Tholson v. State of Alaska Department of Corrections et al

Filing 28

ORDER granting 14 Plaintiff's Motion for Preliminary Injunction. See Order for details. Signed by Judge Sharon L. Gleason on 11/25/2024. (ANM, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

LEON THOLSON,
Plaintiff,
v.
STATE OF ALASKA, DEPARTMENT OF
CORRECTIONS,

Case No. 3:24-cv-00035-SLG

Defendant.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION
Before the Court at Docket 14 is Plaintiff Leon Tholson’s Motion for
Preliminary Injunction. Defendant State of Alaska, Department of Corrections (“the
State”) filed an opposition at Docket 24.
BACKGROUND
This is an action pursuant to the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000c et seq., brought by Leon Tholson, an
individual currently incarcerated at the Anchorage Correctional Complex in
Anchorage, Alaska.1 Mr. Tholson alleges that he is a Rosicrucian, and, “as a
student of the Rosicrucian Fellowship, [his] sincerely held religious belief requires
[his] correspondence . . . be in a felt tip, gel, or fountain pen.”2 He further alleges

1

Docket 8-1 at 3.

2

Docket 8-1 at 3.

that the Department of Corrections has denied him access to these writing tools,
offering instead access to pencils and standard ballpoint pens.3
Dissatisfied with this alternative, on September 11, 2023, Mr. Tholson filed
a grievance.4 In his grievance, Mr. Tholson stated he was willing to compromise
and use a felt tip, gel, or fountain pen at a specified day and time each week under
supervision.5 On September 26, 2023, an investigator recommended that the
request be denied, noting that “[i]t is not realistic in a correctional/institutional
setting that all forms of religious accommodations for all recognized world religions
or orders can be met without sacrificing safety and security” and that “[i]t is also
not reasonable to ask security staff to track keeping a generally unauthorized item
for specific periods of time as other duties take priority and can risk the
unauthorized item for being misplaced or forgotten.”6 On October 3, 2023, the
Superintendent adopted this recommendation.7
Mr. Tholson appealed this decision on October 4, 2023, and October 17,
2023.8 The Deputy Commissioner ultimately denied these appeals on November

3

Docket 8-1 at 3.

4

Docket 8-1 at 3; Docket 8-2 (grievance).

5

Docket 8-2 at 6.

6

Docket 8-2 at 9.

7

Docket 8-2 at 8.

8

Docket 8-3 at 2 (October 4 appeal); Docket 8-4 at 2 (October 17 appeal).

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3, 2023.9 Mr. Tholson then filed this lawsuit, alleging that the Department of
Corrections violated his rights under RLUIPA.10
In his Amended Complaint, Mr. Tholson also alleges the Department of
Corrections violated RLUIPA by not allowing him to take part in group religious
services because he is housed in protective custody.11 He further asserts that he
was told that he could not grieve this issue and has no administrative remedy to
exhaust.12
Mr. Tholson now moves for a preliminary injunction related to his request to
use a felt tip, gel, or fountain pen.
LEGAL STANDARD
In Winter v. Natural Resources Defense Council, Inc., the United States
Supreme Court held that plaintiffs seeking preliminary injunctive relief must
establish that (1) they are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief; (3) the balance of
equities tips in their favor; and (4) a preliminary injunction is in the public interest.13
When, as here, the government is a party to the action, the balance of equities

9

Docket 8-4 at 3.

10

See Docket 1.

11

Docket 8-1 at 5–6.

12

Docket 8-1 at 5.

13

555 U.S. 7, 20 (2008).

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factor and the public interest factor merge.14

The Supreme Court in Winter

characterized “injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.”15
Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”16 Under that approach, if a plaintiff shows “that there are ‘serious
questions going to the merits’—a lesser showing than likelihood of success on the
merits—then a preliminary injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff’s favor.’”17 “Serious questions are ‘substantial, difficult
and doubtful, as to make them a fair ground for litigation and thus for more
deliberative investigation.’”18 They “need not promise a certainty of success, nor

14

Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

15

Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).

16

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011).

Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
17

Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quoting Republic of the Philippines
v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)); see also Fyock v. City of Sunnyvale, 25 F. Supp.
3d 1267, 1273 (N.D. Cal. 2014) (“‘Serious questions’ refers to questions ‘which cannot be resolved
one way or the other at the hearing on the injunction and as to which the court perceives a need
to preserve the status quo . . . .’” (quoting Gilder, 936 F.2d at 422)).
18

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even present a probability of success, but must involve a ‘fair chance on the
merits.’”19 All four Winter elements must still be satisfied under this approach.20.
Injunctive relief is an equitable remedy, and “[t]he essence of equity
jurisdiction is the power of the court to fashion a remedy depending upon the
necessities of the particular case.”21
DISCUSSION
I.

The State Is Not Immune from Preliminary Injunction Relief
As a preliminary matter, the Court must address State’s claim of sovereign

immunity. In its cursory opposition to Mr. Tholson’s motion, the State asserts that
Mr. Tholson’s lawsuit against the Department of Corrections is barred by the
Eleventh Amendment and that “an unconsenting State is immune from suits
brought in federal courts.”22 Although this is a correct proposition of law, it does
not apply here.23

19

Gilder, 936 F.2d at 422 (quoting Marcos, 862 F.2d at 1362).

All. for the Wild Rockies, 632 F.3d at 1135 (“Of course, plaintiffs must also satisfy the other
Winter factors.”); see also, e.g., Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
729 F.3d 937, 944 (9th Cir. 2013) (describing standard for preliminary injunction).
20

Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (quoting United States v.
Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
21

22

Docket 24 at 2 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)).

Mr. Tholson recently filed a motion for leave to file an amended complaint that would add Deputy
Commissioner Jake Wyckoff as an additional defendant. Docket 26.
23

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RLUIPA prohibits a government “from burdening religious exercise in
correctional institutions.”24 The Act defines “government” to include “any branch,
department, agency, instrumentality, or official of” a State.25 “The Act authorizes
private citizens to assert a violation as a claim or defense in a judicial proceeding
and to ‘obtain appropriate relief against a government[,]’” which includes a state
and its agencies.26
Pursuant to the Eleventh Amendment, states are immune from suit unless
they unequivocally waive their sovereign immunity or Congress abrogates it.27 In
Sossamon v. Texas, the Supreme Court addressed whether, by accepting federal
funds, a state had consented to a waiver of its sovereign immunity with respect to
suits for damages under RLUIPA.28 The Supreme Court held that sovereign
immunity bars suits for damages against a state because RLUIPA did not
unequivocally include a waiver of a state’s sovereign immunity to a suit for
damages.29 “RLUIPA’s authorization of ‘appropriate relief against a government,’
is not the unequivocal expression of state consent that our precedents require.

24

Wood v. Yordy, 753 F.3d 899, 902 (9th Cir. 2014) (citing 42 U.S.C. § 2000cc-1).

25

42 U.S.C. § 2000cc-5(4)(A)(i), (ii).

26

Wood, 753 F.3d at 902 (citing 42 U.S.C. § 2000cc–2(a)); see also 42 U.S.C. § 2000cc-5(4)(A).

E.g., Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670
(1999).
27

28

563 U.S. 277, 280 (2011).

29

Id. at 293.

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‘[A]ppropriate relief’ does not so clearly and unambiguously waive sovereign
immunity to private suits for damages that we can ‘be certain that the State in fact
consents’ to such a suit.”30
However, the Sossamon Court did not venture further, leaving open the
question of whether injunctive relief against a state constitutes “appropriate relief”
with respect to which states had waived their immunity. Indeed, dissenting in
Sossamon, Justice Sotomayor inferred that the majority’s ruling indicated that
equitable relief against a state is “appropriate relief” under RLUIPA.31 She noted
that “[i]n arguing that ‘a waiver of sovereign immunity to other types of relief does
not

waive

immunity

to

damages,’

the

majority

that equitable relief is available to RLUIPA plaintiffs.”32

appears

to

accept

Since Sossamon, the

weight of authority in the Ninth Circuit indicates that RLUIPA plaintiffs may properly
sue states and their agencies for injunctive relief because states waive their
sovereign immunity with respect to such relief by accepting federal funding.33

Id. at 285–86 (alteration in original) (first quoting 42 U.S.C. § 2000cc-2(a); and then quoting
Coll. Sav. Bank, 527 U.S. at 680).
30

31

Id. at 298 (Sotomayor, J. dissenting).

