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Cary v. Mox

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

March 22, 2018

Bryan Cary, Plaintiff,
v.
Timothy Mox, et al., Defendants.

          Mona K. Majzoub, U.S. Magistrate Judge

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [36]; OVERRULING IN PART PLAINTIFF'S OBJECTIONS [41]; AND DENYING PLAINTIFF'S MOTION FOR INJUNCTION [3]

          Arthur J. Tarnow Senior United States District Judge

         On August 22, 2017, Plaintiff Bryan Cary filed the instant prisoner civil rights action and Motion for Injunction [3]. On February 2, 2018, the Magistrate Judge issued a Report and Recommendation (“R&R”) [36] recommending that the Court deny Plaintiff's Motion. Plaintiff filed Objections [41] to the R&R on March 14, 2018.

         For the reasons stated below, the R&R [36] is ADOPTED in part; Plaintiff's Objections [41] are OVERRULED in part; and Plaintiff's Motion for Injunction [3] is DENIED.

         Factual and Procedural Background

         The Court adopts the facts of this case as set forth in the R&R:

Plaintiff Bryan Cary, proceeding pro se, filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983, against Corrections Officer Mox and the Special Activities Coordinator, a Deputy Director, and the Director of the Michigan Department of Corrections (MDOC) on August 22, 2017, claiming violations of his First and Fourteenth Amendment rights under the United States Constitution and of Michigan's ethnic intimidation statute, Mich. Comp. Laws § 750.147b.
Specifically, Plaintiff asserts that he is a member of the religious group known as the “Native American Traditional Way” (NATW), and he therefore has the absolute right to practice his religion and to possess sacred items such as a medicine bag, herbs, and protection medicines.
Plaintiff alleges that Defendant Mox violated his First Amendment right to the free exercise of religion and Fourteenth Amendment right to the equal protection of the law when Defendant Mox and another officer searched, desecrated, and destroyed Plaintiff's herbs. Plaintiff also alleges that Defendant Mox's conduct amounts to ethnic intimidation under Michigan law. Plaintiff further alleges that the MDOC's Director, Deputy Director, and Special Activities Coordinator violated those same First and Fourteenth Amendment rights “by taking statements out of procedure and policy language and not replacing it with instructions allowing staff to claim ignorance even though they know the medicine bag and herbs are sacred and shouldn't be touched.” As relief, Plaintiff seeks a preliminary and permanent injunction ordering Defendants to stop physically touching medicine bags and herbs, $10, 000 in compensatory damages, and $10, 000 in punitive damages. (internal citations omitted).

[R&R at 1-2].

         Standard of Review

         This Court reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         Analysis

         I. Report & ...


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