Ind v. Colorado Department of Corrections et al

Filing 300

FINAL FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge William J. Martinez on 3/31/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-0537-WJM-KLM
JACOB IND,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
Defendant.

FINAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 6-7, 2014, the Court held a two day bench trial on Plaintiff Jacob
Ind’s second claim of his operative Complaint, which alleged that the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”) is violated by the Defendant Colorado
Department of Corrections’s policy allowing offenders in levels two and three of
administrative segregation to possess no more than two personal books at a time. (See
ECF Nos. 204, 268 & 269.) The following are the Court’s final findings of fact and
conclusions of law.
I. FINDINGS OF FACT
A.

Ind’s Incarceration at the CDOC

1.

Ind is a prisoner who has been incarcerated in the Colorado Department of
Corrections (“CDOC”) for approximately 21 years. Transcript (“Tr.”) at 55:6-8.

2.

Colorado State Penitentiary (“CSP”) is a Level V security correctional institution
and is the CDOC’s most secure facility for adult male offenders. It houses the

most violent and dangerous offenders who have proven that they cannot be
safely managed in a general population setting. Id. at 254:25; p. 256:7-9.
3.

Limon Correctional Facility (“LCF”) is a Level IV security facility, housing
close-custody and medium-custody offenders. Id. at 262:7-15.

4.

LCF is a general population facility and the offenders have most of the same
privileges that other offenders have at general population facilities. Id.

5.

CSP is home to the CDOC’s administrative segregation unit. Id. at 268-69.

6.

Currently, there are four levels of administrative segregation at CSP. See
generally id. at 268-69.

7.

Each level of administrative segregation at CSP comes with certain privileges or
restrictions, including property restrictions. Id. at 270:6-8, 22-25.

8.

When an offender is placed in administrative segregation, he begins at Level 2.
Id. at 268:12-13.

9.

After 90 days in Level 2, offenders will be evaluated for progression to Level 3.
Id. at 268:14-15.

10.

After 90 days in Level 3, offenders are evaluated for progression to Level 4A. Id.
at 268:15-16.

11.

After completing the “Thinking for a Change” program at Level 4A, offenders
progress to a general population facility. Id. at 268:17-19.

12.

There is also a Level 4B, similar to Level 4A, which is a long-term level for
offenders who progress through Level 3 and are still deemed a security risk and
are not ready for general population. Id. at 268:20-23.

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13.

Offenders at Level 4B have more privileges, are allowed to come out in groups of
8 people at a time, can be around staff, and can possess more property. Id. at
268:24-25; 269:1-2.

14.

Level 4B offenders are not housed at CSP, but rather at Sterling Correctional
Facility. Id. at 272:15-16.

15.

Level 1 in administrative segregation is an optional demotion level that is
reserved for offenders who compromise security within the facility. Id. at
269:3-8.

16.

Offenders at Level 1 are reviewed for progression to Level 2 after 30 days. Id.
at 269:10-11.

17.

In all, administrative segregation is intended to be a temporary program that
would ordinarily take nine months to complete. Id. at 268:8-9.

18.

However, many offenders do not progress quickly through the administrative
segregation program.

19.

Ind was assigned to administrative segregation at CSP from September 15, 1995
to April 17, 2003 and again from September 17, 2007 until December 3, 2009,
for a total of approximately 10 years. Stipulated Facts 3.

20.

When this lawsuit was filed, Ind was incarcerated at CSP. Stipulated Facts 2;
see also Tr. at 55:18-20.

21.

While in administrative segregation at CSP, Ind was assigned to administrative
segregation Level 1 initially but spent the majority of his time in either Level 2 or
Level 3. Tr. at 64:16-25.

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22.

Ind was released from administrative segregation at CSP on December 3, 2009,
and is currently incarcerated at LCF. Stipulated Facts 1; see also Tr. at 55:3-5.

B.

Ind’s Religious Beliefs
1.

23.

Ind’s Christian Separatist Faith

Ind is a sincere follower of the Christian Separatist faith. Stipulated Facts 4; see
also Tr. at 65:20-21, 139:13-140:14.

24.

Christian Separatism is not the same as Christian Identity. Tr. at 66:9-10.

25.

Under CDOC policies, Christian Separatism falls within the larger religion known
as Christian Identity. Stipulated Facts 5; see also Tr. at 66:9-15.

26.

Ind was a follower of Christian Identity from approximately 1994-1995 until he
slowly converted to Christian Separatism around 2003-2004. See Stipulated
Facts 6; see also Tr. at 66:16-20, 137:13-14.

27.

Ind strives to adhere to Christian Separatist teaching. Stipulated Facts 9.

28.

Ind is an associate member of the Christian Separatist Church Society which is
the governing body of all branches of Christian Separatism. See Stipulated
Facts 8; see also Tr. at 66:21-67:1.

29.

While incarcerated, Ind has donated well over $1,200 to various organizations
that promote the religious and secular beliefs of Christian Separatism and/or
Christian Identity such as an anti-abortion counseling center and an organization
called Save the Children. Tr. at 67:2-19.
2.

30.

Ind’s Need to Engage in Intense Religious Study

The Christian Separatist faith is a research-intensive faith, which mandates

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intense study from its followers as a fundamental part of the practice. Stipulated
Facts 10; see also Tr. at 124:7-9.
31.

Ind sincerely believes that in order to have “a personal relationship with Jesus,
[he must] have a personal relationship with God’s word, which means he has to
truly understand what the word is.” Tr. at 69:15-18.

32.

Ind sincerely believes that he is required to know “what the true faith is and to
know what God actually teaches” in order to be “saved from hell” and to ensure
that he “[does not] violate scripture.” Id. at 68:16-69:10.

33.

Ind sincerely believes that salvation is dependent upon adhering to the correct
doctrine and that believing any kind of lie or misinformation, whether religious or
secular, can lead to damnation. Stipulated Facts 11.

34.

Thus, Ind sincerely believes that he must “test all things, hold on to that which is
good or true, [and] reject that which is bad or false.” Tr. at 69:23-25.

35.

In fact, the motto of his church—the Christian Separatist Church Society—is
“prove all things.” Id. at 70:2-3.

36.

This motto is a “way of life” for Ind as a Christian Separatist in that he is required
not to hold any beliefs that he has not proven to be true. Id. at 70:4-5.

37.

Because speculation and other people’s word “is not proof,” Ind is required to
engage in study in order to “prove all things.” Id. at 70:4-7.

38.

Ind sincerely believes that without being able to study he cannot adequately test
or prove what is good and true versus what is evil and false, and that without
continuing study of the truth, one ends up opposing the truth and loses salvation.
Stipulated Facts 12.
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39.

As part of his faith, Ind sincerely believes that God’s Truth embodies not just the
Bible, but also God’s natural laws of creation and how to apply biblical and
natural laws to daily life. Stipulated Facts 13.
3.

40.

Materials Ind Needs to Engage in the Necessary Study

To properly practice his religion, Ind believes that he needs a minimum of ten
books, so long as he can exchange books when he no longer needs them.
Ideally, Ind would prefer to have fifteen books at once. Tr. at 75:16-19.

41.

At the time of trial, Ind was using fifteen books at LCF to practice his religion. Id.
at 76:13-14.

42.

Ind believes that he needs the following ten books at the same time in order to
properly practice his religion:
a.

the New Testament and Old Testament in English;

b.

the New Testament and Old Testament in Greek;

c.

the Old Testament in Hebrew;

d.

A Greek lexicon and a Hebrew lexicon;

e.

