Hague v. Kent, County of et alDoc. 35

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISIONJANNAH HAGUE,
Plaintiff,
Case No. 1:24-cv-9v.
Hon. Hala Y. Jarbou
KENT COUNTY, et al.,Defendants.
___________________________________/OPINION
Plaintiff Jannah Hague brings this civil rights action against Kent County, the Kent County
Sheriff’s Office, and Kent County Sheriff Michelle LaJoye-Young.

Before the Court isDefendants’ motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure (ECF No. 10). For the reasons herein, the Court will grant the motion inpart and deny it in part.
I. BACKGROUND
A. Plaintiff’s Allegations
According to the complaint, Hague and her husband were arrested on April 8, 2023, andtaken to Kenty County Jail for processing. (Compl. ¶¶ 52-53, ECF No. 1.) Hague wears a hijab,
i.e., a headscarf that covers her hair, ears, and neck, in accordance with her Muslim faith. (Id.
¶ 16.) In observance of her religious beliefs, she wears it whenever she is in the presence of men
who are not part of her immediate family. (Id. ¶ 17.) Her faith dictates that men outside her
immediate family should not see her uncovered hair, head, or neck. (Id. ¶ 19.)
At the time of her arrest, the Kent County Sheriff’s Office had a policy (enacted in April
2022) requiring detainees wearing religious head coverings to remove them for the purpose ofDockets.Justia.com

having their booking photograph taken.

(Id. ¶ 21.)

The sheriff’s office would take two

photographs: one of the individual wearing the head covering and one without the head covering.
(Id. ¶ 22.) The image with the head covering would be released to the public via the sheriff’s
public detainee website. The image without the head covering would be held by the Kent County
Sheriff’s Office and uploaded to the Michigan State Police (“MSP”) database where it would
become a “public record” viewable by any MSP employee with access to the database. (Id. ¶ 25.)
The image could also be disclosed to a member of the public pursuant to a FOIA request or toother law enforcement agencies. The policy also allowed multiple officers to be present when thebooking photographs were being taken, and it allowed officers to force the detainee to remove
their head covering for the photograph. (Id.)
At the jail, officers told Hague that she had to remove her hijab for a booking photographand that she had no choice in the matter, even though the officers were aware that she was wearing
it for religious reasons. (Id. ¶ 54.) Hague complied with the request to remove her hijab while
two male officers were allegedly present in the same room. (Id. ¶ 56.) An officer took two booking
photographs of Hague, one with her wearing her hijab and one without.
The Kent County Sheriff’s Office subsequently published the photograph of Hague without
her hijab on its publicly accessible website. (Id. ¶ 58.) In addition, that photograph was uploaded
to the MSP database, where it allegedly remains. (Id. ¶ 49.)
Hague was later released without charge. She contends that requiring her to remove herhijab in the presence of men who were not part of her immediate family, and then disseminating
the photograph of her without the hijab to the public and to the MSP database, violated her religious
beliefs and her right to the free exercise of her religion.

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B. Plaintiff’s Claims
Based on the foregoing allegations, Hague asserts six enumerated causes of action in her
complaint, which the Court will refer to as Counts I to VI. In Count I, she contends that Defendants
violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc
et seq., by imposing a substantial burden on her right to exercise her religion.
In Count II, she pursues a claim under 42 U.S.C. § 1983, contending that Defendants
violated her First Amendment right to the free exercise of her religion.
In Count III, she contends that Defendants denied her the right to exercise her religion, in
violation of Article 1, Section 4 of the Michigan Constitution.
In Count IV, she seeks declaratory relief against the sheriff’s office, the county, andDefendant LaJoye-Young in her official capacity. In particular, Hague seeks a declaration that
Defendants “infringed upon and substantially burdened [her] religious free exercise and continue
to substantially burden the religious free exercise of other, similarly-situated Muslim women andreligious adherents in violation of federal and state law and the United States Constitution.”(Compl. ¶ 109.)
Count V asserts a claim for “gross negligence” against the sheriff’s office, the county, andDefendant LaJoye-Young in her official capacity. (Id. at 25.)
Count VI, asserts that Defendants acted with recklessness or deliberate indifference bypracticing or permitting policies that resulted in the violation of Hague’s constitutional rights.
Defendants seek dismissal of all claims.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
A plaintiff’s complaint must make a “short and plain statement of the claim showing thatthe pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The statement must contain “sufficient3

