                             NOT RECOMMENDED FOR PUBLICATION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

                                                 -2-
No. 09-1312
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

                                                -3-
No. 09-1312
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.



                                                 -4-
No. 09-1312
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

                                                 -5-
No. 09-1312
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

                                                  -6-
No. 09-1312
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.




                                                  -7-
