PAUL J. KOMIVES, Magistrate Judge.
The Court should deny plaintiff's April 12, 2011 motion for summary judgment (Doc. Ent. 13), deny defendant's April 26, 2011 motion for summary judgment (Doc. Ent. 17) and grant plaintiff's September 9, 2011 motion for leave to file amended complaint (Doc. Ent. 27).
If the Court agrees with these recommendations, it should also direct the Clerk of the Court to (a) docket plaintiff's proposed first amended complaint (Doc. Ent. 27 at 5-15) as plaintiff's first amended complaint, (b) add Raymond D. Booker and Michael Martin as defendants in this case, and (c) prepare and forward the necessary documents to the U.S. Marshal for service of process upon the newly added defendants.
Clarence Ray Washington (#111260) is currently incarcerated at the Earnest C. Brooks Correctional Facility (LRF) in Muskegon Heights, Michigan.
On February 4, 2011, while incarcerated at the Ryan Correctional Facility (RRF) in Detroit, Michigan, Washington filed the instant case against Ms. C. (Carron) Caldwell, described as Chaplain located at RRF. Doc. Ent. 1 at 1-5, Doc. Ent. 12 at 2 (Page 4).
Judge Lawson has referred this case to me to conduct all pretrial matters. Doc. Ent. 7. On March 8, 2011, Assistant Attorney General Allan J. Soros filed an appearance on behalf of defendant Chaplain Carron Caldwell. Doc. Ent. 11.
By a letter dated August 9, 2010, Washington wrote to Chaplain Caldwell regarding a place on the upcoming Ramadan fasting list for August 10, 2010. Doc. Ent. 1 at 6. In a response dated August 10, 2010, Chaplain Caldwell stated, "[a]ccording to CMIS, your faith is other than Islamic. Lansing has required that only those prisoners who have declared Islam as their religion, e.g., Al-Islam, National of Islam, or Moorish Science Temple of American be the only prisoners allowed to observe Ramadan." Doc. Ent. 1 at 7.
On August 20, 2010, plaintiff completed a Step I grievance form, which was received at Step I on August 25, 2010. Doc. Ent. 1 at 8 & 12, Doc. Ent. 9 at 2. Therefore, the Step I grievance response was due on September 15, 2010. Doc. Ent 1 at 12.
On September 21, 2010, plaintiff completed a Step II grievance appeal form, which was received at Step II on September 27, 2010. Doc. Ent. 1 at 9. In the October 21, 2010 Step II Grievance Appeal Response, Warden Raymond D. Booker summarized, in part:
Doc. Ent. 1 at 9-10.
Plaintiff completed a Step III grievance appeal. Doc. Ent. 1 at 9. The December 16, 2010 Step III Grievance Appeal Response upholds the Step II decision. Doc. Ent. 1 at 11.
Eventually, plaintiff received a Step I Grievance Response. The January 29, 2011 Step I Grievance Response by Wright Wade, which was reviewed by Deputy Warden Scott Nobles on January 31, 2011, summarized as follows: "Washington acknowledged he was not of the Muslim faith. It was confirmed the fast was for prisoners of same like faith. There was no violation of policy by not allowing Washington to participate in the fast. He could [have] fasted on his own accord." Doc. Ent. 9 at 3.
In his February 4, 2011 complaint, Washington states that his religious beliefs and practices as a protestant include Ramadan fasting. Washington alleges that Caldwell has violated the Prisoners Handbook; MDOC PD 03.03.130 ("Humane Treatment and Living Conditions for Prisoners"), the Policy Statement for which provides in part that prisoners "shall not be discriminated against based on race, religion, ethnic background, sex, sexual orientation, gender identity, national origin, or disability[;]"
Plaintiff describes four causes of action, among which are mentioned the First, Ninth and Fourteenth Amendments; state and federal law; and MDOC PD 05.03.150. Doc. Ent. 12 at 2. Among plaintiff's requests for relief are compensatory damages, punitive damages and an award of interest and costs. Doc. Ent. 1 at 3. In the affidavit attached to his complaint, plaintiff attests that his request to be placed on the fasting list was so that he could "eat befor[e] the sun comes up and when the sun go[es] down." Doc. Ent. 1 at 4 ¶ 5; see also Doc. Ent. 1 at 4-5 (Washington's January 25, 2011 Sworn Declaration/Affidavit Against Activities of Violation of [MDOC PD] 05.03.150 and Prisoner[']s First Amen[dment] Rights to Exercise his Religious Beliefs and Practices).
On February 8, 2011, Washington provided Chaplain Caldwell with a Religious Preference Sheet indicating his choices to attend various Protestant services. Doc. Ent. 17-2 at 16. The February 20, 2011 MDOC Offender Callout Management System Supervisor Report for Protestant Services indicates that Washington was scheduled to attend service from 6 p.m. — 8 p.m. in the gym. Doc. Ent. 17-2 at 17. It appears that Washington signed himself into that scheduled Protestant Primary Service. Doc. Ent. 17-2 at 18.
