Lamont Heard v. Patricia Caruso , 351 F. App'x 1 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0614n.06
Nos. 08-1710/1779/1820 FILED
Aug 27, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LAMONT BERNARD HEARD, )
)
Plaintiff-Appellant, )
)
v. )
)
PATRICIA CARUSO, named as ) ON APPEAL FROM THE
Director of the Michigan Department ) UNITED STATES DISTRICT
of Corrections, in her individual ) COURT FOR THE WESTERN
capacity, et al., ) DISTRICT OF MICHIGAN
)
Defendants-Appellees, )
) OPINION
RANDALL MASKER, named as Mail )
Room Supervisor, in his individual )
capacity. )
)
Defendant-Appellee. )
_______________________________________)
Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Lamont Bernard Heard (“Heard”), a
Michigan prisoner proceeding pro se, appeals the district court’s grant of summary judgment in favor
of Defendants-Appellees, several employees of the Michigan Department of Corrections (“MDOC”),
in this civil-rights action filed under 42 U.S.C. § 1983.1 Additionally, Heard appeals the judgment
1
These defendants include: Patricia L. Caruso, Director of the MDOC; Unknown Straub,
Deputy Director of the MDOC; Dave J. Burnett, MDOC Special Activities Coordinator; Robert
Mulvaney, MDOC Security Threat Group Coordinator; Jeri-Ann Sherry, Warden of Chippewa
Correctional Facility (“Chippewa”); Greg McQuiggin, Deputy Warden of Chippewa; Michael
Brown, Security Threat Group Coordinator at Chippewa; Steven Therrian, a lieutenant at Chippewa;
in favor of MDOC employee Randall Masker (“Masker”) following a bench trial on Heard’s claim
that Masker opened Heard’s legal mail outside Heard’s presence. These cases have been referred
to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this
panel unanimously agrees that oral argument is not needed. Because there remains a genuine issue
of material fact as to whether Heard’s placement in a maximum-security prison implicates a
protected liberty interest, we VACATE that part of the district court’s summary-judgment order and
REMAND for further consideration of whether Heard’s confinement implicates a liberty interest
and, if so, whether the state has given Heard the process to which he is due. We also VACATE that
part of the summary-judgment order dismissing Heard’s equal-protection and RLUIPA claims for
prison officials’ failure to accommodate his request for a Nation-of-Islam diet, and REMAND for
further proceedings. We AFFIRM the remaining parts of the district court’s summary-judgment
order, AFFIRM the judgment in favor of Masker, and AFFIRM the various other rulings by the
district court that Heard challenges on appeal.
I. BACKGROUND
Heard is an inmate in the custody of the MDOC who has been confined to various maximum-
security facilities since October 21, 2004.2 Previously, Heard was confined at Chippewa
Correctional Facility (“Chippewa”), a low- to medium-security facility in Kincheloe, Michigan. On
September 18, 2004, prison officials placed Heard in segregation and charged him with major-
Sandy Shaw, a chaplain at Chippewa; Daniel Ezrow, an inspector at Baraga Maximum Correctional
Facility (“Baraga”); and D. Huhta, a resident unit officer at Baraga.
2
The record indicates that Heard has been confined to at least three different maximum-
security facilities, including the Standish Maximum Correctional Facility in Standish, Michigan, the
Baraga Maximum Correctional Facility in Baraga, Michigan, and the Marquette Branch Prison in
Marquette, Michigan.
2
misconduct (“Incite to Riot or Strike: Rioting or Striking”) because of statements Heard made
during a Nation-of-Islam religious service. R. 78 Ex. E-B (Major Misconduct Report 9/18/04 at 2).
During a speech generally discussing the Nation of Islam and the history of oppression of black
people in the United States, Heard stated, among other things, that “a resurrected man will not put
up with mistreatment and will strike back,” “mention[ed] the . . . Fruits of Islam—[the] [s]ecurity
Force of [the Nation of Islam],” “state[d] that . . . the only way to establish peace was through war,”
and “stated that the officers do not want peace as that disharmony is the ‘crux of their existence’ and
maintains their jobs and livelihood.” R. 78 Ex. E-A (Therrian Memo 9/18/04). Heard also stated
that “we have a real problem here.” Id. When later asked by a prison official what he meant by this,
“Heard responded [that] he meant at [Chippewa] . . . the officers . . . do not respect the black man,
but they will.” Id.