32

Id. (Sotomayor, J. dissenting) (emphasis in original).

See, e.g., Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 841 (9th Cir.
2012) (analyzing identical language in the Religious Freedom Restoration Act) (“The provision
could be read as authorizing only injunctive relief, and therefore ‘does not so clearly and
unambiguously waive sovereign immunity to private suits for damages that we can ‘be certain
that the States in fact consents to such a suit.’” (citation omitted)); Rupe v. Cate, 688 F. Supp. 2d
1035, 1047 (E.D. Cal. 2010) (“Accordingly, the Court finds that RLUIPA requires state recipients
of federal funds to waive immunity only as to suits for injunctive relief.”); Bausman v. Cal. Dep’t of
Corr. & Rehab., Case No. 1:14-cv-00900-DAD-EPG-PC, 2016 WL 2349147, at *3 n.2 (E.D. Cal.
May 4, 2016); see also Mauwee v. Donat, Case No. 3:06-cv-00122-RCJ-VPC, 2009 WL 3062787,
33

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Mr. Tholson seeks preliminary injunctive relief; the Court finds that such
relief is “appropriate relief” against a state agency under RLUIPA. Accordingly, the
Court will proceed to address the merits of Mr. Tholson’s motion seeking
preliminary injunctive relief.
II.

On the Current Record, Mr. Tholson Is Likely to Succeed on the
Merits
First, Mr. Tholson must show that he is likely to succeed on the merits, or,

alternatively, that there are at least “serious questions” on the merits of his claim.34
The State of Alaska did not oppose Mr. Tholson’s motion for preliminary injunction
on the merits and thus did not address the likelihood of success.
RLUIPA protects the religious rights of inmates. It provides that “[n]o
government shall impose a substantial burden on the religious exercise of a person
residing in or confined to” a prison, “unless the government demonstrates that
imposition of the burden on that person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that

at *5 (D. Nev. Sept. 18, 2009) (“Although the Ninth Circuit has not ruled on the issue, the weight
of authority in the sister Circuits overwhelmingly favors the conclusion that RLUIPA operates as a
waiver of sovereign immunity as to equitable relief only.”); Pompilius v. Nevada, Case No. 2:18cv-01801-APG-VCF, 2021 WL 414534, at *2–6 (D. Nev. Feb. 5, 2021) (granting preliminary
injunctive relief pursuant to RLUIPA); Brown v. Washington, Case No. 314CV05524RJBJRC,
2015 WL 13730665, at *19 (W.D. Wash. Aug. 28, 2015) (limiting a plaintiff’s remedy under RLUIPA
to injunctive relief against the State of Washington, its Department of Corrections, and a defendant
in their official capacity), report and recommendation adopted as modified sub nom. Brown v.
State of Washington, Case No. 14-5524 RJB-JRC, 2015 WL 7738393 (W.D. Wash. Nov. 30,
2015), aff’d sub nom. Brown v. Washington, 752 F. App'x 402 (9th Cir. 2018); Knows His Gun v.
Montana, 866 F. Supp. 2d 1235, 1248 (D. Mont. 2012) (allowing claims for injunctive relief
pursuant to RLUIPA to proceed against the State of Montana and its Department of Corrections).
34

All. for the Wild Rockies, 632 F.3d at 1135.

