                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0085n.06
                               Filed: February 4, 2005

                                          No. 04-1038


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

GREGORY A. FIGEL,

       Plaintiff-Appellant,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
WILLIAM OVERTON, Warden, et al.,                     WESTERN DISTRICT OF MICHIGAN

       Defendants-Appellants.

                                              /




BEFORE:        SILER, COLE, and CLAY, Circuit Judges.


       CLAY, Circuit Judge.        Plaintiff, Gregory A. Figel (“Figel”), a Michigan prisoner

proceeding pro se, appeals a district court judgment dismissing his civil rights complaint, brought

pursuant to 42 U.S.C. §1983. Figel filed this suit against Michigan Department of Corrections

(“MDOC”) Director William Overton (“Overton”), MDOC Special Activities Coordinator David

Burnett (“Burnett”), and MDOC Deputy Director Patricia Caruso (“Caruso”), alleging that the

confiscation, pursuant to MDOC Policy Directive 05.03.118, of religious publications sent to him

by the Philadelphia Church of God (“PCG”), violated his rights under the First Amendment and the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.§2000cc-1. Figel’s
                                            No. 04-1038

complaint also alleged that Defendants’ refusal to change the directive in question constituted

retaliation for Figel’s filing of grievances and litigation against them. Figel sought declaratory and

injunctive relief and compensatory and punitive damages.

       For the reasons set forth below, we REVERSE and REMAND the case to the district court

with instructions to vacate its judgment as to Figel’s claims under the First Amendment and the

RLUIPA, and to order service of process on Defendants as to those claims. We AFFIRM the

district court’s dismissal of Figel’s retaliation claim and his claim under the Equal Protection Clause.

                                          BACKGROUND

       Figel is an inmate at the Alger Maximum Correctional Facility in Michigan. He alleges that

on November 1, 2002, Defendant Overton implemented Directive 05.03.118, which states, in part,

that “prohibited material includes a book, magazine, newspaper, or other publication that is not

received directly from the publisher, or is not received from an authorized vendor, or not ordered

by the prisoner using established ordering procedures.” Figel further alleges that each warden has

discretion to authorize vendors for the facility he or she supervises.

       Pursuant to this policy, five books sent to Figel in May and June of 2003, by the Philadelphia

Church of God (“PCG”) in Edmond, Oklahoma, were confiscated.1 In each instance, Figel received

a “Notice of Package/Mail Rejection” from the MDOC that cited Directive 05.03.118 and explained

that the book at issue was confiscated because “Philadelphia Church of God is not the publisher of




       1
       The books were titled: Incredible Human Potential (two copies sent), The Missing
Dimension in Sex (two copies sent), and Mystery of the Ages.

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                                            No. 04-1038

this book, nor are they an authorized vendor, nor did the prisoner order this book using established

ordering procedures.”

       Figel requested hearings regarding each of the five confiscated books, and those hearings

were held on May 21, May 28, June 4, and June 18 of 2003. At each hearing the decision to

confiscate pursuant to Directive 05.03.118 was affirmed, and Figel was required to notify MDOC

property staff of his choice of disposal of the material.

       In July 2003, Figel wrote to Defendants Overton and Caruso to express his view that the

application of Directive 05.03.118 to “religious publications from legitimate religious sources” was

unconstitutional and in violation of the RLUIPA, and to request that all religious publications be

exempt from the Directive or, alternatively, that all “legitimate religious sources” automatically be

given authorized vendor status under the Directive. Figel alleges that Overton and Caruso never

responded to his letters. However, a July 25, 2003 letter to Figel from Defendant Burnett, who

indicated that he was writing at the request of Defendant Caruso, expressed the MDOC’s refusal to

exempt “religious publications” from Directive 05.03.118, and “encouraged” Figel to “cooperate

with [the directive] and with facility staff in securing appropriate religious publications.”

       Subsequently, on July 30, 2003, Figel submitted a grievance with the Grievance Coordinator,

pursuant to Policy Directive 03.02.130. His grievance was rejected because it challenged policy,

and was therefore not a “grievable” issue. Figel twice appealed the rejection of his grievance,

unsuccessfully.