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While “[t]he plausibility standard . . . is not akin to a probability
requirement . . . it asks for more than a sheer possibility” that the alleged misconduct occurred. Id.
“Specific facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When considering a motion to dismiss under Rule 12(b)(6), courts “construe the complaintin the light most favorable to the plaintiff, accepting all well-pleaded factual allegations as true.”
Parrino v. Price, 869 F.3d 392, 397 (6th Cir. 2017). The Court need not accept “threadbare recitalsof the elements of a cause of action, supported by mere conclusory statements,” Iqbal, 556 U.S. at
678, or “formulaic recitations of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Courts are generally bound to consider only the complaint when resolving a motion todismiss under Rule 12(b)(6) unless the Court converts the motion to one for summary judgment.
Wysocki v. IBM Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). “However, a court may consider
exhibits attached to the complaint, public records, items appearing in the record of the case, andexhibits attached to defendant’s motion to dismiss, so long as they are referred to in the complaint
and are central to the claims contained therein, without converting the motion to one for summary
judgment.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (internal citations omitted).
B. Rule 12(b)(1)
The standard for evaluating a Rule 12(b)(1) motion depends on the nature of the “attack”
on subject matter jurisdiction. A “facial attack” on subject matter jurisdiction “merely questions
the sufficiency of the [complaint].” Ohio Nat’l Life Ins. Co. v. United States, 922 F.3d 320, 325(6th Cir. 1990). Facial attacks are reviewed under the same standard as applied to a Rule 12(b)(6)
motion: the Court accepts the plaintiff's well-pleaded allegations as true and asks whether subject
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matter jurisdiction exists based on the complaint. Id. No presumption of truth applies in a “factualattack” on subject matter jurisdiction. Id.
Factual attacks challenge the existence of jurisdiction based on facts outside the pleadings.
RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). To resolve afactual attack, “the trial court is free to weigh the evidence and satisfy itself as to the existence ofits power to hear the case. . . . [T]he existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 890-91 (3d Cir. 1977)). The plaintiff bears the burden of
proof of jurisdiction when a factual attack is made. Id. And the Court has “broad discretion withrespect to what evidence to consider in deciding whether subject matter jurisdiction exists[.]”Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014).
III. ANALYSIS
A. Standing for Injunctive / Declaratory Relief
Defendants argue that Hague lacks standing to pursue injunctive or declaratory relief.
“Standing ensures that the plaintiff has a ‘personal stake in the outcome of the controversy’ at theoutset of litigation.” Williams v. City of Cleveland, 907 F.3d 924, 933 (6th Cir. 2018) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)). “Importantly, plaintiffs must establish standing for eachform of relief they seek, and the type of harm alleged impacts the available relief.” Simpson-Vlach
v. Mich. Dep’t of Educ., No. 22-1724, 2023 WL 3347497, at *4 (6th Cir. May 10, 2023). The
requirements necessary to obtain standing for damages relief are different from those necessary toobtain standing for injunctive or declaratory relief.
Past harm allows a plaintiff to seek damages, but it does not entitle a plaintiff toseek injunctive or declaratory relief. This is because the fact that a harm occurredin the past “does nothing to establish a real and immediate threat that” it will occur
in the future, as is required for injunctive relief. Obtaining standing for declaratory
relief has the same requirements as obtaining standing for injunctive relief.
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Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 406 (6th Cir. 2019) (quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 106 (1983) (internal citation omitted)). To obtainstanding for declaratory or injunctive relief, Plaintiff “must plead either a future injury that is‘certainly impending’ or presents a ‘substantial risk’ of occurrence, or a past injury that presents‘continuing, present adverse effects[.]’” Simpson-Vlach, 2023 WL 3347497, at *4 (quoting Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); Sullivan v. Benningfield, 920 F.3d 401,
408 (6th Cir. 2019) (internal citations omitted)).
On its face at least, Hague’s complaint satisfies the requirements for standing to obtaindeclaratory or injunctive relief because she alleges a past injury with continuing adverse effects.
She alleges that the photograph of her wearing her hijab remains in the MSP database, without
restrictions on access. Thus, there is a substantial risk that, due to Defendants’ photograph policy,
she will suffer further injury from other men outside her family seeing that photograph.
Defendants contend that Hague lacks standing because she was no longer detained when
she filed her lawsuit. True, there are many cases in which a prisoner challenging the conditions of
their confinement at a particular facility loses the ability to seek declaratory or injunctive relief
regarding those conditions after the prisoner leaves that facility. See, e.g., Heyward v. Cooper, 88
F.4th 648, 656-57 (6th Cir. 2023) (“[A]ny declaratory or injunctive relief that Heyward seeks ismooted by his transfer to a different prison facility.”). But here, Hague’s release from detention
does not alter the impact of Defendants’ possession of her photograph, which allegedly causes
ongoing adverse effects, or at least a substantial risk of future injury should others access thephotograph. Injunctive relief requiring them to destroy the photograph would address that issue.
Thus, the foregoing cases do not apply.

