Gerald Byrd v. Randall Haas ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0255p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
GERALD BYRD,
│
Plaintiff-Appellant, │
> No. 20-2286
│
v. │
│
RANDALL HAAS, Warden, et al., │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:17-cv-11427—Stephen J. Murphy, III, District Judge.
Argued: October 19, 2021
Decided and Filed: November 9, 2021
Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Jeffrey A. Crapko, MILLER, CANFIELD, PADDOCK AND STONE, PLC,
Detroit, Michigan, for Appellant. Jennifer A. Foster, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Jeffrey A. Crapko,
Amanda Rauh-Bieri, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Detroit,
Michigan, for Appellant. Jennifer A. Foster, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
THAPAR, Circuit Judge. Six years ago, Robert Byrd requested that the Michigan
Department of Corrections allow him to worship with other members of his Ifa faith and to
No. 20-2286 Byrd v. Haas, et al. Page 2
obtain certain religious property fundamental to that faith. But to this day, many of his requests
remain unanswered. Since such a long delay is tantamount to a denial, we reverse and remand.
I.
We divide this section into three parts. First, we outline the Department’s policy. Then
we trace Byrd’s journey, taking the evidence in the light most favorable to Byrd. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And last, we describe the case’s procedural
history.
A.
Both parties agree the Department’s policy lays out the framework that governs an
inmate’s religious requests. That policy recognizes “[r]eligious freedom is a constitutionally
guaranteed right” that prisoners may enjoy “within the constraints necessary for the safety,
security, and good order of the facility.” R. 80-2, Pg. ID 758. Inmates may hold formal group
services or possess certain religious property only if the Department has formally recognized
their faith. Buddhists, for example, may own one strand of meditation beads and a single picture
of the Buddha. Muslims meanwhile are allowed a prayer rug, a strand of dhikr beads, a star-and-
crescent pendant that may be worn as a necklace, and either a kufi cap or a hijab. Ifa adherents
may keep a set of sixteen cowry shells, one strand of white consecrated beads, and one picture of
the Orisha, a group of important deities in the faith.1 Though the Department recognizes the Ifa
faith, it is one of only three recognized religions that was denied group services. The record
doesn’t tell us why. But the policy tells us a group is not guaranteed religious services if there
are “less than five prisoners within the same security level” in a facility.2 Id. at 761. And the
Department adds that it may bar group services if they may pose “safety and security” concerns.
Appellees’ Br. 6 (citing R. 80-2, Pg. ID 761).
1
Both the Defendants’ briefing and Department policy documents repeatedly refer to the Ifa faith as
“Yoruba.” Byrd, however, believes this is incorrect because Yoruba is a region in western Africa, and Ifa should not
be considered “coextensive with Yoruban culture,” though “many [Yoruban people] practice Ifa.” Appellant’s Br. 3
n.1. For that reason, we also refer to Byrd’s faith as Ifa.
2
Byrd’s counsel notes that there were at least five Ifa prisoners at Byrd’s current facility as of March 12,
2019. R. 87-21, Pg. ID 2284.
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The parties also agree that the policy offers a straightforward path for inmates to request
group-worship rights and religious property. The inmate’s role is minimal. He need only submit
a request “in writing to the Warden or designee and include a description of the religious item
along with an explanation of its significance” to his faith. R. 80-2 at 763. As the Department
concedes, once the prisoner submits this request, there is “no further role for the prisoner to
play.” R. 87-9, Pg. ID 1763. The duty then shifts to the warden (here, Randall Haas) or his
designee to “forward the request and any supporting documents to the [] Special Activities
Coordinator through the appropriate chain of command.” R. 80-2, Pg. ID 763. And this duty is
a mandatory one. The warden has no “discretion over whether or not to forward” Byrd’s request
to the special activities coordinator. R. 87-9, Pg. ID 1762.
The policy likewise circumscribes the special activities coordinator’s role. Upon
receiving the request, the special activities coordinator (here, David Leach) must study it before
making a recommendation to the Department’s deputy director. As part of this review, the
special activities coordinator typically forwards the request to the Chaplaincy Advisory Council,
a volunteer group of local religious leaders who help him assess religious claims. Both the
council and the special activities coordinator are tasked with evaluating whether an inmate’s
requested religious property “is necessary to the practice of [the prisoner’s] religion.” R. 87-11,
Pg. ID 2030–36. They then file separate recommendations with the deputy director (here,
Kenneth McKee).