A Greek grammar guide and a Hebrew grammar guide; and

f.

A Bible dictionary.

See generally id. at 70:8-75:15.
43.

In order to fully understand the Bible’s teachings, Ind requires different versions
of both the New and Old Testaments of the Bible, including the Greek and
Hebrew versions, to “understand what God was saying in the language he
spoke.” Id. at 70:19-23.

44.

While Ind speaks English and relies on English translations of the Bible for
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day-to-day cursory readings, Ind believes that the English translations are “made
by flawed man” meaning they are more likely to contain flawed doctrine. Id. at
71:4-23; see also id. at 126:24-127:1 (Ind explaining that he cannot put his trust
in salvation in the “flawed words of man.”).
45.

For the New Testament, Christian Separatists study two separate books: (1) the
Anointed Standard Translation in English; and (2) a Greek version, which was
the original language of the New Testament. Id. at 70:11-12.

46.

For the Old Testament, Christian Separatists study two separate books: (1) an
English translation; and (2) the Greek Septuagint, which is the Old Testament
translated from Hebrew into Greek 400 years before Christ. Id. at 70:13-16.

47.

Having a Greek New Testament and a Greek Septuagint is necessary “because
that’s what [the] English was based on” so “to properly understand the English,
sometimes [Christian Separatists] definitely go into the Greek.” Id. at 70:19-22.

48.

Because the Greek Septuagint was translated from the Hebrew Old Testament,
Ind believes that it is “very necessary” to also consult the Hebrew Old Testament
and the Masoretic Hebrew Texts in “places where the idiomatic Hebrew wasn’t
translated quite well in the [Greek] Septuagint,” in order to properly understand
the Greek Septuagint. Id. at 70:23-71:3, 126:8-11.

49.

Ind believes that the Greek and Hebrew texts provide “a better understanding of
what God said” because they allow him to “understand the language he originally
spoke in as opposed to [an English] translation which might not encompass the
full meaning of God’s word.” Id. at 126:4-18; see also id. at 126:19-127:1 (Ind

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further explaining that he cannot rely on English translations as the “absolute
word of God, because the absolute word of God was the original manuscripts.”)
50.

Because Ind is not fluent in Greek or Hebrew, he also needs books that help him
translate Greek and Hebrew texts, including: (1) Greek and Hebrew lexicons;
and (2) Greek and Hebrew grammar guides. Id. at 71:14-73:16.

51.

Moreover, Ind needs theses reference materials in both Greek and Hebrew
simultaneously because there are certain phrases in the Greek and Hebrew texts
that “didn’t get translated just quite right or translated idiomatically into the
[Greek] Septuagint of the Old Testament.” Id. at 73:20-23.

52.

Ind also needs bible dictionaries and bible atlases, to help him understand what
certain words in scripture mean, particularly words that are “foreign,” and to give
him necessary background information. Id. at 74:15-22.

53.

For example, if he is studying the Greek Septuagint and “something doesn’t
seem right,” he will have to go to the original Hebrew text—with the aid of a
Hebrew lexicon, dictionary, or grammar guide—to understand “what they were
getting at.” Id. at 73:25-74:11.

54.

These reference materials, for example, help differentiate between different
people in the Bible that have the same name, they explain cultural practices that
are necessary to understand the Bible, and they provide geographical
information that is relevant to the proper understanding of the Bible. Id. at
74:22-75:12.

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C.

The CDOC’s Policies Regarding Inmate Property

55.

All authorized inmate property, including inmate books, magazines and other
personal property, must fit within a three cubic feet CDOC-issued duffle bag.
Stipulated Facts 14; see also Trial Ex. A50, AR 850-06 effective November 15,
2012 at CDOC 00992 (§ IV.G.3).

56.

In addition to the three cubic feet CDOC-issued duffle bag, an inmate is allowed
to have a two cubic feet box of legal papers. Stipulated Facts 15; see also Trial
Ex. A50 at CDOC 00992 (§ IV.G.3.a).

57.

Inmates may possess any number of loose papers and files, subject only to the
personal property maximum of three cubic feet plus two cubic feet of legal
papers. Stipulated Facts 22.

58.

These property limitations apply to all inmates, including those housed at CSP
under all privilege levels, although what an inmate is permitted to have in the
three cubic feet of space differs based on the facility in which that inmate is
housed and the inmate’s security level. See Stipulated Facts 16; see also Tr. at
146:1-18.
1.

59.

Possession of Personal Books

Inmates in administrative segregation at CSP are severely limited in the amount
of property they may possess compared to inmates in general population. Tr. at
201:8-20.

60.

One such limitation relates to the possession of personal books; inmates at CSP
are allowed to possess personal books provided they do not exceed the

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allowable book limits as follows:
a.

CSP administrative segregation Level 1 - one book;

b.

CSP administrative segregation Levels 2 and 3 - two books; and

c.

CSP administrative segregation Level 4A - five books.

Trial Ex. A80, I/A 850-06 effective November 21, 2013 at pp. 6 (§ IV.N.3), 11.
61.

While Ind was incarcerated at CSP, inmates in CSP administrative segregation
Levels 1 through 3 were allowed to possess two books. Tr. at 76:11-16, 152:5-9.

62.

The policy has since changed to allow inmates at Level 1 to possess only one
book. Id. at 152:10-12.

63.

The number of personal books that an offender in administrative segregation can
possess has not otherwise changed. Id. at 152:13-15.

64.

Inmates not in administrative segregation at CSP are allowed to possess fifteen
books at any one time. Id. at 147:19-22; see also Trial Ex. A50 at CDOC 00997.

65.

Pursuant to the CDOC regulations effective December 3, 2009, Ind could
exchange one or both books only once per year and within a set time period
once permission for the exchange was obtained from the CDOC. See Stipulated
Facts 18; see also Trial Ex. A59, I/A 850-06 effective December 3, 2009 at
CDOC 01047 (§ IV.L.5.f); Tr. at 77:22-78:1.

66.

The CDOC has since changed its book exchange policy to permit inmates to
exchange books on a one-for-one basis. Stipulated Facts 19; see also Trial Ex.
A80 at p. 7 (§ IV.N.3.e). This means offenders can exchange their personal
books on a daily basis. Tr. at 275:6-7.

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67.

However, when a book is exchanged, that inmate can never have access to that
book again, unless he repurchases it from an approved source supply. Tr. at
78:9-16.

68.

For instance, an inmate cannot send an exchanged book to his family and then
have his family send it back to him when he needs it. Id. at 78:13-16; see also
Trial Ex. A50 at p. 7 ((§ IV.F.1) (stating that “[u]sed books will not be accepted”
by the CDOC).
2.

Possession of Library Books

69.

CSP has a library. Tr. at 79:8-9.

70.

Inmates are not allowed to visit the CSP library but can request library books. Id.
at 79:10-16; see also Trial Ex. A81, AR 500-01 effective November 1, 2011 at p.
6 (§ IV.C.1.c).

71.

Inmates in administrative segregation at CSP are allowed to possess the
following number of library books:
a.

CSP administrative segregation Level 1 - one library book; and

b.

CSP administrative segregation Levels 2, 3 and 4A - three library books.

Trial Ex. A83, I/A 500-20 effective December 19, 2013 at p. 2 (§IV.3.a.(3)(a)).
72.

Offenders are able to have more library books in administrative segregation than
personal books for several reasons, including: (1) the facility controls where the
books come from, (2) the offenders only have the books temporarily on a two
week basis, and (3) the books are searched at least every two weeks. Tr. at
318:2-11.

73.

