races were on Earth before Adam

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was created. . . . All races were created according to

the Law of Kind after his kind and were to remain

segregated in the habitat given each of them by the

eternal God.” (Id. at 1174). Mr. Perreault believes

that, while Jehovah declared all people good, the

races were to remain segregated. (Id. at 1174, 1192).

The CI faith does not condone violence. (Id. at

PageID.1175). He acknowledged that the CI faith

teaches white separatism. (Id. at PageID.1189

(quoting Pltfs’ Exh. 20 at ¶ 5)). In fact, racial separatism is a significant tenet of the CI faith. (Id. at

PageID.1191-92). Non-white persons are prohibited from membership in the CI faith. (Id. at

PageID.1193).

Mr. Perreault testified that he had a “Negro”

cellmate at one time who is a member of the “Five

Percent Nations of God on Earth,” which is a religion

for persons of the “Negro persuasion.” (Id. at

PageID.1176). Although he and this cellmate had differences of views regarding religious matters, their

discussions were civil and respectful. (Id. at

PageID.1176-77).

Kenneth Robinson is an inmate with the MDOC.

He testified that he is a member of the Five Percent

Nation of Gods on Earth. (Trial Tr. at 62, ECF No.

141, PageID.1198). He once shared a cell with Scott

Perreault for a period of four to five months. (Id. at

PageID.1199). Mr. Robinson engaged in discussions

with Mr. Perreault concerning their different religious beliefs. (Id. at PageID.1200-01). They got along

well. (Id.).

Plaintiff James Fox testified that he has been a

member of the CI faith since 2012, and he has taken

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a number of courses regarding the tenets of that religion. (Trial Tr. at 68-69, 81, ECF No. 141,

PageID.1204-05, 1217). According to Mr. Fox, the CI

faith teaches that “the Anglo-Saxon, Scandinavian

and kindred people are God’s chosen Israel.” (Id. at

PageID.1205).

The CI faith does not promote hatred of other

races, nor does it condone violence. (Id. at

PageID.1206, 1209). The CI faith does teach, however,

that the white people are the Israelites of the Bible and

that they are called to be the servant people of God.

(Id. at PageID.1209). The CI faith promotes racial

separatism in areas of marriage and worship. (Id. at

PageID.1210).

David Leach served as the Special Activities Coordinator for the MDOC, the duties of which included

reviewing prisoners’ requests for recognition of religious groups. (Trial Tr. at 111, ECF No. 141,

PageID.1247). He drafted an August 3, 2017, memorandum for MDOC Deputy Director Kenneth McKee

in which he recommended denial of Plaintiffs’ request for recognition of the CI faith. (Id. at

PageID.1254 (memorandum introduced as Exhibit

A)). Mr. Leach recommended denial of the request

based, in part, on the opinion of the Chaplain Advisory

Council’s opinion that the CI adherent’s religious

practices could be adequately addressed by other

recognized religious groups. (Trial Tr. at 111, 114-18,

at PageID.1247, 1250-54). The MDOC has an interest

in minimizing the number of religious services offered

due to the limits on time and space for conducting

such services. (Id. at PageID.1252-53).

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Mr. Leach also conducted research into the CI

faith, and based on that research, he concluded that

it had a history of racial violence.

(Id. at

PageID.1256- 59 (research materials introduced as

Exhibit B)). In his memorandum, Mr. Leach noted

the following:

Furthermore, although it would not factor

into whether or not the Christian Identity

religion should be recognized as a religious

group, the Christian Identity movement is

known to have extreme racist and anti- Semitic views with a history of violence in the

United States. It is a movement uniting

many of the white supremacist groups in the

United States, with the Ku Klux Klan reportedly the largest group within the Christian

Identity movement. Interestingly, the Southern Poverty Law Center itself has stated that

the Christian Identity movement has ‘a

unique anti-Semitic and racist theology”. For

these reasons, the practice of the Christian

Identity movement would pose a threat to the

custody, and security of our correctional facilities.

(Trial Exh. A). 2

Kenneth McKee was the Deputy Director for the

MDOC with responsibility for overseeing the state’s

thirty prisons, including the security of those prisons.

(Trial Tr. at 97, ECF No. 141, PageID.1233). He testified that the primary benefit of the MDOC’s

2 A copy of this memorandum can be found in the record at ECF

No. 119-3, PageID.797.

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recognition of a religious faith is that the group is allowed to conduct weekly meetings.

(Id. at

PageID.1235). A prisoner who adheres to a non-recognized faith is not prohibited, however, from worshiping as he chooses. (Id. at PageID.1235). Mr.

McKee made the determination to deny Plaintiffs’ request for recognition of the CI faith. He made this

decision after reviewing David Leach’s recommendation. (Id. at PageID.1236). Mr. McKee denied the

request, in part, because he accepted Mr. Leach’s

recommendation that CI adherents’ religious needs

could adequately be met through other recognized religions. But he was more focused on the risks such

recognition would pose to maintaining the security

of the prison system. (Id. at PageID.1238). His handwritten note of August 7, 2017, documenting his decision states: “I approve that the recognition of this

Christian Identity Religious group be denied due to

the threat to the custody and security at all correctional facilities.” (Trial Exh. A). Mr. McKee acknowledged that he relied on the recommendations in Mr.

Leach’s memorandum, and that he had no independent evidence or basis for his decision. (Id. at

PageID.1244-45).

2. Evidence Presented During April 9, 2021,

Evidentiary Hearing

Both parties offered additional evidence during

the April 9, 2021, evidentiary hearing. The Court

credits the following testimony.

Mr. Bechler, an MDOC senior intelligence analyst, testified that he has a master’s degree in homeland security, focusing on domestic terrorism, and

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that he has significant law enforcement experience

concerning gangs and terrorist organizations. (Hrg

Tr. at 9-10, ECF No. 219, PageID.2015-16). Mr. Bechler’s studies included information about the CI faith.

(Id. at PageID.2016-17). In 2017, he was asked by

the MDOC Deputy Director to opine on the CI faith

as a religious group. (Id. at PageID.2016). Mr. Bechler noted that the CI faith “tends to be more towards

a white supremacist-type of ideological perspective,”

and that adherents believe that “the Caucasian race

is part of the lost tribe of Israel.” (Id. at

PageID.2017). Non- white people are perceived as

“mud people or pre-Adamic people, individuals that

were not present with God’s blessing in the Garden of

Eden.” (Id.).

Mr. Bechler testified that, while the CI faith itself did not advocate violence, leaders of some of

white supremacist organizations involved in violence were adherents of that faith. (Id. at

PageID.2018). Mr. Bechler opined that the CI faith

should not be recognized by the MDOC due to the

faith’s racist teachings. (Id.). He explained that

recognition of such a religion would likely increase

racial tensions in the prison and provoke violence,

undermining the MDOC’s ability to maintain security and to protect the safety of inmates and staff:

It is already a tense situation. A prison is a

microcosm of society and racial tensions always exist in the prison. And taking a certified step towards that would only worsen

existing racial tensions.

***

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All prisoners and all staff are entitled to safe

time in our facilities, and part of our mission

is to eliminate whatever violence we can

through the mechanisms, lawful mechanisms that we have to do so. And minimizing

racial tensions would definitely be one of

those.

(Id. at PageID.2019). Compounding these concerns

is the fact that the prison population consists of

individuals who have difficulty “following normal social rules.” (Id. at PageID.2019-20).

In 2017, Steve Adamson was an institutional

chaplain with the MDOC, and a member of the Chaplain Advisory Council (CAC). (Hrg Tr. at 43-44, ECF

No. 219, PageID.2049-50). As a member of the CAC,

he participated in the recommendation against recognition of the CI faith. (Id. at PageID.2050-52). Mr.

Adamson testified that, pursuant to MDOC policy,

any prisoner can join a religious group, regardless of

the prisoner’s race. (Id. at PageID.2053). Accordingly, should the MDOC recognize the CI faith, it

could not exclude a non-white prisoner from attending the religious services of that group should the

prisoner choose to attend. (Id. at PageID.2054).

In 2017, David Leach worked for the MDOC as a

special activities coordinator. (2/8/21 Leach Dep. Tr.

at 5, ECF No. 221, PageID.2146). He wrote the April

3, 2017, memorandum recommending that the

MDOC not recognize the CI faith. (Id. at 8

PageID.2146-47). He conducted research into white

supremacist groups around the nation in which he

found information indicating that the Southern Poverty Law Center referred to the CI faith as having “a

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unique anti-Semitic and racist theology,” which information he included in his April 3, 2017, memo. (Id. at

PageID.2148). Mr. Leach confirmed that MDOC policy directive 05.03.150 prohibited the Department

from restricting a prisoner from attending the services of a religious group on the basis of race, color

or nationality. (Id. at PageID.2149). The MDOC had

no way of verifying if a prisoner attending a given

religious service was actually a member of that religion. (Id. at PageID.2150-51).

Scott Perreault testified that he has been incarcerated for some thirteen years. (Hrg Tr. at 61, ECF No.

219, PageID.2067). He has had an African-American

cell mate. They got along fine and even became

friends. (Id.). Mr. Perreault testified that he would

not preclude non-white prisoners from attending a CI

faith service. He would, however, advise any such

person attending that “this service has – have the

emphasis on teaching the Caucasian history and heritage, Christian heritage.” (Id. at PageID.2068). He

acknowledged that he did not speak on behalf of other

members of the CI faith, but only on his own behalf.

(Id. at PageID.2070).

James Fox testified that he would allow a nonwhite prisoner to attend CI faith services, but he

would give the non-white prisoner a warning similar

to what Mr. Perreault described. (Hrg Tr. at 71, ECF

No. 219, PageID.2077). Mr. Fox stated that he sincerely believed that the CI faith was neither violent nor racist. (Id. at PageID.2077-78).

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Discussion

Plaintiffs assert that the CI faith requires them

to participate in communal worship with racial separatism, to be baptized by full body immersion, and to

observe certain religious holy days. (See Pltfs’ Br. at

20-21, ECF No. 145, PageID.1544-45 (citing Aug. 13,

2018, Trial Tr., ECF No. 141, PageID.1156-57, 1166,

1168, 1169, 1214)). Plaintiffs complain that the

lack of recognition precludes them from conducting

religious services as proscribed by the CI faith, including their practice of excluding non-whites. (See Pltfs’

Br. at 21, 23, PageID.1545, 1547).

Defendant MDOC counters that plaintiffs’ request

for the recognition of the CI faith was denied for two

reasons: (1) that “the religious beliefs and practices

of the Christian Identity religion can be adequately

met by an existing recognized religious group”; and

(2) that it would “threat[en] . . . the custody and

security at all correctional facilities.” (Aug. 13,

2018, Trial Exh. A (Aug. 3, 2017, MDOC Memorandum); K. McKee, Aug. 13, 2018, Trial Tr. at

99-102, ECF No. 141, PageID.1235-38; D. Leach,

Aug. 13, 2018, Trial Tr. at 118-19, PageID.1254-55).

The decision regarding the adequacy of an existing

religious group was based on the recommendation of

the Chaplaincy Advisory Council, 3 which opined that

“many core religious beliefs of the Christian Identity religion are similar to those of other Christian

3 The Chaplaincy Advisory Council consists of members from

various religious organizations representing different belief systems. It provides advice and recommendations to the MDOC concerning religious issues. (D. Leach, August 13, 2013, Trial Tr. at

114, ECF No. 141, PageID.1250).

23a

religious groups recognized by the MDOC.” (Aug. 13,

2018, Trial Exh. A).

Plaintiffs’ RLUIPA Claim

RLUIPA prohibits the MDOC from imposing a

“substantial burden on the religious exercise” of a

prisoner, unless such burden constitutes the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a). Analysis of

Plaintiffs’ RLUIPA claim involves three steps:

Plaintiffs must first demonstrate that they hold a

sincerely held belief in the CI faith; second, Plaintiff’s

must demonstrate that MDOC’s decision denying

their request for recognition of the CI faith substantially burdens their exercise of that faith. Holt v.

Hobbs, 574 U.S. 352, 360-61 (2015). Should Plaintiffs

meet their burdens as to each of these steps, the burden shifts to the MDOC to show that the denial of

recognition of the CI faith serves a compelling government interest and that it is the least restrictive means

of achieving that purpose. Id. at 362.

The sincerity of Plaintiffs’ stated religious beliefs

was never in question. The Sixth Circuit has held

that Plaintiffs have established the substantial

burden MDOC’s non-recognition has placed on the

exercise of their CI faith. Fox v. Washington, 949

F.3d at 279. Accordingly, the only remaining issues

are whether the MDOC has met its burden of demonstrating that the denial of recognition of that faith

serves a compelling government interest and

whether it does so in the least restrictive way.

The MDOC proffers two bases for denying Plaintiffs’ request for recognition of the CI faith. The first –

24a

that there are other recognized religions that can adequately accommodate the religious needs of CI adherents – warrants little analysis. The Sixth Circuit

has already rejected this contention. Moreover, the

MDOC has failed to establish that the need to restrict

the number of religious services, due to limits on time

and space, constitutes a compelling government interest. Much less has the MDOC shown that denial

of the CI faith is the least restrictive means of furthering that interest.

The analysis of the second basis – that recognition of the CI faith would threaten the custody

and security of MDOC prison facilities – must begin

with an undisputed fact: the CI faith is an “explicitly

racist” religion. Fox v. Washington, 949 F.3d at 273.

As both Plaintiffs concede, an integral tenet of that

religion is the segregation of the races, and the

belief that the white race alone comprises the descendants of the Israelites – the chosen people of God.

See id. at 274.

Mr. Bechler, a senior intelligence analyst for

the MDOC, testified to the attendant risks of prison

violence associated with any form of racism. He explained that recognition of the CI faith would likely increase racial tensions in the prison and provoke violence. This, in turn, would undermine the MDOC’s

ability to maintain security and to protect the safety

of inmates and staff. (See Hrg Tr. at 12-13, ECF No.

219, PageID.2019). Compounding these concerns is

the fact that the prison population consists of

25a

individuals who have difficulty “following normal social rules.” (Id. at PageID.2019-20). 4

That the MDOC has a compelling interest in

maintaining prison security is beyond debate. See

Cutter v. Wilkinson, 544 U.S. 709, 722 (2005) (“We do

not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety.”); see also Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (The legitimacy of the

government’s interest in prison security is “beyond

question.”); Pell v. Procunier, 417 U.S. 817, 823

(1974) (“[C]entral to all other corrections goals is

the institutional consideration of internal security

within the corrections facilities themselves.”). 5 The

Sixth Circuit explicitly held, in the context of a

RLUIPA claim, that “ ‘prison security is a compelling state interest’ and ‘deference is due to institutional officials’ expertise in this area.’ ” Hayes v. Tennessee, 424 F. App’x 546, 554 (6th Cir. 2011) (quoting

Cutter, 544 U.S. at 725 n.13).