The deputy director must make the final decision. Besides considering the council’s and
special activities coordinator’s recommendations, he must also determine whether the requested
religious item “poses a threat to the custody and security of the facility.” R. 87-18, Pg. ID 2218.
If an inmate’s request survives both hurdles, then the deputy director must approve it.
B.
As far as bureaucracy goes, the policy seems simple. Discretion is minimal and requests
appear straightforward. But Byrd’s story paints a different picture. Between his conversion to
the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four
requests for Ifa group services and nine items that he considers essential to the Ifa faith. These
No. 20-2286 Byrd v. Haas, et al. Page 4
items include, among other things, a straw mat for prayer, herbs, and more beads. How did the
Department respond to these requests? It didn’t. Not one made its way to McKee for a final
decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t
fully resolved that request either.
First Request: While housed in the Saginaw Correctional Facility, Byrd sent his first
request in September 2015 to both Leach and his warden. Leach responded three months later,
telling Byrd that he must first send his request to the warden. But the Saginaw warden never
responded to Byrd’s request or forwarded the letter to Leach.
Second Request: Now at Macomb Correctional Facility, Byrd tried again. He sent his
second request in February 2016 to Haas, his new warden, along with Leach and McKee. For
good measure, Byrd attached a letter explaining that he had “sent one copy to [his] last facility’s
warden . . . and received no response so a response would be greatly appreciated.” R. 87-15,
Pg. ID 2162. He also copied each official listed under the policy to ensure that they all knew the
letter had reached Haas. Time stamps show that Haas received the letter no later than the end of
March 2016. In fact, Haas sent the request to the prison’s chaplain for advice. But he never
forwarded the request to Leach. Why? He didn’t “recall receiving this document.” R. 87-9,
Pg. ID 1797.
Third Request: After another month without a response from the defendants, Byrd sent
letters to both Leach and McKee. Byrd reminded Leach that he had submitted the same request
twice before to no avail despite making “every possible attempt to comply with [the policy].”
R. 87-22, Pg. ID 2291. He stressed once more that both group services and his requested
religious property are “necessary for the practice” of the Ifa faith, and that the Department was
violating the Constitution when it denied his requests while “similarly situated” prisoners were
allowed comparable privileges. Id. He closed by expressing his “sincere[] hope” that “this may
be resolved without” litigation. Id. Neither Leach nor McKee responded.
But Leach did ask Chaplain Leroy White if he knew anything about Byrd’s request. In
response, White interviewed Byrd in mid-May and then photocopied Byrd’s request. The
chaplain notified Leach that Byrd was still asking for personal religious items and group
No. 20-2286 Byrd v. Haas, et al. Page 5
services. R. 87-10, Pg. ID 1891. Thus, by May—almost nine months after Byrd’s first
request—Leach not only knew about the requests, but also knew that Byrd had fully complied
with the policy. Yet he still did not submit Byrd’s request to either the council or McKee. Nor
did he ask Haas about Byrd’s claims.
Fourth Request: Two more months passed without a response. So Byrd wrote a follow-
up letter to Haas in July 2016 seeking a status update. Haas again failed to respond to Byrd or
forward the request to Leach. Instead, he let the request sit after writing a note to discuss it with
White.
Fifth Request: After litigation began, Byrd sent yet another request to his warden in July
2019. And earlier this year—almost six years after Byrd’s first request—the acting special
activities coordinator notified Byrd that the Ifa faith would now be approved for group religious
services. He also stated that Byrd’s request for religious articles “will be sent back to the
[council] for recommendations on services and religious property.” Reply Br. 3 n.1. And yet,
according to Byrd, “[t]he policy has not been amended and group services are still not allowed.”
Id. On remand, the district court can monitor the state of Byrd’s fifth request and determine
whether these developments moot Byrd’s request for injunctive relief.
C.
After almost two years of having his religious-liberty claims ignored, Byrd sued various
Department officials for alleged violations of his statutory and constitutional rights. More
precisely, Byrd contends that Haas, Leach, and McKee have violated his rights under the
Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise Clause, and
the Equal Protection Clause. Byrd also alleges that Haas violated his Fourteenth Amendment
procedural-due-process rights.