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compelling governmental interest.”35

RLUIPA defines “religious exercise” to

include “any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.”36 “That means that RLUIPA protects not only practices
deemed orthodox by some recognized religious organization, but also idiosyncratic
practices—practices ‘not compelled by, or central, to a [given] system of religious
belief.’”37

“[A] ‘substantial burden’ on ‘religious exercise’ must impose a

significantly great restriction or onus upon such exercise[.]”38
Under RLUIPA, the plaintiff bears the initial burden to “produce[] prima facie
evidence to support a claim alleging . . . a violation of [RLUIPA].”39 If the plaintiff
meets this burden, “the government shall bear the burden of persuasion on any
element of the claim, except that the plaintiff shall bear the burden of persuasion
on whether the law (including a regulation) or government practice that is
challenged by the claim substantially burdens the plaintiff's exercise of religion.”40
Ultimately, to carry its burden under RLUIPA, the government must show its action
serves a compelling government interest and is the least restrictive means of

35

42 U.S.C. § 2000cc-1(a).

36

Id. at § 2000cc-5(7)(A).

Jones v. Slade, 23 F.4th 1124, 1141 (9th Cir. 2022) (alteration in original) (quoting 42 U.S.C. §
2000cc-5(7)(A)).
37

Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (citing San Jose Christian Coll. v.
City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)).
38

39

42 U.S.C. § 2000cc-2(b).

40

Id.

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furthering that interest by proving that “it has actually considered and rejected the
efficacy of less restrictive measures before adopting the challenged practice.”41
Analyzing whether a government action is the least restrictive means of serving a
compelling interest “is a fact-intensive inquiry . . . .”42
Mr. Tholson alleges the Department of Corrections violated RLUIPA in two
ways: by denying him access to a felt tip, gel, or fountain pen and by not allowing
him to take part in group religious services because he is housed in protective
custody.43 His motion seeking a preliminary injunction focuses exclusively on the
first claim, so this order only addresses that claim.
Mr. Tholson has produced prima facie evidence that the State has
substantially burdened his exercise of religion by denying him access to a felt tip,
gel, or fountain pen.

“[A] prisoner’s request for an accommodation must be

sincerely based on a religious belief and not some other motivation.”44 Mr. Tholson
has averred in his verified complaint that he is a Rosicrucian and needs a felt tip,
gel, or fountain pen for religious use.45 He further supports the necessity of one of
these implements by producing a letter that purports to be from the Rosicrucian

41

Warsoldier, 418 F.3d at 999.

42

Jones, 23 F.4th at 1144.

43

Docket 8-1 at 3, 5–6.

44

Holt v. Hobbs, 574 U.S. 352, 360–61 (2015).

Docket 8-1 at 3; see also McElyea v. Babbitt, 833 F.2d 196, 198 n.1 (9th Cir. 1987) (a verified
complaint based on personal knowledge may be treated as an affidavit).
45

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Fellowship explaining that these writing tools are necessary for spiritual healing.46
Mr. Tholson can therefore likely substantiate a sincere religious belief. Moreover,
he can also likely show that the Department of Corrections’ policy, which
categorically denies him access to religiously necessary implements, substantially
burdens that belief. The State does not question the sincerity of Mr. Tholson’s
belief or assert that it is not burdened.
Having produced prima facie evidence in support of his claim, the burden
shifts to the State to show that denying him access to these pens furthers a
compelling government interest and that denial is the least restrictive means of
doing so. But the State did not respond to the merits of Mr. Tholson’s motion so
the Court cannot conclude that it has met its burden. Although the Court could
surmise from Mr. Tholson’s grievance appeals and the State’s Answer that the
State has significant interests in denying Mr. Tholson access to these pens, the
Court will not manufacture arguments for the State.47 Further, determining whether
the challenged practice is narrowly tailored is “a fact-intensive inquiry on which the
record is not developed.”48

46

Docket 8-2 at 3–4.

47

See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

48

Jones, 23 F.4th at 1144.

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Accordingly, on the record before it, the Court must conclude that Mr.
Tholson is likely to succeed on the merits, or at least has raised serious questions
going to the merits, of his RLUIPA claim regarding pen access.
II.

