
    Nathaniel PORTER, a/k/a N. Kalonji Owusu I, Plaintiff, v. Patricia L. CARUSO, et al., Defendants.
    No. 1:05-CV-562.
    United States District Court, W.D. Michigan, Southern Division.
    March 26, 2007.
    
      Nathaniel Porter, Detroit, MI, pro se.
    Julia R. Bell, Christine M. Campbell, MI Dept Attorney General, Corrections Division, Lansing, MI, for Defendants.
   OPINION

ENSLEN, Senior District Judge.

This matter is before the Court on the Objections of Plaintiff N. Kalonji Owusu I, formerly known as Nathaniel Porter, and the Objections of Defendant Dave J. Burnett to United States Magistrate Judge Ellen S. Carmody’s Report and Recommendation of February 21, 2007. The Report in question recommended that the Court grant summary judgment to Defendants regarding all of Plaintiffs civil rights claims with the exception of his claim that Defendant Burnett violated his rights under the Religious Land Use and Institutionalized Persons Act (hereafter “RLUI-PA”), 42 U.S.C. § 2000cc et seq. The Court now reviews the Report, the Objections and the pertinent parts of the record de novo in accordance with 28 U.S.C. § 686(b)(1)(B).

Defendants’ underlying Motion for Summary Judgment sought summary judgment as to all claims brought by Plaintiff in his Amended Complaint. Under Federal Rule of Civil Procedure 56, summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, the evidence of the non-movant must be believed, and all justifiable inferences drawn in the non-movant’s favor. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Rule 56 limits the materials the Court may consider in deciding a motion under the rule: “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir.1995) (quoting Federal Rule of Civil Procedure 56(c)). Moreover, affidavits must meet certain requirements:

[Affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Fed.R.Civ.P. 56(e). The Sixth Circuit has held “that documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.” Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir.1993). Thus, in resolving a Rule 56 motion, the Court should not consider un-sworn or uncertified documents, Id., un-sworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991), inadmissible expert testimony, North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1280 (6th Cir.1997), or hearsay evidence, Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996); Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir.1994).

Plaintiffs claim against Defendant Burnett concerns Burnett’s denial of Plaintiffs request in January 2003 that he be allowed to purchase a replacement ankh cross, which Plaintiff says is the primary symbol of Plaintiffs religious beliefs and his practice of the religion of Kemetic Spiritual Science. (See Am. Compl. ¶¶ 20, 100-05 & 117.) Magistrate Judge Carmody initially determined that the record supported that such a denial was in violation of RLUIPA. (Report & Recomm. 9.) Defendant Burnett makes two Objections to that determination: First, Defendant regards Egyptian Kemetic Science as a system of cultural belief which is not entitled to protection under RLUIPA or the First Amendment. See Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). While this is a possible defense that may be accepted at trial, Plaintiff has at least created a genuine issue of material fact by his verified Amended Complaint, which attests his practices to be religious in character. Accordingly, summary judgment cannot be granted on this issue.

Defendant’s second objection is that because Defendants did not know that RLUIPA was constitutional under the Establishment Clause in 2003, he is entitled to qualified immunity for violations of the Act in 2003. See Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir.2006). This argument overlooks much of the history of the case of Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), the United States Supreme Court case which upheld the application of RLUIPA. That case began in the trial court (the Southern District of Ohio) with a determination that RLUIPA was constitutional because use of the Spending Clause power to require States receiving federal funds for the purpose of fostering free exercise of religion was consistent with past Spending Clause determinations of the Supreme Court, including South Dakota v. Dole, 483 U.S. 203, 206-07, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Gerhardt v. Lazaroff, 221 F.Supp.2d 827, 849 (S.D.Ohio 2002). This result was reversed by the Sixth Circuit Court of Appeals’ decision in Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.2003), which was then reversed by the Supreme Court’s 2005 decision. As determined by the Magistrate Judge, a prison official who acted in reliance on the Sixth Circuit decision between November 7, 2003 and May 30, 2005, should be entitled to qualified immunity given the uncertainty in the law created by the Sixth Circuit’s intervening decision. However, the same cannot be said of actions taken prior to November 7, 2003. As of January 2003, the only pertinent legal authorities, the decisions in Dole and Gerhardt, and the holdings of the Western District of Michigan in Johnson v. Martin, 223 F.Supp.2d 820, 824 (W.D.Mich.2002) (J. Enslen) (citing Chaudhuri v. Tenn., 130 F.3d 232, 237 (6th Cir.1997)), the Eastern District of California in Mayweathers v. Terhune, 2001 WL 804140 (E.D.Cal. July 2, 2001) and the Eastern District of Pennsylvania in Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857 (E.D.Pa.2002), universally recognized the constitutionality of RLUIPA, consistent with the Supreme Court’s later holding.

