RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0129p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARIO SENTELLE CAVIN,

Plaintiff-Appellant,

v.

MICHIGAN DEPARTMENT OF CORRECTIONS; DAVID 

LEACH,

Defendants-Appellees.

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No. 18-1346

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:15-cv-14449—Bernard A. Friedman, District Judge.

Decided and Filed: June 17, 2019

Before: ROGERS, SUTTON, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Mario Sentelle Cavin, New Haven, Michigan, pro se. John L. Thurber, OFFICE 

OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. 

_________________

OPINION

_________________

SUTTON, Circuit Judge. Mario Cavin is an inmate in the custody of the Michigan 

Department of Corrections who practices Wicca. While the Department permits Cavin and other 

Wiccans to congregate on some holidays, it prevents their group worship on others and limits 

their use of ritualistic items when alone. Cavin filed this lawsuit to eliminate these restrictions 

and to seek damages. At summary judgment, the district court ruled against Cavin on the 

damages claim. After a trial, the district court held that the Department’s policy did not 

>
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 2

substantially burden Cavin’s religious exercise under the Religious Land Use and 

Institutionalized Persons Act. Because a policy substantially burdens religious exercise when it 

bars an inmate from worshipping with others and from using ritualistic items, we affirm in part, 

vacate in part, and remand. 

I.

The Michigan prisons allow Wiccan inmates to worship as a group for eight major 

holidays known as Sabbats, which occur periodically throughout the year. Wiccans celebrate 

other holidays, called Esbats, each lunar month, approximately twelve to thirteen times a year. 

Cavin wishes to worship with his co-religionists on Esbats. When Cavin observes Esbats by 

himself in his cell, he faces additional drawbacks. The prison permits Wiccan inmates to use 

candles and incense only in the prison’s chapel, so Cavin cannot access the items that he needs 

for rituals. And if his cellmate proves unfriendly, Cavin has trouble conducting religious rites.

Cavin asked the Department of Corrections to allow him and other Wiccans to celebrate 

Esbats together. Officials denied his request. In response, he filed this lawsuit, requesting 

injunctive relief under the Religious Land Use and Institutionalized Persons Act (known as 

RLUIPA to most lawyers). He also sought damages from the Department and Chaplain David 

Leach, who oversees the Department’s religious programming.

At summary judgment, the court ruled that Eleventh Amendment immunity barred the 

damages claims against the Department; that Chaplain Leach deserved qualified immunity; and 

that only Cavin’s RLUIPA claim for religious accommodation could proceed.

After a bench trial, the court rejected Cavin’s RLUIPA claim for injunctive relief, 

concluding that the prison’s regulations implicate but do not burden Cavin’s exercise of religion.

II.

RLUIPA prohibits a State from imposing “a substantial burden on the religious exercise 

of a person residing in or confined to an institution” unless the government shows that the burden 

furthers “a compelling governmental interest” and “is the least restrictive means” of doing so. 42 

U.S.C. § 2000cc-1(a). That makes the statute a three-act play. In Act One, the inmate must 
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 3

demonstrate that he seeks to exercise religion out of a “sincerely held religious belief.” See Holt 

v. Hobbs, 135 S. Ct. 853, 862 (2015). In Act Two, he must show that the government 

substantially burdened that religious exercise. Id. In Act Three, the government must meet the 

daunting compelling-interest and least-restrictive-means test. Id. at 863. 

Cavin clears RLUIPA’s initial two hurdles. 

First, the district court found that Cavin’s sincere Wiccan faith motivates his desire for 

group worship on Esbats. The record supports that finding. Cavin testified that he believed 

Esbat services have “more energy” “when you have a collective of Wiccans together.” R. 66 at 

21. While he acknowledged that not all Wiccans celebrate Esbats communally, he noted that he 

and other prisoners would do so if given the chance.

Second, the Department’s policy burdens Cavin’s desired religious exercise. Why? 

Because it prevents the group worship Cavin seeks. “The greater restriction (barring access to 

the practice) includes the lesser one (substantially burdening the practice).” Haight v. Thompson,

763 F.3d 554, 565 (6th Cir. 2014). What’s more, the Department’s policy prevents Cavin from 

accessing religious items found only in the chapel, barring him from properly celebrating Esbats 

in the way he believes he should. Id. 

Consider a prior case. A prison prevented Native American inmates from purchasing 

“corn pemmican and buffalo meat” for a powwow. Id. The denial, we held, constituted a 

substantial burden on the inmate’s religious exercise, even though the inmates could access other 

traditional foods. Id. at 565–66. The same is true here. Barring group worship and preventing 

access to supplies burdens Cavin’s religious exercise.