Mr. Tholson is Likely to Suffer Irreparable Harm in the Absence of an
Injunction
Next, the Court considers whether Mr. Tholson has demonstrated that he is

likely to suffer irreparable harm in the absence of preliminary injunctive relief. A
plaintiff “must demonstrate that in the absence of a preliminary injunction, ‘the
[plaintiff] is likely to suffer irreparable harm before a decision on the merits can be
rendered.’”49 “A likelihood of irreparable harm means ‘a likelihood of substantial
and immediate irreparable injury.’”50
“[U]nder the law of this circuit, a party seeking preliminary injunctive relief in
a First Amendment context can establish irreparable injury sufficient to merit the
grant of relief by demonstrating the existence of a colorable First Amendment
claim.”51 This Court as well as other courts in this circuit have found that the same

Winter, 555 U.S. at 22 (quoting 11A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2948.1 (2d ed. 1995)).
49

Medcursor Inc. v. Shenzen KLM Internet Trading Co., 543 F. Supp. 3d 866, 877 (C.D. Cal. 2021)
(quoting Apple Inc. v. Samsung Elecs. Co., Ltd., 678 F.3d 1314, 1325 (Fed. Cir. 2012)). See also
City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (“The equitable remedy [of injunction] is
unavailable absent a showing of irreparable injury, . . . a ‘likelihood of substantial and immediate
irreparable injury.’” (quoting O’Shea v. Littleton, 414 U.S. 488, 501 (1974))).
50

Warsoldier, 418 F.3d at 1001–02 (first quoting Sammartano v. First Jud. Dist. Ct., Cnty. of
Carson City, 303 F.3d 959, 973–74 (9th Cir. 2002); and then citing 11A Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004) (“When an
alleged deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.”)).
51

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reasoning applies to cases where a plaintiff has shown they are likely to succeed
on their RLUIPA claims.52 Therefore, because the Court has concluded that Mr.
Tholson is likely to succeed on the merits, irreparable injury also is likely.
III.

The Balance of the Equities Tips in Mr. Tholson’s Favor
The government is a party to this action, so the final two Winter factors—

the balance of the equities factor and the public interest factor—merge.53 In
“balanc[ing] the competing claims of injury,” a court “must consider the effect on
each party of the granting or withholding of the requested relief.” 54 An injunction
“is a matter of equitable discretion,” and “[t]he assignment of weight to particular
harms is a matter for district courts to decide.”55
Mr. Tholson asserts that the balance of the equities tips in his favor
because the free exercise of religion is in the public interest. 56 Again, the State
does not address the issue and the Court cannot speculate as to the hardship the
Department of Corrections might suffer in the event of a preliminary injunction.

Dowl v. Williams, Case No. 3:18-cv-0119-HRH, 2018 WL 2392498, at *2 (D. Alaska May 25,
2018); Pasaye v. Dzurenda, 375 F. Supp. 3d 1159, 1171 (D. Nev. 2019), on reconsideration in
part, Case No. 2:17-cv-02574-JAD-VCF, 2019 WL 2905044 (D. Nev. July 5, 2019); Rouser v.
White, Case No. 2:11-cv-09123-RGK-JEM, 2022 WL 343250, at *4 (C.D. Cal. Jan. 11, 2022),
aff'd, Case No. 22-55139, 2024 WL 3311135 (9th Cir. July 5, 2024).
52

53

Drakes Bay Oyster Co., 747 F.3d at 1092 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

54

Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987).

55

Earth Island Inst. v. Carlton, 626 F.3d 462, 475 (9th Cir. 2010) (citing Winter, 555 U.S. at 32).

56

Docket 14 at 6–7.

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Therefore, considering the likelihood of Mr. Tholson’s irreparable spiritual injury,
the Court must conclude that the balance of the equities tips in Mr. Tholson’s favor.
CONCLUSION
For the foregoing reasons, Mr. Tholson’s Motion for Preliminary Injunction
at Docket 14 is GRANTED. IT IS ORDERED THAT, beginning no later than seven
days from the date of this order, the State of Alaska, Department of Corrections,
shall provide Mr. Tholson a felt tip, gel, or fountain pen for his religious use at least
one hour per week. The Department of Corrections may specify the day and time
of such use and may require that the pen is only to be used by Mr. Tholson in a
secure room in which no other inmates are present.
DATED this 25th day of November 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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