As such, the Court accepts the reasoning of the Magistrate Judge rejecting qualified immunity for acts committed by Defendant prior to the Sixth Circuit’s later reversed Cutter decision. Contrary to the argument of the Defendant Burnett, state officials do not get a “free pass” on federal legislation until confirmed by decisions of the Sixth Circuit and Supreme Court. When the legislation itself is sound and specific in its directions and endorsed by district court decisions, the assessment of individual liability is consistent with the doctrine of qualified immunity.

At the same time, Plaintiff has challenged the balance of the Report for its recommendations of the grant of summary judgment against other claims brought by Plaintiff. The Court has reviewed each of those Objections at length and has determined that the adjudications recommended by the Magistrate Judge are correct. The Court supplements the Report in one respect, though. The verified Amended Complaint contains Plaintiffs sworn statement that he made a written request (not a grievance) to purchase an ankh cross which he believes was forwarded by someone else to Defendant Patricia Caruso at a time when she was assigned by policy the duty of reviewing such requests for religious items. (Am.CompLIffl 101-03, 108.) The wording of Plaintiffs verified statement about the passing of the request to Caruso indicates that he had no personal knowledge as to whether Defendant Caruso ever received the request. (Id.) Therefore, even assuming that non-action by Caruso could create a basis for liability, the evidence is insufficient as a matter of law to support the proposition that Caruso received the request. As such, the dismissal of the claim against Defendant Caruso was proper. See Briggs v. Potter, 463 F.3d 507, 512 (6th Cir.2006) (rejection portion of affidavit not supported by personal knowledge); Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir.1999) (same).

Partial Judgment shall enter denying the Objections, but granting Defendants’ Motion for Summary Judgment except for Plaintiffs claims under the First Amendment, RLUIPA and 42 U.S.C. § 1983 against Defendant Dave J. Burnett for denial of Plaintiffs request to purchase an ankh cross.

REPORT AND RECOMMENDATION

CARMODY, United States Magistrate Judge.

This matter is before the Court on MDOC Defendants’ Motion for Summary Judgment, (dkt.# 91), and Plaintiff’s Motion to Deny Defendant’s Motion for Summary Judgment, (dkt.# 95). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Defendants’ motion be granted in part and denied in part and, furthermore, recommends that Plaintiffs motion be granted in part and denied in part.

BACKGROUND

Plaintiff asserts that he is an adherent of an ancient Egyptian religion known as Kemetic Spiritual Science. Plaintiff alleges that as part of his religious faith he legally changed his name to N. Kalonji Owusu I. Michigan Department of Corrections policy recognizes that prisoners may legally change their names. Specifically, MDOC policy provides that

The commitment name shall be used on all official Department documents throughout the prisoner’s incarceration and parole. A new legal name may be used in correspondence to a prisoner and other communications such as grievance responses. However, the commitment name must be used on all documents which affect the prisoner’s sentence, such as a forfeiture or restoration of time, a parole order, and a sentence discharge or termination. Commitment names and legal names shall be cross referenced at the information desk and mail room. All computerized records shall be cross referenced to the extent possible.