Library books do not count against the book limits or the general property limits
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(i.e., three cubic feet of personal property and two cubic feet of legal papers). Tr.
at 195:6-8, 275:17-20, 295:20-22, 303:16-19.
74.

CSP does not permit interlibrary loans, which means an inmate at CSP cannot
request library books from a library in a different CDOC facility. Id. at 80:11-18,
192:23-193:21.

75.

In other CDOC facilities, such as LCF, inmates are allowed to check out books
from libraries in other CDOC facilities and from local libraries outside of the
CDOC. Id. at 80:22-81:4.

76.

Offenders in administrative segregation at CSP can request that books be added
to the CSP library collection by submitting a written request to the librarian. CSP
gets funding each year specifically for replacing and adding new books to the
CSP library. Tr. at 285:1-4.

77.

Although inmates at CSP can donate books (such as books they are
exchanging) to the library, there is no guarantee that the donation will be
accepted and, if it is accepted, there is no guarantee that the book will be kept at
the CSP library. Id. at 81:5-17, 194:12-15.

78.

Even if the CSP library has a book that an inmate wants, there is no guarantee
that the inmate will actually be able to get that book through library services
because the book could be checked out by any of the other 756 inmates. Id. at
193:22-194:9, 249:25-250:2.
3.

79.

Possession of Other Property

In addition to books, inmates in administrative segregation at CSP (Levels 1
through 4A) may possess items from the following non-exhaustive list, subject
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only to the personal property limit of three cubic feet plus two cubic feet of legal
papers:
a.

Clothing items;

b.

Address book;

c.

Magazine(s);

d.

Newspaper;

e.

Photo album;

f.

Writing tablets;

g.

Flex pens; and

h.

Any number of loose papers and files.

Trial Exs. A50 at CDOC 000992 (§ IV.G.3); A80 at p. 11.
80.

Inmates are also allowed any number of loose papers and files in either the three
cubic feet of personal property or two cubic feet of legal papers. Tr. at
304:11-19.

D.

The Substantial Burden on Ind’s Religion

81.

While Ind was assigned to administrative segregation at CSP, he was unable to
engage in the study that was necessary for his religion because of numerous
restrictions that were placed on him by the CDOC. Tr. at 68:8-15.

82.

Pursuant to one such restriction, Ind was limited to possessing two books during
the time he was assigned to CSP. Stipulated Facts 17; see also Tr. at 76:22-24.

83.

The two-book limit affected Ind’s practice of his religion by depriving him of
“really necessary texts.” Tr. at 108:11-13.

84.

He needed his Bible, including the Old Testament and New Testament, first and
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foremost so he had to give up other texts even if that meant he could not
properly understand the Bible. Id. at 77:7-10.
85.

For example, he had to give up his Greek New Testament which meant he could
no longer check to see if the New Testament he had in English was an accurate
rendering. Id. at 108:18-21.

86.

He also had to give up reference books which prevented him from understanding
and translating Greek words from the Greek Septuagint. Id. at 108:17-18.

87.

He had to give up books such as the Christian Separatist Catechism, which
encompass the foundational teachings of Christian Separatism. Id. at
108:22-23.

88.

Ind was essentially set back to a “kindergarten” level for his practice and unable
to decipher what was true versus what was false. Id. at 108:11-109:5.

89.

Even though books can now be exchanged at CSP on a one-for-one basis, Ind
would still be deprived of the necessary number of books he needs at the same
time to practice his religion. Tr. at 78:20-79:1.

90.

Moreover, Ind would not be able to afford to keep repurchasing books that he
has exchanged. Id. at 79:1-7; see also id. at 104:19-25 (stating that inmates at
CSP earn a maximum of $6.00 per month in prison-related jobs compared to
LCF where, for example, Ind earned $140.00 during the month of December
2013).

91.

The CSP library contains only two books of general interest to a Christian
Separatist: (1) a reference book called Strong’s Exhaustive Concordance that

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he would request when it was not checked out by another inmate; and (2) a book
called Tracing our Ancestors, which is a book regarding the British Israelite
theory that the lost tribes of Israel migrated into Europe and became modern day
Europeans. Id. at 79:22-80:10.
E.

The CDOC’s Alleged Compelling Interests for the Book Limits

92.

The Administrative Regulations themselves, specifically AR 850-06 and I/A
850-06, do not provide any justification for the book limits for inmates in
administrative segregation at CSP. See Stipulated Facts 20; see also Trial Exs.
A43–A50, A55–A61, A80 (all versions of AR 850-06 and I/A 850-06).

93.

At trial, the CDOC provided six purported justifications for its book limits for
inmates in administrative segregation at CSP:
a.

To limit the amount of property that staff must search when conducting

cell searches;
b.

To make it easier for staff to search property when conducting cell

searches;
c.

To increase safety and security by limiting the amount of property that can

be used as contraband (such as weapons, body armor, barricades that create
trip hazards) and limiting property that can pose a fire hazard;
d.

To limit the amount of property that can be used to hide contraband;

e.

To limit the introduction of contraband into the CDOC; and

f.

To incentivize inmates to improve their behavior so they can progress out

of administrative segregation and obtain more privileges.
Tr. at 152:16-154:4, 270:12-21, 278:18-279:15, 280:3-12, 285:16-286:1.
15

94.

The evidence presented by the CDOC to support these six justifications
consisted of opinions and beliefs developed after the book limits were already in
place. Id.

95.

None of Defendant’s witnesses were able to set forth a reason as to why the
two-book limit was adopted.

96.

There is no evidence of what the CDOC’s actual reasons for the book limits were
at the point in time when the book limits were implemented.

F.

Facts Supporting Those Justifications

97.

Mr. Trani has worked for the CDOC for almost 20 years. Id. at 249:7-9.

98.

He is currently the warden at CSP and has held that position since March 1,
2012. Id. at 249:3-6, 249:14-15.

99.

As warden, Mr. Trani oversees the daily operations of the facility and reviews
and implements any policy changes that take effect. Id. at 250:3-6.

100.

Chad Arguello has worked at the CDOC for over 13 years. Id. at 198:23-25.

101.

Since August 2013, Mr. Arguello has been the basic training captain for the
Corrections Training Academy, in which he supervises training for all new CDOC
hires. Id. at 141:8-22.

102.

Staff members at CSP must personally deliver everything to the offenders in their
cells, such as meals, toilet paper, and mail, among other things. CSP officers
must also escort offenders every time they leave their cells, such as to go to the
showers and recreational areas. Id. at 263:18-23.

103.

The workload for officers at CSP is much higher than it is for officers at a general

16

population facility like LCF. In addition to delivering items to inmates and
escorting them every time they leave their cell, CSP officers must also perform
cell searches and inspections. Id. at 263:7-15.
104.

There are 630 beds at CSP reserved for administrative segregation. Id. at
249:25; 250:1-2.

105.

Each cell in CSP must be searched—at a minimum—on a monthly basis. Id. at
282:2-3.

106.

There are five staff members assigned to each unit at CSP that must conduct all
of the routine duties for administrative segregation, including cell and property
searches. Id. at 282:4-6.

107.

Two staff members will go into a cell and search all of the offender’s property,
and check the integrity of the fixtures inside the cell. Id. at 282:10-12.

108.

A primary concern that officials have regarding offender property is contraband
introduction, as well as limiting the number of places offenders can hide items.
Another concern facing CSP officials is the ability to thoroughly search offenders’
property. Id. at 279:22-24.

109.

Contraband consists of weapons and drugs, among other things, which
jeopardizes prison security. Id. at 208:20-25.

110.