With respect to whether denial of recognition

of the CI faith serves a compelling interest in the

least restrictive way, the Sixth Circuit has counseled against second-guessing prison officials. See

Hoevenaar v. Lazaroff, 422 F.3d 366, 370 (6th Cir.

2006). “The Supreme Court has held that, in most

circumstances, prison officials ‘should be accorded

4 Plaintiffs challenge the credibility and persuasiveness of Mr.

Belcher’s testimony. But assessing and weighing the evidence, as

well as assessing the credibility of the witnesses, falls within the

Court’s purview. The Court, as already noted, finds Mr. Belcher’s

testimony and evidence credible and persuasive.

5 Thornburgh and Pell are First Amendment cases.

26a

wide-ranging deference in the adoption and execution of policies and practices that in their judgment

are needed to preserve internal order and discipline

and to maintain institutional security.’ ” Flagner v.

Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (quoting

Bell v. Wolfish, 441 U.S. 520, 545 (1979)); see also

Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir.

1997) (issues involving prison administration are

properly resolved by prison officials, and the solutions at which they arrive should be afforded deference). In enacting RLUIPA, Congress “anticipated

that courts would apply the Act’s standard with ‘due

deference to the experience and expertise of prison

and jail administrators in establishing necessary

regulations and procedures to maintain good order, security and discipline, consistent with consideration of

costs and limited resources.’ ” Cutter v. Wilkinson,

544 U.S. at 723 (quoting S. Rep. No. 103-111, at 10,

U.S. Code Cong. & Admin. News 1993, pp. 1892, 1899,

1900)).

If the history of mankind teaches anything, it is

that racism or a belief in racial separatism or superiority increases the likelihood of violence and social

unrest. As Mr. Bechler testified, the likelihood of such

racially motivated unrest and violence is increased in

the prison setting. Thus, the risk posed by requiring

the MDOC to formally recognize a religion the Sixth

Circuit has already held is “explicitly racist” is manifest. Formal recognition of the CI faith would

undermine institutional security, imperil the safety

of prisoners and prison staff, and significantly increase the likelihood of racially motivated violence

and disruption.

27a

The Court accepts Plaintiffs’ testimony that they,

themselves, are nonviolent, and that they do not condone violence. But these contentions miss the point.

In preserving prison security, the MDOC is not limited to thwarting individuals who condone or engage

in violence. The MDOC also has a compelling interest

in creating within its prisons an environment that

minimizes the likelihood of violence and disruption

and ensures the safety and well-being of staff and inmates.

Plaintiffs implicitly acknowledge the very real

risk that formal recognition of their faith would foster

an environment that appreciably increases the likelihood of racially motivated violence and disruption. As

Plaintiffs testified, while they would not act to prevent a non-white prisoner from attending a CI faith

service, they would nevertheless find it necessary to

warn any such prisoner of what the CI faith teaches.

In this regard, Plaintiffs testified that the CI faith

teaches white separatism and that its adherents are

“God’s chosen Israel.” Thus, even accepting that

Plaintiffs do not believe in violence, they seek recognition of a faith, which, by their own testimony,

teaches white superiority and separatism. Stated differently, Plaintiffs seek formal recognition of a faith

that believes and promotes beliefs regarding race and

ethnicity that, by their own admission, require an

explicit warning to non-adherents. Moreover, as

previously noted, neither CI adherents nor the

MDOC could prohibit non-whites from attending CI

religious services. (See Adamson 4/27/21 Hrg Tr. at 4748, ECF No. 219, PageID.2053-54; 2/8/21 Leach

Dep. Tr. at 7, ECF No. 221, PageID.2149). That

such a circumstance is a recipe (if not an outright

28a

guarantee) for racially motivated disruption and violence is obvious and cannot reasonably be disputed.

Accordingly, the Court finds that formal recognition of the CI faith would undermine institutional

security, imperil the safety of prisoners and prison

staff, and significantly increase the likelihood of racially motivated violence and disruption. The Court

further finds that the MDOC has a compelling state

interest in preventing such.

Having reached this conclusion, the question becomes whether denying formal recognition of the CI

faith constitutes the least restrictive means of furthering this compelling state interest. In this respect, it is important to remember that the question

is not whether Plaintiffs can be members of the CI

faith, but rather, whether the MDOC must be compelled to formally recognize the CI faith and permit

group worship by its members. Formal recognition

of a faith group is a binary question. Just as “there

is no such thing as being just a little bit pregnant,”

Mason v. Pulliam, 402 F. Supp. 978, 982 (N.D. Ga.

1975), there is, at least not on the present record,

any possibility of recognizing the CI faith “just a little

bit.” The MDOC either extends formal recognition to

the CI faith and permits group worship or it does

not. Thus, the Court finds that declining to formally

recognize the CI faith is the least restrictive means of

furthering the MDOC’s compelling state interest in

maintaining institutional security, ensuring the

safety of prisoners and prison staff, and preventing racially motivated violence and disruption.

29a

Conclusion

In conclusion, the Court finds that the MDOC

has satisfied its burden of demonstrating that denying formal recognition of the CI faith furthers a compelling governmental interest in maintaining institutional security, ensuring the safety of prisoners and

prison staff, and preventing racially motivated violence and disruption. The Court further finds that

there is no less restrictive means of furthering that

compelling interest.

Accordingly, a judgment in favor of Defendant will

issue.

Date: October 29, 2021

/s/Phillip J. Green

PHILLIP J. GREEN

United States Magistrate Judge

30a

RECOMMENDED FOR PUBLICATION

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

File Name: 20a0038p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES HARRISON FOX;

SCOTT DAVID PERREAULT,

Plaintiffs-Appellants,

No. 19-1398

v.

HEIDI E. WASHINGTON,

in her official capacity as

Director of the Michigan

Department of Corrections,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Michigan

at Grand Rapids.

No. 1:13-cv-01003—Phillip J. Green,

Magistrate Judge.

Argued: December 4, 2019

Decided and Filed: February 6, 2020

Before: GRIFFIN, STRANCH, and DONALD,

Circuit Judges.

_________________

31a

COUNSEL

ARGUED: Ryan Keast, MICHIGAN STATE UNIVERSITY COLLEGE OF LAW, East Lansing, Michigan, for Appellants. Sarah R. Robbins, OFFICE OF

THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellee. ON BRIEF: Daniel E. Manville, MICHIGAN STATE UNIVERSITY COLLEGE

OF LAW, East Lansing, Michigan, for Appellants.

Kyla L. Ragatzki, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

GRIFFIN, Circuit Judge.

Plaintiffs, who are Michigan prisoners, appeal the

denial by the Michigan Department of Corrections of

their request to “recognize” their “Christian Identity”

religion. Plaintiffs’ Christian Identity religion advocates “white separatism,” which instructs that people

of different races not mix in “the areas of marriage and

worship.” Plaintiffs claim that the Department’s denial of their recognition request violated the Religious

Land Use and Institutionalized Persons Act of 2000,

42 U.S.C. § 2000cc et seq. (“RLUIPA”), by denying

them their rights of group worship and baptism. Following a non-jury trial, the district court ruled that

the Department’s decision did not substantially burden plaintiffs’ exercise of their religion under the second of the three-step analysis for evaluating RLUIPA

claims. See Holt v. Hobbs, 574 U.S. 352, 361–62

32a

(2015). We hold that the district court committed error

requiring reversal in its ruling. Accordingly, we reverse and remand for consideration and a ruling on

whether the Department satisfied the standard of

strict scrutiny under RLUIPA’s third step.

I.

A.

Plaintiffs James Fox and Scott Perreault are inmates at prisons administered by the Michigan Department of Corrections (“MDOC”). They adhere to a

religion known as Christian Identity (also called the

“Church of Israel”). Fox v. Washington, No. 1:13-CV01003-PJG, 2019 WL 1409375, at *7 n.5 (W.D. Mich.

Mar. 27, 2019). Perreault has been a member of Christian Identity for over twenty years, long before he

went to prison; Fox has been a member since 2012,

after he entered prison. Three tenets of the Christian

Identity religion as practiced by Fox and Perreault are

at issue: (1) observance of seven “Biblical Holy Days,” 1

(2) weekly congregation for group worship on the Sabbath, and (3) baptism by full body immersion. 2

1 The seven holidays are “Passover, the Feast of Unleavened

Bread, Pentecost, Trumpets, the Day of Atonement, the Feast of

Tabernacles, and the Last Great Day.” The activities required to

properly observe these holidays vary. Most require a “holy convocation unto the Lord,” that is, “a church gathering,” which lasts

about two hours. Some require a special meal or fasting, and at

least one requires “no servile work” to be done for an entire day.

2 According to the Christian Identity religion, this need only

happen one time (after age twenty), and full immersion is necessary. In the opinion of Perreault, “I could be baptized in a lake.

We could dig a hole in the yard and fill it with water, and as long

as I’m fully immersed, the job would be done.” Perreault says he

33a

Plaintiffs believe that their religion requires each of

these activities.

Their religion is also explicitly racist. According to

Perreault, adherents of Christian Identity describe

themselves as “literal lineal descendants of the twelve

tribes of Israel,” who “grew into the millions in the

Caucasian Mountains” and “moved through eastern

Europe, central Europe, [and] western Europe.” In

Perreault’s words, Caucasians are “God’s chosen” people who should not mix with other races “in marriage

and worship.” Moreover, people of “different races[ ]

should not be cohabitating together.” This is “a large

component of the Christian Identity faith.”

In other areas of life, plaintiffs apparently have no

objection to communicating or interacting with people

of other races. And plaintiffs claim that they are not

racist.

Perreault believes that “separatism is commanded. Racism is a choice which is just overt hate,”

and he does not “hate anyone that is Biblically different” from him. Fox believes that Christian Identity

teaches him “to remain separate from non-white people and not to hate them.” Plaintiffs’ belief in “white

separatism” influences their requests to congregate,

both on holidays and on the Sabbath, as they insist

that they must worship only with other adherents of

Christian Identity—who must also be Caucasians.

Plaintiffs contend they cannot engage in group

worship because MDOC does not recognize Christian

was not baptized before entering prison because he “was still maturing in [his] faith.”

34a

Identity as a religion. 3 While they are allowed to attend the services of other religions that have been recognized by the Department, they have chosen not to

because of the differences between Christian Identity

and those other faiths. Two recognized religions, Judaism and the Seventh-day Adventist Church, observe the same holidays as Christian Identity. But

“Seventh-Day Adventists worship on Saturday,” so

their worship service and plaintiffs’ “wouldn’t fall on

the same day.” Also, plaintiffs calculate the correct

date to observe their holidays using the “solar calendar,” while adherents of Judaism and the Seventh-day

Adventist Church “use a lunar calendar.” This results

in their holidays falling on different days.

There are also differences between their religion’s

beliefs and others the Department has recognized.

Perreault does not wish to observe holidays or the

Sabbath with Jewish inmates because “the Jewish

faith denies Jesus Christ.” Perreault attended a few

Catholic services in 2009, but stopped going because

“the Catholic denomination did not teach Christianity

as [he] understand[s] it.” Fox tried attending other

Christian services but stopped going because “[t]hey

don’t practice racial separatism” and “they did not

comply with what the Bible teaches.” According to

Perreault, Christian Identity uses a different version

of the Bible from other Christian denominations,

whose versions he describes as “adulterated.” Thus,

plaintiffs assert that their “religious needs [cannot] be

3 Celebrating Christian Identity’s holidays requires other

conduct in some instances, but in this appeal, plaintiffs focus on

the group-worship aspect.

35a

met by the existing religious programming within the

MDOC.”

Not being able to observe Christian Identity’s holidays “affects [Perreault] greatly” because it makes

him “disobedient to Jehovah.” Perreault also believes

that not being baptized “affects [his] salvation of [his]

eternal soul. It puts [his] eternal soul at risk of eternal

damnation.” Not being able to observe the holidays

“worries” Fox because “[i]t hinders [his] connection

with God and [his] relationship with Him.” His lack of

being baptized similarly “causes [Fox] worry” because

“by not being allowed to be baptized, . . . [he] could die

without being baptized and that would be bad.”

B.

MDOC has a process by which it decides whether

to “recognize” a particular religion. “[W]ithout that

recognition, a number of prisoners would not be able

to get together in a specific space to do group worship.”

The Department recognizes roughly twenty religions,

including the “Nation of Islam, Moorish Science Temple, Catholic, Native American,” and several

Protestant denominations. Even for recognized religions, however, MDOC does not accommodate every

religious holiday due to limited resources, as its “facilities are scrambling for time and space for all of the

various programs that they currently have to accommodate.”

Prisoners whose religions are not recognized by

MDOC are not officially prohibited from exercising

their religious beliefs; they just do not have the same

privileges as members of recognized religions. For example, a prisoner may request baptism regardless of

36a

“whether [he] belongs to an officially recognized

group.” Similarly, a prisoner may request a religious

diet via a “separate process” that does not require being a member of a recognized religion.

David Leach oversees MDOC’s “religious programming” as its Special Activities Coordinator.

When he receives a request for the Department to recognize a religion, he consults the Chaplain Advisory

Council (“CAC”), which consists of members of different religious organizations and belief systems in the

community. Leach then makes a recommendation to

Kenneth McKee, the Deputy Director for Correctional

Facilities Administration, who has final authority to

decide whether the Department will recognize a particular religion.

Plaintiffs requested that MDOC recognize Christian Identity so they could engage in group worship.

Leach met with the CAC and researched Christian

Identity to determine whether it “exist[ed] outside of

the prison setting” and whether its beliefs “were completely unique to this particular faith group or . . . at

least the core or primary beliefs [could] be met in existing religious programming.” Their research consisted primarily of conducting internet searches and

reviewing the articles and other documents it yielded.

The CAC recommended that plaintiffs’ request be denied. It found that “many core religious beliefs of the

Christian Identity religion are similar to those of

other Christian religious groups recognized by MDOC

and therefore the religious beliefs and practices of the

Christian Identity religion can be adequately met by

an existing recognized religious group.”

37a

Leach submitted a one-page memorandum recommending that plaintiffs’ request for recognition be denied. He adopted the CAC’s recommendation that adherents of Christian Identity could have their religious needs met by an existing recognized religious

group. He also stated that “although it would not factor into whether or not the Christian Identity religion

should be recognized as a religious group, the Christian Identity movement is known to have extreme racist and anti-Semitic views with a history of violence in

the United States,” and ties to the Ku Klux Klan and

other white supremacist groups. Thus, Leach determined that “the practice of the Christian Identify [sic]

movement would pose a threat to the custody, and security of our correctional facilities.” Deputy Director

McKee adopted Leach’s recommendation in full and

denied recognition of Christian Identity “due to the

threat to the custody and security at all correctional

facilities.”

Plaintiffs also made a separate request to be baptized by full immersion. MDOC approved this request

and scheduled a date to perform the baptisms, but the

district court unintentionally “scheduled a settlement

conference that apparently resulted in Mr. Fox and

Mr. Perreault not being given their baptism by immersion.” Plaintiffs have still not been baptized.