Heard requested a hearing and access to relevant documents and witnesses. At the hearing,
Heard did not deny making these statements, but argued that prison officials had taken his words out
of context from a speech that generally concerned the history of black people in the United States,
with references to the film The Passion of the Christ and various Bible verses. R. 78 Ex. E-B
(Misconduct Hearing Report 9/23/04 at 1). Heard contended that his speech was not threatening,
did not show disrespect toward correctional officers or disrupt the prison, and was protected by the
First Amendment. At the conclusion of the hearing, the hearing officer upheld Heard’s major-
misconduct charge and placement in segregation, finding that Heard’s speech was “in a prison
setting” and was “not protected speech because he is advocating more than mere speech but conduct
by instigating actions which are intended to seriously endanger the physical safety of the facility,
persons or property.” Id.
3
On October 7, 2004, Heard’s major-misconduct citation led prison officials to identify Heard
as a “recruiter,” classify him as an adherent of “Intolerant/Subversive Groups,” and, following an
interview with Heard, designate him a Security Threat Group (“STG”) II under the MDOC’s
security-threat classification system. R. 78 Ex. I (Brown Aff. ¶¶ 6-8). Under MDOC policy, Heard’s
STG II designation automatically resulted in his transfer to a Level V maximum-security facility.
Heard filed internal grievances challenging both his initial major-misconduct citation and his
STG II designation; all were denied by prison officials. Heard also filed a request for removal of his
STG II designation, arguing that his designation as a “recruiter” under the “Intolerant/Subversive
Groups” category targeted his membership in the Nation of Islam. On October 21, 2004, defendant
Brown, Chippewa’s STG Coordinator, denied Heard’s request for removal of the STG II designation,
explaining that Heard’s designation as a “recruiter” and adherent of “Intolerant/Subversive Groups”
was not based upon Heard’s membership in the Nation of Islam but instead was based upon his
actions and statements, which “were a call to arms, a call to others to rise up with you and join your
cause.” R. 78 Ex. I-A (Brown Memo 10/21/04 at 2). Since being designated STG II in October
2004, Heard has been confined at maximum-security facilities in the Michigan prison system.
Heard’s confinement in maximum-security facilities evidently continues indefinitely until prison
officials decide to remove his STG II designation. Under MDOC policy, prison officials must
review a prisoner’s STG designation at least once every six months.
On September 23, 2005, Heard, proceeding pro se, filed this § 1983 action, challenging on
several constitutional grounds the disciplinary actions taken against him and his placement and
continued confinement in maximum-security facilities. Heard alleged that his procedural-due-
process rights were violated when he was designated a security threat (i.e., STG II) and placed in
4
maximum-security facilities without the procedural protections to which he was due. Heard also
alleged that prison officials initiated these disciplinary actions against him in retaliation for his
exercise of his First Amendment rights in his September 18, 2004 speech. Heard asserted that prison
officials further retaliated against him for filing grievances challenging these disciplinary actions.
Heard’s complaint also challenged the refusal of prison officials to accommodate his request for a
dietary regimen recommended by the Nation of Islam, asserting both an equal-protection claim and
a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc-1 et seq. Heard additionally asserted a retaliation claim against defendant Huhta, a
corrections officer at Baraga Maximum Correctional Facility (“Baraga”), alleging that Huhta planted
a bullet shell in Heard’s cell in retaliation for Heard’s threat to file a lawsuit against prison officials.
Finally, Heard alleged that defendant Masker opened and read Heard’s legal mail outside of Heard’s
presence, despite Heard’s request to have his legal mail opened only when he is present.
On September 28, 2005, the district court granted Heard leave to proceed in forma pauperis.
On December 21, 2005, the Defendants filed a motion to stay discovery on the ground that they soon
would be filing motion to dismiss Heard’s complaint for failure to state a claim upon which relief
can be granted. The district court granted a stay of discovery on December 23, 2005. After
obtaining two extensions of time to file a responsive pleading, the defendants filed a motion to
dismiss on February 13, 2006, arguing that Heard’s complaint mis-joined parties in violation of
Federal Rules of Civil Procedure 20 and 21 by asserting claims against various defendants that did
not arise out of the same transaction or occurrence or present common questions of law and fact.
On April 3, 2006, a magistrate judge issued a report and recommendation (“R&R”) recommending
5
denial of the defendants’ motion to dismiss.3 The district court approved the R&R on August 22,
2006.
On June 5, 2006—while defendants’ motion to dismiss was pending before the district
court—the defendants filed a motion for summary judgment seeking dismissal of all of Heard’s
claims. On July 5, 2006, Heard served defendants with a number of discovery requests, including
interrogatories and requests for admissions. On July 21, 2006, the defendants filed a second motion
to stay discovery, arguing that the burden and expense of responding to Heard’s discovery requests
would outweigh the likely benefits and requesting that discovery not be permitted pending the
disposition of the defendants’ motion for summary judgment. Heard filed an opposition to the
defendants’ motion to stay discovery, arguing that the defendants possessed information essential
to establishing fact issues for his various claims and that it would be improper for the district court
to rule on the defendants’ summary-judgment motion without first giving him an opportunity to
conduct discovery.