Every inmate’s cell is searched in the same way regardless of the facility’s
security level. Id. at 97:18-21, 171:13-20, 302:17-22.

111.

Every property item in a cell is searched. Id. at 170:21-23. The primary function
of a cell search is to look for contraband. Id. at 157:25, 158:1-2.

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112.

Cell searches entail going into an inmate’s cell and searching the inmate’s
personal property, checking for any discrepancies in the cell such as openings,
and checking other items in the cell such as the mirror and sink. Id. at 85:11-16.

113.

Searches are conducted as follows:
a.

Clothing: Staff will pat down the entire article, check the seams and

crease areas where it is easier to hide contraband, check the pockets and
zippers, and check for any cuts or tears to the clothing item. Id. at 155:3-18.
b.

Two cubic feet box of legal papers: Staff will take each of the papers out

of the box, flip through the papers, unfold and fold them back if necessary (i.e., if
the papers are folded) and then place the papers back in the box. Id. at
155:19-156:22.
c.

Envelope of papers: To the extent the property includes an envelope of

papers in either the three cubic feet of personal property or two cubic feet of
legal papers (such as the one used as a demonstrative exhibit at trial), staff will
take the papers out of the envelope and rifle through them to check for
contraband. Id. at 156:23-157:11.
d.

Envelopes within envelopes: If the envelope of papers is filled with

smaller envelopes that contain papers, staff will take out each envelope and take
out the contents of each envelope for searching. Id. at 158:7-19.
e.

Personal books: Staff will open up the book, check the spine to make

sure that nothing is broken and that the glue is not coming apart, open up the
inside and back cover of the book, in the case of a hard back book make sure

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that nothing in the book has been cut out or hollowed out, and go through the
pages. Id. at 160:6-14.
f.

Library books: Library books are searched in the same way and just as

thoroughly as personal books. Id. at 195:19-24, 284:14-20.
g.

Canteen property: All canteen property, including address books, photo

albums, and writing tablets, is searched just like books. Id. at 212:13-16; see
also Trial Ex. A80 at p. 11 (showing that address books, photo albums and
writing tables are canteen items).
114.

Every property item is searched just as thoroughly as any other property item.
Id. at 171:8-12.

115.

However, some items are more difficult to search than others. Books are
amongst the most difficult items to search because of the hard covers and
spines. Tr. at 168:20-25, 169:1-2.

116.

All of the items an inmate is allowed to possess can pose security risks. Id. at
166:22-24. Many of the items that inmates in administrative segregation at CSP
can possess may be used as contraband. Id. at 175:1-4, 176:4-7. For example:
a.

Inmates in administrative segregation at CSP are allowed to possess

eyeglasses, which can be used as contraband by, for example, taking off the
handle and using it as a shank. Id. at 175:5-12.
b.

CSP administrative segregation Level 2 and Level 3 inmates are allowed

to possess a coaxial cable, which can be used as contraband by, for example,
taking it apart and twisting the wire to create a knife. Id. at 107:2-5, 175:13-18.

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c.

Inmates in administrative segregation at CSP are allowed to have various

loose papers and newspapers which make “particularly nasty bludgeons [that
are] far worse than any books . . . .” Id. at 107:6-8.
117.

Books (both personal books and library books) also pose a number of security
risks:
a.

Books have been used as body armor. Id. at 278:18, 310:19-25.

b.

Books have been used to assault staff. Id. at 278:24, 303:24-304:1.

c.

Books have been used as barricades during forced cell entries to create
trip hazards at the front of the cells. Id. at 278:25-279:1.

d.
118.

Books can pose a fire hazard. Id. at 279:2, 304:2-3.

In the past, CSP inmates have also used books to hide contraband by:
a.

Gluing pages together to hide messages. Id. at 158:24-25, 159:1, 4-6,
11-15, 23-25, 160:1.

b.

Placing items in the spines. Id. at 159:2-3.

c.

Hollowing out portions of the book to hide things such as paper clips,
shanks, sharpened objects, contraband, and razors. Id. at 163:1-12.

d.

Folding the pages (earmarking them) to pass or hide dangerous
information. See id. at 159:9-16.

e.

Circling words, passing information by writing messages on the pages,
and passing notes inside the book. Id. at 161:2-6.

119.

Offenders are more likely to hide contraband in books as opposed to letters or
other papers because they can manipulate the spine. Id. at 168:20-25, 169:1-2.

20

120.

The more books inmates have, the more opportunities they have to jeopardize
security by hiding contraband. Id. at 208:12-15.

121.

Since July 2012, there have been six incidents of contraband hidden in books
when they arrived at CSP. Id. at 280:17-18.

122.

In five of those instances, either razor blades or metal rods had been hidden in
the books. Id. at 280:19-22.

123.

In one of those instances, an iPhone had been hidden in the book. Id. at
280:23-24. The iPhone was so well hidden within the book that the offender had
it in his possession for several months before it was discovered. In fact, the
contraband was only discovered when a civilian called into the facility to report
that the offender had been making drug deals from the iPhone. Id. at 280:23-25;
281:1-5.

124.

Mr. Arguello was not aware of any statistics regarding the number of times an
inmate has hidden contraband in a book versus another type of inmate property.
Tr. at 174:18-22. The CDOC does not maintain those types of statistics. Id. at
174:23-25.

125.

With respect to the introduction of contraband into a prison facility, Warden Trani
testified that personal books pose the greatest threat because they are one of
the few items sent in from the “streets” to offenders. Id. at 280:22-24; see also
id. at 209:20-25, 210:1-5.

126.

The majority of CSP offenders’ property is limited through canteen services,
which is an internal, department warehouse that manages all property coming

21

into the department. Id. at 202:12-16; see also id. at 103:22, 105:1-4.
127.

Canteen services is a system by which offenders can purchase various personal
products—these items are sent in from only approved vendors, and are strictly
controlled and monitored by staff. Id. at 202:16-18.

128.

When offenders purchase canteen items, they are packaged internally within the
CDOC and then shipped to the appropriate facility. Id. at 202:18-21. The
canteen items arrive at the facility in a clear, sealed bag, before being delivered
to the inmate. Id. at 203:1-11.

129.

Personal books, in contrast, are generally are not purchased through canteen
services, but from outside vendors. Id. at 203:12-13.

130.

Because the vendor merely must have a physical address, the CDOC has little
control over where offenders receive their books from. Id. at 203:12-15.

131.

Book vendors’ physical addresses are often fabricated. Id. at 204:2-6.

132.

Mailroom staff “shakedown” books that are sent to CSP and search books using
“e-scan” and “fluoroscope” technology. Id. at 203:12-19.

133.

CSP and Centennial Correctional Facility have two staff members that work in
the mailroom who process, screen, and search all of the facilities' incoming and
outgoing mail and packages. Id. at 283:5-10.

134.

If offenders were allowed to have fifteen (15) books at CSP, as they are allowed
in general population facilities like LCF, it would substantially increase the
workload for CSP staff members. Id. at 282:10-12.

135.

Despite these general security risks and concerns, Ind has never used a book to

22

manufacture or hide contraband. Id. at 106:16-18, 107:19.
136.

There is no evidence that Ind has ever used a book as body armor, to assault
staff, to create a barricade during a forced cell entry, in a manner that poses a
fire hazard, or to otherwise manufacture contraband.

G.

The Consideration of Least Restrictive Means

137.

At CSP, the consideration of policy alternatives and decisions regarding those
alternatives is not a one-person job but rather the job of a policy committee at
the facility comprised of all levels of staff. Tr. at 286:3-12, 289:25-290:14.