Mich. Dep’t of Corr. Policy Directive 03.01.110 ¶ D.

Prisoners are entitled to receive — at their own expense — a new prisoner identification card “indicating both the commitment name and the new legal name.” Id. at ¶ E. The Policy Directive further provides that MDOC employees having contact with the prisoner “should refer to the prisoner or parolee by the new legal name” and “prisoners and parolees shall not be forced to refer to themselves by their commitment name if they have a validly adopted new legal name.” Id. at ¶ F.

In his amended complaint, Plaintiff asserts several claims against Defendants Caruso, Burnett, Morris, Bozung, and Parsons. (Dkt.# 79). He asserts that prison officials refused to recognize his new legal name and instead forced him to refer to himself by his former name in violation of his First Amendment right to freely practice his religion. Plaintiff asserts that Defendant Bozung unlawfully retaliated against him, and Defendant Parsons denied him store privileges, for insisting on using (and being identified by) his legal name. Plaintiff alleges that Defendant Burnett unlawfully denied his requests to possess an ankh cross and participate in the Kosher meal plan. Finally, Plaintiff challenges the constitutionality of several Michigan Department of Corrections policies pursuant to which Defendants allegedly acted. Defendants Morris, Parons, Bo-zung, and Burnett now move for summary judgment.

SUMMARY JUDGMENT STANDARD

In reviewing a motion for summary judgment, the Court must confine itself to the narrow questions of whether there exist “no genuine issue[s] as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there exist issues in dispute to be decided in a trial on the merits. See Perez v. Aetna Insurance Co., 96 F.3d 813, 819 (6th Cir.1996). The crux of the motion 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A motion for summary judgment requires the Court to view “inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.” Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opponent, however, has the burden to show that a “rational trier of fact [could] find for the non-moving party [or] that there is a ‘genuine issue for trial.’ ” Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989).

As the Sixth Circuit has recognized, the Supreme Court has encouraged the granting of summary judgments, as such may be “an appropriate avenue for the ‘just, speedy and inexpensive determination’ of a matter.” Kutrom v. City of Center Line, 979 F.2d 1171, 1173 (6th Cir.1992). Consistent with this concern for judicial economy, “the mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Furthermore, mere allegations do not suffice. See Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (“the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact”).

ANALYSIS

I. Count I

In Count I of his amended complaint, Plaintiff alleges that prison officials working at the information desk failed to cross-reference Plaintiffs commitment name with his new legal name, thus “forcing Plaintiff to waive his religious name in order to receive visits.” (Dkt. # 79 at ¶¶ 18-56). Plaintiff asserts that prison officials would not permit him to receive visitors if he identified himself by his legal name rather than his commitment name. Id. According to Plaintiff, prison officials have improperly failed to “establish a formal procedure, per policy, cross-referencing committed/religious names.”

While Plaintiff has described these alleged wrongs at length he has failed to allege that such wrongs were committed by any of the Defendants in this case. The only allegation in Count I of Plaintiffs amended complaint which is asserted against a Defendant in this case is Plaintiffs assertion that Defendant Morris acted improperly toward one of Plaintiffs visitors. Id. at ¶ 52. Plaintiff asserts that Wardene Anderson visited him in early August 2003. Following Ms. Anderson’s visit with Plaintiff, Defendant Morris allegedly “demanded that she give (i.e., verbally say) Plaintiffs commitment name and refused to allow her to leave until she relented ... in effect, placfing] [Ms. Anderson] under arrest until she gave the officer Plaintiffs committed name.” Id.

While this allegation is troubling if true, Plaintiff lacks standing to assert this particular claim. Plaintiff does not allege that Defendant Morris’ actions prevented him from visiting with Ms. Anderson or otherwise violated his rights. Rather, Plaintiff asserts that Defendant Morris’ actions against Ms. Anderson, taken after she completed her visit with Plaintiff, violated Ms. Anderson’s right to be free from improper seizure or arrest. While Ms. Anderson may be able to assert a legal claim based on this encounter, Plaintiff lacks standing to assert such a claim on her behalf. See American Canoe Ass’n Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 544-45 (6th Cir.2004).