On August 8, 2006, the magistrate judge issued an order granting the defendants’ motion to
stay discovery. The order stated that if Heard believed he needed discovery to defend against
defendants’ summary-judgment motion, he could “file a supplemental response, indicating as
specifically as possible what facts he believes might be revealed in discovery which will support his
cause.” R. 109 (Order Granting Mot. to Stay Discovery 8/8/06). On August 15, 2006, Heard filed
a supplemental response, which included an affidavit sworn by Heard identifying various documents
and information that Heard believed were possessed by defendants and stating how Heard believed
3
The R&R also recommended denial of Heard’s motion for a preliminary injunction and
motion for summary judgment, both of which had been filed before the defendants filed their motion
to dismiss.
6
this material could defeat defendants’ summary-judgment motion. See R.113 (Heard Supplement
8/15/06). The district court did not rule on or otherwise respond to Heard’s supplemental response.
On November 21, 2006, the magistrate judge issued an R&R recommending that summary
judgment be granted in favor of defendants on all of Heard’s claims. On February 6, 2007, after
reviewing Heard’s objections, the district court issued an opinion and order modifying the R&R and
dismissing the case except as to Heard’s claim against defendant Masker for opening Heard’s legal
mail outside of Heard’s presence. The district court subsequently denied Heard’s motion to alter or
amend the summary-judgment order and Heard’s motion for relief from that order. The district court
also denied Heard’s February 28, 2008 motion to appeal an order of the magistrate judge that
allowed Heard to take the deposition of defendant Masker but disallowed Heard the use of a camera
recorder or tape recorder to make a record of the deposition. Heard filed a notice of appeal from that
order on May 23, 2008 (appeal No. 08-1710).
On May 20, 2008, the district court held a bench trial on Heard’s remaining claim against
defendant Masker and on May 28, 2008, entered judgment for Masker. On June 11, 2008, Heard
filed a notice of appeal from the judgment for Masker and the district court’s prior order denying
relief from the summary-judgment order (appeal No. 08-1779). Heard also filed a supplemental
notice of appeal on June 18, 2008 (appeal No. 08-1820). The district court denied Heard’s motion
for a new trial on November 18, 2008.
On appeal, Heard challenges the district court’s grant of summary judgment for all
defendants except Masker, the district court’s denial of his discovery requests, the judgment
following a bench trial in favor of Masker, and several other rulings by the district court.
7
II. ANALYSIS
A. Summary-Judgment Order
1. Standard of Review
We review a district court’s grant of summary judgment de novo. Miller v. Admin. Office
of the Courts, 448 F.3d 887, 893 (6th Cir. 2006). The moving party is entitled to summary judgment
“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” FED . R. CIV . P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
2. Procedural-Due-Process Claim
Heard argues that the district court erred in dismissing his procedural-due-process claim
because he has a cognizable “liberty” interest in avoiding STG II designation and the attendant
confinement to maximum-security facilities. In order to prevail on a procedural-due-process claim,
an inmate must first demonstrate that he was deprived of “life, liberty, or property” by government
action. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Prisoners retain a liberty interest with respect
to state-imposed prison discipline that “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). If a
prisoner establishes a liberty interest, the next question is what process the state must afford before
imposing the discipline in question. Austin, 545 U.S. at 224.
The initial question in this case is whether Heard’s allegedly indefinite confinement to
maximum-security facilities because of his STG II designation constitutes an “atypical and
significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at
484. In Sandin, the Supreme Court held that an inmate’s assignment to disciplinary segregation for
8
thirty days did not impose an “atypical, significant deprivation” that implicated an inmate’s liberty
interest. Id. at 486. In reaching this conclusion, the Court explained that disciplinary segregation
at the prison generally “mirrored those conditions imposed upon inmates in administrative
segregation and protective custody,” the inmate’s confinement in segregation “did not exceed
similar, but totally discretionary, confinement in either duration or degree of restriction,” and the
inmate’s segregation would not “inevitably affect the duration of his sentence.” Id. at 486-87. In
Austin, however, the Supreme Court held that placement in Ohio’s maximum-security prison did
implicate an inmate’s liberty interest. The Court concluded that assignment to the maximum-
security prison “impose[d] an atypical and significant hardship under any plausible baseline,” and
listed several factors that distinguished such confinement from the disciplinary segregation at issue
in Sandin :
For an inmate placed in [the maximum-security prison], almost all human contact is
prohibited, even to the point that conversation is not permitted from cell to cell; the
light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but
only in a small indoor room. Save perhaps for the especially severe limitations on
all human contact, these conditions likely would apply to most solitary confinement
facilities, but here there are two added components. First is the duration. Unlike the
30-day placement in Sandin, placement at [the maximum-security prison] is
indefinite and, after an initial 30-day review, is reviewed just annually. Second is
that placement disqualifies an otherwise eligible inmate for parole consideration.