       Additionally, on July 25, August 21, and September 10, 2003, Figel filed requests with

Defendant Caruso’s office for a declaratory ruling regarding his claim that the application of



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                                           No. 04-1038

Directive 05.03.118 to religious publications was unconstitutional and in violation of the RLUIPA.

A letter of September 2, 2003, from Jeff Baumann of the MDOC’s Office of Audit, Internal Affairs

and Litigation, indicated that Figel’s request for a declaratory ruling was being reviewed, and that

if no ruling was received within thirty days, Figel should consider the request denied. The complaint

indicates that Figel never received a ruling.

       On October 17, 2003, Figel filed a complaint in the United States District Court for the

Western District of Michigan, alleging that Defendants’ implementation and enforcement of MDOC

Policy Directive 05.03.118 restricts his rights in violation of the free exercise clause of the First

Amendment, the RLUIPA, and the equal protection clause of the Fourteenth Amendment, and that

retaliatory actions by Defendants also violated his First Amendment rights.

       Figel also filed a motion to proceed in forma pauperis in compliance with 28 U.S.C. §

1915(a), which was granted. As required by statutes governing suits filed by prisoners and suits

filed in forma pauperis, the district court “screened” Figel’s complaint to determine, among other

things, whether Figel had stated a claim upon which relief could be granted. 28 U.S.C. §1915(e),

28 U.S.C. §1915A, and 42 U.S.C. §1997e. This review by the district court is mandatory and “must

occur even before process is served or the individual has had an opportunity to amend the

complaint.” McGore v. Wrigglesworth, 114 F.3d 601, 608-609 (6th Cir. 1997)(specifically

referencing 28 U.S.C. §1915(e)(2)).

       On December 12, 2004, the district court concluded that Figel had failed to assert any claims

upon which relief could be granted, and dismissed his complaint, which had not been served upon

Defendants. Figel filed a notice of appeal to this Court on December 15, 2003.


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                                             No. 04-1038

                                           DISCUSSION

I.        Standard of review

          We review de novo a district court’s decision to dismiss under 28 U.S.C. §§1915(e), 1915A,

and 42 U.S.C. §1997e. McGore, 114 F.3d at 604. In assessing a complaint for failure to state a

claim, we construe the complaint in the light most favorable to the plaintiff, accept his factual

allegations as true, and determine whether he can prove any set of facts in support of his claim that

would entitle him to relief. Turker v. Ohio Dep’t of Rehab. and Corr., 157 F.3d 453, 456 (6th Cir.

1998). This generous standard is construed even more liberally when the plaintiff is proceeding pro

se. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004), citing Haines v. Kerner, 404 U.S. 519,

520-21 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991). A pro se complaint should be

dismissed only if it is “beyond doubt” that the plaintiff can prove no set of facts which would

support a grant of relief. Haines, 404 U.S. at 521, citing Conley v. Gibson, 355 U.S. 41, 45-46

(1957).

II.       Plaintiff’s First Amendment claim

          Figel’s complaint raises a First Amendment challenge to the confiscation of religious texts

sent to him by the PCG. In Turner v. Safely, 482 U.S. 78 (1987), the Supreme Court set forth the

general standard governing a claim that a prison regulation violates a prisoner’s constitutional rights.

Under Turner, “when a prison regulation impinges on inmates’ constitutional rights, the regulation

is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89. Turner

articulates a four-factor test to determine the reasonableness of prison regulations. Id. at 90-91.




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                                             No. 04-1038

        The regulation whose application is challenged here, MDOC Policy Directive 05.03.118,

prohibits inmates from receiving publications that are not sent directly from the publisher or an

authorized vendor. The district court observed that “both the Supreme Court and the Sixth Circuit

have upheld the constitutional validity of rules rejecting mail that is not from a publisher or

approved vendor,” finding that such rules are reasonably related to a legitimate penological interest.

Dist. Ct. Opinion at 4. Citing several cases in support of that proposition, the district court

dismissed Figel’s First Amendment claim. Id.

        While the district court was correct that Directive 05.03.118 is facially valid, it erred in

failing to recognize that Figel was challenging the regulation as applied to exclude PCG from the

authorized vendor list. Figel’s prayer for relief included “an order that requires the Defendants to

add the Philadelphia Church of God to the state-wide authorized religious vendor list.” Compl. at

20. See Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir. 1997)(citations

omitted)(discussing the distinction between facial and as-applied challenges).