Moreover, even if Plaintiff did has standing to assert this claim it must nonetheless be dismissed for failure to exhaust administrative remedies as Defendant Morris asserts. Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust all available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). Plaintiff submitted a Step I grievance regarding this particular incident. (Dkt. # 1, Exhibit H). However, by his own admission Plaintiff failed to pursue the matter beyond Step I of the grievance process. (Dkt. # 79 at ¶ 54).

Accordingly, for the reasons articulated herein, the Court recommends that Plaintiffs claim against Defendant Morris be dismissed on the ground that Plaintiff lacks standing to assert such claim. In the alternative, the Court recommends that this claim be dismissed without prejudice for failure to exhaust administrative remedies.

II. Count II

The second count of Plaintiffs amended complaint actually contains two separate claims. First, Plaintiff asserts that Defendant Bozung improperly retaliated against him for his insistence on using (and being identified by) his legal name rather than his commitment name. (Dkt. # 79 at ¶¶ 65-73). Plaintiff also asserts that Defendant Parsons denied his request to purchase items from the prison store because he insisted on using (and being identified by) his legal name. Id. at ¶¶ 74-78. Defendant Bozung asserts that she is entitled to summary judgment as her alleged actions do not constitute a violation of Plaintiffs rights. Defendant Parsons asserts that Plaintiff has failed to properly exhaust his administrative remedies with respect to the claims against him.

A. Defendant Parsons

Plaintiff asserts that on January 24, 2003, and February 3, 2003, he submitted requests — using his legal name — to purchase items from the prison store. (Dkt. #79 at ¶¶74, 78). According to Plaintiff, Defendant Parsons rejected both requests because Plaintiff identified himself by the “wrong name” in his requests. Id. Plaintiff asserts that he submitted Step I grievances regarding these alleged incidents. (Dkt. # 1, Exhibits Q-R; Dkt. # 79 at ¶ 79). Plaintiff asserts that these grievances were rejected, but rather than pursuing these matters through Step III of the grievance process, Plaintiff asserts that these particular grievances were “fully exhausted at Step I.” (Dkt. # 79 at ¶ 85). The Court disagrees that these grievances were “fully exhausted” at Step I and, therefore, recommends that Plaintiffs claims against Defendant Parsons be dismissed without prejudice for failure to exhaust administrative remedies.

B. Defendant Bozung

According to Plaintiff, Defendant Bozung “repeatedly” told him that “the only name she would recognize and address Plaintiff by was the name that appeared on the unit locator/countboard, i.e., Plaintiffs religiously offensive committed name.” Id. at ¶ 67. As a result of Plaintiffs insistence that “his religious name be acknowledged and recognized,” Defendant Bozung allegedly retaliated against Plaintiff by moving him to a different cell “close to the officers’ desk, where she could ‘watch’ him.” Id. at ¶¶ 68-71.

To prevail on his retaliation claim, Plaintiff must satisfy the following elements: (1) he was engaged in constitutionally protected conduct, (2) he suffered adverse action which would deter a person of “ordinary firmness” from continuing to engage in such protected conduct, and (3) there exists a causal connection between the protected conduct and the adverse action—in other words, the adverse action was motivated at least in part by Plaintiffs protected conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999).

Even assuming that Plaintiff can satisfy the first and third elements of the analysis, he cannot establish that he suffered an adverse action sufficient to deter a person of ordinary firmness from continuing to engage in protected conduct. As is well recognized, “a prisoner is expected to endure more than the average citizen and enjoys no protected right to remain incarcerated in a given correctional facility.” Hix v. Tennessee Department of Corrections, 196 Fed.Appx. 350, 358 (6th Cir., Aug.22, 2006) (citations omitted).