The district court granted the defendants’ motion for summary judgment, finding
qualified immunity for the officials on Byrd’s constitutional claims. It also ruled that Byrd’s
RLUIPA claims against Haas and Leach were moot because they have retired since Byrd filed
suit, and granted summary judgment for McKee on Byrd’s remaining RLUIPA claim.
No. 20-2286 Byrd v. Haas, et al. Page 6
II.
In this case, framing is everything. Byrd alleges that the defendants have “restrict[ed]”
him “from freely practicing his religion by refusing to approve group religious services and
personal religious property.” R. 24, Pg. ID 92. As he puts it, his complaint “is not—and has
never been—just about the Defendants’ failure to forward his request.” Reply Br. 6 n.3. Instead,
Byrd characterizes this case as about the Department’s “outright refusal to even consider a
legitimate request for religious accommodation, the de facto perpetual denial of which left Byrd
unable to practice his religion.” Id.The defendants, unsurprisingly, see things differently. They seek to downplay Byrd’s
multi-year saga as a minor breakdown of protocol. In their eyes, “Byrd’s allegations all stem
from an alleged failure to act,” and “generally a failure to act does not rise to the level of a
constitutional violation.” Appellees’ Br. 14. In the same vein, they note that Byrd’s “narrow
complaint” takes aim only at individuals’ actions rather than Department policy or an agency
action.3 Id.So was the defendants’ failure to respond to Byrd’s religious requests a mere bureaucratic
oversight? Or did it deprive him of his constitutionally and statutorily protected rights of
worship?
The district court accepted the Department’s framing. That is, the court framed the issue
as one of process: “Do prison officials violate inmates’ Free Exercise rights when they do not
approve group religious services or expansions of personal religious property through an
appropriate process?” R. 109, Pg. ID 3061. And once the issue was framed, the case became an
easy one. In granting Haas summary judgment on Byrd’s free-exercise claim, for instance, the
court found that Haas’s failure to forward the letter was little more than “either an isolated
incident or the result of confusion or miscommunication.” Id. at 3062. To reach this conclusion,
3
The defendants argue that because Byrd complained only of individual employees’ actions, those claims
became moot when Haas and Leach retired. Not so. Byrd’s pro se complaint sued the defendants in their official
capacities. And in official-capacity suits, under Federal Rule of Civil Procedure 25(d), an action does not become
moot when an official resigns or retires. Instead, his or her successor is automatically substituted as the party. Fed.
R. Civ. P. 25(d).
No. 20-2286 Byrd v. Haas, et al. Page 7
the district court pointed out that “Haas was not the decisionmaker with authority to grant or
deny Byrd’s ultimate request.” Id. Likewise, the district court granted summary judgment for
Leach after holding that Byrd “did not have a clearly established right” to have Leach “reply to
or forward [his] request for Ifa group religious services and particular religious property.” R. 63,
Pg. ID 628. And the district court also granted McKee—the final decisionmaker—qualified
immunity. Here, the court determined that McKee did not have a duty to act until Byrd’s request
“reached him through the chain of command—an event that never occurred.” R. 109, Pg. ID
3070. All these rulings hinge on the district court’s decision to frame this case as a procedural
failure rather than a constructive denial.
But that framing is wrong. Under the Department’s theory of the case, prison officials
can effectively block an inmate from religious exercise by breaking up the approval process.
Consider a brief hypothetical. Suppose that the Department knows that under RLUIPA it would
likely have to grant a request from Jewish inmates to hold Yom Kippur services. But let’s say
the Department wants to bar them from doing so. By the Department’s lights, the officers could
simply sit on the request, claiming their failure to forward it to the final decisionmaker was a
procedural mishap. But a government agency cannot simply end-run judicial review by sitting
on its hands and allowing a claimant’s request to languish in a bureaucratic black hole.
Our own caselaw recognizes this. In Haight v. Thompson, a group of Native American
inmates requested access to a sweat lodge through their prison’s designated process. 763 F.3d
554, 560 (6th Cir. 2014). But the Kentucky Department of Corrections dragged its feet. Though
more than four years had passed, the commissioner of the department had not yet issued a final
statewide report on the matter. Id. Did that mean the inmates had failed to exhaust their
administrative remedies when they asked us to step in? Of course not. We held that
“[a]dministrative remedies are exhausted when prison officials fail to timely respond to a
properly filed grievance.” Id. at 561 (quoting Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996
(6th Cir. 2004)).