138.

Mr. Trani participates in CSP’s regular monthly policy meetings. Id. at 287:6-14.

139.

Mr. Trani has never been involved in any formal policy discussions regarding
increasing the book limits, and he has never personally discussed any
alternatives to the two-book limit in a policy meeting. Id. at 305:8-20,
312:24-313:2.

140.

Mr. Trani has engaged in an informal discussion outside of policy meetings about
increasing the books limits. Id. at 287:15-19, 289:14-23, 305:8-20, 306:8-12.
However, he could not recall any specifics regarding the substance of the
informal discussions or when the informal discussions took place. Id. at
289:11-24, 305:22-23, 306:25-2, 306:14-22, 311:21-312:14, 312:24-313:14.

141.

Mr. Trani did not give any specific reasons why an alternative to the two-book
limit was rejected, but testified that such rejection was based on the experience
of staff who have worked at CSP and “the issues” the CDOC has involving
books, and that the rejection was not in writing. Id.

23

142.

During a policy meeting that Captain Arguello and several other officials
attended, they discussed the two-book policy and informally considered
increasing it to three books or decreasing it to one book. Tr. at 184:5-24,
185:20-25.

143.

Mr. Arguello stated that these brief discussions were “maybe five minutes or
less” and did not make “a major impact on [his] memory.” Id. at 191:10-11,
191:20-21.

144.

When testifying about the substance of the discussions, Mr. Arguello stated it
was “a long time ago” and that he was “speculating on what was said.” Id. at
191:19, 191:22-23. To the best he could recall, Mr. Arguello testified that they
decided not to change the personal book limits because the two-book limit,
coupled with the one-for-one exchange policy, was an appropriate policy for such
a high security level facility. Tr. at 184:25.

145.

Neither Mr. Arguello nor Mr. Trani could explain why the number “two” [with
regard to the limit of books a CSP offender could possess at any one time] was
chosen as opposed to a higher or lower number. Id. at 154:5-11, 318:20-319:2.

146.

The CDOC has not conducted any studies on whether a decrease in the number
of books makes it easier to search personal property. Tr. at 172:3-9.

147.

The CDOC presented no specific evidence, in the form of studies or research,
which shows that limiting the amount of books actually limits the amount of
property that can be used to hide contraband.

24

II. CONCLUSIONS OF LAW
Plaintiff brings this action pursuant to the Religious Land Use Practices and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. In relevant part,
RLUIPA provides that:
No government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution . . . 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 compelling
governmental interest.
42 U.S.C. § 2000cc-1(a).
Courts have interpreted RULIPA to create a burden-shifting scheme. To prevail
on his RLUIPA claim, Plaintiff bears the burden of: (1) identifying a sincerely-held
religious belief, and (2) showing that Defendant’s challenged policy substantially
burdens that belief. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312-13 (10th Cir. 2010).
If a prisoner can meet these requirements, the burden then shifts to the state to show:
(1) that the policy at issue furthers a compelling government interest, and (2) that
Defendant has employed the least restrictive means of furthering that compelling
interest. Id. at 1318. The Court will examine each of these elements in turn below.
A.

Plaintiff’s Sincerely Held Religious Beliefs
RLUIPA defines “religious exercise” as including “any exercise of religion,

whether or not compelled by, or central to, a system of religious beliefs.” 42 U.S.C.
§ 2000cc-5(7)(A). To be protected under RLUIPA, the religious practice at issue need
25

not be fundamental or central to one’s belief system so long as the plaintiff has “an
honest belief that the practice is important to his free exercise of religion.”
Abdulhaseeb, 600 F.3d at 1301, 1312-13; see also Grace United Methodist Church v.
City of Cheyenne, 451 F.3d 643, 661-63 (10th Cir. 2006) (religious belief need not be
“fundamental”).
A plaintiff’s claim that the practice is an essential part of his religious faith “must
be given great weight.” United States v. Seeger, 380 U.S. 163, 184 (1965). A court
should not “attempt to gauge how central a sincerely held belief is to the believer’s
religion.” Jenner v. Sokol, 2013 WL 500400, *3-4 (D. Colo. Feb. 11, 2013).
In this case, Plaintiff testified that his Christian Separatist faith is a
research-intensive faith, which mandates intense study from its followers as a
fundamental part of the practice. (Tr. at 65:20-21, 124: 7-9; 139:13-140:14.) It is
undisputed that Plaintiff sincerely believes that in order to have “a personal relationship
with Jesus, [he must] have a personal relationship with God’s word, which means he
has to truly understand what the word is.” (Tr. at 69:15-18.) Thus, Plaintiff sincerely
believes that he must “test all things, hold on to that which is good or true, [and] reject
that which is bad or false.” (Tr. at 69:23-25.) Plaintiff sincerely believes that without
being able to study he cannot adequately test or prove what is good and true versus
what is evil and false, and that without continuing study of the truth, he will end up
opposing the truth and lose salvation. (Stipulated Facts 12.) As part of his faith, Ind
sincerely believes that God’s Truth embodies not just the Bible, but also God’s natural
laws of creation and how to apply biblical and natural laws to daily life. Stipulated Facts
13.
26

On these facts, the Court finds that Plaintiff has shown that he sincerely believes
that intense study is important to the practice of his religion.
B.

Substantial Burden
In this circuit, “a religious exercise is substantially burdened under 42 U.S.C.

§ 2000cc–1(a) when a government (1) requires participation in an activity prohibited by
a sincerely held religious belief, or (2) prevents participation in conduct motivated by a
sincerely held religious belief, or (3) places substantial pressure on an adherent either
not to engage in conduct motivated by a sincerely held religious belief or to engage in
conduct contrary to a sincerely held religious belief.” Abdulhaseeb, 600 F.3d at 1315.
“‘The practice burdened need not be central to the adherent’s belief system, but the
adherent must have an honest belief that the practice is important to his free exercise of
religion.’” Id. at 1316 (quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332
(5th Cir. 2009)).
A mere inconvenience to one’s religious practice does not amount to a
substantial burden. See Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007); see also
Rocky Mountain Christian Church, 481 F. Supp. 2d at 1223 (citing Braunfeld v. Brown,
366 U.S. 599, 605-607 (1961)). A restriction may be considered only an
“inconvenience,” where the alleged deprivation was the result of a sporadic or isolated
incident. Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009) (holding that
isolated violation of kosher restrictions did not support Free Exercise claim). However,
a consistent restriction or flat denial of access to something is not a mere
inconvenience. Strope v. Cummings, 381 F. App’x 878, 882 (10th Cir. 2010) (citing

