RAY KENT, Magistrate Judge.
This is a pro se civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. This matter is now before the court on a motion for summary judgment brought by defendants Robinson, Miller, Shattuck, Makara, Bennickson, Moyer, Hickok, Freiburger, Wickwire, Hadden, and Normington (f/k/a Nevins) (docket no. 51).
The incidents in this action occurred at Bellamy Creek Correctional Facility (IBC). The remaining defendants in this action are: Grievance Coordinator Marshaun Robinson; Sergeants Matt Bennickson and Liza Moyer; Captain Patrick Makara; Assistant Resident Unit Supervisors (ARUS's) Laura Normington (f/k/a Nivins) and Brian Hadden; and Corrections Officers Troy Miller, Scott Shattuck, Randy Wickwire, Lucas Freiburger and Andrew Hickok. Plaintiff's remaining claims are as follows.
Second, plaintiff has alleged claims under the First Amendment, Fourteenth Amendment (equal protection), and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 arising from the confiscation of his medicine bag. Plaintiff alleged that he is a practitioner of the Native American religion and that he keeps and wears a medicine bag as part of his religious practices. When he was placed in segregation on August 16, 2012, defendant Miller confiscated plaintiff's medicine bag, telling him that he was not permitted to possess the bag while he was housed in segregation. Thereafter, defendants Miller, Shattuck, Makara, and an unknown defendant ("Unknown Party #3") allegedly opened and fingered the contents of the bag, thereby desecrating plaintiff's religious object. In addition, defendants Bennickson, Moyer, Hickok, Hadden, Wickwire, Freiberger, and "Unknown Party #3" all refused to return plaintiff's medicine bag. Plaintiff complains that these defendants denied his rights under the First Amendment and RLUIPA. Plaintiff also claims that he was denied his right to equal protection when another Native American prisoner who was housed in segregation was permitted to possess his medicine bag and other segregation prisoners were permitted to have their religious objects.
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
Here, both plaintiff and defendants have moved for summary judgment. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the Court set forth the parties' burden of proof in a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Plaintiff alleged that defendant Robinson violated his First Amendment rights by filing a misconduct charge against plaintiff in retaliation for plaintiff threatening to sue Robinson. To prove a First Amendment retaliation claim, plaintiff must establish three elements: "1) the plaintiff engaged in activities protected by the Constitution or statute; 2) the defendant took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that this adverse action was taken at least in part because of the exercise of the protected conduct." Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). See also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). To establish the causation element of a retaliation claim, "the plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct." Smith, 250 F. 3d at 1037.
Plaintiff's claim fails because he was found guilty of the misconduct (insolence) for writing a kite directed to defendant Robinson which made Robinson fear for his safety. See Misconduct Report and Misconduct Hearing Report (docket no. 52-2, PageID.176-177). Plaintiff admitted that he wrote the kite even though it was purportedly sent by a different prisoner. Id. "A finding of guilt based upon some evidence of a violation of prison rules `essentially checkmates [a] retaliation claim.'" Jackson v. Madery, 158 Fed. Appx. 656, 662 (6th Cir. 2005), quoting Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994). As in Jackson, the misconduct report shows that there was some evidence to support the charges. See Jackson, 158 Fed. Appx. at 662; docket no. 41-3. Accordingly, defendant Robinson's motion for summary judgment should be granted.
"RLUIPA, as it has come to be known, applies to prisons that receive federal funds and prohibits state and local governments from placing `a substantial burden' on the `religious exercise' of any inmate unless they establish that the burden furthers a `compelling governmental interest' and does so in the `least restrictive' way." Haight v. Thompson, 763 F.3d 554, 559-60 (6th Cir. 2014), quoting 42 U.S.C. § 2000cc-1(a). "To establish a cognizable claim under RLUIPA, the inmate must first demonstrate that a prison policy substantially burdens a religious practice." Haight, 763 F.3d at 559-60. Here, plaintiff has alleged that defendants violated RLUIPA for confiscating his medicine bag and fingering its contents when he was placed in administrative segregation. Plaintiff's claim fails. First, plaintiff is not entitled to damages against defendants because damages are not available under RLUIPA, regardless of whether prison officials are sued in their individual or official capacities. Id. at 567-70 (6th Cir. 2014). Second, any request for injunctive relief is now moot because plaintiff was transferred from IBC (where the allegations took place), and now is housed at Marquette Branch Prison (MBP). When a prisoner is transferred out of the prison where the alleged violations occurred, injunctive relief becomes moot. See Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010); Cardinal v. Metrish, 564 F.3d 794, 798 (6th Cir. 2009). Accordingly, the motion for summary judgment filed by defendants Miller, Shattuck, Makara, Bennickson, Moyer, Hickok, Freiburger, Wickwire, Hadden, and Normington (f/k/a Nevins) should be granted as to plaintiff's RLUIPA claim.
Plaintiff also contends that defendants' confiscation of his medicine bag and fingering its contents violated his First Amendment rights. The First Amendment provides in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It is well established that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545 (1979). "Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted). However, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id. quoting Price v. Johnston, 334 U.S. 266, 285 (1948). This limitation of privileges arises "both from the fact of incarceration and from valid penological objectives — including deterrence of crime, rehabilitation of prisoners, and institutional security." Id. citing Pell v. Procunier, 417 U.S. 817, 822-23 (1974).
Here, each defendant sued with respect to the alleged confiscation of the medicine bag has filed an affidavit stating that he or she does not recall this specific situation. See Miller Aff. (docket no. 52-3, PageID.180-181); Shattuck Aff. (docket no. 52-4); Makara Aff. (docket no. 52-5); Bennickson Aff. (docket no. 52-6); Moyer Aff. (docket no. 52-7); Hickok Aff. (docket no. 52-8); Freiburger Aff. (docket no. 52-9); Wickwire Aff. (docket no. 52-10); Hadden Aff. (docket no. 52-11); Normington Aff. (docket no. 52-12).
On screening, the Court recognized that plaintiff's claims regarding his medicine bag included the allegation that "he was denied his right to equal protection because other inmates were permitted to keep their religious objects while in segregation, as specifically authorized by MICH. DEP'T OF CORR., Policy Directive 04.05.120 ¶ V(25), unless prohibited under Attachment B to the policy, which does not exclude medicine bags." Opinion at PageID.50. The Court concluded that plaintiff's claims regarding his medicine bag, which would include the equal protection claim, are sufficient to warrant service of the complaint." Id. Defendants' motion does not address plaintiff's equal protection claim with respect to the medicine bag. Accordingly, that claim remains.
Finally, defendants contend that they are entitled to qualified immunity.
Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir 2011). The Court may exercise its sound discretion "in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236. "Once the qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity." Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
Here, defendants nominally raised a qualified immunity defense. However, they did not address the specific claims on which they seek qualified immunity or provide legal authority on the legal questions at issue in this action. It is insufficient for defendants to cite law for the general proposition that qualified immunity exists and then simply assert that they are entitled to it. Malec v. Sanford, 191 F.R.D. 581, 588 (N.D. Ill. 2000). A court need not make the lawyer's case by scouring the party's various submissions to piece together appropriate arguments. Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995). Accordingly, defendants' motion for summary judgment on the ground of qualified immunity should be denied.
For the reasons set forth above, I respectfully recommend that defendants' motion for summary judgment (docket no. 51) be
