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Cary v. Unknown Phol

United States District Court, W.D. Michigan, Southern Division

October 3, 2017

BRYAN ALLEN CARY, Plaintiff,
v.
UNKNOWN PHOL et al., Defendants.

          OPINION

          Janet T. Neff, United States District Judge.

         This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff's complaint for failure to state a claim against Defendants Trierweiler, McCaully, Davids, and Robinson. The Court will serve the complaint against Defendants Phol, Normington, and Mote, but only with respect to Plaintiff's claim for violation of his First Amendment right to freely exercise his religion.

         Discussion

         I. Factual allegations

         Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at G. Robert Cotton Correctional Facility (JCF) in Jackson, Jackson County, Michigan. The events about which he complains, however, occurred over a ten-day period beginning December 13, 2016, at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Plaintiff sues IBC Warden Unknown Trierweiler; IBC Deputy Wardens Unknown McCaully and Unknown Davids; IBC Residential Unit Manager Unknown Mote; IBC Assistant Residential Unit Supervisor Laura Normington; IBC Corrections Officer Unknown Phol;[1] and IBC Grievance Coordinator Marshaun Robinson. Each defendant is sued in his or her personal and official capacities.

         At some time during the first or second week of December, 2016, Plaintiff transferred in to IBC. He was housed in segregation until he was transferred to JCF on December 23, 2016.

         Plaintiff alleges that he is a practitioner of the Native American religion. As part of his religious practices, Plaintiff keeps and wears a medicine bag. The MDOC permits members of the Native American religious group to possess a medicine bag, specifically:

One medicine bag, no larger than 3”x5” when laid flat, with contents restricted to sage, sweet grass, cedar, bear berry leaf, mullein leaf, red willow bark, red sumac leaf, spearmint leaf, peppermint leaf, and lavender. The contents also may include protection medicine, such as a small pebble or piece of legal vegetation that is considered by the prisoner to have special significance but does not pose a threat to the custody and security of the facility. When the medicine bag is worn, it must be worn around the neck on [a] strip of leather or string no longer than 24”

         MDOC Policy Directive 05.03.150A. Certain religious items are prohibited in segregation. See MDOC Policy Directive 04.05.120B. Although medicine bags are not expressly prohibited, such bags may be prohibited because they include other prohibited items such as “[d]rawstrings, . . . [s]trings, ropes, cords, [or] strips of leather[.]” Id.

         Plaintiff contacted Defendants Normington, Mote, Davids, McCaully, and Trierweiler seeking possession of his medicine bag. Defendants Normington and Mote refused. Defendants Davids, McCaully, and Trierweiler never responded.

         After Plaintiff was transferred to JCF, he was placed in general population. There, he was permitted to possess his medicine bag.

         Plaintiff made several attempts to grieve the ten-day deprivation of his medicine bag. He claims that Defendant Robinson refused to properly process the grievances.

         Plaintiff contends that Defendants violated his First Amendment right to freely exercise his religion by depriving him of his medicine bag. Plaintiff contends Defendants further violated his First Amendment rights by retaliating against him for filing grievances and lawsuits relating to an earlier deprivation of Plaintiff's medicine bag by some of the Defendants. Plaintiff asks the Court to award him $5, 000.00 in compensatory and punitive damages against each defendant.

         This is Plaintiff's fourth of five suits involving his medicine bag(s):

1. Cary v. Robinson et al., 1:13-cv-431 (W.D. ...

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