                                  NOT FOR PUBLICATION
                                   File Name: 08a0097n.06
                                   Filed: February 6, 2008

                                           No. 06-2199

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


GREGORY A. FIGEL,

               Plaintiff-Appellee,
                                                      ON APPEAL FROM THE
v.                                                    UNITED STATES DISTRICT
                                                      COURT FOR THE WESTERN
WILLIAM OVERTON, Director,                            DISTRICT OF MICHIGAN
MDOC; DAVID BURNETT,
Special Activities Coordinator,
MDOC; PATRICIA L. CARUSO,
Director, MDOC.

            Defendants-Appellants.
__________________________________/

BEFORE:        SUHRHEINRICH, COLE and GIBBONS, Circuit Judges.

       SUHRHEINRICH, J. Defendants William Overton, David Burnett, and Patricia Caruso,

current and former Michigan Department of Corrections officials, bring this interlocutory appeal to

challenge the district court’s refusal to grant them qualified immunity on Plaintiff Gregory Figel’s

claim under the Religious Land Use and Institutionalized Persons Act (“the RLUIPA”), 42 U.S.C.

§ 2000cc-1 et seq.

                                                 I.

       On October 17, 2003, Figel, a Michigan state prisoner, initially filed this pro se civil rights

action under 42 U.S.C. § 1983, alleging that Defendants’ confiscation of several religious

publications sent to him by the Philadelphia Church of God pursuant to MDOC Policy Directive
05.03.118, violated his rights under the First Amendment, the Equal Protection Clause of the

Fourteenth Amendment, and the RLUIPA. Policy Directive 05.03.118 provides that prohibited mail

includes a book, magazine, newspaper, or other publication that is not received directly from the

publisher or from an authorized vendor, or not ordered by the prisoner using established ordering

procedures. Figel claims that as a result of this policy five religious books sent from the Philadelphia

Church of God were confiscated on different occasions in May and June of 2003.

       On December 2, 2003, the district court dismissed Figel’s complaint for failure to state a

claim pursuant to 28 U.S.C. §§ 1915(e), 1915A, and 42 U.S.C. § 1997e(e). Figel appealed and the

Sixth Circuit reversed and remanded the case as to Figel’s First Amendment and the RLUIPA

claims. See Figel v. Overton, 121 F. App’x 642 (6th Cir. Feb. 4, 2005). Defendants then filed a

motion to dismiss and/or for summary judgment. On March 9, 2006, the district court granted

Defendants’ motion in part, dismissing Figel’s request for injunctive and declaratory relief. This left

Figel’s First Amendment and the RLIUPA claims.

       Following discovery, both parties filed motions for summary judgment. On August 16, 2006,

the magistrate judge issued a report recommending that both motions be denied. On August 30,

2006, the district court adopted the magistrate judge’s report. On September 5, 2006, the district

court denied Defendants’ objections to the report and recommendation.

       Defendants then filed an interlocutory appeal as well as a motion to stay proceedings in

district court. The district court granted the motion to stay on September 8, 2006.

                                                  II.

       Because it is based on purely legal grounds, the district court’s denial of Defendants’ request

for qualified immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);


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see also Johnson v. Jones, 515 U.S. 304, 316-18 (1995) (holding that interlocutory appeals, including

appeals from the denial of qualified immunity, are limited to rulings presenting “neat abstract issues

of law”).

       Government officials performing discretionary functions are entitled to qualified immunity

from suit for civil damages unless their actions have violated a clearly established statutory or

constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, to state a § 1983 claim,

there must be a violation of a clearly established constitutional right. Saucier v. Katz, 533 U.S. 194,

200-01 (2001). As a threshold matter the court considers whether “the facts alleged show that the

officer’s conduct violated a constitutional right.” Id. at 201. If so, then the question becomes

whether at the time of the alleged violation that right was “clearly established.” Id. “Clearly

established” means that “[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). In determining whether a constitutional right is clearly established, this Court looks

first to decisions of the Supreme Court, then to its own decisions and those of other courts within

this circuit, and finally to decisions of other circuits. Williams v. Kentucky, 24 F.3d 1526, 1533 (6th

Cir. 1994).

       Defendants concede for purposes of this appeal that Figel has alleged facts to establish a

violation of a constitutional right, and there is no doubt on that point. See Cutter, 544 U.S. 709 (the

RULPA, which prohibits any government from imposing a “substantial burden on the religious

exercise” of a prisoner absent a compelling interest, is constitutional); see also O’Lone v. Shabazz,

482 U.S. 342, 348 (1987) (holding that while “incarceration brings about the necessary withdrawal

or limitation of many privileges and rights,” inmates clearly retain First Amendment protection to


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freely exercise their religion). However, as to the second question, Defendants argue that they are

entitled to qualified immunity on the RLIUPA claim because it was not clearly established that the

Act was constitutional until 2005, when the Supreme Court declared it constitutional in Cutter v.

Wilkinson, 544 U.S. 709 (2005) (holding that section 3 of the RULPA, which increased level of

protection of prisoners’ and other incarcerated persons’ religious rights, did not violate the

Establishment Clause), and the events in question occurred in May and June 2003. Furthermore, in

November 2003, a panel of the Sixth Circuit ruled that the RULPA was unconstitutional. See Cutter

v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), reh’g en banc denied, (March 3, 2004), cert. granted,

543 U.S. 924 (2004) (No. 03-9877), rev’d, 544 U.S. 709 (2005). Thus, Defendants contend that

from the time President Clinton signed the RULPA into law in September 2000 until May 31, 2005,

when the Supreme Court declared it constitutional, the law was in a state of flux. Defendants point

out that prior to May 31, 2005, there was no published decision from this Court or the Supreme

Court holding that actions similar to Defendants’ behavior in this case violated the RULPA.