6Defendants also provide a sworn declaration from the Kent County Sheriff’s Office’s Chief
Deputy of the Division of Corrections, asserting that Kent County has revised its policy so thatarrestees are no longer required to remove “religious headgear” if the photograph otherwise
complies with Michigan law. (Cole Decl. ¶ 10, ECF No. 11-1.) In addition, the Kent County
Sheriff’s Department purportedly “took steps” to remove the photograph of Hague from its
database and the MSP’s database. (Id. ¶ 9.) However, that declaration does not indicate when
Defendants made the policy change or when they purportedly removed the offending photographfrom county and state databases.1
The relevant point in time for assessing standing is the date Hague filed her complaint. See
Sumpter v. Wayne Cnty., 868 F.3d 473, 490 (6th Cir. 2017) (“[S]tanding applies at the sound of
the starting gun, and mootness picks up the baton from there.”); Cleveland Branch, NAACP v. Cityof Pharma, 263 F.3d 513, 526 n.11 (6th Cir. 2001) (“[S]tanding concerns only whether a plaintiff
has a viable claim that a defendant’s unlawful conduct ‘was occurring at the time the complaint
was filed,’ while mootness addresses whether that plaintiff continues to have an interest in theoutcome of the litigation.”) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 184 (2000) (citation omitted, emphasis added)). Defendants do not expressly argue
or demonstrate that they changed the policy and deleted Hague’s photograph from their databases
before Hague filed her complaint. Instead, they contend that Kent County changed its policy“around the same time that Plaintiff filed her suit” and that “[e]ven if the change occurred after
the suit was filed, the request for declaratory and injunctive relief would still be moot.” (Defs.’
Br. in Supp. of Mot. to Dismiss 10 n.1, ECF No. 11 (emphasis added).) Defendants’ vague
assertions about the timing of their conduct leave the Court to guess whether standing is truly at

1

In addition, at oral argument, Defendants’ counsel could not provide specific dates.

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issue. If they did not change their policy and delete Hague’s photograph until after she filed hercomplaint, then she has standing to seek prospective relief. At a minimum, she has standing toseek an injunction requiring Defendants to delete the offending photograph.
On the other hand, the Court agrees with Defendants that, if in fact they deleted thephotograph before Hague filed her complaint, and even if the policy had not changed, then the
only basis for pursuing injunctive relief would be the risk that she would be arrested again
sometime in the future and subjected to the same booking procedure. That risk is not sufficiently“real and immediate” to establish standing because the Court “must assume that plaintiff ‘will
conduct [her] activities within the law and so avoid . . . exposure to the challenged course of
conduct.’” Sumpter, 868 F.3d at 491 (quoting O’Shea v. Littleton, 414 U.S. 488, 494, 497 (1974)).
In other words, the Court must assume that Hague will follow the law and avoid arrest.
Hague argues that Defendants cannot “automatically moot a case” by voluntarily ceasing
their conduct, citing FBI v. Fikre, 601 U.S. 234, 241 (2024). She is correct, but mootness is not
the same as standing. “Standing and mootness, albeit related, are distinct doctrines with separate
tests to evaluate their existence at different times of the litigation.” Memphis A. Philip RandolphInst. v. Hargett, 2 F.4th 548, 559 (6th Cir. 2021). In fact, the Supreme Court in Fikre stated that adefendant cannot moot a case by ceasing its challenged conduct “after it is sued.” Fikre, 601 U.S.
at 241 (emphasis added). That rationale does not apply to the question of standing, which isassessed at the time the defendant is sued, not after.
In short, based on the record at this stage, the Court is not persuaded that Hague lacks
standing to pursue declaratory or injunctive relief. When she filed her complaint, she may have
had standing to require Defendants to delete her photograph without the hijab. Defendants arecorrect in suggesting that their conduct may have mooted Hague’s requests for declaratory or

8injunctive relief, but that is a separate question that they do not advance in their motion. Indeed,
Defendants contend that they “are not moving to dismiss the claims for injunctive and declaratory
relief on the grounds that Plaintiff’s claims are ‘moot.’” (Defs.’ Reply Br. 1, ECF No. 21(emphasis added).) That being the case, the Court will not decide the question of mootness at thistime.
B. Count I: RLUIPA
Hague asserts a claim under RLUIPA, which prohibits the government from “impos[ing]a substantial burden on the religious exercise of a person residing in or confined to an
institution . . . unless the government demonstrates that the imposition of the burden . . . (1) is infurtherance of a compelling government interest; and (2) is the least restrictive means of furtheringthat compelling interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA permits “a person . . . assert[ing] aviolation of this chapter in a claim or defense in a judicial proceeding [to] obtain appropriate relief
against a government.” 42 U.S.C. § 2000cc-2(a). The term “government” means “a State, county,
municipality, or other governmental entity created under the authority of a State” or “any branch,department, agency, instrumentality, or official of an entity[.]” 42 U.S.C. § 2000cc-5(4). It also
includes “any other person acting under color of State law[.]” Id.
1. Damages
Defendants argue that Hague is not entitled to damages against them under RLUIPA. In
Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014), the Court of Appeals noted that Congressenacted RLUIPA through its “spending power,” and that Congress “must speak with clarity” about
the availability of money-damages remedies when it legislates through that power. Id. at 568-69.
The phrase “appropriate relief” in RLUIPA does not satisfy this clear-statement rule, so it does not
permit money damages as a remedy. Id. at 569.

