The opinion of the court was delivered by: Honorable Avern Cohn
ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION (Doc. No. 90) AND DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT (Doc. Nos. 76, 77)
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Dion Hardaway claims defendants, employees of the Michigan Department of Corrections (MDOC), have violated his right to practice his religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc. The incidents giving rise to the complaint are alleged to have occurred while plaintiff was an inmate at Ryan Correctional Facility (Ryan).*fn1 In general terms, the case concerns the confiscation of materials related to the Nation of Gods and Earths/Five Percenters (NGE), a group that has been designated by the MDOC as a Security Threat Group (STG). Plaintiff is a member of NGE and says it is a religious group. He wants to have the STG classification on the NGE removed and be able to possess its literature, particularly its primary publication The Five Percenter. Defendants are: Carl Tabb, James Haggerty, Michael Novak, and Robert Mulvaney, all of whom are corrections officers at Ryan.
The matter was referred to a magistrate judge for pre-trial proceedings. As will be explained, the parties eventually filed cross motions for summary judgment. The magistrate judge issued a report and recommendation (MJRR) that plaintiff's motion be granted and defendants' motion be denied. Before the Court are defendants' objections to the MJRR (Doc. No. 91). For the reasons that follow, the MJRR will be adopted in part and rejected in part and both parties' motions for summary judgment will be denied.
Earlier in the case, defendants filed a motions to dismiss or for summary judgment which the magistrate judge recommended be granted in part and denied in part.
The parties objected. On September 27, 2007, the Court entered an Order Adopting the Report and Recommendation, Granting in Part and Denying in Part Defendants' Motions and Directing the Appointment of Counsel for Plaintiff (Doc. No. 51). The Order made clear that
[t]he case continues on only plaintiff's claim for injunctive relief (1) requesting the removal of the Nation of Gods and Earths/Five Percenters (NGE) Security Threat Group (STG) designation and (2) the MDOC's denial of religious literature to the group under RLUIPA.
Thereafter, plaintiff obtained counsel and the parties engaged in discovery.
Following discovery, both parties filed motions for summary judgment, as noted above. At the hearing on defendants' objections to the MJRR, the Court invited the parties, particularly defendants, to file a supplemental paper detailing the process by which the MDOC designated the NGE to be a STG. The supplemental filing request came as a result of the Court's inquiry as to whether the MDOC followed proper procedures for the designation. The Court also set another hearing to take place after the filing of the supplemental papers. The supplemental papers have been received, the Court had a second hearing, and the matter is now ready for decision.*fn2 For the reasons that follow, the MJRR will be adopted in part and rejected in part and both parties motions for summary judgment will be denied.
RLUIPA prohibits prisons from imposing a substantial burden on an inmate's religious exercise unless prison officials can demonstrate that the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a)(1)-(2). Furthermore, ' "religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). A plaintiff bears the initial burden of showing (1) that he seeks to engage in an exercise of religion and (2) that the challenged policy or practice substantially burdens that exercise. 42 U.S.C. § 2000cc-2(b). Once a plaintiff establishes a prima facie case, the defendant bears the burden of persuasion on whether the policy or practice is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1(a)).
As such, the test under RLUIPA is:
1. There must be a substantial burden on religious exercise * plaintiff has the burden to ...