? dictates that if prisoners enjoy no right to be housed in any particular facility, they likewise enjoy no right to reside in any particular cell within a correctional facility. Thus, unless there are “foreseeable consequences” to a transfer that would inhibit the prisoner’s ability to engage in protected conduct, such transfer does not constitute an “adverse action” for purposes of the retaliation analysis. Hix, 196 Fed.Appx. at 358 (citing Siggers-El v. Barlow, 412 F.3d 693, 701-04 (6th Cir.2005)). Plaintiff has submitted no evidence that simply being transferred from one cell to another cell inhibited his ability to freely practice his religion. Accordingly, the Court recommends that Defendant Bozung be granted summary judgment as to this particular claim.

III. Count III

According to Plaintiff, the ankh cross is “the primary symbol of [his] ancient Egyptian religious beliefs and practices.” (Dkt. #79 at ¶ 95). On or about January 20, 2003, he lost his ankh cross. Id. at ¶ 101. Because his religious beliefs are “non-traditional,” Plaintiff asserts that he was required to receive permission to possess and wear an ankh cross. Id. at ¶¶ 92-99. Plaintiff asserts that his request to purchase and wear a replacement ankh cross was denied by Defendant Burnett. Id. at ¶¶ 101-08. Plaintiff also asserts that his religious beliefs compel him to adhere to certain dietary practices. Id. at ¶¶ 120-33. In this respect, Plaintiff asserts that “the dietary laws to which [he] subscribes are substantially and actually the same as those commanded to Moses at Sinai, which have evolved into what is known in Judaism as kosher.” Id. at ¶ 133. Accordingly, on September 20, 2004, Plaintiff requested to participate in the kosher meal plan. Id. at ¶ 136. Plaintiffs request was denied by Defendant Burnett. Id. at ¶¶ 137-39. Plaintiff asserts that Defendant Burnett’s actions violate his First Amendment right to freely practice his religion, as well as his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Defendant Burnett has moved for summary judgment as to these claims.

While “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” inmates clearly retain the First Amendment protection to freely exercise their religion. See O’Lone v. Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citations omitted). To establish that this right has been violated, Plaintiff must establish that: (1) the belief or practice he seeks to protect is religious within his own “scheme of things,” (2) that his belief is sincerely held, and (3) the Defendant’s behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d 1220, 1224-25 (6th Cir.1987); see also, Bakr v. Johnson, 1997 WL 428903 at *2 (6th Cir., July 30, 1997) (“sincerely held religious beliefs require accommodation by prison officials”).

In relevant part, RLUIPA prohibits any government from imposing a “substantial burden on the religious exercise” of a prisoner, unless such burden constitutes the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000ec-l(a). The term religious exercise “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7). While this definition of religious exercise is broad, it does require that Plaintiffs religious beliefs be “sincerely held.” See, e.g., Episcopal Student Foundation v. City of Ann Arbor, 341 F.Supp.2d 691, 700 (E.D.Mich.2004) (citation omitted); Lovelace v. Lee, 472 F.3d 174, 208 n. 2 (4th Cir.2006) (citations omitted).

Even if Defendant Burnett’s actions are found to violate Plaintiffs First Amendment right to freely practice his religion or his right under RLUIPA to not have his religious practices substantially burdened, Defendant Burnett is nonetheless entitled to summary judgment if he establishes that his actions were reasonably related to legitimate penological interests (in the context of Plaintiffs First Amendment claims) or constitute the least restrictive means of furthering a compelling governmental interest (with respect to Plaintiffs RLUIPA claims). See Turner v. Safley, 482 U.S. 78, 84-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); 42 U.S.C. § 2000cc-l(a).

Defendant Burnett does not assert that his actions were reasonably related to legitimate penological interests or constituted the least restrictive means of furthering a compelling governmental interest. Instead, Defendant Burnett simply asserts that Plaintiffs religious beliefs are not sincerely held. While a reasonable juror might perhaps conclude that such is the case, the evidence of record more than supports the conclusion that Plaintiffs religious beliefs are sincerely (and intensely) held. Resolution of this particular question constitutes, therefore, a genuine factual dispute which must be resolved at trial. See Bakr, 1997 WL 428903 at *2 (“a decision on whether a particular religious belief is sincerely held cannot generally be made in advance of a hearing allowing for the presentation of testimony”); Hernan dez v. Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (“[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds”).

