Chesser v. Director Federal Bureau of Prisons
Filing
208
MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 8/6/2018. IT IS ORDERED that: (1) Defendant's Motion for Summary Judgment 180 is GRANTED; (2) Plaintiff's Second Motion for Partial Summary Judgment 193 is DENIED; (3) Su mmary Judgment shall be entered in favor of Defendant on Claims III and IV and against Plaintiff, and Claims III and IV are DISMISSED with prejudice; (4) The Clerk of the Court shall ENTER Final Judgment accordingly, and award costs to the Director Federal Bureau of Prisons as the prevailing party; and (5) A copy of this Order shall be sent to the following: Zachary A. Chesser #76715-083 FLORENCE HIGH U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 7000 FLORENCE, CO 81226 (nywlc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01939-NYW
ZACHARY A. CHESSER,
Plaintiff,
v.
DIRECTOR FEDERAL BUREAU OF PRISONS,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Director of Federal Bureau of Prisons’
(“Defendant” or the “BOP”) Motion for Summary Judgment (or “BOP’s Motion”) [#180]1 and
Plaintiff Zachary Chesser’s (“Plaintiff” or “Mr. Chesser”) Second Motion for Partial Summary
Judgment (or “Mr. Chesser’s Motion”) [#193]. This civil action was referred to the undersigned
Magistrate Judge to fully preside over for all purposes. See [#37]; 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73; D.C.COLO.LCivR 72.2(d).
The court concludes that oral argument will not
materially assist in the resolution of these matters. Having reviewed the Motions and associated
briefing, the applicable case law, and the entire docket, the court GRANTS the BOP’s Motion
and DENIES Mr. Chesser’s Motion.
1
The BOP has filed its Motion for Summary Judgment and several exhibits under Level 1
Restriction. See [#181 and attached exhibits]. For consistency, the court cites to the restricted
Motion [#181], but does not cite to any restricted information. This is also true of any exhibits
similarly filed under Level 1 Restriction.
PROCEDURAL HISTORY
Plaintiff initiated this civil action on December 22, 2014 in the United States District
Court for the District of Columbia. [#1-1]. Plaintiff, a Muslim, alleges that the BOP has
substantially burdened his exercise of religion in violation of the Religious Freedom Restoration
Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. See generally [id.; #3; #58]. The District
Court for the District of Columbia transferred this matter to this District on September 8, 2015.
See [#1]. Upon his transfer to this District, the court directed Mr. Chesser to file an Amended
and Second Amended Complaint.
See [#4; #20].
Plaintiff’s Second Amended Complaint
alleged four claims against Defendant. See [#22]. The Honorable Lewis T. Babcock dismissed
two of those claims as duplicative of claims in a separate federal lawsuit pending in the United
States District Court for the Southern District of Illinois, Chesser v. Walton, 3:12-cv-01198-JPGPMF (S.D. Ill.) (“Chesser I”), but directed that the two remaining claims be drawn to a presiding
judge. See [#24 at 4]. This action was then drawn to the undersigned Magistrate Judge and the
Parties consented to the jurisdiction of a magistrate judge. See [#25, #33].
On March 25, 2016, the court denied Plaintiff’s Motion to Reconsider the dismissal of
two of his four claims, but granted in part his Motion for Leave to Amend [#46]. See [#53].
Plaintiff filed his Third Amended Complaint (“TAC”), the operative pleading in this matter, on
June 9, 2016. [#58]. The TAC asserted two claims against Defendant for violations of RFRA:
the BOP’s policy of “holding inmates in solitary confinement due to their ties to terrorism”
(“Claim III”), and its conditions of confinement at the ADMAX United States Penitentiary in
Florence, Colorado (“ADX”) substantially burdens the exercise of Mr. Chesser’s sincerely held
religious beliefs (“Claim IV”). See [id.].
2
Defendant moved to dismiss the TAC on August 3, 2016. See [#67]. In ruling on the
Motion to Dismiss the court limited Claim III to its purported challenge to the BOP’s
consideration of Mr. Chesser’s ties to terrorism, including his purported association with
Jama’ah Ad-Da’wah As-Sahihah and his participation in religious activities—both allegedly
deemed terrorist-related by the BOP—as the primary justification for his transfer to ADX, but
allowed Claim IV to remain in its entirety. See [#86]; see also [#159 at 2 & n.1; #163].