27

Abdulhaseeb and holding that the flat denial of a halal diet was actionable, while an
incident in which a prisoner’s meal was rendered inedible was not actionable).
The Court finds that Plaintiff has met his burden of showing that Defendant’s
book limits substantially burden his sincerely held religious beliefs. Plaintiff testified
that, in order to engage in the level of study required by his religion, he needs access to
at least ten books at a time, including: the Old and New Testament of the Bible in
English, the Old and New Testament in Greek, the Old Testament in Hebrew, a Greek
and Hebrew Lexicon, a Greek and Hebrew grammar guide, and a Bible dictionary. (Tr.
at 70-75.) Plaintiff testified that the only language in which he is fluent is English, but
that the English translations were “made by flawed man” so, to properly understand the
author’s original intent, it was necessary to refer back to the Greek and Hebrew
versions. (Tr. at 70-71, 126.) Thus, Plaintiff must have simultaneous access to the
English, Greek, and Hebrew versions, as well as materials (such as lexicons and Bible
dictionaries) that assist his understanding. (Id.)
Defendant argues that Plaintiff’s testimony is insufficient to meet his burden
because it is self-serving. (ECF No. 293 at 25.) The Court agrees that Plaintiff relies
solely on his own testimony to show a substantial burden, but the Court finds that his
testimony was credible, despite its self-serving nature. Moreover, there is no evidence
in the record which calls into question the veracity of any of Plaintiff’s representations
about how his religion is practiced.
Defendant also contends that the record is imprecise as to exactly what Plaintiff
needs in order to properly practice his religion. (ECF No. 293 at 27.) In support of this
argument, Defendant cherry picks seemingly equivocating words used by Plaintiff
28

during his testimony such as his statement that he would “ideally” like to have the Greek
and Hebrew versions of the Old Testament in order to practice his religion. (Id.)
Defendant also points to evidence showing that Plaintiff was unclear or inconsistent
with regard to precisely how many books he needs to practice his religion. (Id.)
While Plaintiff did not specifically demand access to an exact number of books,
his testimony was clear that the current personal book limits are insufficient. Whether
Plaintiff’s religious practice mandates simultaneous access to ten books or fifteen
books is immaterial; Defendant’s policy allowed him to possess only two personal
books. Given Plaintiff’s uncontradicted testimony, the Court has little difficulty
concluding that the restriction of two personal books substantially burdened Plaintiff’s
religious beliefs.
Defendant also argues that the Court should consider the entirety of its book
policies, and that the combination thereof affords sufficient flexibility for inmates. (ECF
No. 293 at 25-26.) Defendant contends that its one-for-one book exchange policy,
coupled with its policy allowing inmates to possess three library books at a time, was
sufficient to alleviate any substantial burden on Plaintiff’s religious beliefs. Specifically,
Defendant argues that, under these policies, Plaintiff could simultaneously have both
the New Testament and the Old Testament as his personal books, and have up to three
reference books from the library. (Id. at 26.)
The Court finds that these policies, even considered together, did not alleviate
the substantial burden on Plaintiff’s religious beliefs. Plaintiff testified that CSP’s library
had, at most, two books that he could use to assist the practice of his religion. Thus,
Plaintiff would have been permitted to possess at most four books relevant to his
29

religious studies at one time. Based on Plaintiff’s testimony, four books was plainly
insufficient to allow him to practice his religion.
Moreover, Plaintiff presented evidence that the one-for-one exchange did not
assist his religious studies because he needs the reference materials at the same time
as the Bibles, so that he can understand the Bibles. Allowing him to exchange a Bible
for a reference volume would not adequately address Plaintiff’s dilemma. Additionally,
the record shows that once an inmate exchanges a book, it must be sent out of the
facility and cannot be accessed by the inmate again. Therefore, if Plaintiff gave up his
Hebrew Lexicon in order to obtain a Greek Lexicon, he could never access that Hebrew
Lexicon again. As an inmate sentenced to life in prison, with limited access to money
to constantly buy new books, it is easy to see how the one-for-one exchange policy did
not alleviate the burdens imposed by the two personal book limit.
Finally, Defendant argues that Plaintiff has shown, at most, a preference to have
access to more than two books at a time, which is insufficient to meet his burden. (ECF
No. 293 at 28.) Defendant contends that any burden on Plaintiff’s religious practices is
incidental or a mere inconvenience, rather than a substantial burden. (Id.) However,
the evidence shows that Plaintiff was not temporarily deprived of the number of books
he needs to practice his religion; this deprivation lasted the entire time he was in
administrative segregation, which was close to ten years. Moreover, Plaintiff’s
undisputed testimony was that vigorous study of religious texts is central to his religion.
The law is clear that such wholesale denial of access to an important religious practice
is a substantial burden. See Strope, 381 F. App’x at 882 (“flat denial” of an important
religious practice is “actionable” under RLUIPA).
30

Accordingly, the Court finds that Plaintiff has met his burden of showing that
Defendant’s personal book limit substantially burdened his sincerely held religious
beliefs.
C.

Compelling Governmental Interest
Given the above finding, the burden now shifts to Defendant to show that the

personal book limits were the least restrictive means of achieving a compelling
governmental interest. Abdulhaseeb, 600 F.3d at 1318.
At trial, Warden Trani testified that the personal book limits served three
purposes: (1) ensure the safety and security of the staff and officers; (2) control
contraband and enable thorough searches of offender property; and (3) allow for an
incentive-based program where offenders are rewarded with more privileges for better
behavior. (Tr. at 152-53, 270.) Warden Trani testified that he felt personal books were
the biggest threat to the security of the facility because they were the only items that
were sent from unknown vendors. (Id. at 280.) He also testified that, since July 2012,
there have been six incidents where contraband has been hidden in book, including
one incident where an iPhone was sent into the facility in the cover of a book. (Id.)
Captain Arguello testified about the difficulty of searching books during a cell
search. (Tr. 158-63.) He testified that pages can be glued together to hide materials,
that the spines can be used to conceal contraband, and that covers can be hollowed
out or otherwise manipulated. (Id.) Captain Arguello testified that, in his experience,
offenders are more likely to hide contraband in books than in other papers or letters
because they can manipulate the spines of books. (Id. at 168-69.)

31

There is little doubt that safety and security of a prison is a compelling
governmental interest. See Cutter v. Wilkinson, 544 U.S. 709, 722-23 (2005). Courts
applying RLUIPA must act with “due deference to the experience and expertise of
prison and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs and
limited resources.” Id.
Plaintiff argues that the Court cannot consider the justifications put forth by
Defendant for the personal book limits because they are all post hoc rationalizations;
there is no evidence that these are the reasons the book limits were implemented at the
time policy was adopted. (ECF No. 292 at 54.) The Tenth Circuit has never explicitly
held that a defendant must state the compelling governmental interest behind a
restriction at the time that restriction is imposed. However, it recently observed that
“factually unsupported ‘post-hoc rationalizations’” are not sufficient to meet the
Defendant’s burden in a RLUIPA case. Yellowbear v. Lampert, 741 F.3d 48, 58 (10th
Cir. 2014); see also Abdulhaseeb, 600 F.3d at 1318 (holding that “post-hoc
rationalizations will not suffice” to meet the requirements of RLUIPA). Additionally,
most other courts to have looked at this issue have held that the compelling
governmental interest must be asserted at the time the regulation is adopted. See
Native Am. Council of Tribes v. Weber, 897 F. Supp. 2d 828, 849 (D.S.D. 2012)
(“Because post-hoc rationalizations provide an insufficient basis to find a compelling
governmental interest, the court must look to the compelling interest asserted by
defendants at the time of the ban.”); Kalwasinski v. Maxymillian, 2010 WL 5620908, *6