Defendant Burnett also claims that he is entitled to qualified immunity as to Plaintiffs RLUIPA claims. Generally, when government officials perform discretionary functions, they are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether an official is entitled to qualified immunity, the focus is on the objective legal reasonableness of the official’s actions in light of clearly established law. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727. A defendant is entitled to qualified immunity unless the contours of the right are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir.1996) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The unlawfulness of the conduct at issue must be apparent in light of pre-existing law. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

On November 7, 2003, the Sixth Circuit Court of Appeals held that “the portion of RLUIPA that applies to institutionalized persons ... violates the Establishment Clause” and was, therefore, unconstitutional. Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.2003). On May 31, 2005, the United States Supreme Court reversed the Sixth Circuit’s decision, finding that RLUIPA did not violate the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Defendant Burnett asserts, therefore, that “the law was not ‘clearly established’ with respect to claims advanced under the RLUIPA prior to” the Supreme Court’s decision in Cutter. Accordingly, Defendant Burnett asserts that he is entitled to qualified immunity as to Plaintiffs RLUI-PA claims because the alleged actions giving rise to such claims predated the Supreme Court’s decision in Cutter. The Court only partly agrees.

The actions giving rise to Plaintiffs claim that Defendant Burnett unlawfully denied his request to participate in the kosher meal program occurred between the dates of September 20, 2004, and March 23, 2005. (Dkt. # 79 at ¶¶ 136-46). This was during the time period following the Sixth Circuit’s Cutter decision, but before the Supreme Court’s subsequent reversal thereof. During this period of time, therefore, clearly established law as articulated by the Sixth Circuit provided that the portion of RLUIPA on which Plaintiff relies was unconstitutional. Accordingly, the Court recommends that Defendant Burnett is entitled to qualified immunity as to Plaintiffs RLUIPA claim regarding Burnett’s denial of his request to participate in the kosher meal program.

However, the events giving rise to Plaintiffs claim that Defendant Burnett unlawfully denied his request to purchase an ankh cross predate the Sixth Circuit’s Cutter decision. When evaluating a claim of qualified immunity the Court must assess whether it was clearly established — as of the date the defendant acted — that the alleged actions violated federal law. When Defendant Burnett allegedly denied Plaintiffs request to purchase an ankh cross, the Sixth Circuit had not yet concluded that the relevant portions of RLUIPA were unconstitutional. As has been recognized, “as soon as the RLUIPA was signed into law, it became clearly established law in this country.” Figel v. Overton, 2006 WL 2521600 at *2 (W.D.Mich., Aug.30, 2006). The subsequent Cutter decisions by the Sixth Circuit and the Supreme Court do not alter the ultimate validity of RLUI-PA or the fact that when Defendant Burnett acted, RLUIPA was clearly established law. To conclude otherwise, “the court would have to make a rule that whenever a law is enacted in this country, it is not clearly established law until a court first rules on its constitutionality.” Figel, 2006 WL 2521600 at *2. Defendant Burnett has identified no authority supporting such a proposition.

Accordingly, the Court recommends that Plaintiffs First Amendment claims against Defendant Burnett be permitted to go forward. The Court further recommends that Plaintiffs claim that Defendant Burnett violated his rights under RLUIPA by denying his request to purchase an ankh cross be permitted to go forward. With respect to Plaintiffs claim that Defendant Burnett violated his rights under RLUIPA by denying his request to participate in the kosher meal program, the Court recommends that Defendant Burnett is entitled to qualified immunity.