While any of these conditions standing alone might not be sufficient to create a
liberty interest, taken together they impose an atypical and significant hardship within
the correctional context. It follows that respondents have a liberty interest in
avoiding assignment to [the maximum-security prison].
Austin, 545 U.S. at 223-24 (citations omitted).
The district court—without explanation—found that Heard’s placement in maximum-security
facilities in Michigan was not an “atypical and significant hardship” that implicated a liberty interest.
However, the limited record before us suggests that there is a fact question as to whether
9
confinement to Michigan’s maximum-security facilities—like the Ohio maximum-security prison
at issue in Austin—implicates a protected liberty interest. On August 30, 2006, Heard filed a motion
to supplement,4 adding the following paragraph to a sworn declaration that he had previously filed
on January 10, 2006:
Security Threat Group designations to status II result in plaintiff being placed in a
maximum security prison, which is the most secured of all Michigan Department of
Corrections prisons; but plaintiff does not challenge the increase in classification as
a result of the STG designation. The challenge is to the atypical and significant
hardships place[d] on plaintiff as a result of the designation that trigger due process.
The designations are indefinite and paroles are automatically denied, there are only
five minute showers (which include washing and drying off); visits are restricted to
two one hour non-contacts visits per month; and all human contact is limited to yard,
dining hall, library and religious service which culminate to a potential maximum of
21 hours out [of] the cell per week. Cell to cell communication is prohibited, the
lights, though [they] may be dimmed at night, [are] on 24 hours a day. These
conditions are not ordinary conditions in the life of a prisoner in lower levels (1-4)
in MDOC.
R. 117 (Mot. to Supplement 8/30/2006). Heard also submitted a “Parole Board Notice of Decision,”
indicating that Heard was denied parole on June 19, 2006, in part because of his designation as STG
II and his placement in a maximum-security facility. R. 100 (Mot. for Leave to File Exhibit 7/14/06
at 2). It is not clear from this document whether, as in Austin, Heard’s maximum-security
designation automatically disqualifies him for parole. Finally, the record shows that prison officials
are required to review a prisoner’s STG II status only once every six months. R. 88 (Ezrow Aff. ¶ 8).
Because the district court did not explain the basis for its finding that Heard’s placement in
maximum-security facilities did not implicate a liberty interest, it is unclear whether the district court
considered these materials.
4
Heard styled the motion an “affidavit,” but it was unsworn.
10
We conclude that there are material issues of fact that prevent summary judgment on Heard’s
claim that his confinement to a maximum-security facility implicates a protected liberty interest.
Unlike the prisoner in Harbin-Bey v. Rutter, 420 F.3d 571, 576-77 (6th Cir. 2005), who challenged
only his designation by MDOC officials as an STG member, Heard challenges his placement in
maximum-security facilities, coupled with the indefinite nature of this placement and the
consequences for his eligibility for parole. It appears that there has been no discovery on these
issues. On remand, the district court should permit Heard discovery regarding materials relevant to
showing the conditions of his confinement in maximum-security facilities, the nature and timing of
review of his maximum-security placement, and the consequences of his placement for parole
eligibility. Defendants will, of course, have an opportunity to introduce evidence showing that the
conditions of confinement in Michigan’s maximum-security facilities are distinguishable from those
of the maximum-security prison in Austin.
If a prisoner establishes a protected liberty interest, the next question is whether the state
afforded the inmate sufficient process. See Austin, 545 U.S. at 224. The district court suggested
that, even if Heard had a liberty interest, he received sufficient process when he “was called into the
Captain’s office and his actions were discussed” and when he “received a misconduct hearing and
was found guilty” before being designated STG II. R. 143 (Dist. Ct. Op. 2/6/07 at 3). However, on
the bare-bones record before us, we cannot say whether Heard received the process that may be due
if he has a protected liberty interest. Therefore, if the district court finds on remand that Heard’s
placement in maximum-security facilities implicates a protected liberty interest, it should then
consider whether prison officials have given Heard the process to which he is due under the
framework set forth by the Supreme Court in Austin and, if so, whether Heard actually received these
11
procedural protections. See Austin, 545 U.S. at 224-30 (applying the three factors set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976)).
