Cary v. Stewart
| Decision Date | 17 August 2018 |
| Docket Number | Case No. 17-13632 |
| Parties | BRYAN CARY, Plaintiff v. ANTHONY STEWART, et al, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff, a prisoner in the custody of the Michigan Department of Corrections, filed this civil rights lawsuit on November 3, 2017. (Dkt. 1). District Judge Robert H. Cleland referred this matter to the undersigned for all pretrial proceedings. (Dkt. 14). On February 5, 2018, defendants filed a motion to dismiss or for summary judgment. (Dkt. 16). Plaintiff filed a motion seeking limited discovery on the issue of exhaustion in order to respond to defendants' motion. (Dkt. 18). While plaintiff had already filed a response to the motion to dismiss or for summary judgment (Dkt. 24), the Court granted plaintiff's motion and allowed for a period of discovery regarding exhaustion and allowing plaintiff 28 days after the close of discovery to file his response to the motion to dismiss or for summary judgment. (Dkt. 25). Defendants filed a reply on April 5, 2018. (Dkt. 26). After the close of the limited discovery period, which expired in early June, plaintiff did not file any amended or supplemental response to the motion to dismiss or for summary judgment, within 28 days thereafter as allowed by the Court's April 2 Order. (Dkt. 25).
For the reasons set forth below, the undersigned RECOMMENDS that defendants' motion for summary judgment as to plaintiff's retaliation claim and as to any claims against defendant Russell be GRANTED for failure to exhaust administrative remedies. The undersigned further RECOMMENDS that defendants' motion to dismiss plaintiff's First Amendment Free Exercise claim be DENIED, that defendants' motion to dismiss plaintiff's Equal Protection claim be GRANTED, that defendants' motion to dismiss plaintiff's substantive due process claim be GRANTED, and that defendants' motion for summary judgment on plaintiff's procedural due process claim be GRANTED. Finally, the undersigned RECOMMENDS that the Court decline to exercise supplemental jurisdiction over plaintiff's state law Ethnic Intimidation claim, and DISMISS this claim without prejudice.
This case is about plaintiff's First Amendment right to practice his religion, the Native American Traditional Ways (NATW). As part of his religious practice, plaintiff has a medicine bag containing sacred herbs, which are used for protection,prayer, and offerings. (Dkt. 1, Pg ID 4). Plaintiff contends that his possession of the medicine bag and herbs is permitted by MDOC Policy Directive 05.03.150. Id. Despite the policy directive and his constitutional rights, plaintiff alleges that defendants Laing, Smith, Stewart and other unknown persons had his herbs taken and restricted. He also alleges that they falsified policy language in order to take and restrict the herbs. According to Laing, PD 05.03.150 says that Id. .
Plaintiff asserts that the policy directive actually states that he can have: "Two braids of sweet grass for smudging during group religious ceremonies and activities unless sweet grass is also part of the contents of medicine bag; maximum one braid per order." (Dkt. 1, Pg ID 4). According to plaintiff, this clearly means two braids of sweet grass for group services and one braid for the prisoner are permitted. Plaintiff also alleges that the policy does not state that the herbs must be in the medicine bag, and it does not state that herbs outside the medicine bag are excess property. Plaintiff maintains that braids of sweet grass are 12 inches long and would not fit in a 3x5 medicine bag. The handbook of religious groups provides that plaintiff can have sacred medicines which are herbs. Morespecifically, plaintiff is permitted to have herbal "Kinnikinnick," which is a mixture of herbs. This handbook does not state that herbs are required to be in the medicine bag. Plaintiff says he is allowed to have his herbs and he cannot practice his religion without them. He alleges that defendants are completely restricting him from practicing his religion in a manner that is allowed by policy, which violates his constitutional right to freely exercise his religion. Id.
Plaintiff also alleges that defendants have violated his Equal Protection rights because they have only searched his belongings and not those of other Native American prisoners to see if they have herbs outside of their medicine bags. (Dkt. 1, Pg ID 5, citing Ex. D, Declarations attached to the complaint). Plaintiff further avers that defendants do not take and restrict rosaries, Qurans, or Bibles. Here, plaintiff contends that defendants falsified policy language three different times in order to take and restrict his sacred herbs that are allowed. Plaintiff maintains that he is not being treated like those who are similarly situated. Id.
Plaintiff also contends that defendants are retaliating against him for filing grievances and lawsuits about his herbs. (Dkt. 1, Pg ID 5). He states that defendants bullied plaintiff into a writing a statement allowing Laing to hold the herbs in his office. Plaintiff did not want to do this, but he was told the herbs would be donated, destroyed, or mailed home. Laing told plaintiff that the reasonthe herbs were being taken was because he "made a big deal out of the situation." Id. (citing Ex. E, plaintiff's declaration).
Plaintiff also asserts a due process claim. (Dkt. 1, Pg ID 5). He claims that King knew plaintiff's herbs were taken and restricted. Plaintiff was attending a fact-finding hearing on October 24, 2017 conducted by ARUS Doss. King came into the hearing without a valid reason, stopped it and told plaintiff to go to lock down without allowing plaintiff to argue in his own defense. King also refused to provide plaintiff with copies of the documents. Plaintiff says he was engaged in protected conduct and King denied him due process. Id.
Plaintiff additionally asserts a claim under Michigan's Ethnic Intimidation statute. (Dkt. 1, Pg ID 5). According to the complaint, defendants are clearly singling out plaintiff because of his race and religion. And, when plaintiff filed grievances and sued, defendants retaliated in a malicious manner to harass and intimidate plaintiff. Plaintiff alleges that defendants have made it clear that they are not going to return confiscated herbs, and their malicious intent is evidenced by their actions in falsifying policy language in order to take and restrict his herbs. He says they are clearly trying to destroy the herbs. Thus, plaintiff maintains that Michigan's Ethnic Intimidation statute has been violated. Id.
When a party files a motion for summary judgment, it must be granted "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). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by: (A) citing to particular parts of materials in the record...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). Furthermore, the evidence and all reasonable inferences must beconstrued in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where the movant establishes the lack of a genuine issue of material fact, the burden of demonstrating the existence of such an issue shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, the party opposing a motion for summary judgment must make an affirmative showing with proper evidence and must "designate specific facts in affidavits, depositions, or other factual material showing 'evidence on which the jury could reasonably find for the plaintiff.'" Brown v. Scott, 329 F.Supp.2d 905, 910 (6th Cir. 2004).
In order to fulfill this burden, the non-moving party need only demonstrate the minimal standard that a jury could ostensibly find in his favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, mere allegations or denials in the non-movant's pleadings will not satisfy this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 251.
The Court's role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Such a determination requires that the Court "view the evidence presented throughthe prism of the substantive evidentiary burden" applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove his case at trial by a preponderance of the evidence, on a motion for summary judgment the Court must determine whether a...
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