IV. Count IV

In count IV of his amended complaint, Plaintiff challenges the constitutionality of several policies enacted by the Michigan Department of Corrections. (Dkt. # 79 at ¶¶ 148-66). Specifically, Plaintiff asserts that the following policies are unconstitutional on their face: (1) Policy Directive 03.01.110 (Prisoner/Parolee Name Changes); (2) Policy Directive 04.02.130 (Prisoner Store); (3) the MDOC’s Visitor Tracking System; and (4) Policy Directive 05.03.150 (Religious Beliefs and Practices of Prisoners). Id. at ¶¶ 148-65. Plaintiff asserts that these policies are — on their face — unconstitutional. To prevail on these claims, Plaintiff “must establish that no set of circumstances exists under which the [challenged policies] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); see also, Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361, 368 (6th Cir.2006).

Policy Directive 03.01.110 acknowledges that a prisoner may legally change his name. The policy instructs prison staff to “refer to the prisoner or parolee by the new legal name” and, furthermore, provides that “prisoners and parolees shall not be forced to refer to themselves by their commitment name if they have validly adopted [a] new legal name.” The policy also provides that the MDOC’s “computerized records shall be cross-referenced to the extent possible.” Plaintiff has failed to establish that there exists no circumstance under which this policy would be constitutional. The Court finds that this policy is not unconstitutional on its face.

Policy Directive 04.02.130 provides that inmates may “purchase approved items for their personal use” from the prison store. The policy identifies more than 200 “approved” items which prisoners may purchase and also provides for the creation of a “prisoner store committee” which may make recommendations regarding the items which the prison store offers for sale. The policy provides that the retail prices of the items in the prison store “shall be adjusted to ensure store net profits do not exceed twelve percent yearly.” Plaintiff has not demonstrated that there exists no circumstance under which this policy would be constitutional. The Court concludes that this policy is not unconstitutional on its face.

Plaintiff also challenges the MDOC’s “Visitor Tracking System.” Plaintiff does not indicate whether this alleged “system” is articulated in an MDOC policy directive (or exists in another written form) or whether it is instead an informal (i.e., unwritten) “policy” carried out by certain prison officials. Nonetheless, it appears that Plaintiffs challenge to the “Visitor Tracking System” mirrors the allegations asserted in Count I of Plaintiffs amended complaint. As noted above, in Count I of his amended complaint, Plaintiff asserts that by failing to “establish a formal procedure, per policy, cross-referencing committed/religious names,” prison officials have forced Plaintiff to identify himself by his commitment name when receiving visitors.

? the extent that the “Visitor Tracking System” is an unwritten “policy” carried out by certain prison officials, Plaintiffs claim should not be characterized as a facial challenge to an official enactment. Instead, such is properly characterized as a claim that the Constitution guarantees to Plaintiff that prison officials will refer to him only by his chosen appellation. The Constitution guarantees no such right. See Spies v. Voinovich, 173 F.3d 398, 406 (6th Cir.1999) (recognizing that the issue of prisoner “name change usage relates to prison administration,” a matter in which the courts must defer to prison administrators, and, furthermore, that a prisoner “has no constitutional right to dictate how prison officials keep their prison records”); Rahman v. Stephenson, 626 F.Supp. 886, 887 (W.D.Tenn.1986) (“a prisoner’s constitutional right to religious freedom can properly be limited by the legitimate need of prison administrators to be able to keep track of their inmate population”).

In the event, however, that the “Visitor Tracking System” is an official MDOC policy or enactment, the result is the same. Requiring prisoners to identify themselves by their commitment name when receiving visitors is a legitimate requirement which enables prison officials to keep track of the visitors which each inmate receives. Plaintiff has failed to establish that there exists no circumstance under which this policy would be constitutional. The Court finds that this policy is not unconstitutional on its face.

Finally, Plaintiff challenges the constitutionality of Policy Directive 05.03.150. This policy recognizes that prisoners must be “permitted to exercise their religious beliefs within the constraints necessary for the order and security of the facility.” This policy provides that prisoners may attend religious services and activities, possess religious materials, participate in religious menus/meals, and visit with clergy and religious volunteers. Plaintiff has failed to establish that there exists no circumstance under which this policy would be constitutional. The Court finds that this policy is not unconstitutional on its face.