3. First-Amendment-Retaliation Claim—Heard’s September 18, 2004 Speech
Heard argues that the district court erred in granting summary judgment in favor of
defendants on his claim that prison officials initiated the disciplinary actions against him in
retaliation for his exercise of his First Amendment rights in his September 18, 2004 speech. To
establish a First Amendment retaliation claim, an inmate must show that (1) he was engaged in
protected conduct, (2) an adverse action was taken against him “that would deter a person of ordinary
firmness from continuing to engage in that conduct,” and (3) there is a causal connection between
the first two elements. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005); Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). It is clear that an adverse action was taken
against Heard—severe discipline resulting in maximum-security confinement—and that Heard’s
speech was the cause of this adverse action. The only remaining question therefore is whether
Heard’s statements during a Nation-of-Islam prayer service constitute speech that is protected by the
First Amendment.
The Supreme Court has explained that although “incarceration does not divest prisoners of
all constitutional protections,” the “constitutional rights that prisoners possess are more limited in
scope than the constitutional rights held by individuals in society at large.” Shaw v. Murphy, 532
U.S. 223, 228-29 (2001). In the specific context of the First Amendment, the Court has stated that
“some rights are simply inconsistent with the status of a prisoner or ‘with the legitimate penological
objectives of the corrections system.’” Id. at 229 (quoting Pell v. Procunier, 417 U.S. 817, 822
(1974)). Under the “unitary, deferential standard” for reviewing the constitutional claims of
12
prisoners adopted by the Court, a prison regulation that impinges on a prisoner’s constitutional rights
“‘is valid if it is reasonably related to legitimate penological interests.’” Id. (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)).
Heard was disciplined for a speech to other inmates in which he, among other things,
suggested that those who were mistreated would “strike back,” referred to the Fruits of Islam, the
paramilitary wing of the Nation of Islam, stated that “the only way to establish peace was through
war,” and said that “the officers do not want peace.” R. 78 Ex. E-A (Therrian Memo 9/18/04).
Although Heard’s speech was directed at other prisoners, it contained thinly veiled threats against
prison guards, suggesting that conflict between guards and prisoners was inevitable and that
mistreated prisoners would rise up against the guards. In light of the narrowed scope of the First
Amendment in the prison context, we conclude that disciplining Heard for this speech was
reasonably related to the legitimate interests of prison officials in maintaining order and ensuring
stability in the prison.
The district court dismissed defendants Caruso, Sherry, McQuiggin, and Straub—supervisory
prison officials—from Heard’s First Amendment retaliation claim because Heard failed to allege that
these defendants participated directly or were involved in authorizing policies which violated
Heard’s First Amendment rights. See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)
(explaining that the doctrine of respondeat superior does not apply in § 1983 actions to impute
liability onto supervisory personnel, unless the supervisory personnel “encouraged the specific
incident of misconduct or in some other way directly participated in it”). Because we affirm the
dismissal of this retaliation claim as to all defendants, we need not address this issue.
13
4. First-Amendment-Retaliation Claim Against Brown
Heard separately argues that defendant Michael Brown (“Brown”), a corrections officer at
Chippewa, retaliated against him for filing an internal grievance challenging his initial major-
misconduct citation. According to Heard, Brown designated Heard as a “recruiter”—resulting in
Heard’s STG II designation—because Heard filed this grievance. The district court granted
summary judgment for Brown, finding that defendants had established that Heard’s STG II
designation “was the result of his conduct and not based upon the filing of a grievance.” R. 143
(Dist. Ct. Op. 2/6/07 at 3). In his affidavit, Brown stated that, at the time he participated in
designating Heard as STG II, he was unaware of Heard’s grievance. Brown further stated that the
decision to designate Heard as STG II was based upon an interview that Brown conducted with
Heard and the report Brown received from the misconduct hearing, which detailed Heard’s
statements in the September 18, 2004 speech. Heard did not come forward with any evidence
disputing Brown’s account, nor did Heard suggest how material uncovered through discovery might
support this claim. Accordingly, we conclude that the district court did not err in granting summary
judgment for Brown.