       The magistrate judge (and district court by adoption) rejected this argument, stating that “[i]n

the opinion of the undersigned, as soon as the RULPA was signed into law, it became clearly

established law in this country.” The court therefore refused to allow Defendants to “hide behind

the decision of the Sixth Circuit when the court ruled improperly that the RULPA was

unconstitutional, because that ruling came after the asserted conduct in this case.”

       We agree. As this Court noted in Key v. Grayson, 179 F.3d 996 (6th Cir. 1999), “there need

not be a relevant decision from the Supreme Court or this court in order to determine that a law is

clearly established.” Id. at 1000; see also McCloud v. Testa, 97 F.3d 1536, 1556 (6th Cir. 1996)

(stating that the absence of Supreme Court or Sixth Circuit precedent “is not a sufficient condition


                                                  4
for concluding that the law is unclear on the subject and so qualified immunity must be granted to

the defendant”). More to the point, “the RULPA, like all acts of Congress, carried a strong

presumption of constitutionality.” Lovelace v. Lee, 472 F.3d 174, 197 (4th Cir. 2006); see also

United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994) (stating that “we do not impute to

Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this

Court”). As explained by the Lovelace court, the RULPA was a modified version of the earlier

Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4, enacted in 1993,

which the Supreme Court invalidated as it applied to states and localities with its decision in City

of Boerne v. Flores, 521 U.S. 507 (1997). Id. See also Madison v. Riter, 355 F.3d 310, 314-15

(4th Cir. 2003) (discussing RFRA's partial invalidation and the RULPA's subsequent enactment).

In the RULPA, “Congress ‘resurrected RFRA's language, but narrowed the scope of the act, limiting

it to laws and regulations concerning institutionalized persons or land use.’” Lovelace, 472 F.3d at

197 (quoting Murphy v. Missouri Dep’t of Corrs., 372 F.3d 979, 987 (8th Cir. 2004)). Congress also

“‘sought to avoid Boerne’s constitutional barrier by relying on its Spending and Commerce Clause

powers, rather than on its remedial powers under section 5 of the Fourteenth Amendment as it had

in RFRA.’” Id. (quoting Madison, 355 F.3d at 315). As a result, “Congress thereby aimed to avoid

the constitutional problems that plagued RFRA.” Id. (citing 146 Cong. Rec. S7775 (July 27, 2000)

(joint statement of Sen. Hatch and Sen. Kennedy)). In other words, “[f]ederal laws . . . do not need

judicial approval to take effect and be clearly established.” Id.

       At the time of the alleged conduct, one circuit had already concluded that the RULPA was

constitutional, see Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002), and five circuits,

including the Ninth, had concluded that the identical operative language in RFRA did not violate the


                                                  5
Establishment Clause. See Cutter, 349 F.3d at 262 (citing cases). Moreover, several district courts,

including one in the Western District of Michigan and the district court in the Cutter case, had ruled

that the RULPA was constitutional. See id.; Porter v. Caruso, 479 F. Supp. 2d 687, 692 (W.D.

Mich. 2002) (collecting cases). Thus, at the time of Defendants’ alleged unconstitutional acts, the

RULPA was presumptively constitutional, and no federal appellate authority was to the contrary.

Thus, at the time of the conduct in question, the constitutionality of the RULPA was clearly

established and Defendants are not entitled to qualified immunity on Figel’s RULPA claim. See

generally Lovelace, 472 F.3d at 198 (stating that “[a]lthough the outer boundaries of the RULPA

may have been uncharted at the time, its core protections were not”). “Thus, under both the First

Amendment and any straightforward interpretation of the RULPA, the unlawfulness and [allegedly]

unjustified deprivations of [religious publications] were apparent at the time of the incident.”

Lovelace, 472 F.3d at 199. Cf. Saluhuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006) (holding that

the defendant prison officials were not entitled to qualified immunity on the plaintiff’s free-exercise

and the RULPA claims because it was clearly established in 2000 that prison officials could not

substantially burden inmates’ rights to religious exercise without some justification); see also

Farnsworth v. Baxter, No. 03-2950-B/V, 2007 WL 2793364, at *3 (W.D. Tenn. Sept. 26, 2007)

(rejecting the defendant’s argument that he was entitled to qualified immunity where the conduct at

issue occurred prior to our decision in Cutter; citing inter alia, Lovelace); Porter, 479 F. Supp. 2d

at 692 (holding that the defendant was not entitled to a “free pass” for actions taken prior to

November 7, 2003, the date of this Court’s decision in Cutter, simply because the Sixth Circuit and




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Supreme Court had not ruled on the RLUIPA’s constitutionality, especially since all other pertinent

legal authorities universally recognized the constitutionality of the RLUPIA).1

                                                 III.

       In sum, the district court’s denial of Defendants’ motion for summary judgment on the basis

of qualified immunity is AFFIRMED.




       1
         Defendants’ reliance on Key is misplaced. In Key, this Court addressed the applicability of
the Americans with Disabilities Act and the Rehabilitation Act to prisoners, noting that prison
officials were entitled to qualified immunity during the time that there was uncertainty on this issue.
179 F.3d 996. Unlike those statutes, it is clear from the face of the state that the RULPA applies to
prisoners. Further, as noted above, until November 7, 2003, when Cutter was decided by this
Circuit, the RULPA was valid law requiring compliance by prison officials.

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