In support of his April 12, 2011 motion for summary judgment (see Doc. Ent. 13 at 1), plaintiff provides a brief (Doc. Ent. 13 at 2-4), within which plaintiff cites Perez v. Frank, 433 F.Supp.2d 955 (W.D. Wis. 2006)
In her April 26, 2011 motion, defendant Chaplain Caldwell asserts:
Attached to this motion is defendant RRF Chaplain Carron Caldwell's April 13, 2011 affidavit (Doc. Ent. 17-2 at 2-4). She attests that "[t]he Ramadan fast is a religious activity made available to all Muslim prisoners." Doc. Ent. 17-2 ¶ 6. Caldwell attests that she "forwarded Washington's request to [CFA] Special Activities Coordinator Michael Martin and was informed that since Washington's religious preference was not Muslim, he could not participate in the Ramadan fast." Doc. Ent. 17-2 ¶ 9. Furthermore, Caldwell attests that "[t]o [her] knowledge, Washington has not submitted the required written request and information necessary to observe a fast which is necessary to the practice of the Protestant religion." Doc. Ent. 17-2 ¶ 12. Additionally, Caldwell states that "Washington could have fasted by himself during Ramadan, but without prior approval from the CFA Special Activities Coordinator, Washington would have had to make his own preparations and would not receive any special accommodations from MDOC." Doc. Ent. 17-2 ¶ 13.
Defendant also provides the April 25, 2011 affidavit of Michael Martin, MDOC Special Activities Coordinator (Doc. Ent. 17-3 at 2-5). Martin attests that "Plaintiff . . . has indicated that his religious preference is Protestant. Washington requested to participate in the Ramadan fast which is a religious activity made available to only Muslim prisoners. The Protestant faith does not require participation in the Ramadan fast." Doc. Ent. 17-3 ¶ 6. Additionally, Martin attests that RRF Chaplain Caldwell contacted him "regarding Washington's request and [Martin] informed [Caldwell] that since Washington's religious preference wasn't Muslim, he could not participate in the Ramadan fast." Doc. Ent. 17-3 ¶ 11.
In his May 4, 2011 filing, plaintiff registers his objections to defendant's April 26, 2011 motion for summary judgment (Doc. Ent. 17), see Doc. Ent. 19 at 2-3 ¶¶ 3-10, and his objections to defendant's April 26, 2011 motion to stay discovery (Doc. Ent. 18), see Doc. Ent. 19 at 3-4 ¶¶ 11-12. Additionally, plaintiff raises the following, miscellaneous objections:
See Doc. Ent. 19 at 4 ¶¶ 13-14. Among other requests for relief, plaintiff seeks an order of this Court requiring Caldwell "to respond to Plaintiff[']s Affidavit, Interrogatories, and Motion for Summary Judgment within five (5) days[.]" Doc. Ent. 19 at 4 ¶ I.
Plaintiff also maintains that MDOC PD 05.03.150 does not say that he "ha[s] to be of the Muslim faith in order to fast during Ramadan." Doc. Ent. 19 at 5. As plaintiff points out, this policy provides in part that "[n]o prisoner shall be discriminated against, or given preferential treatment, because of his/her religious beliefs or practices." MDOC PD 05.03.150, ¶ D. Citing this paragraph, it is plaintiff's position that, "[t]hough a prisoner must be Muslim to participate in Ramadan, there is no policy against Prisoners from different faiths fasting during the same time frame." Doc. Ent. 19 at 6.
Plaintiff's May 13, 2011 filing, executed on May 10, 2011, is titled, "2nd Affidavit of Facts by Clarence Washington in the Matter of Protestant Religious Beliefs & Practices from the Holy Bible[.]" Therein, plaintiff attests that "his beliefs and practices from the Holy Bible are very true." After citing portions of the Bible, and in reliance on MDOC PD 05.03.150 ("Religious Beliefs & Practices of Prisoners"), plaintiff contends that Protestants, "shall enjoy equal status and protection[,]" and "prison staff shall not discriminate[] against plaintiff[.]" Doc. Ent. 20 at 1.
Also, plaintiff cites the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5; and several cases, including Gerhardt v. Lazaroff, 221 F.Supp.2d 827 (S.D. Ohio 2002),
Furthermore, plaintiff attests:
Doc. Ent. 20 at 2.
On August 10, 2011, I entered an order (Doc. Ent. 25) regarding plaintiff's May 18, 2011 motion to amend the complaint (Doc. Ent. 21). Specifically, my order denied the motion without prejudice to reconsideration if plaintiff submits a proposed amended complaint on or before September 15, 2011. My order further provided that defendant may file a brief attacking the legal sufficiency of any such proposed amended complaint within fourteen (14) days of receiving a copy. Doc. Ent. 25 at 3.
That same day, I entered another order (Doc. Ent. 26) granting Caldwell's April 26, 2011 motion to stay discovery (Doc. Ent. 18). This order specifically provided:
Doc. Ent. 26 at 3.