Here, the same is true. Byrd took every conceivable action to pursue his claim. He had
nowhere else to turn. Only the prison officials failed to bring it to fruition. Indeed, the
No. 20-2286 Byrd v. Haas, et al. Page 8
defendants left him in the dark; no official told him at any point until after briefing had begun
here that his request would be reviewed.
And in practical terms, this multi-year failure amounted to an outright denial of Byrd’s
requests.4 From Byrd’s perspective, there was no material difference between the Department
never processing his request and denying it. Cf. Env’t Def. Fund, Inc. v. Hardin, 428 F.2d 1093,
1099 (D.C. Cir. 1970) (“[W]hen administrative inaction has precisely the same impact on the
rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its
decision in the form of inaction rather than in the form of an order denying relief.”). In either
case, Byrd cannot worship with other Ifa adherents. Nor can he pray with objects critical to his
faith.
We have recognized constructive denials of this sort in other contexts. In Overlook
Mutual Homes, Inc. v. Spencer, for example, we noted that a housing provider’s “unreasonabl[e]
delays responding to a request for an accommodation . . . may amount to a denial.” 415 F.
App’x 617, 622 (6th Cir. 2011). Consider also Americans United for Separation of Church
& State v. City of Grand Rapids, 922 F.2d 303 (6th Cir. 1990). There, a Jewish group, Chabad,
moved to intervene in a case challenging Grand Rapids’s practice permitting the group to erect a
menorah on public property during the holiday of Hanukkah. Id. at 305. When the district court
scheduled its hearing on the motion for after the holiday, we held that “such a delay is the
practical equivalent of a denial of Chabad’s application.” Id. at 306. The same can be said here.
To be sure, constructive denials are—and should remain—rare. Only in an unusual case
such as ours should we recognize one. And when determining whether a constructive denial has
occurred, courts should take context as their guidepost. Cf. Barrios Garcia v. U.S. Dep’t of
Homeland Sec., 14 F.4th 462, 485 (6th Cir. 2021) (“A claim of unreasonable delay is necessarily
fact dependent.” (citation omitted)); see also Mashpee Wampanoag Tribal Council, Inc. v.
Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is
4
The exact length of the delay turns on the claim. When assessing the officers’ qualified-immunity
defense, the district court should consider the delay from the time of Byrd’s first request in September 2015 to the
day he filed his complaint. But when assessing his claims for injunctive relief, the district court should consider his
delay still ongoing.
No. 20-2286 Byrd v. Haas, et al. Page 9
ordinarily a complicated and nuanced task requiring consideration of the particular facts and
circumstances before the court.”). This may include considering the length of the delay, any
reasonable justification for the delay, and the nature of the interest involved.
Each of these considerations militates in Byrd’s favor. Here, various department
officials—Haas, Leach, and White to name just a few—were aware of Byrd’s requests. Yet the
Department did not even begin analyzing the request for more than five years. Indeed, Byrd did
not receive word that any process had begun until after briefing started in this case. And the
defendants have offered no justification for this delay. That’s especially troubling here because
Byrd’s request appears straightforward. Even though department officials were unfamiliar with
the Ifa faith, much of what Byrd is asking for resembles requests that the Department has granted
for other religious groups.
The best that the defendants offer is that “[n]othing surrounding new religious requests
happens quickly.” Appellees’ Br. 23. That may be true. But it took almost six years for the
Department to respond directly and substantively to Byrd. Nothing in the record excuses this
inactivity. And in the meantime, Byrd has been deprived of religious property and group
services—both of which he believes are necessary for his faith. As a result, we hold that the
Department’s extreme delay constructively denied Byrd’s requests. His RLUIPA and
constitutional claims must therefore be analyzed through that lens.5
5
Our circuit has held that litigants, like Byrd, cannot recover damages under RLUIPA. See Haight,
763 F.3d at 568. Thus, Byrd’s claim for monetary relief is permitted only under the First Amendment. Under the
Supreme Court’s test, the district court must ask whether the Department’s denial of Byrd’s request furthers a valid
penological interest. Turner v. Safley, 482 U.S. 78, 89–90 (1987). If the Department cannot make such a showing,
Byrd prevails. See Maye v. Klee, 915 F.3d 1076, 1083–84 (6th Cir. 2019). If the Department can make this
showing, however, the district judge must balance (1) whether Byrd possesses alternative avenues for exercising his
religion; (2) how accommodating his request would affect “guards and other inmates” or “the allocation of prison
resources generally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not
reasonable.” Turner, 482 U.S. at 89–91. The district court must relatedly perform a qualified-immunity analysis for
each of the officers if the Turner factors have been met.