The court then entered a Scheduling Order setting, among others, September 25, 2017 as
the deadline for discovery and October 27, 2017 as the deadline for dispositive motions. See
[#100]. Following several impasses with discovery the court granted the Parties’ request for a
120-day extension of the discovery and dispositive motions deadline, extending those deadlines
to January 23 and February 26, 2018, respectively.
See [#159].
Each party received an
additional extension of time to file their respective dispositive motions. See [#174; #179]. The
BOP filed its Motion for Summary Judgment on March 2, 2018 [#180] and Plaintiff his Second
Motion for Partial Summary Judgment on April 2, 2018 [#193]. The Motions are now ripe for
resolution.
LEGAL STANDARDS
I.
Summary Judgment
A party may be entitled to summary judgment prior to trial if “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter–Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge’s function’ at summary
judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
3
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine
dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement
to require submission to a jury or conversely, is so one-sided that one party must prevail as a
matter of law. Anderson, 477 U.S. at 248–49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). “Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289
(1968)).
The burden of showing that no genuine issue of material fact exists is borne by the
moving party. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). In
reviewing a motion for summary judgment, the court views all evidence in the light most
favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002). Where the moving party will bear the burden of proof on an issue at trial, it
must affirmatively demonstrate that no reasonable trier of fact could find other than for the
moving party. See Celotex Corp., 477 U.S. at 323. Once the moving party meets its initial
burden, the non-moving party must go beyond the pleadings and, by his own affidavits or
discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P.
56(e). The non-movant “may not rest upon mere allegation or denials of [the] pleadings, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S.
at 256. The court must resolve all doubts in favor of the existence of triable issues of fact.
Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
4
Cross motions for summary judgment are treated separately, and the denial of one does
not require the grant of another. Buell Cabinet v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).
Rather, the court may enter summary judgment only if the moving party carries its burden of
demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. See Reed v. Bennett, 312 F.3d 1190, 1194–95 (10th Cir. 2002). And because Mr.
Chesser proceeds pro se the court liberally construes his pleadings, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), but does not act as his advocate and applies the same procedural
rules and substantive law to Plaintiff as to a represented party, Murray v. City of Tahlequah, 312
F.3d 1196, 1199 n.2 (10th Cir. 2008).
II.
Summary Judgment Evidence
At summary judgment, credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge. But it is
well-settled that a court may consider only admissible evidence at summary judgment. Gross v.
Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995); accord Johnson v. Weld County
Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (disregarding hearsay on summary judgment when
proper objection to its use was before the court and no exception applied). The evidence need
not be in a form that is admissible at trial, e.g., affidavits are often inadmissible at trial on
hearsay grounds, but the substance must be admissible at trial. See Brown v. Perez, 835 F.3d
1223, 1232 (10th Cir. 2016). The court, however, “is not required to review large quanta of
evidence to ferret out inadmissible statements”—the “objecting party [must] make specific
objections detailing the specific evidence [he] wishes to have stricken and stating the specific
grounds upon which each piece of evidence should be stricken.” Tucker v. SAS Inst., Inc., 462 F.
Supp. 2d 715, 722 (N.D. Tex. 2006).
5
Mr. Chesser levies several challenges to the admissibility of Defendant’s summary
judgment evidence. See [#191 at 3–4; #191-1 at 1–2, 23–29]. I consider those objections below.
A.
Plaintiff’s Deposition Testimony and Discovery Responses
Mr. Chesser lodges three challenges to the use of his own statements. First, he asserts
that his views on perjury and a lie he told the FBI during his underlying criminal conviction are
irrelevant. [#191-1 at 24 (citing [#181-1 at 20:23–21:25,2 80:8–15, 85:14–21, 87:8–18, 89:2–
24])]. “The standard for relevancy is particularly loose under rule 401, because any more
stringent requirement is unworkable and unrealistic.” Landry v. Swire Oilfield Servs., L.L.C.,
323 F.R.D. 360, 395 (D.N.M. 2018) (brackets and internal quotation marks omitted). I find this
testimony relevant because it concerns Mr. Chesser’s beliefs—ones he falsely disclaimed—and
resulting behavior, which bear on the issues raised by the BOP’s Motion. See Fed. R. Evid. 401
(relevant evidence “(a) has any tendency to make a fact more or less probable than it would be
without the evidence;” and “(b) the fact bears on the outcome of the action.”).
Mr. Chesser next objects to the use of his deposition testimony and his discovery
responses concerning his influence on other terrorists as hearsay and impermissible lay opinion.