C.

Fox and Perreault filed a pro se complaint in the

United States District Court for the Western District

of Michigan, naming several MDOC employees as defendants. The complaint alleged that Christian Identity required observance of the holidays listed above,

congregation for worship services, and baptism by full

38a

body immersion, and that the defendants had “denied

the plaintiffs the practice of sincerely held religious

beliefs.” They requested declaratory relief, including

“department wide recognition of Christian Identity as

a distinctly separate faith group” and “the observance

of all Biblical Holy days and Baptism by full body immersion for all adherents of the Christian Identity

faith.” An amended complaint clarified that plaintiffs’

claims were based in the First Amendment and

RLUIPA.

After this case cleared several procedural hurdles

and had been pending for nearly four years, the district court appointed counsel for plaintiffs. The parties

then consented to the jurisdiction of the United States

Magistrate Judge to conduct all further proceedings. 4

See 28 U.S.C. ｧ 636(c); Fed. R. Civ. P. 73. Eventually,

a bench trial commenced in the district court. Following proofs and post-trial briefs, the district court entered judgment in the Department’s favor on both

claims. Fox, 2019 WL 1409375, at *1. Regarding the

RLUIPA claim, the only claim at issue in this appeal,

the district court ruled that plaintiffs failed to show

that the Department had imposed a “substantial burden” on their exercise of religion as required by

RLUIPA. Id. at *8.

4 The parties also stipulated to substituting defendant Wash-

ington, the Director of MDOC, as the sole named defendant in

her official capacity and dismissing the other defendants, since

plaintiffs sought only injunctive relief. We use “the Department”

and “MDOC” throughout this opinion for convenience.

39a

II.

“After a bench trial, we review the district court’s

factual findings for clear error and its conclusions of

law de novo.” Foster v. Nationwide Mut. Ins. Co., 710

F.3d 640, 643–44 (6th Cir. 2013). “A finding is clearly

erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake

has been committed.” Osborn v. Griffin, 865 F.3d 417,

436 (6th Cir. 2017) (citation and internal quotation

marks omitted).

III.

RLUIPA “provide[s] very broad protection for religious liberty.” Holt, 574 U.S. at 356 (quoting Burwell

v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014)).

For our purposes, it mandates that “[n]o 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 can satisfy

strict scrutiny. 42 U.S.C. § 2000cc- 1(a). This requires

showing that the burden imposed on a person’s religious exercise “is in furtherance of a compelling governmental interest” and “is the least restrictive means

of furthering that compelling governmental interest.”

§ 2000cc-1(a)(1)–(2).

RLUIPA defines “‘religious exercise’ capaciously

to include ‘any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.’” Holt, 574 U.S. at 358 (quoting ｧ 2000cc-5(7)(A)).

And Congress specified that RLUIPA “shall be construed in favor of a broad protection of religious

40a

exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.” § 2000cc3(g). Courts have recognized that, in the prison context, RLUIPA provides greater protections than the

First Amendment. See Colvin v. Caruso, 605 F.3d 282,

296 (6th Cir. 2010) (citing Lovelace v. Lee, 472 F.3d

174, 199–200 (4th Cir. 2006)).

To enforce RLUIPA, Congress “created a private

cause of action that empowers inmates to obtain ‘appropriate relief’ from those who violate the statute.”

Haight v. Thompson, 763 F.3d 554, 558 (6th Cir. 2014)

(quoting ｧ 2000cc-2(a)). If a government is found to

have imposed a substantial burden on religious liberty

and cannot satisfy strict scrutiny, it has several options. It may “chang[e] the policy or practice that results in a substantial burden,” retain the policy or

practice “and exempt[ ] the substantially burdened religious exercise,” provide an exemption from the policy

or practice “for applications that substantially burden

religious exercise,” or use “any other means that eliminates the substantial burden.” § 2000cc-3(e). The

statute makes clear that it “may require a government

to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §

2000cc-3(c).

Analysis under RLUIPA is a “three-act play.”

Cavin v. Mich. Dep’t of Corr., 927 F.3d 455, 458 (6th

Cir. 2019). First, “the inmate must demonstrate that

he seeks to exercise religion out of a ‘sincerely held religious belief.’” Id. (quoting Holt, 574 U.S. at 361). Second, the inmate “must show that the government substantially burdened that religious exercise.” Id. Upon

satisfaction of these two steps, the burden then shifts

41a

to the government for the third act: it “must meet the

daunting compelling-interest and least-restrictivemeans test.” Id.

A.

We turn first to the sincerely-held-religious-belief

demonstration. “Courts are ‘to determine whether the

line drawn’ by the plaintiff between conduct consistent and inconsistent with her or his religious beliefs ‘reflects an honest conviction.’” New Doe Child #1

v. Cong. of U.S., 891 F.3d 578, 586 (6th Cir. 2018)

(quoting Hobby Lobby, 573 U.S. at 725). “Sincerity is

distinct from reasonableness.” Id. “[O]nce plaintiffs allege that certain conduct violates their sincerely held

religious beliefs as they understand them, it is not

within the court’s purview to question the reasonableness of those allegations,” id., or “to say that [plaintiffs’] religious beliefs are mistaken or insubstantial,”

Hobby Lobby, 573 U.S. at 725.

Although the district court only implicitly addressed plaintiffs’ sincerity, Fox, 2019 WL 1409375, at

*8, their satisfaction of this element is not at issue. A

“properly developed record” on the sincerity issue “includ[es] testimony from the inmates” and “reference

to religious texts.” Haight, 763 F.3d at 565–66. This

record—which the Department does not contest—

more than satisfies. Fox and Perreault testified that

they have adhered to Christian Identity for many

years, and they spoke in great detail, and, at times,

passionately, about their beliefs at trial. They also discussed the Bible, introduced other religious literature

into evidence, and testified that they follow the

42a

teachings of certain leaders of Christian Identity. 5

Moreover, plaintiffs have maintained this lawsuit for

over six years and have not wavered in their dedication to pursuing the relief they request, even as their

immediate circumstances have changed by way of

transfers to different correctional facilities. The record

thus contains a substantial amount of uncontested evidence showing that plaintiffs’ religious beliefs are

sincerely held. This is sufficient to satisfy step one of

RLUIPA.

B.

Under RLUIPA’s second step, plaintiffs must establish that the Department’s policy substantially

burdens their exercise of religion. 42 U.S.C. ｧ 2000cc1(a); Holt, 574 U.S. at 361. RLUIPA defines “religious

exercise” as “any exercise of religion, whether or not

compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A). And “the ‘exercise of religion’

often involves not only belief and profession but the

performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of

transportation.” Emp’t Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S. 872, 877 (1990), superseded on

5 A plaintiff’s personal religious beliefs need not be identical

to those espoused by the organized religion he follows. “[S]incerity rather than orthodoxy is the touchstone.” Haight, 763 F.3d at

567 (citation omitted). But cf. id. (“[A] prison still is entitled to

give some consideration to an organization’s tenets. For the more

a person’s professed beliefs differ from the orthodox beliefs of his

faith, the less likely they are to be sincerely held.” (citation omitted)).

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other grounds by statute. The record establishes that

the three activities at issue—observance of holidays,

observance of the Sabbath, and full-immersion baptism—fall within this “capacious[ ]” definition. Holt,

574 U.S. at 358.

RLUIPA does not provide a definition for the term

“substantial burden.” Neither has the Supreme Court.

But this court has spoken clearly on the substantialburden standard in several cases: “[T]he Government

substantially burdens an exercise of religion when it

‘places substantial pressure on an adherent to modify

his behavior and to violate his beliefs or effectively

bars his sincere faith-based conduct.’” New Doe, 891

F.3d at 589 (brackets and ellipsis omitted) (quoting

Haight, 763 F.3d at 565). This is an individualized inquiry. “The substantial-burden question turns on the

impact of a government regulation on the individual

inmate, not the centrality of those beliefs to canonical

texts as interpreted by judges or prison officials.”

Haight, 763 F.3d at 567 (emphasis and citation omitted). In other words, we focus not on the facial validity

of the Department’s policies, but rather on the validity

of those policies as applied to the two plaintiffs in this

individual action. See ｧ 2000cc-1(a) (“No government

shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.” (emphasis added)).

1.

We discuss the observance of the holidays and

sabbath together because they both focus on group

worship. Plaintiffs argue that the Department’s policy

substantially burdens their exercise of religion

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because it limits their access to group worship; for example, it has been said that a church is wherever two

or three gather to worship. See Matthew 18:20, and for

people of faith, group worship can be essential.

In the present case, the district court concluded

that “[n]one of the evidence plaintiffs have proffered

suffices to meet the particularized and relatively

heavy burden of proving that the lack of communal

worship creates substantial pressure to violate their

religious beliefs.” Fox, 2019 WL 1409375, at *8. But

the district court improperly considered the Department’s interests in safety and security in coming to

this conclusion, commenting that “[w]hile RLUIPA

provides certain protections to an inmate’s ability to

express his religious faith, it does not elevate accommodation of religious observances over an institution’s

need to maintain order and safety.” Id. (brackets omitted) (quoting Treece v. Burnett, 2007 WL 2815020, at

*6 (W.D. Mich., Sept. 25, 2007)). This consideration is

relevant at step three, not step two. Its inclusion in

the district court’s analysis indicates that the court

committed legal error by applying the wrong standard. See Jackson v. City of Cleveland, 925 F.3d 793,

813 (6th Cir. 2019); United States v. Conrad, 507 F.3d

424, 432 (6th Cir. 2007).

Moreover, our precedent demonstrates that, on

this record, plaintiffs met their burden under step two

of RLUIPA. Consider Cavin, where MDOC prevented

a Wiccan inmate from observing a holiday called Esbats with other Wiccan inmates. 927 F.3d at 458. This

caused him hardship, as he believed that “Esbat services have ‘more energy’ ‘when you have a collective of

Wiccans together.’” Id. The district court held a bench

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trial and found that the Department had not imposed

a substantial burden on Cavin’s religious exercise. Id.

We reversed. “Why? Because [MDOC’s policy] prevents the group worship Cavin seeks. ‘The greater restriction (barring access to the practice) includes the

lesser one (substantially burdening the practice).’” Id.

(quoting Haight, 763 F.3d at 565). So too here. Plaintiffs wish to worship as a group to observe the Sabbath

and holidays. Like Cavin, they “sincerely believe[ ]

[they] should celebrate [holidays] communally,” and

the Department prevented them from doing so. Id. at

459; see also Maye v. Klee, 915 F.3d 1076, 1083 (6th

Cir. 2019) (“Denying a Muslim inmate the opportunity

to partake in Eid would substantially burden his free

exercise rights, so Maye has alleged a deprivation of

his rights under the Free Exercise Clause.”); Whitney

v. Brown, 882 F.2d 1068, 1073 (6th Cir. 1989) (similarly finding a substantial burden for denying Jewish

prisoners’ participation in Passover Seder).

The Department responds that plaintiffs are not

“entirely prevented from observing their seven holy

days or communally meeting to worship. They just do

not like the way they [sic] that MDOC allows them to

do it.” That is, they may attend weekly worship services and observe their holidays with members of

other religions. According to the Department, plaintiffs’ “testimony may demonstrate that they have sincerely held religious beliefs regarding the need for

communal worship, but it does not demonstrate that

the denial of communal worship—with members of

only the Christian Identity faith—is a substantial burden.” The district court made a similar point. Fox,

2019 WL 1409375, at *8 (“[H]e has not explained how

congregate worship services are either required by his

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religion or would substantially further his exercise of

that religion beyond those things already permitted to

him.” (quoting Mann v. Wilkinson, No. 2:00- CV-0706,

2007 WL 4562634, at *4 (S.D. Ohio Dec. 21, 2007))).

The record betrays this argument. Fox and Perreault identified at least five reasons why they cannot

worship with members of the other religions discussed. First, they cannot worship with adherents of

Judaism because “the Jewish faith denies Jesus

Christ.” In its brief, the Department says that the two

religions could worship together but then suggests

that their differences might be too great by stating

multiple times that plaintiffs may observe the Sabbath and holidays “with other Christian denominations.” (Emphasis added.) Second, plaintiffs cannot

worship with adherents of Judaism or Seventh-day

Adventism because both of those religions calculate

their holidays using the lunar calendar, while Christian Identity uses the solar calendar. Third, Seventhday Adventists observe the Sabbath on a different day

of the week than Christian Identity. Fourth, Seventhday Adventists (and apparently several other Christian sects) use translations of the Bible that plaintiffs

consider “adulterated.” Fifth, these other religions

“don’t practice racial separatism.”

These facts combine to make Christian Identity

(as practiced by Fox and Perreault) significantly different from the comparators proposed by the Department. As the Southern District of Iowa aptly put it in

a First Amendment case,

The exercise of religion commonly involves

group worship, and when the only option

available for a prisoner is under the guidance

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of someone whose beliefs are significantly different from or obnoxious to his, the prisoner

has been effectively denied the opportunity for

group worship and the result may amount to

a substantial burden on the exercise of his religion.

Weir v. Nix, 890 F. Supp. 769, 788 (S.D. Iowa 1995)

(citations omitted), aff’d, 114 F.3d 817 (8th Cir. 1997).

This is not to say that two different religious groups

can never worship together in prison. In plaintiffs’

case, however, they have demonstrated that they cannot attend these other religions’ services according to

their sincerely held beliefs. They even both attempted

to worship with members of other religions but found

the differences too great to accept. Forcing plaintiffs

to choose between attending services on the “wrong”

days with individuals whose beliefs they find “obnoxious” and attending no group worship service at all

places “substantial pressure on [them] to modify

[their] behavior and to violate [their] beliefs.” 6 Haight,

763 F.3d at 565 (citation omitted). This would be no

different from only permitting Catholic inmates to celebrate Christmas in July or observe the Sabbath on

Thursdays. Thus, the Department “necessarily

place[d] a substantial burden on” plaintiffs’ religious

exercise. Id.

6 The district court additionally commented that “Mr. Per-

reault offers no specific dogma of the Christian Identity faith to

support his stated need for communal worship.” Fox, 2019 WL

1409375, at *7. He was not required to. The substantial burden

inquiry looks to the importance of religious beliefs to the individual, “not the centrality of those beliefs to canonical texts as interpreted by judges or prison officials.” Haight, 763 F.3d at 567.

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Additionally, the Department’s proposed alternative is similar to the “second-best option” of “celebrating in [one’s] cell” it raised in Cavin. 927 F.3d at 459.

We rejected that approach because it “reframes the

nature of what Cavin seeks to do: worship with others

according to his beliefs. When determining the substantiality of a burden, we cannot look to ‘whether the

RLUIPA claimant is able to engage in other forms of

religious exercise.’” Id. (quoting Holt, 574 U.S. at 362).