5. First-Amendment-Retaliation Claim Against Huhta
Heard also asserted a retaliation claim against defendant D. Huhta, a corrections officer at
Baraga, alleging that Huhta placed a .40-caliber shell casing in Heard’s cell in retaliation for Heard’s
threat to bring a lawsuit against prison officials. The district court granted summary judgment for
Huhta, finding that Heard suffered no adverse action because of this incident and that there was no
evidence that Huhta intentionally placed the shell casing in Heard’s cell. Summary judgment was
properly awarded to Huhta. Even assuming that the shell can be traced to Huhta, Heard pointed to
14
absolutely no evidence that Huhta intentionally placed the shell in Heard’s cell or that Huhta was
even aware of Heard’s plan to file a lawsuit. Further, the discovery requested by Heard with respect
to this claim—testing of the shell casing in order to trace it to Huhta’s gun—could not create a fact
issue as to whether Huhta intentionally placed the shell in Heard’s cell or whether Huhta had
knowledge of Heard’s intent to engage in protected conduct.
6. Equal-Protection Claim—STG Designation
Heard argues that his equal-protection rights were violated by his designation as STG II and
his attendant placement in maximum-security facilities. According to Heard, prison officials
targeted him for STG II designation because he is Muslim and a member of the Nation of Islam.
Heard contends that prisoners of other religions who are found guilty of the same offense (“Incite
to Riot or Strike”) have not received STG II designation. We conclude that district court did not err
in granting summary judgment for defendants because Heard has not identified similarly situated
non-Nation-of-Islam prisoners who were treated differently. See Buchanan v. City of Bolivar, 99
F.3d 1352, 1360 (6th Cir. 1996) (“In opposition to a motion for summary judgment [on an equal-
protection claim], it is plaintiff who possesses the burden of demonstrating that the defendants
treated similarly situated individuals in a disparate manner.”). Again, Heard failed to specify what
material he hoped to uncover through discovery to support this claim.
7. Equal-Protection Claim—Diet
Heard argues that the district court erred in granting summary judgment for defendants on
his claim that his equal-protection rights were violated by prison officials’ refusal to (1) provide a
diet recommended by the Nation of Islam as set forth in How to Eat to Live by Elijah Muhammad,
or (2) to provide him with meals under the kosher meal program. Heard alleged that prison officials
15
accommodated the religious diets of Jewish and Buddhist prisoners but did not accommodate his
request for a religious diet. The district court granted summary judgment for the defendants, finding
that “MDOC had already made a determination rejecting a Nation of Islam menu years prior to
[Heard’s] request for a religious diet, because the menu failed to meet dietary requirements.” R. 143
(Dist. Ct. Op. 2/6/07 at 5). According to defendant Dave Burnett, MDOC previously had determined
that “the combination of foods not allowed [by the Nation-of-Islam diet] would make it impossible
to meet nutritional standards.” R. 78 Ex. H (Burnett Aff. ¶ 4). Burnett further stated that Heard was
denied a kosher diet because, “although the prohibition of blood and the prohibition of swine is
common to Muslims, the Nation of Islam and Jews; Muslims and the Nation of Islam are not
required to keep [k]osher,” and “[k]osher requirements go far beyond the denial of blood and pork.”
Id. ¶ 7. According to Burnett, “Muslims and members of the Nation of Islam can avoid both blood
and pork by selecting the non-meat entree from the main meal line.” Id.
“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). We have explained that in the prison context “policies infringing on religious rights may be
found unreasonable where accommodations are made for others.” Turner v. Bolden, 8 F. App’x 453,
456 (6th Cir. 2001) (unpublished order). If the defendants can show that the Nation-of-Islam diet
requested by Heard fails to meet nutritional standards, we believe that the refusal to provide this diet
would be “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. The
defendants have come forward with some evidence that the Nation-of-Islam diet is nutritionally
inadequate—the affidavit of defendant Burnett, who evidently consulted the MDOC documents in
which it was determined that the Nation-of-Islam diet was inadequate. However, it appears that
16
Heard has been denied discovery of the MDOC documents and, therefore, denied the opportunity
to dispute defendants’ evidence.
In his August 15, 2006 supplemental response and attached affidavit, Heard specifically
sought discovery of “the document the [MDOC] relied on to determine an Islamic regimen could not
meet MDOC required nutritional standards.” R. 113 (Heard Supplemental Response 8/15/06 at 5).
According to Heard, discovery of this document would show that the Nation-of-Islam diet could
meet MDOC nutritional standards and that prison officials were “favoring dietary regiments of
[B]uddhist and [J]ewish prisoners over [Heard’s] Islamic regimen, because of [f]inancial reasons and
for a detrimental effect on . . . Islamic practice.” Id. The requested document evidently was not
produced and is not in the record, and the district court did not respond to Heard’s request for
discovery of this document.
Because Heard was denied discovery of specific MDOC records that may create a material
issue of fact as to whether or not the Nation-of-Islam diet meets MDOC nutritional standards,
remand for discovery and further factual findings is appropriate. Accordingly, we vacate this part
of the district court’s summary-judgment order and remand for further proceedings.