See [#191-1 at 24, 27]. While an out of court statement offered to prove the truth of the matter
asserted is inadmissible hearsay, see Fed. R. Evid. 801(c), Rule 32 of the Federal Rules of Civil
Procedure specifically allows an adverse party to use a deposition of an opposing party for “any
purpose.” Fed. R. Civ. P. 32. In addition, statements made by the declarant who is an opposing
party are not hearsay when used against the opposing-party-declarant. See Kansas City Power &
Light Co. v. United States, 132 Fed. Cl. 28, 45 (2017) (citing Fed. R. Evid. 801(d)); cf. Fed. R.
Civ. P. 33(c) (“An answer to an interrogatory may be used to the extent allowed by the Federal
2
In citing to a transcript, the court cites to the document number generated by the CM/ECF
system but the page and line numbers generated by the transcript.
6
Rules of Evidence.”). Thus, the objected-to statements, see [#181-1 at 292:20–293:7, 292:3–
293:20, #180-27 at 32–34], are not hearsay and are admissible.
With respect to Mr. Chesser’s arguments that his opinions regarding his influence are
inadmissible lay opinions, the court concludes that the BOP does not offer such testimony to
establish scientific, specialized, or technical knowledge. Rule 701 allows lay witnesses to testify
in the form of an opinion if the opinion is (1) rationally based on the witness’s perception;
(2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(3) is not based on scientific, technical, or other specialized knowledge within the scope of Rule
702. Fed. R. Evid. 701. And while this court is not necessarily persuaded by the BOP’s
argument that Mr. Chesser “has inspired many other terrorists,”3 I find that Mr. Chesser’s
self-perceptions of his personal influence are relevant to the issues at hand because they pertain
to Mr. Chesser’s motivations and actions and the appropriateness of the BOP’s response.
Indeed, “an admission of a party opponent needs no indicia of trustworthiness to be admitted.”
Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006).
B.
Declaration of David Jones
Mr. Chesser objects to David Jones’s Declaration [#180-2] on several grounds. He
insists that Mr. Jones has “no personal knowledge of anything which occurred in my prison” or
of his “prison conduct”; nor was Mr. Jones his Counter Terrorism Unit (“CTU”) analyst “until
after all the communications [Mr. Jones] mentions in his declaration.” [#191-1 at 1]. Mr.
Chesser also objects to the documents Mr. Jones relies on throughout his Declaration, arguing
that these documents are not business records maintained by the BOP, constitute inadmissible
hearsay or lay opinion on matters requiring an expert, or are irrelevant. See [id. at 24–26].
The BOP stated, “For the purposes of this motion, the BOP does not dispute Chesser’s claims
about his influence.” [#181 at 5 n.3].
3
7
To start, Mr. Chesser’s statements, even those out of court, are not hearsay as discussed
above. See Fed. R. Evid. 801(d)(2). Accordingly, those paragraphs that quote Mr. Chesser’s
statements from other documents are not objectionable hearsay, and the court will not strike
them as such. The same is also true of Mr. Chesser’s communications, even if he made those
communications prior to Mr. Jones’s monitoring of Plaintiff.
Regarding personal knowledge, declarations submitted in support of summary judgment
must be based on the declarant’s actual perception or observation of the events testified to, and
cannot consist of statements of mere belief. See Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1200 (10th Cir. 2006). Mr. Jones attests that he has been a BOP employee since
1996, a CTU Analyst since 2015, and assigned to monitor Mr. Chesser’s communications since
February 2017. [#181-2 at ¶¶ 1–4]. He further states that the basis for his declaration is his
personal knowledge and “information made known to be from official records reasonably relied
upon by me in the course of my employment.” [#181-1 at 1]. While Mr. Jones may not actually
work in any facility that housed Mr. Chesser, Mr. Jones’s testimony about Mr. Chesser’s prison
conduct is based on his review of several BOP documents. He declares, under penalty of
perjury, that all documents relied on “are true and correct copies of records maintained by the
[BOP] in the ordinary course of business.” [Id. at ¶ 3].
Though not explicitly stated, it is clear that the BOP offers Mr. Jones’s testimony as a
representative of the BOP. Courts considering the issue of whether Rule 56(c)(4)’s personal
knowledge requirement applies to Rule 30(b)(6) representative[s], however, have found that a
sworn affidavit from a corporate representative—and in this case a governmental official—may
be considered when relied on in a motion for summary judgment. Seifried v. Portfolio Recovery
Assocs., LLC, No. 12-CV-0032-JHP, 2013 WL 6185478, at *2 (E.D. Okla. Nov. 25, 2013)
8
(citations omitted) (considering Rule 30(b)(6) representative’s Declaration even if not based on
personal knowledge). And as discussed in detail below, Mr. Chesser’s contention that not all
documents are BOP business records is insufficient in light of Mr. Jones’s sworn testimony to
the contrary.
