NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0294n.06
No. 09-1312 FILED
May 14, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
MELVIN E. BARHITE, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
PATRICIA CARUSO et al., )
)
Defendants-Appellees. ) OPINION
)
_____________________________________)
Before: MOORE and GILMAN, Circuit Judges; and RUSSELL, Chief District Judge.*
RONALD LEE GILMAN, Circuit Judge. This case arises out of the decision of prison
officials to confiscate numerous photographs of scantily clad young women in provocative poses that
belonged to plaintiff Melvin E. Barhite, a Michigan state prison inmate. Barhite has been
incarcerated since 2001 as a result of his convictions for various sex offenses. Claiming that the
prison officials seized his photographs because he is a Mormon, Barhite brought suit pro se under
42 U.S.C. § 1983. He alleged that the officials’ actions violated his rights under the First
Amendment and under the Religious Land Use and Institutionalized Person Act (RLUIPA). The
district court sua sponte dismissed Barhite’s lawsuit, pursuant to the Prison Litigation Reform Act
(PLRA), for failure to state a claim. For the reasons set forth below, we AFFIRM the judgment of
the district court.
*
The Honorable Thomas B. Russell, Chief United States District Judge for the W estern District of Kentucky,
sitting by designation.
No. 09-1312
Barhite v. Caruso
I. BACKGROUND
A Michigan state court sentenced Barhite on two counts of criminal sexual conduct, third-
degree, and two counts of criminal sexual conduct, fourth-degree, following his convictions by a jury
in July 2001. See Mich. Comp. Laws §§ 750.520d, 750.520e. Barhite was serving his sentence in
the Lakeland Correctional Facility when, in April 2008, Texas law enforcement officials raided a
ranch belonging to the Fundamentalist Church of Jesus Christ of Latter-day Saints. This raid made
national news as law enforcement officers removed dozens of children from the ranch in response
to reports of polygamy and sexual abuse. See Ralph Blumenthal, 52 Girls Are Taken From
Polygamist Sect’s Ranch in Texas, N.Y. Times, Apr. 5, 2008. Barhite is a member of the Church
of Jesus Christ of Latter-day Saints, a church historically related but now separate from the religious
group that ran the Texas compound. Nevertheless, shortly after the raid occurred and was
publicized, Barhite alleges that prison officials at Lakeland confiscated several items of his personal
property, including the photographs in question. Barhite claims that, around the same time, one
official who knew that he was a Mormon questioned him about the incidents in Texas. Roughly one
month later, the officials at Lakeland returned his property, including the photographs, to him.
Barhite was transferred shortly thereafter to a different prison, the Gus Harrison Correctional
Facility. Twice during July 2008, officials at Gus Harrison inspected Barhite’s photographs, which
he generally refers to as “various photos of young ladies.” Following the second inspection, the
officials confiscated the photographs. The official report on the incident, according to Barhite’s
complaint, described the items as “1 photo album containing photos of young girls in provocative
poses, in swinsuits [sic], bra’s [sic], panties, and only in a towel.” Compl. at 12. This report also
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Barhite v. Caruso
noted that “these photos could hinder prisoners [sic] rehabilitation process.” Barhite admits in his
complaint that the females pictured in these photographs “range in age from 14 to 26” and
acknowledges that he refused to explain to prison officials his relationship with the young women.
Compl. at 15. After a hearing was held on the matter on July 25, 2008, prison officials concluded
that the young women in the photographs might be the victims of Barhite’s sex crimes. They
therefore refused to return the items to him.
Barhite subsequently brought suit against Patricia Caruso, the Director of the Michigan
Department of Corrections, the wardens of the Lakeland and Gus Harrison Correctional Facilities,
and various employees at both prisons. He claimed that the defendants violated both his First
Amendment right to the free exercise of religion and his rights under RLUIPA by removing the
photographs from his cell because of his Mormon beliefs and, specifically, after hearing
inflammatory news reports about the raid on the Texas ranch. The district court independently
reviewed Barhite’s complaint pursuant to the PLRA, 28 U.S.C. §§ 1915(e)(2), 1915A(b), and
ultimately dismissed the pleading for failure to state a claim. This appeal followed.
II. ANALYSIS
We review de novo a district court’s decision under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)
to dismiss an inmate’s complaint. Thomas v. Eby, 481 F.3d 434 , 437 (6th Cir. 2007). The PLRA
requires district courts to screen and dismiss complaints that are “frivolous or malicious,” seek
“monetary relief from a defendant who is immune from such relief,” or fail “to state a claim on
which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). Both the district court and
our own court must construe Barhite’s complaint in the light most favorable to him, accepting all
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Barhite v. Caruso
of his factual allegations as true. See Trzebuckowski v. City of Cleveland, 319 F.3d 853 , 855 (6th
Cir. 2003).