Take Haight, where we held prison officials’ allowance

of fry bread at “a faith-based once-a-year powwow” did

not excuse their decision to bar the Native American

inmates from having corn pemmican and buffalo

meat. Id. at 559, 565. Or Holt, where the Supreme

Court similarly concluded that prison officials’ allowance of a Muslim inmate to have a prayer rug and access to a religious advisor did not alleviate the substantial burden on his religious exercise they imposed

by barring him from growing a beard. Holt, 574 U.S.

at 361–62.

Another problem with the Department’s proposed

alternative is that, pursuant to another policy, inmates cannot select which religions’ services to attend

on a personal basis. According to Perreault, MDOC

only allows for one religious call-out, that is, an excuse

from one’s work detail. See Maye, 915 F.3d at 1082.

This is evidenced by the way the Department keeps

track of inmates’ religious beliefs. At some point after

Fox converted to Christian Identity, the Department

identified his religion as “Protestant” in a religious

preference form, over his objection. Fox explained that

“I refused to put that I had no preference on my religious preference form, so they marked me as

Protestant.” He refused to mark “no preference”

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“because [he has] a preference” and would “be lying if

[he] said [he] didn’t.” The form apparently didn’t have

a box for “other” or “not listed.” Later, when Fox requested that he be allowed to observe a Christian

Identity holiday, a chaplain responded that Fox “was

Protestant and there were no marked observations of

holy days for the Protestant religion.”

Nor are we persuaded by the Department’s contention that plaintiffs have not identified any other

adherents of Christian Identity with whom they seek

to worship at their current locations. See Fox, 2019

WL 1409375, at *7. MDOC points out that “as a matter of common sense, a single person cannot worship

communally.” But it is squarely responsible for this

situation. Plaintiffs were housed in the same prison

when they initially filed this lawsuit, and have been

transferred at least four times each in the years since.

And, as discussed above, the Department does not allow inmates to list Christian Identity on their religious preference form, so there is no reliable way to

know how many of its adherents are incarcerated at

any particular prison.

More importantly, RLUIPA does not require that

plaintiffs identify specific individuals with whom they

seek to worship. In Cavin, the plaintiff acknowledged

that “not all Wiccans celebrate Esbats communally,”

and merely stated that “he and other prisoners would

do so if given the chance.” 927 F.3d at 458. We found

this to be sufficient. After all, “[t]he substantial-burden question turns on the impact of a government regulation on the individual inmate.” Haight, 763 F.3d at

567 (emphasis omitted). No party suggests that the

Department must go out of its way to help adherents

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of Christian Identity find each other in its prisons or

transfer all of them to the same prison. Rather, the

Department has imposed a substantial burden on

plaintiffs’ religious exercise by denying them the opportunity to worship with other adherents of Christian Identity.

MDOC further states that, under a separate policy, it “does not offer group religious services ‘if there

are [fewer] than five prisoners within the same security level of that institution who actively participate

in the religious activities of a group.’” But “courts may

not reject RLUIPA claims based on government manuals alone.” Haight, 763 F.3d at 567. If four adherents

of Christian Identity at the same prison and security

level requested permission to worship as a group,

MDOC would have no more success hiding behind

that policy than they do here, where the religious

recognition policy is the one at issue. Courts would

have to run the same second-step analysis under

RLUIPA regardless of what a departmental policy or

manual says.

In sum, plaintiffs have met their burden under

step two to show that the Department has imposed a

substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays.

2.

The district court also ruled that “plaintiffs cannot

show that the non-recognition of the Christian Identity faith is the cause of their lack of access to total

immersion baptism.” Fox, 2019 WL 1409375, at *5.

Plaintiffs admit that the Department previously approved their requests to be baptized. However, the

51a

district court inadvertently disrupted their baptisms

by scheduling a settlement conference on the same

date. The district court denied plaintiffs’ RLUIPA

claim on this ground because the Department already

approved their requests once and “they have offered

nothing to suggest that the request would not be approved again if they are located at a prison facility

that can accommodate total immersion baptism.” Id.

at *8.

Without a stipulation from the Department, the

district court appeared to be speculating regarding

the likelihood of the Department’s future actions. Fox

testified to the following on direct examination:

Q Does the MDOC allow you to be baptized by

full-body immersion?

A They have not.

Q Why do they not allow it?

A Well, I was signed up and scheduled up

there at Chippewa, and I was transferred

down here before I was allowed and I’ve

been denied for several different reasons

since I’ve tried.

Q And what were some of those reasons?

A Chaplain Leslie told me that the Michigan

Department of Corrections was not a

church and they did not perform baptisms,

so they didn’t have to.

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But on redirect, counsel asked Fox if he “ever request[ed] to be baptized again” after the first attempt

was stymied. He answered, “I have not.”

In any case, plaintiffs have already made their request to be baptized; they are not required to renew

that request after their prior, unsuccessful attempt.

In the step-two context, it makes no difference

whether the Department previously approved their

request or not because, as a practical matter, the Department is still precluding plaintiffs from being baptized. In doing so, MDOC continues to impose a substantial burden on plaintiffs’ religious exercise. Again,

“[t]he greater restriction (barring access to the practice) includes the lesser one (substantially burdening

the practice).” Haight, 763 F.3d at 565.

C.

At step three of RLUIPA, the burden shifts to the

Department to make two showings. First, it must

prove that the imposition of the substantial burden on

plaintiffs’ religious exercise was “in furtherance of a

compelling governmental interest.” 42 U.S.C. §

2000cc-1(a)(1). Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.” §

2000cc-1(a)(2). The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will

remand the case to the district court to resolve the

point in the first instance.” Cavin, 927 F.3d at 459

(quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005)).

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On remand, the district court is directed to take

additional evidence as necessary, with the understanding that the Department will face a heavy burden at this step. See Yellowbear v. Lampert, 741 F.3d

48, 59 (10th Cir. 2014) (Gorsuch, J.) (“RLUIPA’s compelling interest test is a strict one: Congress borrowed

its language from First Amendment cases applying

perhaps the strictest form of judicial scrutiny known

to American law.”) And because “the government’s asserted interest ‘must be genuine, not hypothesized or

invented post hoc in response to litigation,’” Haight,

763 F.3d at 562 (quoting United States v. Virginia, 518

U.S. 515, 533 (1996)), MDOC will be limited to raising

the justifications it cited at the time it made the decision to deny plaintiffs’ request for recognition of Christian Identity: “(1) that the religious beliefs and practices of the Christian Identity religion can be adequately met by an existing recognized religious group;

and (2) that it would threaten the custody and security at all correctional facilities,” Fox, 2019 WL

1409375, at *1 (brackets, ellipsis, and internal quotation marks omitted). 7

Finally, we note plaintiffs’ baptism claim could be

mooted by MDOC giving plaintiffs the relief they requested. See, e.g., Cardinal v. Metrish, 564 F.3d 794,

798–99 (6th Cir. 2009). Given MDOC’s previous willingness to do so, we expect that it will be given

7 While McKee’s handwritten note explaining his decision

referenced only the “custody and security” interest, “Plaintiffs

conceded at the beginning of trial that MDOC had preserved both

bases for denial of plaintiffs’ request for recognition of the Christian Identity faith.” Fox, 2019 WL 1409375, at *1 n.1.

54a

another opportunity to accommodate

longstanding requests to be baptized.

plaintiffs’

IV.

For the reasons discussed above, we reverse the

district court’s judgment and remand for further proceedings consistent with this opinion.

55a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 19-1398

FILED

JAMES HARRISON

Feb

06, 2020

FOX; SCOTT DAVID

DEBORAH S. HUNT,

PERREAULT,

Clerk

Plaintiffs - Appellants,

v.

HEIDI E. WASHINGTON,

in her official capacity as Director of the Michigan

Department of Corrections,

Defendant - Appellee.

Before: GRIFFIN, STRANCH, and DONALD, Circuit

Judges.

JUDGMENT

On Appeal from the United States District Court for

the Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is REVERSED and REMANDED for further proceedings

consistent with the opinion of this court.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt

Deborah S. Hunt, Clerk

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES FOX #458647, et al.,

Plaintiffs,

v.

Hon. Phillip J. Green

Case No. 1:13-cv-01003-PJG

HEIDI WASHINGTON,

Defendant.

/

MEMORANDUM OPINION

This is a civil rights action brought by two state

prisoners pursuant to 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons

Act (RLUIPA), 42 U.S.C. § 2000cc, et seq. Plaintiffs

are prisoners James Fox and Scott Perreault. This

lawsuit arises out of conditions of their confinement.

When this action was filed, both plaintiffs were held

at the Richard A. Handlon Correctional Facility.

Currently, James Fox is a prisoner at Muskegon Correctional Facility and Scott Perreault is confined at

Lakeland Correctional Facility. By Stipulation,

plaintiffs have substituted current Michigan Department of Corrections (MDOC) Director Heidi

Washington in place of former defendant MDOC

Director Daniel Heyns. The parties have also

57a

stipulated to the dismissal without prejudice of claims

against defendants Cathleen Stoddard, Shawn

Young, and David Leslie. (ECF No. 111).

Plaintiffs challenge the denial of their request

to have the Christian Identity faith – their faith –

recognized. (Amend. Compl., ECF No. 15). Specifically, they allege that defendant has violated the Free

Exercise Clause of the First Amendment and RLUIPA

by: (1) denying them communal worship; (2) denying

them full-body immersion baptism; and (3) denying

them the ability to celebrate seven religious holidays

that are recognized by the Christian Identity faith.

(Id., PageID.44). Plaintiffs are seeking injunctive

relief requiring that the MDOC recognize the Christian Identity faith.

On August 13, 2018, this Court conducted a bench

trial. Plaintiffs filed a post- trial brief on October 15,

2018 (ECF No. 145), and defendant filed her post-trial

brief on November 20, 2018. (ECF No. 150). As

articulated herein, the Court finds for defendant on

both of plaintiffs’ claims.

Discussion

Plaintiffs assert that the Christian Identity faith

requires them to participate in communal worship

with racial separatism, to be baptized by full body immersion, and to observe certain religious holy days.

(See Pltfs’ Br. at 20-21, ECF No. 145, PageID.154445 (citing Trial Tr., ECF No. 141, PageID.1156-57,

1166, 1168, 1169, 1214)). Plaintiffs complain that

the lack of recognition precludes them from conducting religious services as proscribed by the Christian Identity faith, including their practice of

58a

excluding non-whites.

PageID.1545, 1547).

(See Pltfs’ Br. at 21, 23,

Defendant counters that plaintiffs’ request for the

recognition of the Christian Identity faith was denied

for two reasons: (1) that “the religious beliefs and

practices of the Christian Identity religion can be adequately met by an existing recognized religious

group”; and (2) that it would “threat[en] . . . the custody and security at all correctional facilities.” (Trial

Exh. A, Aug. 3, 2017, MDOC Memorandum; K. McKee,

Trial Tr. at 99-102, ECF No. 141, PageID.1235-38;

D. Leach, Trial Tr. at 118-19, PageID.1254-55). 1 The

decision regarding the adequacy of an existing religious group was based on the recommendation of the

Chaplaincy Advisory Council, 2 which opined that

“many core religious beliefs of the Christian Identity

religion are similar to those of other Christian religious groups recognized by the MDOC.” (Trial Exh.

A).

1 MDOC Deputy Director Kenneth McKee was the decisionmaker. His August 7, 2017, handwritten note explaining

his decision merely states: “I approve that the recognition of

this Christian Identity Religious group be denied due to the

threat to the custody and security at all correctional facilities.”

(Trial Exh. A). Plaintiffs conceded at the beginning of trial that

MDOC had preserved both bases for denial of plaintiffs’ request

for recognition of the Christian Identity faith. (See Trial Tr. at

12- 13, ECF No. 141, PageID.1148-49).

2 The

Chaplaincy Advisory Council consists of members

from various religious organizations representing different

belief systems. It provides advice and recommendations to

the MDOC concerning religious issues. (D. Leach, Trial Tr. at

114, ECF No. 141, PageID.1250).

59a

I.

Plaintiffs’ First Amendment Claims

The Supreme Court has observed that “convicted

prisoners do not forfeit all constitutional protections

by reason of their conviction and confinement in

prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979); see

also, Turner v. Safley, 482 U.S. 78, 84 (1987) (“[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution”).

Thus, while “lawful incarceration brings about the

necessary withdrawal or limitation of many privileges and rights,” inmates nevertheless retain the

First Amendment protection to freely exercise their

religion. See O’Lone v. Shabazz, 482 U.S. 342, 348

(1987). But “simply because prison inmates retain certain constitutional rights does not mean that these

rights are not subject to restrictions and limitations.”

Wolfish, 441 U.S. at 545. After all, operating a prison

is a difficult task requiring “expertise, planning, and

the commitment of resources, all of which are peculiarly within the province of the legislative and

executive branches of government.” Turner, 482 U.S.

at 85.

Accordingly, courts have consistently held that issues involving “the adoption and execution of policies

and practices that in [the] judgment [of prison officials] are needed to preserve internal order and

discipline and to maintain institutional security”

in most circumstances “should be accorded wideranging deference.” Flagner v. Wilkinson, 241 F.3d

475, 481 (6th Cir. 2001) (quoting Wolfish, 441 U.S. at

547); see also, Bazzetta v. McGinnis, 124 F.3d 774,

779 (6th Cir. 1997) (issues involving prison administration are properly resolved by prison officials,

60a

and the solutions at which they arrive should be accorded deference).

When reviewing an inmate’s claim of constitutional violation, courts must balance this policy of

judicial restraint with the need to protect inmates’

constitutional rights. See Turner, 482 U.S. at 85.

The standard by which this balancing occurs was

articulated by the Turner Court, which held that,

“when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”

Id. at 89. This standard represents a “reasonableness

test less restrictive than that ordinarily applied to

alleged infringements of fundamental constitutional

rights.” Flagner, 241 F.3d at 481 (quoting Shabazz,

482 U.S. at 349). The Turner Court identified four factors that are relevant in determining the reasonableness of a challenged prison regulation:

(1) there must be a valid, rational connection

between the prison regulation and the legitimate governmental interest put forward to justify it;

(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 generally; and

(4) whether there are ready alternatives available that fully accommodate the prisoner’s

61a

rights at a de minimus cost to valid penological interests.

Turner, 482 U.S. at 89-91.

Failure to satisfy the first factor renders the

regulation unconstitutional, without regard to the

remaining three factors. Id. at 89-90. If the first

factor is satisfied, the remaining three factors are considered and balanced together; however, they are “not

necessarily weighed evenly,” but instead represent

“guidelines” by which the court can assess whether

the actions at issue are reasonably related to a legitimate penological interest. Flagner, 241 F.3d at 484.

The Turner standard is not a “least restrictive alternative” test requiring prison officials “to set up and

then shoot down every conceivable alternative

method of accommodating the claimant’s constitutional complaint.” Turner, 482 U.S. at 90-91. Instead, the issue is simply whether the policy at issue

is reasonably related to a legitimate penological interest. Flagner, 241 F.3d at 484.