This burden becomes no less substantial because some—maybe many—Wiccans 

celebrate Esbats alone. What matters is that Cavin sincerely believes he should celebrate Esbats 

communally. The Supreme Court made this point in a case involving the right of a Muslim 

prisoner to grow a beard. The prisoner testified that “not all Muslims believe that men must 

grow beards.” Holt, 135 S. Ct. at 862. After noting that the inmate’s belief wasn’t 

“idiosyncratic,” the court concluded that other believers’ practices didn’t matter. Id. at 862–63. 

Why? Because “the protection of RLUIPA, no less than the guarantee of the Free Exercise 
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 4

Clause, is not limited to beliefs which are shared by all of the members of a religious sect.” Id.

(quotation omitted).

In response, the Department questions Cavin’s sincerity by pointing to evidence that 

many Wiccans celebrate privately. To be sure, mainstream religious doctrine can help determine 

whether an inmate really believes his professed faith. Haight, 763 F.3d at 567. But the district 

court found Cavin to be sincere, and we see no reason to overturn that factual finding. The 

Department never objected when the court ruled that all accepted Cavin’s sincerity.

The Department persists that Cavin isn’t burdened because he merely “prefer[s] to 

celebrate in a group setting when possible” and that “celebrating Esbats individually [does] not 

violate the tenets of Wicca.” Appellee’s Br. 17. But the Supreme Court shuns this analysis. The 

Muslim prisoner who wanted to grow a beard testified that “his religion would ‘credit’ him for 

attempting” to do so, “even if that attempt proved to be unsuccessful.” Holt, 135 S. Ct. at 862. 

RLUIPA protects religious acts even if they are not “compelled.” 42 U.S.C. § 2000cc–5(7)(A). 

What of a second-best option: celebrating in his cell? That approach reframes the nature 

of what Cavin seeks to do: worship with others according to his beliefs. When determining the 

substantiality of a burden, we cannot look to “whether the RLUIPA claimant is able to engage in 

other forms of religious exercise.” Holt, 135 S. Ct. at 862; see Haight, 763 F.3d at 565. Plus, 

when Cavin worships privately, he cannot access religious supplies kept in the prison chapel.

The district court did not proceed to the third prong, namely whether the Department’s 

policy prohibiting communal Esbat worship passes strict scrutiny. As “a court of review, not of 

first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), we will remand the case to the 

district court to resolve the point in the first instance. 

III.

That leaves Cavin’s damages claims against Chaplain Leach and his argument that the 

district court erred in refusing to appoint him counsel. 
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 5

Damages. Cavin offers three possible ways to recover damages from Chaplain Leach: 

that RLUIPA provides a damages remedy; that § 1983 provides a separate cause of action to 

enforce RLUIPA; or that the chaplain violated his First Amendment rights under § 1983.

1. Cavin cannot recover based on RLUIPA alone. Although the statute provides a cause 

of action by which an individual may “obtain appropriate relief against a government,” 42 U.S.C. 

§ 2000cc-2(a), it does not authorize monetary judgments against officials in their individual 

capacities, see Haight, 763 F.3d at 568. When Congress legislates with its Spending Clause and 

Commerce Clause powers, as it did to pass RLUIPA, Congress must speak clearly. RLUIPA 

doesn’t clearly authorize money damages. Id. at 568–70. 

2. Cavin cannot use § 1983 to get damages that RLUIPA does not provide. While we 

typically think of § 1983 claims as vindicating constitutional rights, the statute also authorizes 

people to sue when state actors deprive them of “any rights, privileges, or immunities secured by 

the . . . laws.” 42 U.S.C. § 1983. To determine whether § 1983 allows someone to enforce a 

federal statute, we determine whether Congress intended to create an “individually enforceable 

right” and whether Congress wanted the statute to provide the exclusive remedy. City of Rancho 

Palos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005). 

RLUIPA creates an individually enforceable right. Cf. Gonzaga Univ. v. Doe, 536 U.S. 

273, 287 (2002) (acknowledging that “rights-creating” individually focused language akin to that 

found in Titles VI and IX demonstrates congressional intent to create a right enforceable by 

individuals). But where, as with RLUIPA, Congress provides an “express” cause of action under 

the statute, it ordinarily indicates that plaintiffs cannot access “a more expansive remedy under 

§ 1983.” City of Rancho Palos Verdes, 544 U.S. at 121; see Fitzgerald v. Barnstable Sch. 

Comm., 555 U.S. 246, 256 (2009). Put another way, the reality that RLUIPA doesn’t allow for 

damages indicates that Congress didn’t intend § 1983 to provide a backdoor to achieving a 

different result. See Fitzgerald, 555 U.S. at 256; City of Rancho Palos Verdes, 544 U.S. at 121.