V. Plaintiffs Claims Against Defendant Caruso

At the very outset of his amended complaint, Plaintiff asserts that Defendant Caruso is a Defendant in this matter. (Dkt. # 79 at ¶ 2). However, aside from alleging that Defendant Caruso denied his Step III grievance relating to his request to participate in the kosher meal plan, Plaintiff has not identified any allegedly unlawful action on Defendant Caruso’s part.

Liability in a § 1983 action cannot be premised upon passive behavior or an alleged failure to act, rather liability must be based upon active unconstitutional behavior. See Salehpour v. University of Tennessee, 159 F.3d 199, 206-07 (6th Cir.1998), cert. denied, 526 U.S. 1115, 119 S.Ct. 1763, 143 L.Ed.2d 793 (1999). Accordingly, liability in a § 1983 action does not attach based upon allegations that a defendant simply denied a prisoner’s grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999); Lee v. Michigan Parole Board, 2004 WL 1532563 at *2 (6th Cir., June 23, 2004) (“[sjection 1983 liability may not be imposed simply because a defendant denied an administrative grievance or failed to act upon information contained in a grievance”); Alder v. Correctional Medical Services, 2003 WL 22025373 at *2 (6th Cir., Aug.27, 2003) (“[t]he mere denial of a prisoner’s grievance states no claim of constitutional dimension”).

The Court further observes that Plaintiff has failed to properly serve Defendant Caruso. Plaintiffs amended complaint was accepted for filing on August 8, 2006. (Dkt.# 78). However, Plaintiff has yet to serve this action on Defendant Caruso. Moreover, Plaintiff has not requested the Court’s assistance in effecting service on Defendant Caruso.

Federal Rule of Civil Procedure 4(c) indicates that “[a] summons must be served together with a copy of the complaint.” The time frame within which service must be effected is articulated in Rule 4(m), which provides that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, “the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant.” If the plaintiff demonstrates good cause for such failure, however, “the court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m); see also, Bush v. City of Zeeland, 2003 WL 22097837 at *2 (6th Cir., Sep.5, 2003) (citation omitted).

Accordingly, the Court recommends that Plaintiffs claims against Defendant Caruso be dismissed for failure to state a claim upon which relief may be granted. In the alternative, the Court recommends that such claims be dismissed without prejudice for failure to timely effect service.

VI. Plaintiffs Motion to Deny Defendants’ Motion for Summary Judgment

Plaintiff asserts that Defendants’ motion for summary judgment should be denied so that he can complete the discovery process. The various deficiencies in Plaintiffs amended complaint, as detailed above, are not amenable to “correction” through the discovery process. In other words, no amount of discovery can alter the Court’s recommendations as to such claims. As to the claims in count III of Plaintiffs amended complaint (save Plaintiffs claim that Defendant Burnett violated his rights under RLUIPA by denying his request to participate in the kosher meal program), Plaintiff may pursue discovery to the extent that such attempts are consistent with applicable law, including but not limited to the Federal Rules of Civil Procedure. Accordingly, the Court recommends that Plaintiffs motion to deny Defendants’ motion for summary judgment be denied in part and granted in part.

CONCLUSION

As discussed herein, the Court recommends that MDOC Defendants’ Motion for Summary Judgment, (dkt.# 91), be granted in part and denied in part. The undersigned also recommends that Plaintiff’s Motion to Deny Defendant’s Motion for Summary Judgment, (dkt.# 95), be granted in part and denied in part. Specifically, the Court recommends that the claims in Plaintiffs amended complaint be dismissed, except for Plaintiffs First Amendment claims against Defendant Burnett and Plaintiffs claim that Defendant Burnett violated his rights under RLUIPA by denying his request to purchase an ankh cross.

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

Feb. 21, 2007.  