Heard also claims that prison officials should, in the alternative, provide him with kosher
meals when Islamic meals are not available. Heard cites to sections of Islamic Dietary Concepts &
Practices by The Islamic Food & Nutrition Council of America in support of the proposition that
Muslims are required to eat kosher meals when Islamic meals are unavailable. See R. 163 (Exhibit
4/9/07). However, nothing in the pages cited by Heard supports his contention that Muslims must
be given kosher meals when Islamic meals are unavailable, and Heard points to no other evidence
that his religion mandates kosher meals. As defendant Burnett explained, kosher requirements far
17
exceed the prohibition of blood and pork, and Muslim and Nation-of-Islam prisoners “can avoid both
blood and pork by selecting the non-meat entree from the main meal line.” R. 78 Ex. H (Burnett Aff.
¶ 7). Accordingly, the district court did not err in granting summary judgment for defendants as to
Heard’s claim that he should be accommodated with kosher meals.
8. RLUIPA Claim—Diet
Heard also claims that defendants Straub, Burnett, Sherry, and Shaw—all of whom Heard
sued in both their individual and official capacities—violated RLUIPA by failing to provide him
with a Nation-of-Islam diet or by failing to provide him with a kosher diet. RLUIPA provides:
[n]o government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . even if the burden results from a
rule of general applicability, unless the government demonstrates that imposition of
the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a). If Heard’s religion requires adherence to a Nation-of-Islam diet, prison
officials’ refusal to accommodate this diet would impose a substantial burden. See, e.g., Al-Amin
v. Shear, No. 08-7681, 2009 WL 971454, at *2-3 (4th Cir. Apr. 10, 2009) (unpublished) (finding that
denying kosher (“Common Fare”) food to observant Sunni Muslim during Ramadan would be a
substantial burden). The defendants would then have the burden of showing that denial of the
Nation-of-Islam diet was the least restrictive means of furthering a compelling government interest.
As explained above with respect to Heard’s equal-protection claim, there remains a material issue
of fact as to whether Heard’s proposed Nation-of-Islam diet does or does not meet MDOC nutritional
18
standards. Accordingly, we also vacate the district court’s dismissal of Heard’s RLUIPA claim and
remand for further proceedings.5
B. Judgment for Masker Following Bench Trial
Heard argues that the weight of the evidence does not support the district court’s judgment
for Masker on Heard’s claim that Masker opened Heard’s legal mail outside Heard’s presence.
Although Heard properly preserved the issue for appeal by moving for a new trial, see United States
v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir. 1993), a party may not challenge the weight of the
evidence to support a trial court’s judgment in the absence of a transcript, see FED . R. APP . P.
10(b)(2); Hawley v. City of Cleveland, 24 F.3d 814, 820-22 (6th Cir. 1994). A party in a civil
proceeding may obtain a transcript at the government’s expense if (1) he is granted leave to proceed
in forma pauperis on appeal and (2) “the trial judge or a circuit judge certifies that the appeal is not
frivolous (but presents a substantial question).” 28 U.S.C. § 753(f). Heard satisfies the first
requirement as the district court granted Heard leave to proceed in forma pauperis on appeal.
However, Heard did not ask the district court or this court to certify under 28 U.S.C. § 753(f) that
an appeal of the judgment for Masker would not be frivolous. Instead, on October 27, 2008, Heard
submitted to this court a transcript order form on which he indicated that a “[t]ranscript is
5
With respect to Heard’s RLUIPA claim against defendants in their official capacities, Heard
may seek only declaratory or injunctive relief and not monetary relief. See Cardinal v. Metrish, 564
F.3d 794, 798-801 (6th Cir. 2009) (holding that the doctrine of sovereign immunity bars the recovery
of monetary damages under RLUIPA when state officials are sued in their official capacities). This
court has not ruled, however, on whether RLUIPA authorizes suits for monetary damages against
state officials in their individual capacities. See Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir.
2009) (discussing split of authority on issue; holding that RLUIPA does not subject state officials
to suit in their individual capacities). Because the parties have not briefed this issue and because we
are remanding to the district court for further consideration of whether a Nation-of-Islam diet meets
MDOC nutritional standards, we decline to decide this issue at this time.
19
unnecessary for appeal purposes.” Under these circumstances, we do not consider whether Heard
can demonstrate a substantial question for appeal. Without a trial transcript, we are unable to review
the evidence before the district court. Accordingly, we must accept the factual findings of the district
court as correct and therefore affirm the judgment for Masker.