This conclusion comports with our holding that the Spending and Commerce Clauses 

require Congress to state clearly a law’s requirements. See Haight, 763 F.3d at 568. Otherwise, 
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 6

Congress could end-run that clear-statement rule by enacting vague statutes that don’t speak to 

whether parties could sue for damages and allow § 1983 to fill the gap.

3. As for Cavin’s First Amendment damages claim, Chaplain Leach deserves qualified 

immunity. 

Qualified immunity protects those officials whose “conduct does not violate clearly 

established . . . constitutional rights of which a reasonable person would have known.” Harlow 

v. Fitzgerald, 457 U.S. 800, 818 (1982). That prompts two inquires: (1) Does Cavin have a First 

Amendment right to communal Esbat services? (2) If so, was that right clearly established?

When a prison policy singles out and substantially burdens a prisoner’s sincere beliefs, 

the First Amendment requires us to ask whether the policy serves a valid penological interest. 

See Turner v. Safley, 482 U.S. 78, 89–91 (1987); O’Lone v. Estate of Shabazz, 482 U.S. 342, 

349–53 (1987) (applying Turner to a prison free exercise claim); Thomas v. Review Bd. of Ind. 

Emp’t Sec. Div., 450 U.S. 707, 718 (1981) (applying substantial burden analysis to a free 

exercise claim). If it does not, the inquiry ends, and the prisoner prevails. See Maye v. Klee, 

915 F.3d 1076, 1083–84 (6th Cir. 2019); Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010). 

But if a regulation serves a penological interest, we must balance (1) whether the prisoner 

possesses alternative avenues for exercising his religion; (2) whether accommodating the 

prisoner would affect “guards and other inmates” or “the allocation of prison resources 

generally”; and (3) whether “obvious, easy alternatives” exist that suggest “the regulation is not 

reasonable.” Turner, 482 U.S. at 89–91. 

The factors may cut in Cavin’s favor. See Ben-Levi v. Brown, 136 S. Ct. 930, 935–36 

(2016) (Alito, J., dissenting from the denial of certiorari). But the outcome isn’t so clear as to 

place a reasonable official on notice. For one thing, Cavin possesses alternative means of 

practicing his religion on Sabbats, and he has a second-best way to celebrate Esbats in his cell. 

Though that analysis does not play into a RLUIPA claim, it bears some weight in the First 

Amendment context. See Holt, 135 S. Ct. at 862; O’Lone, 482 U.S. at 351–52. For another, it is 

notoriously difficult to predict the outcome of a balancing test in advance, making it even more 
No. 18-1346 Cavin v. Mich. Dep’t of Corr. et al. Page 7

important that precedent place the question beyond doubt. Cf. Sumpter v. Wayne County, 

868 F.3d 473, 485 (6th Cir. 2017). Cavin hasn’t identified cases that do so.

Cavin instead points us to two out-of-circuit district court opinions involving Wiccan 

prisoners’ religious rights. See LaPlante v. Mass. Dep’t of Corr., 89 F. Supp. 3d 235 (D. Mass. 

2015) (RLUIPA claim); Rouser v. White, 630 F. Supp. 2d 1165 (E.D. Cal. 2009) (RLUIPA and 

First Amendment claims). But district courts, let alone those in other circuits, don’t provide 

clearly established precedent. See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011).

Cavin adds that we should deny Leach qualified immunity because precedent can put an 

official on notice even if it does not involve “fundamentally similar” or “materially similar” 

circumstances. See Appellant’s Br. 5 (quotation omitted). But the Supreme Court has also told 

us not to do the qualified immunity analysis from 60,000 feet. See White v. Pauly, 137 S. Ct. 

548, 552 (2017) (per curiam). Instead, “the clearly established law must be particularized to the 

facts of the case.” Id. (quotation omitted). That isn’t so here. 

Right to counsel. We review the decisions to deny Cavin appointed counsel for an abuse 

of discretion. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993). None occurred. 

It is the rare civil case in which a court must provide a party an attorney, and only 

“exceptional circumstances” require deviating from this rule. Id. District courts look to the 

complexity of the case and the ability of the plaintiff to represent himself. Id.

Those factors cut against Cavin. This case does not involve unusually complex issues. 

And Cavin has represented himself admirably. Today’s ruling confirms that. What’s more, 

abuse of discretion is a highly deferential standard, and we are loath to second guess district 

courts. On remand, however, the court remains free to reevaluate its decision. 

We affirm the grant of qualified immunity to Chaplain Leach and the denial of appointed 

counsel, vacate the district court’s decision regarding Cavin’s claim for injunctive relief under 

RLUIPA, and remand for the district court to conclude whether the Department’s policy survives 

scrutiny under RLUIPA.