With respect to which party bears the burden concerning the Turner analysis, the Supreme Court has

held that “[t]he burden . . . is not on the State to

prove the validity of prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126,

132 (2003). This places on the prisoner the burden as

to the last three Turner factors, but says nothing as to

which party bears the burden as to the initial factor.

As subsequent courts have concluded, the burden to

articulate the rationale for a challenged action must

rest with prison officials. As the Sixth Circuit observed: “Defendants must still articulate their interest in the regulation . . . . Otherwise, a prisoner

62a

would be forced to hypothesize any number of

potential legitimate penological interests and then

disprove a reasonable relationship between each and

the regulation at issue.” Figel v. Overton, 121 Fed.

Appx. 642, 646 n.2 (6th Cir., Feb. 4, 2005) (internal

citations omitted); see also, Sharp v. Johnson, 669

F.3d 144, 156 (3d Cir. 2012) (“the prison has the

burden of demonstrating the First Turner Factor”).

Accordingly, the Court concludes that, with respect to the Turner factors, defendant bears the initial burden to articulate a valid, rational connection

between the challenged action and the legitimate

governmental interest that motivated it. This burden

is “slight, and in certain instances, the connection

may be a matter of common sense.” Johnson, 669

F.3d at 156.

David Leach is the MDOC’s Special Activities Coordinator. His responsibilities include making recommendations regarding the recognition of religious

groups. He made the recommendation to deny

plaintiffs’ request for the recognition of the Christian Identity faith, based in part on the opinion of

the Chaplaincy Advisory Council. Mr. Leach testified

that MDOC facilities have limited space and resources to accommodate religious groups. Accordingly, it is MDOC’s policy to combine generally

compatible religious groups – those that share “core

or primary beliefs” – for communal worship services.

(D. Leach, Trial Tr. at 111, 115-18, ECF No. 141,

PageID.1247, 1251-54).

MDOC Deputy Director Kenneth McKee has responsibility for overseeing the state’s thirty prisons,

including the maintenance of custody and security

63a

within each prison facility. He made the decision on

August 7, 2017, to deny plaintiffs’ request for the

recognition of the Christian Identity faith, which decision was based on Mr. Leach’s recommendations

outlined in his memorandum of August 3, 2017.

Mr. McKee testified that the benefit of the MDOC’s

recognition of a religious group is the ability to meet

as a group on a weekly basis. Those who adhere to unrecognized faiths are generally not otherwise prohibited from worshiping as they choose. (McKee, Trial Tr.

at 97-100, ECF No. 141, PageID.1233-36; Trial Exh.

A).

Mr. McKee deferred to the opinion of the

Chaplaincy Advisory Board in determining that the

beliefs of Christian Identify faith could adequately be

addressed through other recognized religious groups,

noting the expertise of the council in such matters. As

to the second reason for denying recognition of the

Christian Identity faith – racial violence – he noted

that, “[i]n prison, custody and security [are] first and

foremost.” (Id. at 101-02, 104, PageID.1237-38, 1240).

The MDOC has stated two significant institutional interests being served by its decision to deny

recognition of the Christian Identity faith: (1) limited

space and resources for accommodating communal

worship services; and (2) custody and security concerns relating to the potential for racial violence.

Plaintiffs do not appear to challenge the validity of the

space and resource concerns of the MDOC – at least

they have offered no evidence to challenge it. Plaintiffs affirmatively concede the legitimacy of the penological interest in the safety and security of

correctional facilities. (Pltfs’ Trial Br. at 17, ECF No.

64a

145, PageID.1541). Instead, plaintiffs argue that the

MDOC’s concerns for racial violence is so lacking in

factual foundation as to render its decision arbitrary

and capricious. (Id.). The Court disagrees.

Mr. Leach testified that he conducted internet

research on the Christian Identity faith. He found

a number of articles and reports relating to racial violence associated with that religion. These included

a 1999 FBI report, a 2016 Newsweek article, and a

1998 study conducted by the Southern Poverty Law

Center, all of which recounted violent acts committed

by adherents of the Christian Identity faith. Mr.

Leach testified that he found nothing throughout his

research to suggest that the Christian Identity faith

was no longer aligned with racial violence. (Leach,

Trial Tr. at 120-22, ECF No. 141, PageID.1256-58).

Plaintiffs acknowledged that the Christian Identity faith commands racial separatism. They testified that this command is biblically based, and it

prohibits them from marrying and worshiping with

non-white persons. They further testified, however,

that this racial separatism was different than racism,

and that their faith taught non-violence. (Perreault,

Trial Tr. at 35-39, ECF No. 141, PageID.1171-75;

Fox, Trial Tr. at 73-74, PageID.1209-10). Plaintiffs

offered a document written by a Christian Identity

pastor that included the following statement: “We do

teach that the white people are the Israelites of the Bible and are called to be the servant people of God. In

this capacity they built the churches, translated the

Bible, clothed the world and provided food. We do

teach white separatism.” (Trial Exh. 20, ¶ 5). Mr.

Perreault acknowledged that racial separatism was

65a

“a large component of the Christian Identity faith.”

(Perreault, Trial Tr. at 55-56, PageID.1191-92).

Plaintiffs’ contention that they hold no animus toward non-white persons, and that they have no hostile or violent intentions toward them, does not negate the MDOC’s legitimate concerns regarding the

safety and security of all prisoners and prison staff.

Even if plaintiffs (and other potential Christian

Identity adherents) never engage in acts of violence,

formal recognition of a religion that preaches racial

separatism creates a significant, inherent risk that

violence will occur. This risk is heightened by the fact

that Christian Identity faith does not simply preach

that races should be separated, but that the white

people are the only true descendants of the Israelites:

the chosen people of God. This is a form of white supremacy.

Other prisoners – particularly those of color – are

likely to be offended by this religious tenet. It would

not be unexpected, then, that the offense taken may

be sufficiently great that it would result in acts of violence against the members of the Christian Identity

faith. Common sense provides a sufficient basis to

find a rational connection between the recognition of

a white-supremacist religion and concerns about

maintaining custody and security within its prisons.

Cf. Johnson, 669 F.3d at 156 (The burden to articulate a valid, rational connection between the challenged action and the legitimate governmental interest motivating it is “slight, and in certain instances, the connection may be a matter of common

sense.”); see also Berryman v. Granholm, 343 Fed.

Appx. 1, 6 (6th Cir., Aug. 12, 2009) (noting that it is

66a

well recognized that prison officials have a legitimate interest in “maintaining discipline within the

prison.”).

In sum, defendant has established that there exists a valid, rational connection between the MDOC’s

decision not to recognize the Christian Identity faith

and the legitimate governmental interests put forward to justify that decision.

The Court will examine the remaining three

Turner factors together. That is, whether plaintiffs

have alternative means of practicing their faith;

what impact recognition of the Christian Identity

faith would have on prison guards and other inmates, as well as the allocation of prison resources;

and whether there are ready alternative means of

fully accommodating plaintiffs’ stated religious needs

at a de minimus cost to the MDOC’s penological

interests. Turner, 482 U.S. at 89-91. Plaintiffs bear

the burden of demonstrating under these factors

that the MDOC’s decision not to recognize the Christian Identity faith was unreasonable. See Overton,

539 U.S. 126, 132 (2003).

Plaintiffs have failed to meet their burden here,

as every factor militates in favor of the MDOC’s decision. As noted above, there is no way to formally recognize the Christian Identity faith without creating

an inherent risk of violence within the prison population. Moreover, as MDOC Deputy Director McKee

noted, the import of the lack of formal recognition is

simply that Christian Identity adherents cannot meet

for group worship. Plaintiffs are not otherwise deprived of the ability to practice their faith.

67a

The Christian Identity faith recognizes seven religious holy days: Passover, the Feast of Unleavened

Bread, Pentecost, Trumpets, the Day of Atonement,

the Feast of Tabernacles, and the Last Great Day.

(Perreault, Trial Tr. at 24, ECF No. 141,

PageID.1160). Mr. Perreault testified that the Seventh Day Adventist denomination – an MDOC-recognized faith – observes these holy days. But he

contended that he cannot celebrate the holy days with

them because the Seventh Day Adventists recognize

a Saturday sabbath, while the Christian Identity

faith celebrates the sabbath on Sundays. (Id. at 2531, PageID.1161-67). He failed to explain, however,

how the sabbath distinction necessarily precludes him

from joining with another denomination in the celebration of a holy day. 3 In other words, he does not cite

to any tenet of the Christian Identity faith that affirmatively forbids him from celebrating a holy day with

the Seventh Day Adventists, other than the fact that

the Seventh Day Adventists are not racial separatists.

Plaintiffs have failed to demonstrate how the

non-recognition of their faith precludes them from individually observing the holy days. To the extent they

need a special diet for such celebrations, that issue is

not properly before the Court. Their complaint regarding the celebration of the holy days primarily

centers on their interests in celebrating them

3 Mr. Perreault noted that the Christian Identity faith calculates

its holy days using a solar calendar, and that “the others use a

lunar calendar.” (Perreault, Trial Tr. at 29, ECF No. 141,

PageID.1165). He did not specify whether the Seventh Day

Adventists are among “the others”; nor does he explain how the

use of the different calendars preclude the joint celebration of

the seven holy days.

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communally. That presents a serious impediment, of

course, because the Christian Identity adherents restrict their services to whites only, which implicates

the MDOC’s heightened interest in protecting the

safety of its prisoners and guards.

Lastly, plaintiffs cannot show that the nonrecognition of the Christian Identity faith is the

cause of their lack of access to total immersion baptism. 4 To the contrary, such recognition is not required to obtain permission for this form of baptism. (See Leach, Trial Tr. at 123-24, ECF No. 141,

PageID.1259-60). Both plaintiffs have acknowledged

that the MDOC previously granted their respective

requests for total immersion baptism while they were

incarcerated at the Chippewa Correctional Facility.

(Perreault, Trial Tr. at 34, PageID.1170; Fox, Trial

Tr. at 88, 93, PageID.1224, 1229). Unfortunately,

plaintiffs were transferred to a downstate prison to

attend a court date in this case before the baptisms

could be performed. (Perreault, Trial Tr. at 34,

PageID.1170).

In conclusion, defendant has established that

there exists a valid, rational connection between the

MDOC’s decision not to recognize the Christian Identity faith and its legitimate interests in preserving

limited resources and in maintaining the security of

its prisons. Cf. Bruton v. McGinnis, 110 F.3d 63,

1991 WL 139797 (6th Cir. 1997) (unpublished)

4 Mr. Perreault acknowledged that he had been a member of

the Christian Identity faith for approximately thirteen years before he entered prison, and that he had not requested baptism

during that period. (Perreault, Trial Tr. at 45-46, ECF No. 141,

PageID.1181-82).

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(upholding the validity of MDOC restrictions

against Christian Identity religious materials and services, noting MDOC’s limited ability to accommodate

every religious group, the reasonableness of

providing adequate “generic” religious services, and

the risk of violence resulting from the whitesupremacist tenets of the religion). Plaintiffs have

failed to meet their burden of demonstrating that

the decision not to recognize the Christian Identity

faith is otherwise unreasonable. Accordingly, the

Court finds for defendant on plaintiffs’ First Amendment claim.

II. Plaintiffs’ RLUIPA Claim

RLUIPA prohibits any government from imposing

a “substantial burden on the religious exercise” of a

prisoner, unless such burden constitutes the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a). The statute

does not define the term “substantial burden.”

Moreover, neither the Supreme Court nor the Sixth

Circuit appears to have precisely defined the term, at

least within the institutionalized-persons context.

The Supreme Court came close in Holt v. Hobbs, holding that a prison grooming policy limiting beardgrowth to a half inch placed a substantial burden on a

Muslim prisoner’s exercise of his religion, as it required him “to ‘engage in conduct that seriously violates [his] religious beliefs.’ ”

U.S.

, 135 S. Ct.

853, 862 (2015) (quoting Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. , 134 S. Ct 2751, (2014)). But

the Holt decision did not define substantial burden.

Rather, it “explained that the ability to engage in

other religious practices did not prevent a prisoner

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from making a substantial-burden claim as to the

rule against growing a half-inch beard.” Livingston

Christian Schools v. Genoa Charter Township, 858

F.3d 996, 1001-02 (6th Cir. 2017).

In Livingston Christian Schools, the Sixth Circuit addressed the question of substantial burden

within the context of land-use restrictions. See 858

F.3d at 998. The context matters, as there are significant differences between the burdens placed on religious institutions through land-use restrictions and

the burdens prison policies place on the exercise of

prisoners’ religious beliefs. See id. at 1003-04 (“Other

circuits have persuasively explained that land-use

restrictions do not typically compel plaintiffs to

‘violate their beliefs’ in the way that, for example,

prison rules might require an inmate to engage in conduct that goes against his or her religious tenets.” (citations omitted)). The Sixth Circuit noted, however,

that “a burden must have some degree of severity

to be considered ‘substantial.’ ” Id. at 1003 (citing

Int’l Church of the Foursquare Gospel v. City of San

Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (explaining that substantial burden “must impose a

significantly great restriction or onus upon [religious] exercise” (internal citation omitted)); Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1227 (11th Cir. 2004) (concluding that a substantial

burden is “more than inconvenience”)). That a substantial burden would involve some degree of severity

is a principle that would apply to prisoners as well as

religious institutions.

Both parties in this case rely on the analysis

of substantial burden in an unpublished decision,

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Living Water Church of God v. Charter Township of

Meridian, 258 Fed. App’x 729 (6th Cir. 2007). (See

Pltfs’ Br. at 19, ECF No. 145, PageID.1543; Def’s Br.

at 8, ECF No. 150, PageID.1617). Like Livingston

Christian Schools, the Living Water decision involved a RLUIPA challenge to a land-use restriction.

In Living Water, the Sixth Circuit declined to establish a “bright line test,” opting instead for a

“framework” by which the facts of the case could be analyzed in the land- use restriction context. 258 Fed.

Appx at 737. That framework came under some criticism in the Livingston Christian Schools decision, see

858 F.3d at 1003; moreover, it is not particularly helpful here.

Instead, the parties rely on dicta from the Living

Water decision for a working definition of substantial

burden. In that dicta, the Sixth Circuit indicated

that the term “substantial burden” should be analyzed

under Supreme Court precedent in the “Free Exercise”

context, noting the “hurdle is high and that determining its existence is fact intensive.” Living Water, 258

Fed. Appx at 733-34. The court noted, among other

things, that “the Supreme Court generally has found

that a government’s action constituted a substantial

burden on an individual’s free exercise of religion

when . . . the action in question placed ‘substantial

pressure on an adherent to modify his behavior and to

violate his beliefs’.” Id. at 734 (quoting Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707,

717-18 (1981)). The Sixth Circuit also noted that the

Supreme Court “has found no substantial burden

when, although the action encumbered the practice of

religion, it did not pressure the individual to violate

his or her religious beliefs.” Living Water, 258 Fed.