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Hague responds that Haight relied upon sovereign immunity analysis from Sossamon v.
Texas, 563 U.S. 277 (2011), in which the Supreme Court held that damages are not available under
RLUIPA when a plaintiff is suing state officials in their official capacities because such claims are
subject to sovereign immunity and RLUIPA does not clearly and unambiguously waive sovereign
immunity. Id. at 285-86. Here, Hague sues municipal entities and a municipal employee who are
not entitled to sovereign immunity. Thus, Hague argues that Sossamon and Haight do not apply.
Hague is mistaken. The majority in Haight expressly stated that the “clear-statement rule”
applies “whenever Congress legislates through the spending power, whether related to waivers ofsovereign immunity or not.” Haight, 763 F.3d at 568 (emphasis in original). Indeed, thedefendants in Haight, like Defendants here, were not entitled to sovereign immunity. They werestate officials sued in their individual capacities. See id. at 561. Nevertheless, the Court of Appeals
applied the clear-statement rule and held that RLUIPA does not permit a damages remedy against
them. Id. at 569. Thus, Haight does not depend upon sovereign immunity analysis for its outcome.
Hague notes that Haight is distinguishable in that it did not involve municipal entities or
employees of such an entity. However, that distinction makes no difference to the outcome here.
The holding in Haight logically extends to Defendants. As noted in Haight, the clear-statement
rule applies even when the defendant is “not a State.” Id. at 569. Furthermore, the Court ofAppeals has applied Haight to municipal entities and officials. See Pleasant-Bey v. Shelby Cnty.,
No. 18-6063, 2019 WL 11769343, at *3 (6th Cir. Nov. 7, 2019) (dismissing damages claim against
municipal entities and officials because RLUIPA “simply does not permit claims for money
damages”).
Hague also argues that a recent Supreme Court decision, Tanzin v. Tanvir, 592 U.S. 43(2020), modified Sossamon and undercut the Court of Appeals’ decision in Haight. In Tanzin, the10Supreme Court held that the phrase “appropriate relief” in the Religious Freedom Restoration Act
of 1993 (RFRA) includes a right to seek damages against government employees. Tanzin, 592
U.S. at 51. However, that court did not apply the clear-statement analysis used by the Court ofAppeals in Haight, so Tanzin does not overrule or abrogate Haight, “which remains controlling
authority in this circuit.” Mease v. Washington, No. 2:20-cv-176, 2021 WL 1921071, at *16 (W.D.
Mich. May 13, 2021).
Finally, Hague argues that the Court of Appeals has implied that RLUIPA permits a claim
for money damages. In Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357(6th Cir. 2019), the Court of Appeals held that the plaintiff had not “abandoned” its moneydamages claim under RLUIPA. Id. at 366. But the court did not discuss Haight or any other caselaw discussing the right to damages under RLUIPA. Consequently, Haight controls. See Eidam
v. Cnty. of Berrien, No. 1:19-cv-978, 2019 WL 7343354, at *8 n.2 (W.D. Mich. Dec. 31, 2019)(reaching the same conclusion). In short, Hague is not entitled to money damages from Defendants
under RLUIPA.
2. Merits
Defendants argue that Hague does not state a RLUIPA claim because their policy did not
impose a substantial burden on the exercise of her religion. “[T]he Government substantiallyburdens an exercise of religion when it ‘places substantial pressure on an adherent to modify [her]behavior and to violate [her] beliefs or effectively bars [her] sincere faith-based conduct.’” Fox v.
Washington, 949 F.3d 270, 278 (6th Cir. 2020) (quoting New Doe Child #1 v. Cong. of U.S., 891
F.3d 578, 589 (6th Cir. 2018)). Defendants do not argue this point in any depth, however.
Ironically, Defendants cite Al-Kadi v. Ramsey County, No. 16-2642 (JRT/TNL), 2019 WL
2448648 (D. Minn. June 12, 2019), in which a district court held that requiring a Muslim woman
to temporarily remove her hijab for the sake of a booking photo could constitute a substantial
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burden under RLUIPA. Id. at *10; see also Khatib v. Orange Cnty., 639 F.3d 898, 907 (9th Cir.
2011) (Gould, J., concurring) (“A Muslim woman who must appear before strange men she doesn'tknow, with her hair and neck uncovered in a violation of her religious beliefs, may feel shame anddistress. This is precisely the kind of ‘mischief’ RLUIPA was intended to remedy.”). Thus,
Defendants’ argument is not persuasive.
3. Qualified Immunity
Defendants contend that LaJoye-Young is entitled to qualified immunity for Hague’s
RLUIPA claim. Importantly, “‘qualified immunity only immunizes defendants from monetarydamages’—not injunctive or declaratory relief.” Kanuszewski, 927 F.3d at 417 (quoting Williams
v. Kentucky, 24 F.3d 1526, 1541 (6th Cir. 1994)). The Court has already determined that RLUIPA
does not permit a claim for damages under existing precedent. Should that precedent change,
however, the Court agrees that LaJoye-Young would be entitled to qualified immunity for damages
asserted under the RLUIPA claim.
Qualified immunity shields public officials “from undue interference with their duties andfrom potentially disabling threats of liability.” Guertin v. Michigan, 912 F.3d 907, 916 (6th Cir.
2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). It “‘gives government officials
breathing room to make reasonable but mistaken judgments about open legal questions,’‘protect[ing] all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
Hague bears the burden of overcoming the defense of qualified immunity, even at the
motion to dismiss stage. See Kerchen v. Univ. of Mich., 100 F.4th 751, 763 (6th Cir. 2024). To
do so, she must show “(1) that [Defendant] violated a statutory or constitutional right, and (2) thatthe right was clearly established at the time of the challenged conduct.” al-Kidd, 563 U.S. at 735

