Tolliver v. Ohio Dep't of Rehab. & Corr.

Edmund A. Sargus, Jr. Judge

REPORT AND RECOMMENDATIONS

KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

Plaintiff, a state prisoner proceeding without the assistance of counsel, has filed a civil rights complaint with this Court. (Doc. 3). He seeks declaratory and injunctive relief under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 for alleged religious rights violations. (Id.). The case is currently before the Court for the initial screening of the Complaint as required by law. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(a). For the reasons that follow, the Undersigned RECOMMENDS that the Court DISMISS:

a. all claims against the Ohio Department of Rehabilitation and Corrections raised under 42 U.S.C. § 1983

b. all claims raised on behalf of other Muslim inmates

c. all claims raised on behalf of groups of which Plaintiff is not a member

d. all claims under § 1983 based on alleged violations of ODRC policy; and e. the claim alleging a denial of Halal or Kosher meals

The Court should ALLOW the remaining claims to PROCEED at this time, and the parties should be prepared to address the issues raised in Section III.F through III.H.

I. Initial Screening Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental entity,” and is proceeding in forma pauperis (see Doc. 2), the Court is required to conduct an initial screening of his Complaint. 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2). The Court must dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

Further, a complaint must also be dismissed if it fails to state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). To state a claim for relief, a complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court must construe the complaint in plaintiff's favor, accept all well-pleaded factual allegations as true, and evaluate whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

In the interest of justice, this Court is also required to construe a pro se complaint liberally and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing Fed.R.Civ.P. 8(f) [now (e)]). Even with such a liberal construction, a pro se complaint must still adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting all the material elements' to recover under some viable legal theory.” Barhite v. Caruso, 377 Fed.Appx. 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

II. Parties and Claims

Plaintiff Kevin A. Tolliver is currently incarcerated at Grafton Correctional Institution (GCI). (Complaint,^[1]PageID 40). He sues the Ohio Department of Rehabilitation and Corrections (ODRC) and/or Annette Chambers-Smith, its Director. (Id.). This Report and Recommendation

will assume without holding that Plaintiff has named both as Defendants.^[2]The Director is sued in her official capacity only. (Id.).

Plaintiff initially submitted the Complaint (and related papers) in Kevin Tolliver v. Warden Noble, Case No. 2:16-cv-1020, a separate case pending before this Court. (See Doc. 208 therein). The Clerk of Court later opened this case, and docketed Plaintiff's submissions in it. The two cases are proceeding separately at this time. The earlier case will be referred to as the “2016 Case” in this Report and Recommendation.^[3]

Plaintiff describes the Complaint in this action as “a direct challenge to practices and policies of the [ODRC].” (Complaint, PageID 40). As noted above, Plaintiff is proceeding under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1. He alleges violations of his “First Amendment rights under the United States Constitution in regard to freedom of religion and violations of protections against establishment of religion.” (Complaint, PageID 39). More specifically, he asserts that the ODRC policies and practices are ineffective and insufficient to lead to the hiring of qualified contractors/service providers to serve the Islamic community within Ohio's prisons. (See Complaint, PageID 41-42). This leads, says Plaintiff, to the denial of certain religious services, and “constitute[s] religious persecution, denial or infringement of religious rights, and an establishment of religion in favor of

both Christianity and the [WD Muhammad] style of practice, which is an ongoing harm to Plaintiff and all similarly situated mainstream adherents to the Islamic faith in Ohio prisons.” (Complaint, PageID 42, ¶ 19).

Plaintiff appears to base this conclusion, at least in part, on the fact that there are “no Muslim employees anywhere in the Religious Services Departments of ODRC, qualified by advanced education in Islamic studies (M.A. or Ph.D.) or similar religious accreditations (A'lim, Mufti, or Shaykh), [and that] there is no one on staff to properly oversee hiring of contractors and/or to administer and supervise policy issues on behalf of one of ODRC's principal faith group.” (Complaint, PageID 42, ¶ 18). Plaintiff has had conflicts with the contractors providing such religious services, as discussed at length in the 2016 Case. See, e.g., Tolliver v. Noble, No. 2:16-cv-1020, 2022 WL 843573, at *1 (S.D. Ohio Mar. 22, 2022), appeal dismissed sub nom. Tolliver v. Foley, No. 22-3382, 2022 WL 2919958 (6th Cir. May 18, 2022) (“Mr. Tolliver had conflicts with Imams Abdul Rahman Shahid and Sunni Ali Islam, independent contractors providing religious services to Muslim inmates for the [ODRC]. Plaintiff adheres to a different sect of Islam than the contractors and disagreed with how the Imams provided services and interacted with Muslim inmates who disagreed with their religious views and practices.”).

In fact, nearly all of the allegations in the Complaint here repeat or echo Plaintiff's prior allegations. (See, e.g., Amended Complaint, Doc. 30, PageID 200-09, 225; Motion for Preliminary Injunction, Doc. 34, PageID 259-60; Reply in Support of Motion for Preliminary Injunction, Doc. 58, PageID 418-19; Response to Motion for Judgment on the Pleadings, Doc. 84, PageID 558, 563; Motion for Leave to File Second Amended Complaint, Doc. 100 and 100-1, PageID 661-72, 685-88, 691); Motion for Declaratory Judgment, Doc. 110, PageID 737-42; Judicial Notice of Denial of Religious Services, Doc. 130, PageID 899-901; Memorandum in

Opposition to Summary Judgment, Doc. 161, PageID 1152-53, 1158-59, 1162-63, 1166-67; Motion for Leave to File Second Amended Complaint, Doc. 165 and 165-1, PageID 1240-42, 1245-46, 1248-49, 1258-62; Motion for Declaratory Judgment, Doc. 167, PageID 1268-72, 1275-76; Memorandum in Opposition to Summary Judgment, Doc. 204, PageID 1471-73, all in Case No. 2:16-cv-1020). Plaintiff has described these policy issues as “inextricably linked” to the retaliation issues raised in 2016 Case. (See, e.g., Doc. 161, PageID 1152-53 in Case No. 2:16-cv-1020).^[4]

In his new case, Plaintiff appears to seek declaratory and injunctive relief only. (Complaint, PageID 43, 51-52). He requests declaratory judgment with respect to fourteen “Counts” or statements, as articulated in the right column and renumbered by the Court in the left column, below:

Count No.
1	1.) Classification of all denominations (groups or sects) of the Islamic faith under one policy without recognition of major differences in the rites and rituals thereof results in an ineffective policy that denies religious services to Muslim Inmates.
2	a. The terms “largest...