32

(N.D.N.Y. Dec. 23, 2010) (“[T]he legitimate penological interest advanced must have
been the actual reason from the defendants’ actions.”) (emphasis in the original).
The Court agrees with the reasoning set forth in these cases. In enacting
RLUIPA, Congress chose to subject prison regulations which substantially burden an
inmate’s religious beliefs to the “most demanding test known to constitutional law.” City
of Boerne v. Flores, 521 U.S. 507, 545 (1997). This decision has significant
ramifications for the Court’s analysis. “Whereas rational basis review permits a court to
hypothesize interests that might support a decision, RLUIPA’s strict scrutiny standard
requires courts to consider only the actual reasons for a decision.” Ciempa v. Jones,
745 F. Supp. 2d 1171, 1194 (N.D. Okla. 2010) (internal citation and quotation omitted).
In this case, all of the reasons for the personal book limits put forth by
Defendants are post hoc justifications. Defendant’s witnesses testified about the
purpose they believe the personal book limits serve at the current time. But no witness
was able to testify about why the personal book limits were imposed in the first
instance. Moreover, perhaps the most compelling reason for the limitations on personal
books—to limit the introduction of contraband into the facility—was only put forth as a
compelling governmental interest for the first time at trial. (Compare ECF No. 198 with
Tr. 280.) This is the definition of a post hoc justification which the Court is not permitted
to consider. See United States v. Virginia, 518 U.S. 515, 533 (1996) (applying the
lesser standard of intermediate scrutiny and holding that the state’s “justification must
be genuine, not hypothesized or invented post hoc in response to litigation.”).
If the Court evaluated the personal book limits under the rational basis standard,

33

the Defendant’s justifications would suffice as it has plainly shown that the personal
book limits further its interest in ensuring prison safety and security. However, RLUIPA
requires more. Defendant failed to produce any evidence as to the actual reason for
adopting the personal limits at the time they were imposed and has therefore failed to
meet its burden of demonstrating a compelling governmental interest that is furthered
by the personal book limits.
D.

Least Restrictive Means
Even if the Court were permitted to accept the Defendant’s post hoc justifications

for the personal book limits, Defendant would still be required to show that the two-book
limit is the least restrictive means of serving its compelling governmental interest.
Under this prong, the Court will address the following issues: (1) support for the chosen
policy; (2) consideration of less restrictive alternatives; and (3) consideration of an
individualized accommodation for Plaintiff.
1.

Support for the Two-Book Limit

To meet its burden under the least restrictive means test, Defendant must first
introduce evidence which supports its choice of regulation. Al-Amiin v. Morton, 528 F.
App’x 838, 844 (10th Cir. 2013). In order to support its choice of regulation, the
Defendant must, at a minimum, offer some explanation as to why the two-book limit
was adopted. It has utterly failed to meet this requirement. The record is devoid of any
evidence as to why inmates are limited to two books, as opposed to one or three (or ten
as Plaintiff requests). Both Captain Arguello and Warden Trani were asked if they
knew why officials chose two as the number of personal books that an inmate could
safely possess, and neither was able to provide any reason. (Tr. at 154, 318-19.)
34

Thus, the Court finds that Defendant has failed to introduce sufficient evidence
to support its choice of regulation.
2.

Consideration of Less Restrictive Means

A state must show that it actually considered and rejected other, less restrictive
alternatives before adopting the challenged policy.1 See Couch v. Jabe, 679 F.3d 197,
202-04 (4th Cir. 2012) (“[T]he Government must consider and reject other means
before it can conclude that the policy chosen is the least restrictive means.”); Spratt v.
Rhode Island, 482 F.3d 33, 40-41 (1st Cir. 2007) (“A prison cannot meet its burden to
prove least restrictive means unless it demonstrates that it has actually considered and
rejected the efficacy of less restrictive measures before adopting the challenged
practice.”); Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007) (“[T]he phrase ‘least
restrictive means’ is, by definition, a relative term. It necessarily implies a comparison
with other means. Because this burden is placed on the Government, it must be the
party to make this comparison.”); see also Jova v. Smith, 582 F.3d 410, 416 (2d Cir.
2009); Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005). But see Knight v.
Thompson, 723 F.3d 1275, 1286 (11th Cir. 2013) (“RLUIPA asks only whether
efficacious less restrictive measures actually exist, not whether the defendant
considered alternatives to its policy.”).
On this point, the record shows that Captain Arguello participated in one informal
conversation, at or following a policy meeting, in which he and a few other people

1

Though the Tenth Circuit has never explicitly addressed this point, because of the
wide consensus among the other circuits, the Court finds that this requirement is applicable
here.

35

discussed either raising or lowering the personal book limits. (Tr. at 184-85.) He could
not recall the specifics of the conversation, but believed that these correctional officials
decided to leave the two-book limit the same because they felt that this limit, in
combination with the one-for-one book exchange policy, was appropriate for the
custody level and security level of the facility. (Id. at 185.) Warden Trani testified that
there were informal discussions about raising the book limit to three, but that was “ruled
out” based on the “experience of [Defendant’s] staff that have worked in that facility and
based on the issues that we have involving books.” (Tr. at 289.)
The Court finds that Defendant failed to meet its burden of showing that less
restrictive alternatives to the two-book limit were actually considered and rejected.
First, as with the asserted governmental interests, Defendant has, at most, shown that
less restrictive alternatives have been considered in the years after the two-book limit
was adopted. This consideration is post hoc as neither Captain Arguello nor Warden
Trani testified about whether any alternatives were considered at the time the two-book
limit was implemented. Some courts have held that consideration of alternatives after a
restriction is in place is not sufficient. See Lindh v. Warden, 2013 WL 139699, *14 (D.
Ind. Jan. 11, 2013) (finding that the warden failed to “legitimately consider” alternatives
to a total ban on congregate prayer because he only looked at other options after the
ban had been implemented).
More significantly, Warden Trani testified that policies such as the two-book limit
are formed by policy committees, which look at the current Administrative Regulations
and consider suggested changes and possible alternatives. (Tr. at 286.) Revising
policies is not a one person job, but is the work of a policy committee comprised of all
36

levels of staff, with ultimate review by the Warden. (Id. at 290.) There was no evidence
that any alternatives to the two-book limit were considered during by a policy committee
during any formal meeting. Given the formality required to enact or change a
regulation, the Court finds that the informal discussions regarding raising the book limits
to three books are not sufficient to show that Defendant actually considered and
rejected less restrictive alternatives.
Finally, Defendant failed to offer any reasoned explanation as to why any
alternatives were rejected. “[T]o meet the least restrictive means test, prison
administrators generally ought to explore at least some alternatives, and their rejection
should generally be accompanied by some measure of explanation.” Spratt, 482 F.3d
at 41 n.11. The only explanation offered for rejecting a higher personal book limit was
the combined staff experience and the “issues” Defendant has with personal books.
(Tr. at 289.) This is not a sufficient basis to reject a less restrictive alternative. See
Yellowbear, 741 F.3d at 60 (“‘The state must do more than simply offer conclusory
statements that a limitation on religious freedom is required for the security, health or
safety in order to establish that its interests are of the highest order.’”) (quoting Werner
v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995)); see also Koger v. Bryan,
523F.3d789, 800 (7th Cir. 2008) (“We can only give deference to the positions of prison
officials . . . when the officials have set forth those positions and entered them into the
record.”).
For all of these reasons, the Court finds that Defendant has failed to meet its
burden of supporting the choice of the two-book limit.

37

3.

Consideration of an Individualized Accommodation

In a recent case, The Tenth Circuit held that RLUIPA requires that the
government “prove the ‘compellingness’ of its interest in the context of ‘the burden on
that person’—suggesting an inquiry that proceeds in light of the particular burden the
government has placed on the particular claimant.” Yellowbear v. Lampert, 741 F.3d
48, 57 (10th Cir. 2014) (quoting 42 U.S.C. § 2000cc-1(a) (emphasis in original). “[A]
court does not consider the prison regulation in its general application, but rather
considers whether there is a compelling government reason, advanced in the least
restrictive means, to apply the prison regulation to the individual claimant.” Kikumura v.
Hurley, 242 F.3d 950, 962 (10th Cir. 2001).
Defendant has consistently approached this litigation from the viewpoint of the
overall prison population, arguing that whatever action it takes towards Plaintiff will have
to be generally applied to the entire inmate population in administrative segregation.
For example in its post-trial briefing, Defendant argues that the Court “faces the
possibility of setting dangerous precedent or a slippery slope” by permitting a plaintiff’s
specific, individualized religious beliefs to inform policy at a correctional institution.
(See ECF No. 293 at 25.) While the Court is sympathetic to Defendant’s argument, it
cannot change the law. RLUIPA requires the government to look at the specific
prisoner and attempt to accommodate that prisoner’s religious beliefs. See Love v.
Reed, 216 F.3d 682, 691 (8th Cir. 2000) (rejecting state’s argument that it should not
have to provide a meal that met a prisoner’s dietary preferences based on his religious
beliefs because it would cause other inmates to make similar requests).