Additionally, the district court did not abuse its discretion by denying Heard’s motion for a
new trial because Heard did not come forward with newly discovered evidence or present any other
grounds justifying the grant of a new trial. See Davis ex rel. Davis v. Jellico Cmty. Hosp. Inc., 912
F.2d 129, 132 (6th Cir. 1990).
C. Other Rulings by District Court
1. Discovery Requests
Heard argues that the district court abused its discretion in denying any discovery and then
proceeding to grant summary judgment in favor of defendants. We assume that Heard’s August 15,
2006 supplemental response and attached affidavit qualifies as a request for additional discovery
pursuant to Federal Rule of Civil Procedure 56(f).6 We have explained that “[t]ypically, when the
parties have no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary
judgment motion is likely to be an abuse of discretion.” CenTra, Inc. v. Estrin, 538 F.3d 402, 420
(6th Cir. 2008). However, we have also “upheld the denial of Rule 56(f) motions when the court
6
Rule 56(f) provides:
If a party opposing the motion shows by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained, depositions to be taken,
or other discovery to be undertaken; or
(3) issue any other just order.
FED . R. CIV . P. 56(f).
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deems as too vague the affidavits submitted in support of the motion,” and we have done so “even
when the parties were given no opportunity for discovery.” Id. Further, “we have affirmed the
denial of Rule 56(f) motions when the parties were given insufficient time for discovery if further
discovery would not have changed the legal and factual deficiencies.” Id. (internal quotation marks
omitted). In the instant case, the district court denied Heard any discovery, except with respect to
Heard’s claim against Masker, and did not rule on Heard’s August 15, 2006 Rule 56(f) motion for
discovery.
As explained above in our discussion of Heard’s various claims against defendants, Heard
failed—except as noted above—to specify in his discovery requests and Rule 56(f) motion what he
hoped to uncover through discovery that would have created genuine issues of material fact as to his
various claims. Because “further discovery would not have changed the legal and factual
deficiencies” of Heard’s various claims, we conclude that the district court did not abuse its
discretion in denying discovery except as we have previously noted. Id. (internal quotation marks
omitted).
2. Motion to Recuse
The district court did not abuse its discretion by denying Heard’s motion to recuse. See
United States v. Jamieson, 427 F.3d 394, 405 (6th Cir. 2005), cert. denied, 547 U.S. 1218 (2006).
Heard’s motion for recusal was without merit because he presented no evidence that either the
magistrate judge or the district judge had any personal bias or prejudice against Heard or in favor of
any of the defendants. See 28 U.S.C. § 144. Further, Heard did not show that the judges’
impartiality could reasonably be questioned. See 28 U.S.C. § 455.
21
3. Appointment of Counsel
The district court did not err in denying Heard’s motion for appointment of counsel. The
appointment of counsel in a civil proceeding is justified only by exceptional circumstances, which
are absent in this case. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).
4. Class Certification
The district court did not abuse its discretion in declining to certify the class and appoint
Heard as class representative. Heard is an incarcerated pro se litigant without legal training who is
representing himself and is not able adequately to represent the proposed class. See FED . R. CIV . P.
23; Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“Ability to protect the interests of
the class depends in part on the quality of counsel, and we consider the competence of a layman
representing himself to be clearly too limited to allow him to risk the rights of others.” (citation
omitted)).
5. Motion for a Default Judgment
Finally, the district court did not abuse its discretion in denying Heard’s motion for a default
judgment pursuant to FED . R. CIV . P. 55. The district court denied defendants’ motion to dismiss
on August 22, 2006, but Masker did not file an answer until March 26, 2007. On April 2, 2007,
Heard filed a motion for a default judgment, citing Masker’s failure to file a timely answer. The
district court denied Heard’s motion on April 25, 2007, stating that “[d]efault was never entered in
this case.” R. 165 (Order 4/25/07). “Prior to obtaining a default judgment under either Rule
55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a).” 10A
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2682, at 13 (3d ed. 1998).
Rule 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought
22
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default.” FED . R. CIV . P. 55(a). Because Heard did not first seek entry of a
default from the clerk of the court, it was procedurally improper for Heard to move for entry of a
default judgment.
III. CONCLUSION
For the reasons discussed above, we VACATE the district court’s grant of summary
judgment for defendants on Heard’s procedural-due-process claim and REMAND for further
proceedings. We also VACATE the district court’s grant of summary judgment for defendants on
Heard’s equal-protection and RLUIPA claims challenging the refusal to provide Heard with a
Nation-of-Islam diet and REMAND for further proceedings. The judgment of the district court is
AFFIRMED in all other respects.
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