72a

Appx at 734 (citing Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 449 (1988); Braunfeld

v. Brown, 366 U.S. 599, 605-06 (1961)). These principles are consistent with decisions from other courts

of appeal that have addressed the definition of “substantial burden.” See Lovelace v. Lee, 472 F.3d 174,

187 (4th Cir. 2006) (“ ‘substantial pressure on an

adherent to modify his behavior and to violate his beliefs’ ” (quoting Thomas, 450 U.S. at 718)); Adkins v.

Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (a burden

that “truly pressures the adherent to significantly

modify his religious behavior and significantly violate

his religious beliefs”); Midrash Sephardi, 366 F.3d at

1227 (“result[ing] from pressure that tends to force

adherents to forego religious precepts or . . . [tends

to] mandate [ ] religious conduct”); San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024,

1034 (9th Cir. 2004) (“a significantly great restriction

or onus upon [religious] exercise”); Civil Liberties for

Urban Believers v. City of Chicago, 342 F.3d 752, 761

(7th Cir. 2003) (“[a burden] that necessarily bears

direct, primary, and fundamental responsibility for

rendering religious exercise . . . effectively impracticable”); see also Cutter v. Wilkinson, 544 U.S. 709,

720 (2005) (recognizing that RLUIPA’s institutionalized persons provision was intended to alleviate

only “exceptional” burdens on religious exercise).

This Court adopts the principles outlined above

in analyzing the burden the MDOC’s decision not to

recognize the Christian Identity faith has on plaintiffs’ exercise of their religious faith. Plaintiffs bear

the burden to establish that their ability to exercise

their religious beliefs has been substantially

73a

burdened. 42 U.S.C. § 2000cc-2(b); Holt v. Hobbs, 135

S. Ct. at 862.

On the record before this Court, plaintiffs have

failed to meet their burden of establishing that the

non-recognition of the Christian Identity faith substantially burdens their exercise of that religion. This

is true with respect to each of plaintiffs’ stated need

for communal worship, the celebration of the seven

holy days, and total immersion baptism.

Neither plaintiff has identified another member of

the Christian Identity faith who is currently housed

in the same facility. Mr. Perreault resides at the

Lakeland Correctional Facility, while Mr. Fox is an

inmate at the Muskegon Correctional Facility. Even

when they were housed in the same facility, at the time

they filed their amended complaint, they did not

allege the presence of other members of the Christian Identity faith, let alone have they offered anything to suggest that other inmates were interested

in communal services. (See Amend. Compl., ECF No.

15).

Moreover, neither plaintiff has provided any specifics regarding the need for weekly communal services, much less have they provided an explanation of

the rites associated with those services. When asked

for the basis of his requirement to attend communal

services, Mr. Perreault cited simply to the Fourth

Commandment’s requirement to honor the sabbath,

and Jesus Christ’s declaration that, “where two or

more are gathered in His name, there He is among

you.” He explained that the services would last approximately 120 minutes, and that the benefit of

communal worship is “protection for the body and the

74a

family of believers against the attacks of the devil.”

(Perreault, Trial Tr. at 32-33, ECF No. 141,

PageID.1168-69). Mr. Perreault offers no specific

dogma of the Christian Identity faith to support his

stated need for communal worship.

Similarly, Mr. Fox cited as the basis for his need

for communal worship only his spiritual edification

and some undefined biblical command. He testified

simply that the lack of communal worship “takes

away from [his] connection to fellow believers as

well as God.” Mr. Fox also cited to a letter from a

Christian Identity pastor – one whose directions he

would follow concerning the practice of the faith – in

which the pastor stated: “ ‘It is very necessary for

anyone associated with the Church of Israel to be

in compliance with the dietary requirements, baptism by immersion, observance of the Biblical sabbath

and holy days, as well as other Biblical requirements.’

” (Fox, Trial Tr. at 76-78, 80-81, ECF No. 141,

PageID.1212-14, 1216-17). 5

None of the evidence plaintiffs have proffered

suffices to meet the particularized and relatively

heavy burden of proving that the lack of communal

worship creates substantial pressure to violate their

religious beliefs. Cf. Living Water, 258 Fed. Appx at

733-34. This is not to say that plaintiffs’ stated interests in attending communal services under the Christian Identity faith are insincere. Their testimony is

simply insufficient to prove that the specific requirements for communal services are sufficiently unique

5 The Christian Identity faith is also known as the Church of Is-

rael. (See Perreault, Trial Tr. at 36-37, ECF No. 141,

PageID.1172-73).

75a

to require recognition separate from other Protestant

denominations. See Small v. Lehman, 98 F.3d 762,

767 (3d Cir. 1996) (“The State does not have an affirmative duty to provide every prison inmate with

. . . the [religious] service of his choice.”), overruled

on other grounds by City of Boerne v. Flores, 521 U.S.

507 (1997).

In Mann v. Wilkinson, the Southern District

of Ohio granted summary judgment against a similar RLUIPA claim brought by a Christian Identity

prisoner. Case No. 2:00-cv-0706, 2007 WL 4562634

(S.D. Ohio). Like the plaintiffs here, the prisoner in

the Mann case alleged that his need for congregate

worship could not adequately be satisfied by attending general Protestant services. Mr. Mann cited differences in certain religious tenets and the fact that

Christian Identity adherents would find the participation of homosexuals and members of minority

groups offensive. The district court concluded that Mr.

Mann had failed to make an adequate showing that

the denial of communal worship substantially burdened the exercise of his faith:

The primary basis for this conclusion is that

Mr. Mann has not identified any other members of that church who are imprisoned at

the [same facility] and who would attend

such congregate worship service. Further, he

has not explained how congregate worship

services are either required by his religion

or would substantially further his exercise

of that religion beyond those things already

permitted to him.

76a

Id. at *4. This Court finds the Mann analysis persuasive.

Plaintiffs complaint regarding the seven holy days

fairs no better. As discussed above, the issue relating

to the celebration of the holy days centers on plaintiffs’ interest in participating in communal services

under the Christian Identity faith. That interest runs

into the same obstacle as the communal weekly celebration of the sabbath. See Treece v. Burnett, 2007 WL

2815020, at *6 (W.D. Mich., Sept. 25, 2007) (“While

RLUIPA provides certain protections to an inmate’s

ability to express his religious faith, [it] does not elevate accommodation of religious observances over an

institution’s need to maintain order and safety.”).

Plaintiffs have not otherwise met their burden of

demonstrating that the nonrecognition of the Christian Identity faith substantially interferes with their

ability to observe the holy days.

Finally, as discussed above, plaintiffs cannot

demonstrate that the nonrecognition of their faith

precludes them from being baptized by total immersion. They have already had such a request approved, and they have offered nothing to suggest that

the request would not be approved again if they are

located at a prison facility that can accommodate total

immersion baptism.

Accordingly, the Court finds for Defendants on

Plaintiff’s RLUIPA claims.

77a

Conclusion

For the reasons articulated herein, the Court finds

for defendant on plaintiffs’ First Amendment and

RLUIPA claims. A judgment consistent with this

opinion will enter in defendant’s favor.

Date: March 27, 2019

/s/Phillip J. Green

PHILLIP J. GREEN

United States Magistrate Judge

78a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES FOX and

SCOTT DAVID PERREAULT,

Plaintiffs,

v.

File No. 1:13-CV-1003

HON. ROBERT HOLMES BELL

DANIEL HEYNS, CATHLEEN STODDARD,

SHAWN YOUNG, and DAVID LESLIE,

Defendants.

/

MEMORANDUM OPINION AND ORDER

This is a civil rights action brought by two state

prisoners pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. § 2000cc. On February 26, 2014,

the Magistrate Judge issued a Report and Recommendation (“R&R”) (ECF No. 29) recommending that Defendants’ Motion for Summary Judgment (ECF No.

18) be granted, that the state claims alleged by Plaintiffs be dismissed for failure to exhaust administrative

remedies pursuant to 42 U.S.C. § 1997a(a), and for

mootness. Plaintiffs filed Objections to the R&R. (ECF

No. 26, 27.)

In accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Procedure 72(b)(3), the Court has

79a

performed de novo consideration of those portions of

the R&R to which objections have been made. “[A]

general objection to a magistrate’s report, which fails

to specify the issues of contention, does not satisfy the

requirement that an objection be filed. The objections

must be clear enough to enable the district court to

discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.

1995) (citing Howard v. Sec’y of Health & Human

Servs., 932 F.2d 505, 508-09 (6th Cir. 1991)). The

Court may accept, reject, or modify any or all of the

Magistrate Judge’s findings or recommendations. Id.

After conducting a de novo review of the R&R, Plaintiff’s Objections, and the pertinent portions of the record, the Court adopts in part and rejects in part the

R&R.

A. Exhaustion of Administrative Remedies

The R&R concluded that Defendants’ motion for

summary judgment should be granted because Plaintiffs failed to properly exhaust their administrative

remedies against Defendants. The R&R concluded

that Plaintiff Perreault did not exhaust his retaliation

claim against Young (R&R at 16) and that Plaintiffs

failed to exhaust their grievances regarding MDOC’s

recognition of Christian Identity as a faith group

(R&R at 16). Plaintiffs object that they did properly

exhaust their claims against all Defendants.

Pursuant to the applicable portion of the Prison

Litigation Reform Act (PRLA), 42 U.S.C. § 1997e(a), a

prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust his available administrative remedies. See Porter v. Nussle,

534 U.S. 516, 532 (2002). The Prison Litigation

80a

Reform Act exhaustion requirement “requires proper

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).

A prisoner must first exhaust available administrative remedies, even if the prisoner may not be able to

obtain the specific type of relief he seeks in the state

administrative process. See Porter, 534 U.S. at 520.

A prisoner’s failure to exhaust his administrative

remedies is an affirmative defense, which Defendants

have the burden to plead and prove. Jones v. Bock, 549

U.S. 199, 216 (2007). “[N]o unexhausted claim may be

considered.” Id. at 220. The Supreme Court held that

when a prisoner complaint contains both exhausted

and unexhausted claims, the lower courts are required to dismiss the unexhausted claims and proceed

to address only the exhausted claims. Id. at 222.

Proper exhaustion entails compliance with the

relevant state agency’s deadlines and other critical

procedural rules. See Woodford, 548 U.S. at 90-91. As

noted by the Magistrate Judge, the relevant state

rules are set forth in MDOC’s Policy Directive (“PD”)

03.02.130 (effective 2007), which establishes the requirements for pursuing a grievance through a Step

III appeal.

Defendants claim that Plaintiffs failed to exhaust

their available administrative remedies because

Plaintiffs failed to name particular Defendants in

every grievance. The Sixth Circuit confronted a similar issue in Reed-Bey v. Pramstaller, 603 F.3d 322, 326

(6th Cir. 2010), and squarely held that a prisoner has

properly exhausted his administrative remedies

where he invokes the grievance process through completion and receives a merit-based response at each

step. If the State declines to enforce its own

81a

procedural rule that a prisoner identify individual officials by name, the Court will treat the procedural defense as waived. Id.

Plaintiffs’ grievances specifically identify Defendant Leslie and prisoner administrators, and Plaintiffs’

appeals also identify Deputy Warden Young, Warden

Stoddard, and Director Heyns. (Fox Grievances MTU13-03-00343-020z, MTU-13-03-00344-020b Step III

Appeal, ECF No. 19, Page ID#91; Perreault Grievances MTU-13-03-00287-020b Step III - Reason for

Appeal, ECF No. 19, Page ID#109; MTU-13-03-00285020d Step III - Reason for Appeal, ECF No. 19, Page

ID#113; MTU-13-03-02686-020a Step III - Reason for

Appeal, ECF No. 19, Page ID#117.) At each step of the

grievance process, MDOC addressed the merits of

Plaintiffs’ grievances and appeals without raising a

procedural bar to the grievance for failure to name

particular individuals. Thus, Plaintiffs properly exhausted their administrative remedies before filing

their complaint against Defendants. See Sweezer v.

Heyns, No. 13-CV-14382, 2015 WL 417532, at *3-4

(E.D. Mich. Jan. 31, 2015) (following Reed-Bey v.

Pramstaller to find that the plaintiff’s failure to include defendant’s names in his grievance precludes

federal review where the defendants addressed the

merits of his grievance);Christian v. Mich. Dep’t of

Corr. Health Servs., No. 12-CV-12936, 2013 WL

5348832, at *4-5 (E.D. Mich. Sept. 24, 2013) (same);

Murray v. Guernsey, No. 1:11-CV-1045, 2012 WL

2417651, at *1 (W.D. Mich. June 26, 2012) (Quist, J.)

(same).

The merits-based responses that Plaintiffs received from their grievances address the same

82a

allegations made towards Defendants in Plaintiffs’

complaint. Therefore, Plaintiffs’ objection is granted

and the Court declines to adopt this portion of the

R&R.

As to Plaintiff Perreault’s retaliation claims

against Defendant Young, Defendants have not

moved to dismiss that claim for failure to exhaust.

Thus, Plaintiffs’ objection is granted and the Court declines to adopt this portion of the R&R.

B. Mootness

Plaintiffs object to the Magistrate Judge’s conclusion that Plaintiffs’ claims against Defendants

Stoddard, Young, and Leslie are moot. Plaintiffs point

out that the conditions complained of exist at every

prison within Michigan because MDOC does not recognize the Christian Identity faith. Therefore, Plaintiffs will be subject to First Amendment and RLUIPA

violations at every facility to which they are transferred, but they would be required to re-intiate their

grievance at each facility. See Goeber v. Lee Cnty., 510

F.3d 1312, 1323 (11th Cir.2007) (“If we allowed jails

and prisons to play hide-and-seek with administrative

remedies, they could keep all remedies under wraps

until after the lawsuit is filed and then uncover them

and proclaim that the remedies were available all

along.”)

The Magistrate Judge’s discussion of mootness

was made sua sponte. Granting summary judgement

sua sponte may be appropriate where “the losing party

was on notice that it had to come forward with all of

its evidence [and had a] reasonable opportunity to respond to all the issues to be considered by the court.”

83a

Bennet v. City of Eastpointe, 410 F.3d 810, 816 (6th

Cir. 2005) (quoting Shelby Cnty. Health Care Corp. v.

S. Council of Indus. Workers Health & Welfare Trust

Fund, 203 F.3d 926, 931 (6th Cir. 2000)). Plaintiffs did

not have that opportunity in this case. Because Plaintiffs’ complaints are targeted at statewide MDOC policies, the Court declines to find that Plaintiffs’ claims

are moot without further briefing on the issue. See

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

(ruling that requests directed at the facility’s policies,

and not at MDOC “as a whole,” were moot upon complainant’s transfer from the facility).

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ Objections (ECF No. 26) are GRANTED.

IT IS FURTHER ORDERED that the Magistrate Judge’s R&R (ECF No. 29) is REJECTED IN

PART and ADOPTED IN PART.

IT IS FURTHER ORDERED that Defendants’

Motion for Summary Judgment (ECF No. 18) is DENIED.