        Thus, the First Amendment issue in this case is not whether Directive 05.03.118 is

reasonably related to a legitimate penological interest, as the district court perceived it to be. Rather,

it is whether Defendants’ refusal to authorize PCG as a vendor is reasonably related to a legitimate

penological interest. “Under Turner, [a] plaintiff[] may pursue as-applied challenges to facially

valid prison regulations.” Flagner v. Wilkinson, 241 F.3d 475, 484 n.5 (6th Cir. 2001)(citations

omitted).

        In our view, Figel has stated a claim that the exclusion of PCG from the authorized vendor

list is not reasonably related to a legitimate penological interest, and the district court erred in



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                                            No. 04-1038

dismissing his First Amendment claim. There is nothing in the record or the district court’s findings

to suggest that PCG is not a legitimate church or religious organization. We therefore remand with

instructions that the district court vacate its prior decision with respect to this claim. Of course, we

make no comment on the ultimate merits of Figel’s claim, particularly as Defendants were never

served with the complaint and have not yet had an opportunity to express their basis for refusing to

authorize PCG as a vendor.2

III.   Plaintiff’s RLUIPA claim

        Figel also alleged that the confiscation under Directive 05.03.118 of texts sent to him by the

PCG violates his rights under the RLUIPA. In relevant part, the RLUIPA prohibits the imposition

by any government of a “substantial burden on the religious exercise” of a prisoner, unless the

government can show that such imposition is the least restrictive means of furthering a compelling

governmental interest. 42 U.S.C.A. § 2000cc-1(a). In addition to citing this statutory language,

Figel alleged that Incredible Human Potential, The Missing Dimension in Sex, and Mystery of the

Ages are all religious books sent to him by the PCG and confiscated by prison authorities. He

further asserted that the confiscation of those books interfered with his practice of his religion.

        The district court dismissed this claim on the ground that Figel “failed to allege any facts

showing that a ‘substantial burden’ has been placed on his ability to exercise his religious beliefs.



        2
          We note that while the burden is on the prisoner to disprove the validity of the regulation
at issue, Overton v. Bazzetta, 539 U.S. 126, 132 (2003), Defendants must still articulate their interest
in the regulation. See Turner, 482 U.S. at 89. In Overton, for example, the Michigan Department
of Corrections expressed several interests in the challenged regulations. Overton, 539 U.S. at 133.
Otherwise, a prisoner would be forced to hypothesize any number of potential legitimate penological
interests and then disprove a reasonable relationship between each and the regulation at issue.

                                                   7
                                             No. 04-1038

The fact that he was unable to obtain certain books sent by the PCG does not by itself constitute such

a showing.” Dist. Ct. Opinion at 6.

        In light of the very liberal pleading rules that should be applied to a pro se plaintiff facing

dismissal for failure to state a claim, we disagree. Figel’s complaint should not have been dismissed

for failure to state a claim unless it appeared “beyond doubt that [he] can prove no set of facts in

support of his claim which would entitle him to relief.” Haines, 404 U.S. at 521, quoting Conley,

355 U.S. at 45-6. Figel alleged that the confiscation of specific religious texts substantially

burdened his right to practice his religion; if he can prove a set of facts to support this claim, he may

be entitled to relief under the RLUIPA. We cannot say that Figel is undoubtedly unable to establish

that the confiscation of the books at issue imposed a substantial burden on his religious rights. It

is true that Figel did not precisely explain how his inability to obtain the books burdened the exercise

of his religion. However, he was not required to do so. The presentation of even “inferential

allegations” respecting the material elements of a claim suffices to state a claim upon which relief

can be granted. See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir.1988).

        The district court could have dismissed the case under other grounds, specifically our

precedent in Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003). In Cutter, we held that §2000c-1

violates the Establishment Clause of the First Amendment “because it favors religious rights over

other fundamental rights without any showing that religious rights are at any greater risk of

deprivation.” Id. at 262. This holding clearly precludes Figel from relief under the RLUIPA.

However, since the issuance of the district court’s opinion, the Supreme Court has granted certiorari




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                                            No. 04-1038

in Cutter to review the question of the RLUIPA’s constitutionality. 73 U.S.L.W. 3229 (U.S. Oct.