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(internal quotation marks omitted). “[C]ourts have discretion to decide which of the two prongsof qualified-immunity analysis to tackle first.” Id.
To be clearly established, a legal principle must have a sufficiently clear foundationin then-existing precedent. The rule must be settled law, which means it is dictatedby controlling authority or a robust consensus of cases of persuasive authority. It
is not enough that the rule is suggested by then-existing precedent. The precedent
must be clear enough that every reasonable official would interpret it to establish
the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one thatevery reasonable official would know.
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citations and quotation marks omitted). It
is not necessary for there to be “a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “Of course,
there can be the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently
clear even though existing precedent does not address similar circumstances.” Wesby, 583 U.S. at
64 (quotation marks omitted).
The “clearly established” standard also requires that the legal principle clearlyprohibit the officer’s conduct in the particular circumstances before him. The
rule’s contours must be so well defined that it is clear to a reasonable officer that
his conduct was unlawful in the situation he confronted. This requires a high degreeof specificity. We have repeatedly stressed that courts must not define clearly
established law at a high level of generality, since doing so avoids the crucial
question whether the official acted reasonably in the particular circumstances thathe or she faced. A rule is too general if the unlawfulness of the officer’s conduct
does not follow immediately from the conclusion that the rule was firmly
established.
Id. at 63-64 (citations and quotation marks omitted; emphasis added).
“Notice to officials is paramount; ‘the salient question’ in evaluating the clearly establishedprong is whether officials had ‘fair warning’ that their conduct was [unlawful].” Guertin, 912 F.3d
at 932 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). When addressing the clearly
established standard, Hague’s burden includes “pointing to legal authority that clearly shows that13

the constitutional [or statutory] question . . . should be resolved in [her] favor.” Linden v. City ofSouthfield, 75 F.4th 597, 604 (6th Cir. 2023).
Hague has not satisfied her burden. She provides no legal authority clearly showing that
Defendants’ policy was unlawful under RLUIPA. Accordingly, if RLUIPA permitted a claim fordamages, LaJoye-Young would be entitled to qualified immunity for such a claim. As discussed
above, however, that immunity does not rule out the possibility of declaratory or injunctive relief
against LaJoye-Young.
C. Count II: First Amendment
The Court construes Hague’s First Amendment claim as having two parts: (1) requiring
her to remove her hijab in front of male officers in order to take the booking photograph; and(2) disseminating that photograph to the MSP and the public.
1. Removal of Hijab
Defendants argue that Hague does not state a First Amendment claim regarding theremoval of her hijab for the booking photograph because its two-photograph policy was lawful.
“[A] regulation impinging upon a detainee’s constitutional rights must be upheld ‘if it is reasonably
related to legitimate penological interests.’” Williams v. City of Cleveland, 771 F.3d 945, 949-50(6th Cir. 2014) (quoting Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S.
318, 326 (2012)).
The Supreme Court “has identified four factors to aid in making” a determination about
whether a policy or rule is reasonably related to legitimate penological interests. Pleasant-Bey v.
Shelby Cnty., No. 20-5908, 2021 WL 11097076, at *2 (6th Cir. Aug. 20, 2021) (citing Turner v.
Safley, 482 U.S. 78, 89 (1987)). “First ‘there must be a valid, rational connection’ between theprison regulation and the legitimate governmental interest put forward to justify it.” Id. (quoting
Turner, 482 U.S. at 89). Without this connection, the regulation is unconstitutional. Id. The
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remaining three factors must be balanced together: “whether there are alternative means of
exercising the right that remain open to prison inmates”; whether “‘accommodation of the asserted
constitutional right’ will impact ‘guards and other inmates’ and ‘the allocation of prison resources
generally’”; and whether there are “ready alternatives” to the regulation “that fully accommodate[]
the prisoner’s rights at de minimis cost to valid penological interests.” Id. (quoting Turner, 482
U.S. at 90-91).
Defendants argue that a policy requiring detainees to remove a hijab for a booking
photograph is reasonably related to an interest in obtaining a complete image that would allow
officials to readily identify the detainee in the future. Indeed, Michigan law requires law
enforcement agencies who make arrests for certain crimes to collect “biometric data” from thearrestee. Mich. Comp. Laws § 28.243. That data includes fingerprints and palm prints, as well as
photographs “recorded during the arrest or booking process, including a full-face capture, left andright profile, and scars, marks, and tattoos[.]” Mich. Comp. Laws § 28.241a(b)(iii).
The Court agrees that collecting and keeping physically identifying information about anindividual who has been arrested and detained is logically connected to a legitimate penologicalinterest. Law enforcement agencies must collect such information to keep an accurate record of
the arrest and to track detainees throughout their detention. A policy that requires collection of animage of the full facial profile and parts of the body concealed by a hijab (such as one’s hair)furthers that interest. After all, the shape and color of one’s hair is a significant identifying feature.
See J.H. v. Bratton, 248 F. Supp. 3d 401, 409 (E.D.N.Y. 2017) (finding that a policy “requiringarrestees to remove head coverings for post-arrest photographs” is “reasonably related to the City’s
obvious and legitimate interest in having a photographic record of arrestees from which a later
identification can be made”).