Date: May 7, 2015

/s/ Robert Holmes Bell

ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE

84a

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES FOX,

# 458647, et al.,

)

)

)

Plaintiffs, ) Case No. 1:13-cv-1003

)

v.

) Honorable Robert Holmes

) Bell

DANIEL HEYNS, et al., )

) REPORT AND

) RECOMMENDATION

Defendants. )

)

This is a civil rights action brought by two state

prisoners pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act

(RLUIPA). The plaintiff’s are prisoners James Fox

and Scott Perreault. This lawsuit arises out of conditions of their confinement in 2013 at the Richard A.

Handlon Correctional Facility (MTU). Plaintiffs

named the Director of the Michigan Department of

Corrections (MDOC) Daniel Heyns and three MDOC

employees at MTU as defendants: Warden Cathleen

Stoddard, Deputy Warden Shawn Young, and Chaplain David Leslie.

Plaintiffs allege that they have been “denied

recognition of Christian Identity Faith at the institutional level, all the way up to the Director’s Office.”

(Am. Compl. ¶ IV, docket # 15, Page ID 44). They

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allege that defendants have violated their First

Amendment rights. (Id.). Plaintiff Perreault alleges

that defendant Young violated his First Amendment

rights on November 4, 2013, by subjecting Perreault

to a retaliatory transfer. (Id. at Page ID 46). Plaintiffs

seek injunctive relief compelling the MDOC to recognize the “Christian Identity Faith” and recognize a series of “holy days” and baptism by full body immersion. (Id. at Page ID 45). Plaintiff Perreault seeks an

injunction compelling defendants to transfer him to a

“down state” prison. (Id. at Page ID 47).

The matter is now before the court on defendants’

motion for summary judgment based on the affirmative defense provided by 42 U.S.C. § 1997e(a). (docket

# 18). Plaintiffs have filed their response. (docket #

21). For the reasons set forth herein, I recommend

that all plaintiffs’ claims against MTU defendants

Stoddard, Young, and Leslie be dismissed because

they are moot. I recommend that defendants’ motion

for summary judgment be granted and that all plaintiffs’ claims against defendants be dismissed.

Applicable Standards

A. Summary Judgment Standard

Summary judgment is appropriate when the record reveals that there are no genuine issues as to any

material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.

56(c); Griffin v. Hardrick, 604 F.3d 949, 953 (6th Cir.

2010). The standard for determining whether summary judgment is appropriate is “whether ‘the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that

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one party must prevail as a matter of law.’” Moses v.

Providence Hosp. Med. Centers, Inc., 561 F.3d 573, 578

(6th Cir. 2009) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Pluck v. BP Oil Pipeline Co., 640 F.3d 671,

676 (6th Cir. 2011).

When the party without the burden of proof seeks

summary judgment, that party bears the initial burden of pointing out to the district court an absence of

evidence to support the nonmoving party’s case, but

need not support its motion with affidavits or other

materials “negating” the opponent’s claim. See Morris

v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th

Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d

751, 761 (6th Cir. 2005). Once the movant shows that

“there is an absence of evidence to support the nonmoving party’s case,” the nonmoving party has the

burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations of his

pleadings. FED. R.CIV. P. 56(e); see Everson v. Leis,

556 F.3d 484, 496 (6th Cir. 2009). The motion for summary judgment forces the nonmoving party to present

evidence sufficient to create a genuine issue of fact for

trial. Street v. J.C. Bradford & Co., 886 F.2d 1472,

1478 (6th Cir. 1990); see Newell Rubbermaid, Inc. v.

Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A

mere scintilla of evidence is insufficient; ‘there must

be evidence on which a jury could reasonably find for

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the [non-movant].’” Dominguez v. Correctional Med.

Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see LaQuinta Corp. v. Heartland Properties LLC, 603 F.3d 327, 335 (6th Cir.

2010).

A moving party with the burden of proof faces a

“substantially higher hurdle.” Arnett v. Myers, 281

F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County

Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). The

moving party without the burden of proof needs only

show that the opponent cannot sustain his burden at

trial. “But where the moving party has the burden -the plaintiff on a claim for relief or the defendant on

an affirmative defense -- his showing must be sufficient for the court to hold that no reasonable trier of

fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

1986) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)).

The Court of Appeals has repeatedly emphasized that

the party with the burden of proof faces “a substantially higher hurdle” and “‘must show that the record

contains evidence satisfying the burden of persuasion

and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.’” Arnett, 281

F.3d at 561 (quoting 11 JAMES WILLIAM MOORE,

ET AL., MOORE’S FEDERAL PRACTICE §56.13[1],

at 56-138 (3d ed. 2000)); see Surles v. Andison, 678

F.3d 452, 455-56 (6th Cir. 2012); Cockrel, 270 F.2d at

1056. Accordingly, a summary judgment in favor of

the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different

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interpretations or inferences by the trier of fact.” Hunt

v. Cromartie, 526 U.S. 541, 553 (1999).

B. Standards Applicable to the Affirmative

Defense of Failure to Exhaust Remedies

Defendants have asserted the affirmative defense

of plaintiff’s failure to exhaust administrative remedies. A prisoner bringing an action with respect to

prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. 42 U.S.C. §

1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007);

Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v.

Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the

prisoner may not be able to obtain the specific type of

relief he seeks in the state administrative process. See

Porter, 534 U.S. at 520; Booth, 532 U.S. at 734. “This

requirement is a strong one. To further the purposes

behind the PLRA, exhaustion is required even if the

prisoner subjectively believes the remedy is not available, even when the state cannot grant the particular

relief requested, and even where the prisoner[ ] believes the procedure to be ineffectual or futile.” Napier

v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir.

2011) (internal quotations and citations omitted).

In Jones v. Bock, the Supreme Court held that “exhaustion is an affirmative defense, and prisoners are

not required to specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216. The

burden is on defendants to show that plaintiff failed

to properly exhaust his administrative remedies. The

Supreme Court reiterated that “no unexhausted claim

may be considered.” 549 U.S. at 220. The Court held

that when a prisoner complaint contains both

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exhausted and unexhausted claims, the lower courts

should not dismiss the entire “mixed” complaint, but

are required to dismiss the unexhausted claims and

proceed to address only the exhausted claims. 549

U.S. at 219-24.

In order to exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Jones

v. Bock, 549 U.S. at 218-19. In Woodford v. Ngo, 548

U.S. 81 (2006), the Supreme Court held that the PLRA

“requires proper exhaustion.” 548 U.S. at 93. “Proper

exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules.” Id. at

90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir.

2009). Thus, when a prisoner’s grievance is rejected

by the prison as untimely because it was not filed

within the prescribed period, the prisoner’s claim is

not “properly exhausted” for purposes of filing a section 1983 action in federal court. 548 U.S. at 90-93;

Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011);

see 42 U.S.C. § 1997e(a). The procedural bar does not

apply where the State declines to enforce its own procedural rules. See Reed-Bey v. Pramstaller, 603 F.3d

322, 324–25 (6th Cir. 2010).

MDOC Policy Directive 03.02.130 (effective July

9, 2007) sets forth the applicable grievance procedures. 1 In Sullivan v. Kasajaru, 316 F. App’x 469, 470

(6th Cir. 2009), the Sixth Circuit held that this policy

directive “explicitly required [the prisoner] to name

1 A copy of the policy directive is found in the record. See

docket # 19-2, Page ID 72-78.

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each person against whom he grieved,” and it affirmed

the district court’s dismissal of a prisoner’s claim for

failure to properly exhaust his available administrative remedies. Id. at 470.

Policy Directive 03.02.130 is not limited to the requirement that the individual being grieved be named

in the Step I grievance. The following is an overview

of the grievance process. Inmates must first attempt

to resolve a problem within two business days of becoming aware of the grievable issue, unless prevented

by circumstances beyond his control. Id. at ¶ P. If the

mandatory pre-grievance attempt at resolution is unsuccessful, the inmate may proceed to Step I of the

grievance process and submit a completed grievance

form within five business days of the attempted resolution. Id. The Policy Directive also provides the following directions for completing Step I grievance

forms: “The issues should be stated briefly but concisely. Information provided is to be limited to the

facts involving the issue being grieved (i.e., who, what,

when, where, why, how). Dates, times, places, and

names of all those involved in the issue being grieved

are to be included.” Id. at ¶ R (emphasis in original).

Thus, where an individual is not named in the Step I

grievance, or his or her involvement in the issue being

grieved is not indicated, or the individual is mentioned for the first time during an appeal of a denial

of a grievance, the claims against that individual are

not properly exhausted. See Ketzner v. Williams, No.

4:06-cv-73, 2008 WL 4534020, at * 16 (W.D. Mich.

Sept. 30, 2008) (collecting cases); accord Sullivan v.

Kasajaru, 316 F. App’x at 470.

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The inmate submits the grievance to a designated

grievance coordinator who makes an initial determination whether it should be rejected under MDOC policy or assigns it to a respondent. P.D. 03.02.130 at ¶¶

W, X. If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may

appeal to Step II by obtaining an appeal form within

ten business days of the response, or if no response

was received, within ten business days after the response was due. Id. at ¶ BB. The respondent at Step

II is designated by the policy. The Step II respondent

is generally the warden or the warden’s designee. Id.

at ¶ DD. If the inmate is dissatisfied with the Step II

response, or does not receive a timely Step II response,

he may appeal to Step III using the same appeal form.

Id. at ¶ FF. The Step III appeal form must be sent to

the Grievance and Appeals Section within ten business days after receiving the Step II response, or if no

Step II response was received, within ten business

days after the date the Step II response was due. Id.

at ¶ FF. The Grievance and Appeals Section is the

Step III respondent. Id. at ¶ GG. Time limitations

shall be adhered to by the inmate and staff at all steps

of the grievance process. Id. at ¶ S. “The total grievance process from the point of filing a Step I grievance

to providing a Step III response shall generally be

completed within 120 calendar days unless an extension has been approved in writing.” Id.

Ordinarily, a prisoner must pursue appeals of his

grievance through Step III of the administrative process. The Sixth Circuit has held that “an inmate does

not exhaust available administrative remedies when

the inmate fails entirely to invoke the grievance procedure.” Napier, 636 F.3d at 224. An argument that it

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would have been futile to file a grievance does not suffice. Assertions of futility do not excuse plaintiff from

the exhaustion requirement. See Napier, 636 F.3d at

224; Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.

1999) (“[A]n inmate cannot simply fail to file a grievance or abandon the process before completion and

claim that he has exhausted his remedies or that it is

futile for him to do so because his grievance is now

time-barred under the regulations.”); see Booth v.

Churner, 532 U.S. at 741 n.6 (“[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.”).

Proposed Findings of Fact

The following facts are beyond genuine issue.

Plaintiffs are inmates serving lengthy prison sentences in the custody of the Michigan Department of

Corrections (MDOC) on their criminal convictions.

Plaintiff Fox is currently an inmate at the Alger Correctional Facility (LMF). Plaintiff Perreault is a prisoner at the Chippewa Correctional Facility (URF).

The defendants are the Director of the Michigan Department of Corrections (MDOC) Daniel Heyns and

three MDOC employees at MTU: Warden Cathleen

Stoddard, Deputy Warden Shawn Young, and Chaplain David Leslie.

I. Prisoner Fox

Prisoner Fox filed two grievances at MTU and

pursued them through Step III of the MDOC’s grievance process before filing this lawsuit.

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A. MTU-13-03-0344-20b

On March 25, 2013, plaintiff filed a grievance and

the grievance coordinator assigned it Grievance No.

MTU-13-03-0344-20b (docket # 19-3, Page ID 89).

Plaintiff complained that he had not been provided

with a Christian Identity group service at MTU:

I declared my religious preference by filling

out the religious preference form. My religious

preference is “Christian Identity.” There is no

Christian Identity Service at this facility according to the Chaplain. By failing to provide

Christian Identity Services at this Facility,

the Chaplain and the administration are

denying me my 1st Amendment right to freely

exercise my religion.

(Id.). The Step I response stated as follows:

This is an issue that the institution cannot address. It is not the chaplain or the administration’s decision not to allow Christian Identity

to meet. As I instructed your leader, you must

submit in writing your request to be discussed

with the Chaplain’s Advisory Council.

(Id.).

Plaintiff filed an appeal. He received the following

response at Step II from the warden:

In your first step grievance you write that the

department does not recognize your “Christian Identity” faith for services to be held. Because of this, you believe you are being denied

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your 1st Amendment right to freely exercise

your religion.

Your Step I grievance was answered by Chaplain D. Leslie. He wrote that a decision to recognize a group for time and space for services

could not be established at a facility level. He

advised you that you must submit a request in

writing to be discussed with the Chaplain Advisory Council about your concern.

Your appeal has been reviewed by my office.

Your concern remains the same. However, I

concur with the step 1 response. Per PD

05.03.150, Religious Beliefs and Practices of

Prisoners, sections L and M, clearly outline

steps that need to be taken in an attempt to

get a religious group recognized by the department I recommend that you refer to the policy

sections prior to any further action taken.

Though the department does not recognize

your religious group, it does not mean that we

are attempting to stop you from practicing

your beliefs privately. However, until or unless the department recognizes the group, services will not be allowed.

I consider this grievance resolved at this level.

(Id. at Page ID 88).

Plaintiff’s Step III appeal was unsuccessful. The

Grievance and Appeals Section upheld the Step II response:

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Your Step III grievance, including any materials included with your appeal from Step II,

has been fully reviewed and considered by the

Grievance Section of the Office of Legal Affairs in accordance with PD 03.02.130, “Prisoner/Parolee Grievances”. The response you

received at Steps I & II reflect that your issue

was in fact considered and appropriately investigated. As there is no additional information or basis found for relief at Step III, the

Step II decision is upheld at Step III.

(Id. at Page ID 86).

B. MTU-13-03-0343-20z

On March 25, 2013, plaintiff filed a grievance and

the grievance coordinator assigned it Grievance No.

MTU-13-03-0343-20z. (docket # 19-3, Page ID 95). Fox

complained that his request for baptism by full body

emersion had been denied:

I have requested that I be baptized by full

body immersion in water which is a sincerely

held belief of my Christian faith. By not allowing full body immersion baptism, the Chaplain and Deputy Young are effectively denying

me the right of practice of my religion.

(Id.). The Step I response stated as follows:

Christian Identity is not a recognized faith

group that list what should be allowed for

their faith and practice. Baptism is not listed

as a mandatory practice of religion in prison.

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We do not have a place to keep it. Therefore,

we do not have one.

(docket # 19-3, Page ID 95).

Plaintiff filed an appeal. He received the following

response at Step II from the warden:

In your first step grievance you write that you

are not being allowed to be baptized as part of

your religious belief.

Your grievance was answered by Chaplain

Leslie. In part, he wrote that policy does not

require full submersion Baptism be performed.