“Further, we hold pleadings filed by a pro se litigant to less stringent standards than formal
pleadings drafted by lawyers, and may not uphold the dismissal of such a pleading simply because
we find the plaintiff’s allegations unlikely.” Eby, 481 F.3d at 437 (brackets, citations, and internal
quotation marks omitted). Despite the leniency afforded to Barhite as a pro se litigant, however, our
standard of review requires more than the bare assertion of legal conclusions, and thus the complaint
“must contain either direct or inferential allegations respecting all the material elements” to recover
under some viable legal theory. See Mezibov v. Allen,
411 F.3d 712 , 716 (6th Cir. 2005).
A. First Amendment claim
Barhite’s primary allegation is that the prison officials violated his First Amendment right
to the free exercise of religion by confiscating his photographs because of his Mormon beliefs.
Under § 1983, “[a] prisoner alleging that the actions of prison officials violate his religious beliefs
must show that the belief or practice asserted is religious in the person’s own scheme of things and
is sincerely held.” Flagner v. Wilkinson, 241 F.3d 475 , 481 (6th Cir. 2001) (citation and internal
quotation marks omitted). Only after a prison inmate shows a sincere belief that his or her religion
requires the practice at issue does the court move on to determining whether the prison’s actions
restricting the practice are valid. Boles v. Neet,
486 F.3d 1177 , 1182 (10th Cir. 2007) (explaining
that the first requirement in a § 1983 First Amendment free-exercise claim is for the plaintiff to show
that the prison’s action “substantially burdened his sincerely-held religious beliefs”); Salahuddin v.
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Barhite v. Caruso
Goord, 467 F.3d 263, 274-75 (2d Cir. 2006) (“The prisoner must show at the threshold that the
disputed conduct substantially burdens his sincerely held religious beliefs.”).
In the present case, Barhite has failed to assert this initial element of his First Amendment
claim because he does not allege that the photographs the prison officials seized were necessary
for—or at all related to—the practice of his religion. Rather, he argues that the prison officials took
the photographs simply because he is a Mormon, despite the photographs allegedly not violating any
prison policy. But this contention has little to do with whether the prison officials’ actions violated
his right to freely exercise his religious beliefs. Because Barhite has failed to allege this threshold
requirement, his First Amendment claim therefore fails.
B. RLUIPA claim
Barhite’s remaining claim is that, by seizing the photographs, the prison officials violated
RLUIPA. Under RLUIPA, “[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 can show (1) that the imposition of the burden
“is in furtherance of a compelling governmental interest,” and (2) the burden furthers that interest
by use of the “least restrictive means.” 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA thus requires an
inmate to show that his or her religious exercise was substantially burdened. See Cutter v.
Wilkinson, 423 F.3d 579 , 583 (6th Cir. 2005). An action will be classified as a substantial burden
“when that action forced an individual to choose between ‘following the precepts of her religion and
forfeiting benefits’ or when the action in question placed ‘substantial pressure on an adherent to
modify his behavior and to violate his beliefs.’” Living Water Church of God v. Charter Twp. of
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Barhite v. Caruso
Meridian, 258 F. App’x 729, 734 (6th Cir. 2007) (quoting Sherbert v. Verner, 374 U.S. 398 , 404
(1963), and Thomas v. Review Bd. of Ind. Employment Sec. Div.,
450 U.S. 707 , 717-18 (1981)).
Barhite argues that the prison officials confiscated his photographs because he is a Mormon
and because they were inflamed by news reports about the raid on the Texas ranch. He also insists
that the photographs did not violate any prison rules. But, again, he does not allege that his
possession of these photographs had anything to do with his religious beliefs. Barhite has therefore
failed to satisfy the initial step needed to establish a RLUIPA claim—that the prison officials
imposed a substantial burden on his religious exercise by confiscating the photographs. See Cutter,
423 F.3d at 583 . His RLUIPA claim is thus without merit.
C. Barhite’s core contention
As explained above, Barhite’s allegations do not satisfy the requirements of either a First
Amendment free-exercise claim or a RLUIPA claim. His core contention instead appears to be that
prison officials discriminated against him because of his religious beliefs, thereby violating his right
to the equal protection of the law, not that they impeded his ability to exercise those beliefs. But
even if Barhite had raised such an equal protection claim, or even if we were inclined to so
recharacterize his allegations, see United States v. McDonald, 326 F. App’x 880, 882 (6th Cir. 2009)
(noting that courts may elect to recharacterize pro se filings for the benefit of the pleader), he would
still have to show that “similarly situated classes of inmates are treated differently, and that this
difference in treatment bears no rational relation to any legitimate penal interest.” Phillips v. Norris,
320 F.3d 844 , 848 (8th Cir. 2003) (citation omitted); see also Karboau v. Purnington, 137 F. App’x
18, 20 (9th Cir. 2005) (requiring an inmate who alleged that his possessions were confiscated
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Barhite v. Caruso
because of his religious beliefs to show that the prison officials’ actions “were unrelated to legitimate
penological interests”).
But Barhite failed to allege that other, non-Mormon sex offenders are allowed to possess
photographs of young women clad only in swimsuits, underwear, and towels. Thus, even if we were
to construe Barhite’s complaint as raising an equal protection claim, such a claim would have no
merit.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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