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There is no evidence that Defendant ever considered whether it could grant
Plaintiff a religious exemption to the two-book limit, or whether other less restrictive
measures could be put in place to accommodate Plaintiff’s sincerely held religious
beliefs. There is also no evidence that Defendant considered Plaintiff’s individualized
security concerns or his past behavioral issues in choosing not to accommodate his
religious beliefs. While Defendant showed that books can be used in a variety of ways
that threaten prison security, there is no evidence that Plaintiff ever used books in this
manner. With respect to contraband, there was a lot of evidence at trial that personal
books were a recognized source of contraband in prison, but there was no evidence
that Plaintiff’s books had ever introduced contraband into his correctional facility. There
was also no evidence that Plaintiff has ever used books as body armor, assaulted staff
with his books, set fire to his books, used his books as a barricade, or attempted to
pass messages through his books. Thus, Defendant has failed to show how restricting
the number of personal books possessed by this particular Plaintiff furthers its
compelling governmental interests. See Yellowbear, 741 F.3d at 57 (the Court must
ask “whether the government’s particular interest in burdening this plaintiff’s particular
religious exercise is justified in light of the record in this case.”)
E.

Conclusion
In sum, the Court finds that Plaintiff presented sufficient evidence at trial to meet

his burden of showing that his sincerely held religious beliefs were substantially
burdened by the policy restricting inmates in Levels 2 and 3 of administrative
segregation to possession of two personal books at a time. The Court finds that
Defendant has failed to meet its burden of showing that the two-book limit is the least
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restrictive means of furthering a compelling governmental interest. The government
interests asserted by Defendant are all post hoc justifications for its chosen policy and
are generalized to the prison population overall. There is no evidence that Defendant
considered less restrictive alternatives in general, or that it considered less restrictive
alternatives to accommodate Mr. Ind’s individual religious beliefs.
Because Defendant has failed to meet its burden, the Court concludes that
Plaintiff has shown a violation of RLUIPA. As relief for prevailing on this claim, Plaintiff
asks that the Court enjoin the CDOC “from continuing its current policy limiting the
number of books inmates housed in administrative segregation at CSP may possess at
any one time.” (ECF No. 292-1.) Plaintiff asks that the Court instead order the CDOC
to incorporate into its current regulations a policy that permits all offenders in
administrative segregation at CSP to “possess as many personal books as they like, so
long as they fit within the maximum amount of personal property”. (Id.)
Although the Court has found that Defendant’s two-book limit violates RLUIPA in
this case, the Court declines to award Plaintiff the relief he seeks. As discussed above,
RLUIPA is an individualized statute which requires the government to attempt to
accommodate an inmate’s personal religious beliefs. The relief proposed by Plaintiff
would invalidate the two-book limit as to all offenders, even though Plaintiff has only
shown that it substantially burdens his personal religious beliefs. Because Plaintiff has
not shown that the two-book limit would violate the sincerely held religious beliefs of all
inmates, the Court will not invalidate the provision overall. Instead, the Court rules only
that Defendant is enjoined from enforcing the two-book limit against Plaintiff, should he
be returned to administrative segregation at CSP.
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III. PREVAILING PARTY
At trial, Plaintiff also made an offer of proof as to why he should be declared the
prevailing party on claims 1 and 4. (See ECF No. 268 at 4.) Claim 1 challenged
Defendant’s policy that did not allow inmates in administrative segregation to participate
in religious correspondence courses. (ECF No. 103 at 4.) Claim 4 challenged
Defendant’s policies prohibiting inmates in administrative segregation from engaging in
communion. (Id. at 7-8.) Plaintiff dismissed Claims 1 and 4 before trial because, while
this case was pending, Defendant removed the ban on religious correspondence
courses and changed the policy such that he would be able to take communion if he is
sent back to administrative segregation. (See ECF No. 260.) Plaintiff argues that he is
the prevailing party on Claims 1 and 4 because Defendant changed its policies in
response to this litigation. (ECF No. 283 at 5-11.)
As set forth above, the Court has ruled in Plaintiff’s favor on the second claim
raised in his Amended Complaint, which challenged the book limits on offenders in
administrative segregation at CSP. (ECF No. 103.) Thus, Plaintiff is clearly the
prevailing party on this claim for purposes of 42 U.S.C. § 1988(b). In cases like this
where a plaintiff achieves partial success on his claims, the Court has discretion to
award fees not only for the claim on which the plaintiff succeeded, but also for all
related claims. See Browder v. City of Moab, 427 F.3d 717, 722-23 (10th Cir. 2005) (a
plaintiff that achieves partial success can recover attorneys fees for the claim on which
he prevailed and those related to it).
Plaintiff’s claims in this case were all brought under RLUIPA, and involved a

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common core of facts in that they required the Court to consider Plaintiff’s religious
beliefs and the impact of Defendant’s policies governing inmates in administrative
regulation on those beliefs. Thus, the Court finds that all of the claims brought in this
case are sufficiently related to the claim on which he prevailed at trial, so that Plaintiff
will be able to recover his reasonable attorneys’ fees expended in prosecution of all
claims.
Because the Court finds that Claims 1 and 4 are sufficiently related to Claim 2 so
as to entitle Plaintiff to recover attorneys’ fees on those claims, Plaintiff’s oral Motion to
be declared the prevailing party on Claims 1 and 4 is denied as moot.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff has shown that Defendant’s enforcement of its book limitations policy,
set forth in I/A 850-06, against him individually, substantially burdens his
sincerely held religious beliefs in violation of RLUIPA, and judgment shall enter in
favor of Plaintiff on Claim 2 of his Amended Complaint;

2.

Should Plaintiff return to administrative segregation at CSP, Defendant is
enjoined from enforcing against him its current book limitation policy, set forth in
I/A 850-06;

3.

As Plaintiff is the prevailing party on Claim 2, which is related to all other claims
brought in the Amended Complaint, Plaintiff is entitled under 42 U.S.C. § 1988(b)
to an award of his attorneys’ fees and costs reasonably expended in prosecution
of his claims in this action;

4.

Plaintiff shall file a Motion for Attorneys’ Fees and Costs, with the required
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supporting documentation, no later than April 18, 2014;
5.

Given the Court’s ruling in Plaintiff’s favor, Defendant’s mid-trial Motion for
Judgment as a Matter of Law is DENIED;

6.

Given the Court’s ruling on his other claims, Plaintiff SHALL NOTIFY the Court
by April 15, 2014 as to whether he wishes to persist in his Motion for Order to
Rescind the Settlement Agreement and Vacate the Dismissal of Claim 5 (ECF
No. 278). Because this Motion seeks to reopen a previously-dismissed claim,
the Court construes it as a post-judgment Motion that does not warrant
withholding the entry of judgment on the Amended Complaint.
Dated this 31st day of March, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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