Your appeal has been reviewed by my office

and is denied at this level. There is nothing in

PD 05.03.150, Religious Beliefs and Practices

of Prisoner, that requires individuals to receive a full submersion baptism. There are

other acceptable means to receive baptism

and those will be afforded to you upon your request. Please let the Chaplain know if you

wish to proceed.

(Id. at Page ID 94).

Plaintiff pursued an appeal of this grievance to

Step III of the MDOC’s grievance process. On July 31,

2013, the Grievance and Appeals Section entered the

following Step III response:

Your Step III grievance, including any materials included with your appeal from Step II,

97a

has been fully reviewed and considered by the

Grievance Section of the Office of Legal Affairs in accordance with PD 03.02.130, “Prisoner/Parolee Grievances”. The response you

received at Steps I & II reflect that your issue

was in fact considered and appropriately investigated. As there is no additional information or basis found for relief at Step III, the

Step II decision is upheld at Step III.

(Id. at Page ID 92).

II.

Prisoner Perreault

Plaintiff Perreault filed seven grievances at MTU

and pursued them through Step III decisions by the

MDOC’s Grievance and Appeals Section. Four grievances are unrelated to any claim at issue in this lawsuit. In Grievance No. MTU-13-05-0550-01g (docket #

19-3, Page ID 100- 07) Perreault complained that he

should not have been charged a co-pay fee for medical

services). Grievance No. MTU 13-02-0204-25z (docket

# 19-3, Page ID 120-24) was a complaint that Perreault had not been provided with an area for confidential discussions with his attorney. In Grievance

No. MTU-12-07-0763-14z (docket # 19-3, Page ID 12529) prisoner Perreault complained about the size of

the prison’s library and the temperature inside it.

Prisoner Perreault’s Grievance No. MTU-12-03-028812d (docket # 19-3, Page ID 130-35) was a complaint

that he was not receiving appropriate medical treatment for hernia. Three of prisoner Perreault’s grievances warrant further discussion.

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A. MTU 13-03-0286-20a

On March 6, 2013, prisoner Perreault filed a

grievance and the grievance coordinator assigned it

Grievance No. MTU-13-03-0287-20a. (docket # 19-3,

Page ID 119). Plaintiff complained that MTU’s chaplain failed to respond to his concern that Christian

Identity had not received formal MDOC recognition as

a religious group:

This grievance is for M.T.U. and M.D.O.C.’s

failure to recognize my Christian faith denomination of “Christian Identity”. “Christian

Identity” is a “Bona Fide” religion, recognized

by the Federal Government in the United

States and in all the Anglo-Saxon nations

abroad. Prison officials are obligated to treat

religions in an even handed manner. You are

violating the 5th and 14th Amendment equal

protection laws. Prisoners are entitled to a

reasonable opportunity of pursing faith compared to opportunities of fellow prisoners.

Cruz v. Beto 92 S. Ct. 1079. Under the Religious Land Use and Institutionalized Persons

Act of 2000, and Cutter v. Wilkinson, 125 S.

Ct. 2113, the proscriptions of the Act does not

differentiate among bona fide faiths. As a

Christian Identist, no other Christian denomination service will work. No substitute. There

[are] enough Christian Identist inmates to

satisfy the “Rule of 5.” A “substantial burden[”] has been imposed on my 1st Amendment free exercise of religion through 42

U.S.C.A. § 2000cc-1, cc-5(A)(B)(C).

99a

(docket # 19-3, Page ID 119). The Step I response advised prisoner Perreault that no individual at MTU

was authorized to provide formal recognition of any

faith group on the MDOC’s behalf. (Id.).

Plaintiff pursued an appeal. The warden’s Step II

response advised prisoner Perreault that the steps

necessary to obtain recognition for a religious group:

Per PD 05.03.150, Religious Beliefs and Practices of Prisoners, sections L and M, clearly

outline steps that need to be taken in an attempt to get a religious group recognized by

the department. I recommend that you refer

to the policy sections prior to any further action taken.

Though the department does not recognize

your religious group, it does not mean that we

are attempting to stop you from practicing

your beliefs privately. However, until or unless the department recognizes the group, services will not be allowed.

(Id. at Page ID 118).

Plaintiff filed an appeal. On August 13, 2013, Perreault received the following response from the

MDOC’s grievance and appeals section:

Your Step III grievance, including any materials included with your appeal from Step II,

has been fully reviewed and considered by the

Grievance Section of the Office of Legal Affairs in accordance with PD 03.02.130, “Prisoner/Parolee Grievances”. You claimed that

100a

the MDOC does not recognize your particular

Christian denomination an[d] as a result,

your sincerely held religious beliefs are being

substantially burdened.

The response you received at Step II reflects

that your issues were in fact considered and

appropriately investigated at the facility level.

As there is no additional information or basis

found for relief at Step III, the Step II decision

is upheld. You are referred to PD 05.03.150

“Religious Beliefs and Practices of Prisoners”,

Paragraph K., for information regarding the

process by which a religious group not recognized by the Department may request such

recognition.

(Id. at Page ID 116).

B. MTU-13-03-0287-20b

On March 6, 2013, prisoner Perreault filed a

grievance and the grievance coordinator assigned it

Grievance No. MTU-13-03-0287-20b. (docket # 19-3,

Page ID 111). In this grievance, Prisoner Perreault

complained that full body immersion baptism was not

available at MTU:

My right to free exercise of religion under the

“1st Amendment” and the “Religious Land

Use and Institutionalized Persons Act”

(R.L.U.I.P.A.) are being violated. My sincerely

held religious beliefs, per scripture, through

the Holy Bible, require the need for me to be

baptized by means of full body immersion. The

chaplain told me “No.” He said MTU does not

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have to do it and MTU is not and will not be

equipped to do so. The warden did not respond

to my attempt to resolve. 42 USCA § 2000cc-1

says: “No government shall impose a substantial burden on the religious exercise of a person residing or confined to a institution.” 42

USCA § 2000cc-3(c) says you can not burden

any religious belief, or restrict or burden exercise. 42 USCA § 2000cc-3(c) also states the institution may have to incur expenses to avoid

imposing a substantial burden of religious exercise. My soul’s in jeopardy. That is my situation.

(Id.). Chaplain Leslie gave the following Step I grievance response:

Mr. Perreault[’s] request for Baptism was addressed. We do not have a Baptistry. We have

no place to keep a Baptistry. Policy doesn’t require a Baptism for prisoners. His request has

been address[ed] to the warden.

(Id.).

Plaintiff filed an appeal. The warden gave the following response at Step II of the grievance process:

In your first step grievance you write that you

are not being allowed to be baptized as part of

your religious belief.

Your grievance was answered by Chaplain D.

Leslie. In part, he wrote that policy does not

require a full submersion Baptism be performed.

102a

Your appeal has been reviewed by my office

and is denied at this level. There is nothing in

PD 05.03.150, Religious Beliefs and Practices

of Prisoner, that requires individuals to receive a full submersion baptism. There are

other acceptable means to receive baptism

and those will be afforded to you upon your request. Please let the Chaplain know if you

wish to proceed.

(Id. at Page ID 110).

Plaintiff filed a Step III appeal. The grievance and

Appeals Section’s decision at Step III upheld the Step

II response:

Your Step III grievance, including any materials included with your appeal from Step II,

has been fully reviewed and considered by the

Grievance Section of the Office of Legal Affairs in accordance with PD 03.02.130, “Prisoner/Parolee Grievances”. The response you

received at Steps I & II reflect that your issue

was in fact considered and appropriately investigated. As there is no additional information or basis found for relief at Step III, the

Step II decision is upheld at Step III.

(Id. at Page ID 108).

C. MTU-13-03-0285-20d

On March 6, 2013, Perreault filed a grievance and

the grievance coordinator assigned it Grievance No.

MTU-13-03-0287-20b. (docket # 19-3, Page ID 115). In

this grievance, prisoner Perreault complained that

103a

the MDOC had not made arrangements for “proper

observance” of a list of holidays:

The ability for myself and others similarly situated to properly observe the “biblical Christian Holy Days” are being “substantially burdened “. My 1st Amendment rights and “Free

Exercise of Religion” under the “Religious

Land Use and Institutionalized Persons Act”

are violated. The M.D.O.C. makes no provisions for Christians to properly observe:

“Passover, unleavened bread, Pentecost,

Feast of Trumpets, Day of Atonement, Feast

of Tabernacles, and the Last Great Day”, as

well as the weekly “7th Day Sabbath”. Therefore, I am being forced to violate dietary laws

as well as Sabbath, and holy day laws. 42

USCA § 2000cc-1 and cc-3(A)(B)(C) says no institution shall impose a substantial burden on

a prisoner’s religious exercise, beliefs, etc. It

also states that the prison shall incur expenses in its own operation to avoid imposing

a substantial burden. My sincerely held religious beliefs are being substantially burdened.

(Id.). Chaplain Leslie’s response at Step I of the grievance process advised plaintiff that Christian Identity

had not been formally recognized by the MDOC as a

religious faith group. (Id.).

Plaintiff filed an appeal and the warden gave the

following Step II response:

In your first step grievance you write that you

are being denied recognition of “biblical

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Christian Holy Days” for your Christian Identity faith. Because of this, you write that your

“religious beliefs are being substantially burdened”.

Your Step I grievance was answered by Chaplain D. Leslie. In part, he writes that Christian Identity is not a recognized faith group by

the department. Thus, your wanted religious

holy days are not approved. Your grievance

was denied.

Your appeal has been reviewed by my office

and is denied at this level. I concur with the

Step I response. No further action will be

taken at this time.

(docket # 19-3, Page ID 114).

The Grievance and Appeals section’s Step III response upheld the warden’s decision at Step II:

Your Step III grievance; including any materials included with your appeal from Step II,

has been fully reviewed and considered by the

Grievance Section of the Office of Legal Affairs in accordance with PD 03.02.130, “Prisoner/Parolee Grievances”. You claimed that

the MDOC does not recognize your particular

Christian denomination an[d] as a result,

your sincerely held religious beliefs are being

substantially burdened.

The responses you received at Steps I and II

reflect that your issues were in fact considered

and, appropriately investigated at the facility

105a

level. As there is no additional information or

basis found for relief at Step III, the Step II

decision is ‘upheld. You are referred to PD

05.03.150 “‘Religious Beliefs and Practices of

Prisoners”, Paragraph K, for information regarding the process by which a religious group

not recognized by the Department may request such recognition.

(Id. at Page ID 112).

Discussion

A. Mootness

Plaintiffs seek injunctive relief. Plaintiffs are inmates at LMF and URF . Defendants Stoddard,

Young, and Leslie are employed at MTU. The three

MTU defendants no longer have any authority over

the conditions of plaintiff’s confinement. Plaintiff’s

claims for injunctive relief against defendants

Stoddard, Young, and Leslie are moot. See Colvin v.

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

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

B. Exhaustion

Defendants have raised the affirmative defense

that plaintiffs did not properly exhaust their administrative remedies against them as required by 42

U.S.C. § 1997e(a). Plaintiff Perreault’s argument that

he was not required to exhaust his retaliation claim

against defendant Young (Plf. Brief at 1, docket # 21,

Page ID 137) is untenable. Exhaustion is mandatory.

Woodford, 548 U.S. at 85. “[N]o unexhausted claim

may be considered.” Jones v. Bock, 549 U.S. at 220.

106a

Defendants Stoddard and Young lacked the authority

to grant plaintiffs’ requests because plaintiffs never

sought, much less obtained, recognition of Christian

Identity as a faith group through the MDOC’s procedure (Policy Directive 05.03.150, ¶ K). 2 See Washington v. Caldwell, No. 2-11-CV-10448, 2013 WL

1189713, at * 3 (E.D. Mich. Jan. 31, 2013) (collecting

cases). The “proper exhaustion” requirement is “designed to deal with parties who do not want to exhaust[.]” Woodford, 548 U.S. at 89. Plaintiffs’ attempt

to bypass the MDOC’s procedure by sending defendant Heyns a document labeled as a “Motion for a Declaratory Ruling” (Plf. Brief at 2, Page ID 138, 160-61)

was utterly ineffectual. Plaintiffs did not properly exhaust any claim against defendants before they filed

this lawsuit. 3 I find that defendants have carried their

burden on the affirmative defense and are entitled to

dismissal of all of plaintiff’s claims.

2 Effective January 22, 2015, the MDOC revised Policy Directive 05.03.150. The current procedure for seeking MDOC

recognition of a religious group is found in paragraphs K and L.

Plaintiffs may well face a significant hurdle in the future if and

when they seek MDOC recognition of Christian Identity as a

faith group through the MDOC procedure given the racist, white

supremacist literature connected with the Christian Identity

group. See Hayes v. Tennessee, 424 F. App’x 546 (2011).

3 Prisoners cannot file their lawsuit first and then exhaust

their administrative remedies after the- fact. See Garren v. Prisoner Health Servs., No. 11-14650, 2012 WL 4450495, at * 2 (E.D.

Mich. Aug. 6, 2012); Rhinehart v. Scutt, No. 2-10-cv-10006, 2011

WL 679699, at * 5 (E.D. Mich. Jan. 14, 2011); Ross v. Duby, No.

1:09-cv-531, 2010 WL 3732234, at * 1 (W.D. Mich. Sept. 17,

2010).

107a

Recommended Disposition

For the foregoing reasons, I recommend that all

plaintiffs’ claims against MTU defendants Stoddard,

Young, and Leslie be dismissed as moot. I recommend

that defendants’ motion for summary judgment

(docket # 18) be granted and that all plaintiffs’ claims

be dismissed.

Dated: May 7, 2015

/s/ Phillip J. Green

United States Magistrate Judge

NOTICE TO PARTIES

Any objections to this Report and Recommendation must be filed and served within fourteen days of

service of this notice on you. 28 U.S.C. § 636(b)(1)(C);

FED. R. CIV. P. 72(b). All objections and responses to

objections are governed by W.D.MICH. LCIVR

72.3(b). Failure to file timely and specific objections

may constitute a waiver of any further right of appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); Keeling v.

Warden, Lebanon Corr. Inst., 673 F.3d 452, 458 (6th

Cir. 2012); United States v. Branch, 537 F.3d 582, 587

(6th Cir. 2008). General objections do not suffice. See

McClanahan v. Comm’r of Social Security, 474 F.3d

830, 837 (6th Cir. 2006); Frontier Ins. Co. v. Blaty, 454

F.3d 590, 596-97 (6th Cir. 2006).

108a

MICHIGAN DEPARTMENT OF CORRECTIONS

“Committed to Protect, Dedicated to Success”

MEMORANDUM

DATE:

August 3, 2017

TO:

Kenneth T. McKee, Deputy Director

Correctional Facilities Administration

FROM:

David M. Leach, Special Activities

Coordinator

Correctional Facilities Administration

SUBJECT: Request for Recognition of New Religious Group - Christian Identity

Prisoners James Fox (458647) and Scott Perreault

(722478) have requested the Michigan Department of

Corrections (MDOC) to recognize the Christian Identity religion. Their Request for Recognition and supporting Exhibits were prese

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