15Defendants’ analysis of Hague’s First Amendment claim is incomplete, however. Their
brief does not address the remaining factors in Turner. Defendants’ reliance on Bratton is
insufficient because that court did not apply the Turner test. Instead, it applied a test for laws of“neutral and of general applicability” that derives from Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 972, 878-79 (1990). See Bratton, 248 F. Supp.
3d at 409. In this Circuit, however, the Court must apply the Turner factors. See Flagner v.
Wilkinson, 251 F.3d 475, 482 (6th Cir. 2001) (“[T]he proper standard to apply in prisoner cases
challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s decisionin Turner, not by [Smith].”).
It is not the Court’s responsibility to make Defendants’ arguments for them, so the Court
will not dismiss this aspect of the First Amendment claim for failure to state a claim. Moreover,even if there is a legitimate penological interest in taking the photograph of Hague without a hijab,
it is not clear that requiring her to do so in the presence of male officers was reasonably related tothat interest.
(a) Sheriff LaJoye-Young
Hague claims that LaJoye-Young is liable under § 1983 because she adopted the twophotograph policy. Defendants argue that, even if that policy is unconstitutional, she is entitled toqualified immunity. Assuming Hague has plausibly alleged a violation of her First Amendment
rights, she provides no support for her argument that it was clearly established that law
enforcement officials could not require the temporary removal of a religious head covering for the
purpose of taking a booking photograph. The cases she cites are not helpful.
For instance, in Pleasant-Bey v. Shelby County Government, No. 2:17-cv-02502-TLP-tmp,
2019 WL 5654993 (W.D. Tenn. Oct. 31, 2019), a district court noted that “the right to wear a kufi
is not clearly established when defendants proffer a legitimate penological interest for that16

restriction.” Id. at *4 (emphasis added). There, the defendants offered no penological interest forprohibiting the plaintiff wearing his religious head covering while detained in jail, so the court
concluded they were not entitled to qualified immunity. In contrast, Defendants here offer alegitimate penological interest in the creation of a booking photograph that captures a detainee’s
identifying features, including her hair.
Hague also cites Moore v. Washington, No. 19-CV-13616, 2020 WL 7294362, at *6 n.1(E.D. Mich. July 15, 2020), report and recommendation adopted, No. 19-CV-13616, 2020 WL
6503652 (E.D. Mich. Nov. 5, 2020), in which a district court denied a preliminary injunction after
finding that the plaintiff was not likely to succeed on his RLUIPA and First Amendment claims
regarding a prison policy that limited his ability to wear a kufi while in prison. Id. at *6. Thus,
neither Pleasant-Bey nor Moore, both of which are unpublished cases, would have made it clear
to an official in Defendant’s position that Kent County’s policy was unconstitutional.
Hague argues that Defendant would have known that Hague had a constitutional right towear her hijab. Even so, that does not mean Defendant would have known that requiring Hague
to temporarily remove the hijab in order to take a booking photo would violate her rights under
the First Amendment. Hague’s First Amendment rights are not absolute. In some circumstances,
they must give way to legitimate penological interests. It was not clearly established that
Defendants’ policy violated those rights.
In short, Hague has not met her burden of overcoming qualified immunity. Consequently,
La-Joye-Young is entitled to qualified immunity for Hague’s First Amendment claim stemmingfrom the requirement to remove her hijab, which means that Hague cannot obtain damages from
LaJoye-Young for that incident under § 1983.