The first document Mr. Chesser takes issue with is a CTU Profile and Assessment of
Plaintiff, dated December 11, 2013. He argues it is not a BOP business record and not based on
personal knowledge. See [#191-1 at 1, 24]. But Mr. Jones states, under oath, “The Profile and
Assessment was prepared by CTU personnel, who conducted an exhaustive analysis of available
information about Chesser.” [#181-2 at ¶ 5]. Mr. Jones continues that he has “studied the
information and analysis contained in the Profile and Assessment” and relies on its analysis “in
monitoring and analyzing Chesser’s communications.” [Id. at ¶ 6]. Though Mr. Jones may not
have compiled the Profile and Assessment, Mr. Chesser’s objections go more to the weight of
Mr. Jones’s testimony, not its admissibility, because there is no dispute Mr. Jones reviewed the
Profile and Assessment and the document appears authentic. See Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1123–24 (10th Cir. 2005) (holding supervisor’s declaration was based on her
personal knowledge where she reviewed audits maintained by the company that she relied on
even if she did not compile the audits or understand the methodology used to compile them).
Moreover, the Profile and Assessment, if offered at trial, would be admissible under either Rule
802(d)(2) or Rule 803(6). Thus, Mr. Jones’s testimony concerning the Profile and Assessment is
based on his personal knowledge, and the court will not strike it.
A similar conclusion is warranted as to the Disciplinary Hearing Officer Reports, Warden
Walton’s ADX referral memorandum, BOP incident reports, and BOP documentation
concerning BOP procedures. Though Mr. Chesser is correct to assert that these documents
9
contain hearsay, his conclusory assertion that these documents were not maintained in the
ordinary course of business by the BOP is unfounded. There appears no dispute as to their
authenticity as each contains official BOP markings, is signed by BOP personnel, and were
disclosed in discovery. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir.
1991) (holding that documents prepared on company letterhead and disclosed during discovery
support authenticity of such documents).
Accordingly, these documents appear admissible
pursuant to Rule 803(6), and there is no reason to discredit Mr. Jones’s affirmation under oath
that he is familiar with these documents given his employment with the CTU.
It is less clear that the Senate Committee on Homeland Security and Governmental
Affairs Report relied on by Mr. Jones is properly a BOP business record for hearsay exception
purposes. See [#180-7; #180-8]. Indeed, the BOP did not compile the Report. However, Mr.
Jones’s use of this Report largely contains verbatim quotes made by Mr. Chesser. See, e.g.,
[#181-2 at ¶¶ 12, 13, 16, 23]. And it appears that the Report is appropriately considered under
the public records exception of the hearsay rule, given the fact that Mr. Chesser has not
persuasively challenged the reliability of the statements contained therein. Fed. R. Evid. 803(8).
Finally, nothing in Mr. Jones’s Declaration constitutes improper opinion testimony. See
Bryant, 432 F.3d at 1124. Rather, his testimony regarding Mr. Chesser’s Jihadist beliefs and
communications, his underlying criminal conviction, and the events leading to his transfer from
CMU Marion to ADX reflect Mr. Jones’s perception and knowledge of national security
concerns gleaned from the nature of his position with the BOP. See Fed. R. Evid. 701 advisory
committee’s note to 2000 amendments (noting that testimony based on the particularized
knowledge of the witness by virtue of his position does not constitute expert testimony based on
experience, training, or specialized knowledge within the realm of an expert); cf. Holder v.
10
Humanitarian Law Project, 561 U.S. 1, 33–34 (2010) (deferring to the Executive in matters of
“sensitive and weighty interests of national security”); Rezaq v. Nalley, 677 F.3d 1001, 1014
(10th Cir. 2012) (holding that segregation of inmates with ties to terrorist organizations “stem[s]
from a uniquely federal penological interest in addressing national security risks”). The court
will not strike Mr. Jones’s opinions regarding Mr. Chesser’s threat to national security.
C.
Declaration of David Christensen
Mr. Chesser lodges three main challenges to Associate Warden David Christensen’s
(“Associate Warden”) Declaration [#180-31]: it contains (1) conclusory assertions, (2) hearsay,
and (3) impermissible lay opinions on national security. See [#191 at 4, 5; #191-1 at 27–28].