12, 2004)(No. 03-9877).

       It would therefore be inappropriate to dispose of Figel’s claim based on our holding in

Cutter. We remand this claim with instructions that the district court vacate its previous decision

on this claim, and hold the claim in abeyance for re-consideration pending the Supreme Court’s

decision in Cutter. Should the Supreme Court reverse Cutter and uphold the constitutionality of

§2000c-1, the district court should reconsider whether Figel has stated a claim upon which relief can

be granted.

IV.    Plaintiff’s retaliation claim.

       A prisoner’s claim that prison officials retaliated against him for engaging in protected

conduct is grounded in the First Amendment. See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th

Cir. 1999)(en banc). In order to prove a retaliation claim, a plaintiff must show: (1) that he engaged

in protected conduct; (2) that an adverse action was taken against the plaintiff that would deter a

person of ordinary firmness from continuing to engage in that conduct; and (3) that the adverse

action was motivated, at least in part, by the plaintiff’s protected conduct. Id. at 394.

       In his complaint, Figel asserts that Defendants’ confiscation of his religious texts was

retaliation for his filing of complaints, grievances, and litigation against them. However, he alleges

no facts in support of his claim of a retaliatory motive. Even if Defendants’ confiscation of books

sent to Figel is ultimately shown to be a violation of his constitutional rights, the fact that

Defendants applied a pre-existing policy directive to prohibit Figel’s receipt of those books after

Figel filed grievances and litigation against Defendants, does not indicate a retaliatory motive in the



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                                            No. 04-1038

absence of any evidence demonstrating that the policy was not applied to Plaintiff in an even-handed

manner. Figel has not alleged that Defendants did not apply Directive 05.03.118 even-handedly,

or presented any other evidence which might suggest that Defendants’ motive for applying the

policy in Figel’s case was retaliatory.

       Even in light of the generous pleading standards applied to the review of pro se complaints,

the district court correctly dismissed Figel’s retaliation claim. Mere “conclusory allegations” will

not suffice to state a claim upon which relief can be granted. Birdo v. Lewis, 1996 WL 132148, *1

(6th. Cir 1996), citing Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir. 1987).

V.     Plaintiff’s claim under the Equal Protection Clause

       Finally, Figel challenges the discretion given to wardens of individual facilities to approve

publication vendors, arguing that the fact that one warden could choose to authorize PCG to send

books to the prison he or she supervises, while another could choose not to do so, constitutes a

violation of the Equal Protection Clause of the Fourteenth Amendment. The district court dismissed

this claim because Figel had not demonstrated that he was irrationally and intentionally treated

differently from others similarly situated to him. Dist. Ct. Opinion at 7, citing Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

       We agree, and observe that an even more fundamental problem with this claim exists: Figel

has not alleged that he is a member of a protected class. Henry v. Metropolitan Sewer Dist., 922

F.2d 332, 341 (6th Cir. 1990)(“To state a claim under the Equal Protection Clause, a §1983 plaintiff

must allege that a state actor intentionally discriminated against the plaintiff because of membership




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                                            No. 04-1038

in a protected class”)(citations and internal quotation marks omitted). We affirm the district court’s

dismissal of Figel’s equal protection claim.

VI.    Service of process in this case.

       Because the plaintiff is proceeding in forma pauperis, the district court is responsible for

issuing his process to a United States Marshal who must effect service upon Defendants. See 28

U.S.C. §1915(d); Fed. R. Civ. P. 4(c)(2); Byrd v. Stone, 94 F.3d 217, 219 (applying former 28

U.S.C. §1915(c)). The district court should now do so with respect to Figel’s claims under the First

Amendment and the RLUIPA. In light of the district court’s dismissal of these claims and this

subsequent appeal, the failure to effectuate process in this case within 120 days of filing of the

complaint, as normally required under Fed. R. Civ. P. 4(m), is excused for good cause.

                                          CONCLUSION

       For the foregoing reasons, we REVERSE and REMAND the case to the district court with

instructions to vacate its judgment as to Figel’s claims under the First Amendment and the RLUIPA,

and to order service of process on Defendants as to those claims. We AFFIRM the district court’s

dismissal of Figel’s retaliation claim and his claim under the Equal Protection Clause.




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