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(b) Municipal Entities: Kent County Sheriff’s Office & Kent County
As indicated above, the Court is not persuaded by Defendants’ arguments regarding
Hague’s standing for injunctive relief, or regarding the validity of Hague’s First Amendment
claim. Accordingly, the Court will permit the First Amendment claim to proceed against Kent
County and the Kent County Sheriff’s Office regarding the requirement that Hague remove herhijab. And unlike Lajoye-Young, neither the county nor the sheriff’s office can raise the defenseof qualified immunity. See Capen v. Saginaw Cnty., 103 F.4th 457, 462 (6th Cir. 2024) (“Amunicipality, in contrast to an individual government officer, is not protected by qualified
immunity.”). Also, the fact that the sheriff is entitled to qualified immunity does not mean that thesheriff’s office or the county can avoid liability. See Grote v. Kenton Cnty., 85 F.4th 397, 414 (6thCir. 2023) (“Under the law of this circuit, a municipality may not escape liability for a § 1983
violation merely because the officer who committed the violation is entitled to qualified
immunity.”) (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 365 (6th Cir. 1993)).
2. Dissemination of Photograph
The other aspect of Hague’s First Amendment claim involves Defendants’ disseminationof the photograph in which Hague is not wearing a hijab.
(a) Sheriff LaJoye-Young
Hague does not allege that LaJoye-Young was the one who disseminated Hague’s
photograph. Government officials may not be held liable for the unconstitutional conduct of theirsubordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676;
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be
based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir.
2008). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon
the mere failure to act. Grinter, 532 F.3d at 576. “[A] plaintiff must plead that each Government18

official defendant, through the official’s own individual actions, has violated the Constitution.”
Iqbal, 556 U.S. at 676.
Instead, Hague alleges that LaJoye-Young created the policy requiring that the hijablessphotograph be uploaded to the MSP database. Hague asserts a possible claim against LaJoyeYoung for this dissemination because she alleges that this practice is part of the policy. (Compl.
¶ 60 (“Pursuant to the Sheriff’s Office policy and procedures, Ms. Hague’s hijabless photo was
uploaded to the Michigan State Police Database. ”).) Defendants argue that dissemination to the
MSP was not part of their policy, pointing to the Cole declaration. For present purposes, however,
the Court must accept Hague’s allegations in the complaint as true.2 But insofar as Hague seeks
damages for this claim, LaJoye-Young is entitled to qualified immunity for reasons similar to those
discussed above. Hague fails to identify any precedent that would have made it clear to LaJoyeYoung that a policy requiring or allowing such dissemination was unconstitutional.
On the other hand, to the extent Hague brings a claim for public dissemination of thephotograph without the hijab, she does not state a claim against LaJoye-Young. Hague does notallege that the policy required or provided for such dissemination. To the contrary, Hague allegesthat this photograph was “intended to be held by the Kent County Sheriff’s Office[.]” (Compl.
¶ 24.)

In other words, Hague alleges no conduct by LaJoye-Young that resulted in thisdissemination.
(b) Kent County & Kent County Sheriff’s Office
To state a claim against municipal entities like Kent County or the Kent County Sheriff’s
Office, a plaintiff must plead that the entity’s “policy or custom” was the “moving force” behind

2Contrary to Defendants’ assertion, an affidavit attached to their motion to dismiss is not a document that the Court
can consider under Rule 12(b)(6).

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the constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). As indicatedin the previous section, Hague does not allege that any policy was the cause of the publicdissemination of her photograph without a hijab. Thus, she does not state a § 1983 claim against
Kent County or the Kent County Sheriff’s Office with respect to that dissemination. She does,
however, state a possible First Amendment claim against the county and the sheriff’s office withregard to actions taken pursuant to their policy, including requiring Hague to remove her hijab fora booking photograph and then sending that photograph to the state police.
3. Summary
In short, the Court will allow Hague’s First Amendment and RLUIPA claims to proceed tothe extent they seek declaratory or injunctive relief from Defendants (or damages from Kent
County or the Kent County Sheriff’s Office), and to the extent they involve requiring Hague toremove her hijab and then disseminating that photograph to the Michigan State Police inaccordance with Defendants’ policy.
D. Count III: Michigan Constitution
Defendants note that there is no Michigan statute creating a private cause of action under
the Michigan constitution. Hague argues that the Michigan Constitution recognizes a right toreligious liberty, but she does not counter Defendants’ argument about the lack of a right to bringa private cause of action. Indeed, the Michigan Supreme Court has held that a court can recognize
a judicial damages remedy for a violation of the Michigan Constitution only in limited
circumstances. See Bauserman v. Unemployment Ins. Agency, 983 N.W.2d 855, 872 (Mich. 2022).
But those circumstances do not apply to “an action against a municipality or an individual
government employee.” Jones v. Powell, 612 N.W.2d 423, 426 (Mich. 2000); see Bauserman,
983 N.W.2d at 873 n.13 (declining to hold that municipalities or individual government employees
can be liable for constitutional torts). Thus, they do not apply here.
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At any rate, to the extent Hague has a right to pursue a claim under the Michigan
Constitution, the Court declines to exercise supplemental jurisdiction over that claim because it
raises a “novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1). Accordingly, the Court
will dismiss Count III without prejudice.
E. Count IV: Declaratory Judgment
Count IV seeks a declaratory judgment that Defendants’ conduct burdened her right toexercise her religion under the First Amendment and RLUIPA. A declaratory judgment is a
remedy, not a separate cause of action. The Declaratory Judgment Act, 28 U.S.C. § 2201, “doesnot create an independent cause of action.” Davis v. United States, 499 F.3d 590, 594 (6th Cir.
2007). Thus, the Court will dismiss Count IV for failure to state a claim but will construe the relief
requested therein as part of the relief sought by Hague for her federal claims.
F. Count V: Gross Negligence
Hague claims that Defendants were grossly negligent in the performance of their duties,
resulting in harm to her “rights and mental well-being.” (Compl. ¶ 113.) Defendants argue thatthey are immune from such a claim under Michigan’s Governmental Tort Liability Act (GTLA),
Mich. Comp. Laws § 691.1407. The latter provides that “a governmental agency is immune fromtort liability if the governmental agency is engaged in the exercise or discharge of a governmental
function.” Mich. Comp. Laws § 691.1407(1). The same immunity applies to a “high level
executive official.” Margaris v. Genesee Cnty., 919 N.W.2d 659, 663 (Mich. Ct. App. 2018)(citing Mich. Comp. Laws § 691.1407(5)). Thus, a “county sheriff” like LaJoye-Young “is entitledto high-level governmental immunity.” Id.
Hague’s response is somewhat confusing. She contends that prison wardens are not highlevel employees, so “Defendant Washington” is not entitled to immunity. (Pl.’s Resp. Br. 24.)