First, declarations provided in support of a motion for summary judgment “must set forth
facts, not conclusory statements.” BancOklahoma Mortg. Corp. v. Capital Title Co., Inc., 194
F.3d 1089, 1101 (10th Cir. 1999).
Conclusory statements provide no probative value on
summary judgment. See Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990); see also
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (explaining that conclusory
statements are those based on speculation, conjecture, or surmise). The bulk of Plaintiff’s
objections assert that the Associate Warden’s declarations are conclusory, and appear to target
the Associate Warden’s statements regarding institutional and national security concerns. See
[#191-1 at 27–28].
The BOP does not address these objections.
Having reviewed the
objected-to paragraphs, the court finds that Mr. Chesser’s concerns go to the weight of the
evidence, not its admissibility.
Regarding hearsay, several of Mr. Chesser’s objections do not expound on why the
Associate Warden’s statements contain inadmissible hearsay. He appears to insinuate that the
statements about him are out-of-court statements from others. But this does not appear to be so.
11
Moreover, his argument also appears to place form over substance; even if the Associate
Warden’s Declaration itself would be inadmissible at trial, his statements based on personal
knowledge of Mr. Chesser would be admissible were he to testify. See Brown, 835 F.3d at 1232.
Lastly, the court will not strike the Associate Warden’s statements concerning national
security as improper lay opinion testimony. I conclude that the testimony is not based on any
scientific, technical, or specialized knowledge but, rather, on the Associate Warden’s
particularized knowledge by virtue of his position within the BOP. See Fed. R. Evid. 701
advisory committee’s note to 2000 amendments. See also Holder, 561 U.S. at 33–34; Rezaq,
677 F.3d at 1014.
D.
Declaration of John Oliver
The BOP retained John Oliver as an expert under Rule 26(a)(2)(B) of the Federal Rules
of Civil Procedure in the field of correctional security and correctional management, given his
specialized knowledge in these fields. See [#180-37 at ¶ 1]. Mr. Chesser objects to four
paragraphs in Mr. Oliver’s Declaration.
Rule 702 of the Federal Rules of Evidence permits:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
12
Fed. R. Evid. 702. Though not framed as a Rule 702 challenge, I find it appropriate to consider
Mr. Chesser’s objections with that Rule and the court’s gatekeeper functions in mind. It is well
established that trial courts are charged with the gatekeeper responsibility of ensuring expert
testimony or evidence is admitted only if such is relevant and reliable. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147–152 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 588–89 (1993). To fulfill that gatekeeper function, courts within this Circuit conduct a
two-part inquiry. The court first considers whether the expert’s proffered testimony has a
reliable basis in the knowledge and experience of his or her discipline by conducting a
preliminary inquiry into the expert’s qualifications and the admissibility of the proffered
evidence. In other words, the court asks whether the reasoning or methodology underlying the
testimony is valid. Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1082 (D. Colo. 2006)
(citing Butler v. A.O. Smith Corp., 400 F.3d 1227, 1232–33 (10th Cir. 2004)). The court then
considers whether the proposed testimony is sufficiently relevant to the issues presented to the
factfinder. See id. The party offering the expert opinion bears the burden of establishing its
admissibility, including the foundational requirements, by a preponderance of the evidence.
United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F.
Supp. 2d 1217, 1220 (D. Colo. 2008).
First, Plaintiff objects to the conclusions drawn by Mr. Oliver in paragraph 13, but his
disagreement goes to the weight, not admissibility, of Mr. Oliver’s opinion and is not a sufficient
basis for striking this paragraph. See Jaffrey v. PorterCare Adventist Health Sys., No. 15-CV02297-NYW, 2017 WL 5624572, at *5 (D. Colo. Nov. 22, 2017). Second, Mr. Chesser contends
that paragraph 15 is conclusory and unsubstantiated by evidence; however, Mr. Oliver supports
paragraph 15 with his “27 years of experience in the field of correctional management, including
13
23 years of experience in facilities operated by the BOP[]” with positions as Complex Warden of
ADX and USP Florence. See Heineman v. Am. Home Prod. Corp., No. 13-CV-02070-MSKCBS, 2015 WL 1186777, at *3 (D. Colo. Mar. 12, 2015). Third, Mr. Chesser asserts that
paragraph 19 is speculative, but a review of this paragraph again reveals that Mr. Oliver relies on
past experiences to support his assertion that the appearance of a preference towards certain
inmates can create hostility. Finally, Plaintiff objects to paragraph 23 because it is a legal
conclusion and its assertions that Plaintiff is safest in his range are unsubstantiated. But again,
Mr. Oliver’s opinions are that of a specially-retained expert, and the court’s analysis must focus
upon his methodology, rather than the conclusions it generates. Dodge v. Cotter Corp., 328 F.3d
1212, 1222 (10th Cir. 2003).