Byrd also raises an Equal Protection Clause challenge. We reverse the district court’s decision to dismiss
the equal-protection claim and remand for further consideration. The court should consider whether defendants’
constructive denial of Byrd’s requests amounts to “a facially discriminatory distinction [that] would burden [Byrd’s]
fundamental rights to religious freedom under the First Amendment, which means an invidious purpose may be
inferred.” Koger v. Mohr, 964 F.3d 532, 545 (6th Cir. 2020) (internal quotation marks omitted) (quoting Maye v.
Klee, 915 F.3d 1076, 1086 (6th Cir. 2019)).
No. 20-2286 Byrd v. Haas, et al. Page 10
As we have laid out in earlier cases, RLUIPA operates as a “three-act play.” Cavin v.
Mich. Dep’t of Corr., 927 F.3d 455, 458 (6th Cir. 2019). At the first step, Byrd must show that
his request stems from a “sincerely held religious belief.” Holt v. Hobbs, 574 U.S. 352, 361
(2015). Next, he must demonstrate that the Department “substantially burdened” his religious
exercise when it effectively denied his request. Id. Though the record contains enough for us to
fill in the gaps for RLUIPA’s “first act” and “second act,” we do not know how this particular
story will end. That’s because the burden shifts to the Department for the final step. At this
stage, the Department must prove that its denial of Byrd’s request was the “least restrictive
means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)–(2).
During this step, courts must take prison officials’ decisions about prison security seriously.
After all, prison officials, not courts, are the experts in how to run a prison. See Holt, 574 U.S. at
364. Yet at the same time, we demand a tailored inquiry that turns on the individual inmate’s
case. Haight, 763 F.3d at 562–64. Thus, courts must “scrutinize the asserted harm” that the
Department will incur if it grants a “specific exemption” to Byrd in particular. Holt, 574 U.S. at
363 (cleaned up).
The record is spartan on these issues. On remand, the district court should “take
additional evidence as necessary,” knowing this is an exacting standard for the Department. Fox
v. Washington, 949 F.3d 270, 283 (6th Cir. 2020).
III.
For those who do not understand the Ifa faith, the deprivation of beads or a prayer mat
may seem insignificant. That, however, misses the entire point of our religious-liberty
jurisprudence. From our Founding, this Nation has made religious freedom a bedrock principle
of our ordered liberty. See, e.g., Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1901 (2021)
(Alito, J., concurring in judgment) (noting that “critical state ratifying conventions approved the
Constitution on the understanding that it would be amended to” expressly protect rights
including religious liberty). Indeed, if anything, we must be especially solicitous of religious
Finally, Byrd claims that his procedural-due-process rights were violated because the Department never
processed his request. We leave this claim to the district court in the first instance by reversing and remanding for
further consideration in light of the determination that the delay in responding to Byrd’s requests amounts to a
constructive denial.
No. 20-2286 Byrd v. Haas, et al. Page 11
claimants who run against fashionable trends. Cf. Bible Believers v. Wayne County, 805 F.3d
228, 243 (6th Cir. 2015) (en banc) (noting that it is “the minority view . . . that most often needs
protection under the First Amendment”). Insulated from the rebukes of the electorate, it is our
constitutional duty to protect the religious freedom of minority adherents as vigorously as
anyone else’s.
And if the “Constitution cannot be put away and forgotten” “even in a pandemic,” Roman
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam), then we certainly
cannot allow it to slip through mere bureaucratic cracks. Thus, this case should be analyzed as a
constructive denial of Byrd’s request for group religious services and religious property. The
defendants might still prevail on qualified immunity. But we are “a court of review, not of first
view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). So we reverse the judgment and
remand for the district court to reconsider its analysis.