By his September 9, 2011 motion for leave to amend his complaint, plaintiff seeks "to add as defendants Warden Raymond D. Booker, and Michael Martin, and to set forth with particularity his claims of religious discrimination." Doc. Ent. 27 at 1-4. By way of example, plaintiff "states and believes that Warden Booker took part in the decision to deny Plaintiff Washington the right to practice his religion because Plaintiff was Pr[o]testant and the amended complaint sets forth the acts committed by Warden Booker which support[] that claim." Doc. Ent. 27 at 2-3 ¶ 1. Also, plaintiff claims he "has learned that MDOC Special Acts Coordinator Michael Martin (who is Defendant Caldwell's supervisor) received Plaintiff[']s request to fast but without considering the merits of the request denied the request solely because Plaintiff was an admitted Protestant." Doc. Ent. 27 at 3 ¶ 2.
Attached to his motion is a proposed first amended complaint, wherein plaintiff names as defendants Caldwell, Booker and Martin. Doc. Ent. 27 at 5, 7-8 ¶¶ 4-6. Among other things, the facts underlying plaintiff's proposed first amended complaint discuss plaintiff's July 30, 2010 letter to Caldwell, Caldwell's August 10, 2010 response, plaintiff's subsequent letter to Booker, plaintiff's August 18, 2010 letter to Caldwell, and his August 20, 2010 grievance. Doc. Ent. 27 at 8-12 ¶¶ 7-24.
Caldwell's September 14, 2011 response sets forth three arguments. First, defendant asserts, "Plaintiff, a Protestant, requested and was denied participation in the Muslim fast during Ramadan. MDOC policy provides that a prisoner may only belong and/or participate in one religious group at a time." Caldwell contends she is "entitled to summary judgment because Plaintiff has not shown a First Amendment violation[.]" Doc. Ent. 28 at 8.
Second, defendant asserts, "[a] Plaintiff must make a clear showing that each named Defendant was personally involved in the activity that forms the basis of the complaint. Liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon `a mere failure to act.' Chaplain Caldwell did not make the decision to deny Plaintiff a religious fast." Caldwell contends "Plaintiff's claims against [her should] be dismissed[.]" Doc. Ent. 28 at 8-9.
Third, defendant asserts, "The Ninth Amendment to the U.S. Constitution does not confer any substantive rights." Caldwell contends that "Plaintiff's claims based upon the Ninth Amendment [should] be dismissed[.]" Doc. Ent. 28 at 9.
The Court should grant plaintiff's September 9, 2011 motion for leave to file an amended complaint (Doc. Ent. 27) and, accordingly, should deny without prejudice plaintiff's and defendant's earlier filed motions for summary judgment (Doc. Entries 13 and 17).
First, plaintiff's motion for leave to file an amended complaint is unopposed. "A respondent opposing a motion must file a response, including a brief and supporting documents then available." E.D. Mich. LR 7.1(c)(1). Furthermore, "[a] response to a nondispositive motion must be filed within 14 days after service of the motion." E.D. Mich. LR 7.1(e)(2)(B). To date, defendant has not filed any response to plaintiff's September 9, 2011 motion for leave to file an amended complaint (Doc. Ent. 27 at 1-4).
Second, defendant's only filing since then — her September 14, 2011 response (Doc. Ent. 28) to plaintiff's April 12, 2011 motion for summary judgment (Doc. Ent. 13) — does not address plaintiff's proposed first amended complaint (Doc. Ent. 27 at 5-15).
Third, if the Court agrees with my recommendation as to plaintiff's motion for leave to file an amended complaint, then it would be more appropriate to deny without prejudice plaintiff Washington's and defendant Caldwell's earlier filed motions for summary judgment, direct the Clerk of the Court to file plaintiff's first amended complaint, arrange for the U.S. Marshal to effect service upon Booker and Martin, and have any dispositive motion arguments made and addressed after the filing of plaintiff's first amended complaint and its service upon each defendant.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
I note that a waiver of service was sent via mail by the U.S. Marshal to defendant Caldwell on February 23, 2011. Caldwell returned an executed waiver of service. As such, her answer to plaintiff's complaint was due on or about April 25, 2011. See Fed. R. Civ. P. 4(d)(3) ("Time to Answer After a Waiver.") ("[a] defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States."). Defendant Caldwell filed her motion for summary judgment on April 26, 2011. Doc. Ent. 17.
The Tenth Circuit affirmed. Grace United Methodist Church v. City of Cheyenne, 427 F.3d 775 (10
Furthermore, defendant's September 14, 2011 argument apparently refers to her April 26, 2011 motion for summary judgment (Doc. Ent. 17) and plaintiff's April 12, 2011 motion for summary judgment (Doc. Ent. 13), each of which pre-dates plaintiff's September 9, 2011 proposed first amended complaint (Doc. Ent. 27 at 5-15). Doc. Ent. 28 at 8-9.