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This case does not involve a prison warden or a defendant named Washington. It involves
government agencies and a county sheriff, who is a high-level employee.
Hague also contends that governmental immunity does not apply to declaratory or
injunctive relief, citing a concurring opinion in Lash v. Traverse City, 735 N.W.2d 628, 642-43(Mich. 2007). But Hague’s complaint does not seek declaratory or injunctive relief for Count V.
Moreover, her citation to Lash does not support her argument. Instead, the concurring
opinion asserts that because governmental immunity “barred” the plaintiff’s cause of action in thatcase, there was no need to determine whether the statute at issue created a private right of action.
Id. at 639, 643. That said, the majority opinion does suggest, in dicta, that a plaintiff could pursue
declaratory or injunctive relief to enforce a statute even where such a claim was barred bygovernmental immunity. Id. at 638. But more recently, the Michigan Supreme Court suggested
that a plaintiff could not seek injunctive relief on a claim from which the defendant was immune.
See Sunrise Resort Assoc., Inc. v. Cheboygan Cnty. Rd. Comm’n, 999 N.W.2d 423, 427 (Mich.
2023) (“Because the plaintiffs only sought injunctive relief in connection with a claim from which
the defendant is immune, we hold that the request for an injunction is invalid.”). In other words,
the availability of declaratory or injunctive relief for Hague’s gross negligence claim is unclear.
In short, Defendants are government agencies and a high-level government executive. By
creating or enforcing the policy at issue, they were involved in the exercise or discharge of agovernmental function. Accordingly, they are entitled to governmental immunity for Hague’s
gross negligence claim, meaning that this claim is “barred,” at least insofar as it seeks damages.
To the extent Hague contends she can seek declaratory or injunctive relief, the Court declines toexercise jurisdiction over her claim because the claim itself and the right to such relief for thatclaim raise novel and/or complex issues of state law. See 28 U.S.C. § 1367(c)(1).

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G. Count VI: Constitutional Violations
Hague’s final cause of action is titled “Constitutional Violations – Negligence.”(Compl. 26.) Therein, she contends that Defendants “acted recklessly and/or with deliberate
indifference” when they permitted practices that “resulted in constitutional violations of Plaintiff.”(Id. ¶ 118.) The claim also refers to facts that are not relevant here, such as: (1) failure to review
or discipline an officer “whom the City of Detroit knew or should have known were violating or
prone to violate citizens’ constitutional rights”; failing to train or supervise officers “regarding
legal execution of searches and/or seizures”; failing to train officers “regarding the use of excessive
force”; and maintaining a policy of “falsely arresting and/or illegally detaining citizens.” (Id.
¶ 119.) It is not clear what claim Hague is asserting here or what facts it is based on that are
relevant to Hague’s case. Also, its assertions regarding a failure to train are wholly conclusory.
Accordingly, the Court will dismiss it for failure to state a claim.
IV. CONCLUSION
In summary, the Court will allow Counts I and II to proceed, in part. Hague does not statea First Amendment claim against Defendants with respect to the distribution of her photograph tothe public. In addition, she is not entitled to any damages under RLUIPA. Also, she is not entitledto damages under § 1983 against Defendant LaJoye-Young because LaJoye-Young is entitled toqualified immunity. The Court will dismiss Counts III to VI without prejudice because they failto state a claim and/or because the Court declines to exercise supplemental jurisdiction over them.

Dated: September 9, 2024

/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE

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