United States District Court, W.D. Michigan
APPROVING AND ADOPTING REPORT AND
HOLMES BELL UNITED STATES DISTRICT JUDGE.
8, 2016, Magistrate Judge Timothy P. Greeley issued a Report
and Recommendation (“R&R”) recommending that
the Court grant Defendants' motion for summary judgment.
(ECF No. 71.) Plaintiff has filed objections to the R&R.
(ECF No. 75.)
Court is required to make a de novo review of those
portions of a R&R to which specific objections are made,
and may accept, reject, or modify any or all of the
Magistrate Judge's findings or recommendations. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b).
objects to the Magistrate Judge's determination that his
claim for injunctive and declaratory relief is moot as it
pertains to the warden of Chippewa Correctional Facility
(URF), Defendant Woods, because Plaintiff has been
transferred to a different facility. Plaintiff argues that
his claim is not moot because he could be transferred back to
URF at any time, and is likely to be transferred there again
at some point during his remaining sentence. Plaintiff's
claim is directed toward a URF policy that prevents prisoners
from attending religious services while they are confined in
“toplock.” (R&R at 3.) Plaintiff contends
that this policy prevented him from attending two group
services of the Wicca religion when he was confined in
Court discerns no error in the determination of the
Magistrate Judge. The fact that Plaintiff may be transferred
back to URF at some unknown time in the future does not
present “sufficient immediacy and reality” to
sustain his claim. Preiser v. Newkirk, 422 U.S. 395,
402 (1975). This is especially true considering that
Plaintiff is only affected by the policy when he is confined
in toplock. At all other times, the policy has no impact.
Even if Plaintiff was transferred back to URF today, his
claim would still be moot unless he is placed in toplock.
See Selby v. Caruso, 734 F.3d 554, 561 (6th Cir.
2013) (finding that prisoner's RLUIPA claim challenging
restrictions on attending group services for prisoners
confined in administrative segregation became moot when the
prisoner was released into the general population).
is . . . an exception to the mootness doctrine for claims
that are capable of repetition, yet evade review.”
Fredette v. Hemingway, 65 F. App'x 929, 931 (6th
Cir. 2003). This exception requires that “the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration” and
that “there was a reasonable expectation that the
same complaining party would be subjected to the
same action again.” Id. (emphasis in original;
internal quotation marks and citation omitted). This
exception does not apply because Plaintiff has not shown that
there is a reasonable expectation that he will be transferred
back to URF, placed in toplock, and prevented from attending
the group services for his faith. It is not enough for him to
speculate that he might be transferred back to URF someday.
See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.
1996) (an allegation of a likelihood of transfer back to the
same facility is not enough to satisfy the
capable-of-repetition exception to mootness).
Plaintiff objects to the Magistrate Judge's determination
that his claim concerning Michigan Department of Corrections
(MDOC) Policy Directive 03.03.105 is not ripe. The policy
provides that the warden of a facility “may”
provide authorization for prisoners confined in toplock to
attend out-of-cell activities, including group worship
services. MDOC Policy Directive 03.03.105 ¶ OOO (Apr. 9,
2012). The Court agrees with the R&R that any possible
injury to Plaintiff arising from this policy directive is too
remote to give rise to a claim. Plaintiff does not contend
that he is presently confined in toplock or that prisoners at
his current facility are prevented from attending group
worship services. Plaintiff contends that his claim concerns
a dispute that is “likely to reoccur, ” because
other wardens are likely to use the MDOC policy as an
opportunity impose restrictions like those at URF.
(Objections at 3, ECF No. 75.) This is mere speculation.
also contends that if the Court does not permit his claim to
proceed, then the MDOC could protect itself from liability by
relying on the defenses of res judicata or equitable
estoppel. That is not the case. Dismissing Plaintiff's
claim as unripe does not mean that challenged policies are
valid; rather, it means that the prospect of a legal conflict
is too remote to be resolved at this time. Another prisoner,
or even Plaintiff himself, facing an inability to attend
group services would not be barred by res judicata or
equitable estoppel from proceeding on similar claims.
contends that the R&R erred in granting qualified
immunity when it failed to consider the “novelty”
aspect of the qualified-immunity analysis. (Id.) In
other words, for a right to be clearly established,
“[a] court need not have previously held illegal the
conduct in the precise situation at issue because
‘officials can still be on notice that their conduct
violates established law even in novel factual
circumstances.'” Sutton v. Metro. Gov't of
Nashville & Davidson Cnty., 700 F.3d 865, 876 (6th
Cir. 2012) (quoting Sample v. Bailey, 409 F.3d 689,
699 (6th Cir. 2005)) (emphasis added).
are two prongs to the qualified-immunity analysis. The first
is whether the facts alleged or shown make out a
constitutional violation, and the second is whether the right
that was violated was clearly established. See Saucier v.
Katz, 533 U.S. 194, 201 (2001). If one or both of these
prongs is not met, then the defendant is entitled to
qualified immunity. The R&R appears to have rested its
decision primarily on the first prong. Plaintiff's
objection goes to the second prong. Thus, even if Plaintiff
is correct, his objection would not change the outcome of the
event, the Court discerns no error in the conclusion that it
is not clearly established that restricting access to group
religious activities for prisoners on top lock is a First
Amendment violation. In order to prevail, Plaintiff must show
that the balancing of the factors in Turner v.
Safley, 482 U.S. 78 (1987) clearly established that a
policy like the one at URF is unreasonable. See Iswed v.
Caruso, 573 F. App'x 485, 490 (6th Cir. 2014).
Plaintiff cites persuasive authority from the Second Circuit,
none of which compels the conclusion that the URF policy
violated his constitutional rights. In Ford v.
McGinnis, 352 F.3d 582 (2d Cir. 2003), the first case
cited by Plaintiff, the prisoner alleged that prison
officials were not serving religious meals to prisoners in
segregation. Rather than decide the First Amendment claim and
the issue of qualified immunity, however, the court remanded
the matter to resolve factual disputes. Id. at 538.
Similarly, in Salahuddin v. Coughlin, 993 F.2d 306
(2d Cir. 1993), the court recognized that confinement in
keeplock does not deprive prisoners of the right to
participate in group religious services, but it remanded the
matter for further development of the record as to whether
the defendants' actions were reasonable. Id. at
310. Finally, in Mawhinney v. Henderson, 542 F.2d 1
(2d Cir. 1976), the court merely held that an allegation that
prisoners in punitive segregation and “keeplock”