Mr. Chesser raises no legitimate challenge to Mr. Oliver’s
background, expertise, or qualifications as an expert witness; rather, he simply takes issue with
the opinions Mr. Oliver renders. [#191-1 at 28].
E.
Declaration of Jason Henderson
Mr. Chesser objects to several paragraphs in the Declaration of Jason Henderson,
Supervisory Chaplain at FCC Florence.
See [#180-38].
First, Mr. Chesser asserts that
paragraphs 20 and 24 are conclusory. Each concerns Mr. Chesser’s administrative grievances
regarding religious studies. The court will not strike these paragraphs as conclusory as each
appears supported by factual assertions.
Next, Mr. Chesser argues that paragraphs 27 and 28 contain “fragrant lie[s]” about his
religious privileges in the B/B Unit. [#191-1 at 28]. He bases this contention on his assertion
that Chaplain Henderson cancelled all religious classes and sermons after reading Mr. Chesser’s
deposition testimony wherein Mr. Chesser admits to conducting these activities without specific
authorization. See [#193-20; #186-1]. Indeed, Chaplain Henderson confirms that he ordered Mr.
14
Chesser to cease “preaching to or teaching other inmates,” not that he wholly forbade Mr.
Chesser from ever doing so. See [#198-3 at ¶¶ 4, 7]. But the court’s role on summary judgment
is not to determine the credibility of the witnesses; it is to determine whether there is a genuine
issue for trial. See Anderson, 477 U.S. at 249. Thus, merely because Mr. Chesser disputes these
assertions is not a basis to strike the paragraphs, but the court will consider such assertions in
determining whether a genuine dispute of fact exists as to his religious privileges in the B/B
Unit.
Finally, Mr. Chesser seeks to strike several paragraphs that he claims contain
impermissible lay opinions on penological matters requiring an expert. These paragraphs largely
concern the security risks associated with providing Mr. Chesser the amount and extent of
religious accommodations he requests, including the appearance that he is receiving preferential
treatment and that he has the ability to flout BOP policies on religious gatherings. See [#180-36
at ¶¶ 31–38]. As before, given Chaplain Henderson’s position within the BOP, I conclude that
these assertions are based on his personalized knowledge particular to his position and I will not
exclude them as impermissible lay opinions. See Fed. R. Evid. 701 advisory committee’s note to
2000 amendments.
With the evidentiary disputes resolved, the court now turns to the merits of the Parties’
cross-motions.
UNDISPUTED MATERIAL FACTS
The following facts, drawn from the record before the court, are undisputed unless
otherwise noted. Mr. Chesser is a federal prisoner currently incarcerated at ADX. See [#1-1;
#58 at ¶ 5; #180-4 at 2; #181-2 at ¶ 9]. As a Muslim, Plaintiff observes the religion of Islam, and
“decided to be Sunni, Salafi, Hanbali, and Jihadi, all before [his] arrest and [he] continue[s] to
15
hold all of these beliefs and approaches.” [#193-1 at p.11, ¶ 6]; see also [#181-1 at 361:7–8 (“I
pretty much have the same beliefs I did [before entering prison].”). Mr. Chesser believes that his
faith requires several religious gatherings and interactions with fellow Muslims; these include
eight (8) daily prayers led by an imam and requiring “physical contact” with “as many Muslims
as possible in one’s area”, religious classes, gatherings of religious remembrance, religious
celebrations, and interactions to promote spiritual and communal well-being—the time for
performing each varies depending on the day or the nature of the prayer/gathering. See [#193-1
at p.11, ¶ 7 & p.13, ¶ 10]; see also [id. at pp. 12–32; #180-27 at 5–29; #193-2 at 1–10; #193-4
(detailing the nature of Plaintiff’s beliefs)]. According to Plaintiff, he “should spend about 10 to
14 hours each day engaged in a variety of interactions with [his] fellow Muslims.” [#193-1 at p.
12, ¶ 8].
Plaintiff also subscribes to Jihadism, see [#181-1 at 87:15–16, 141:5–10, 282:5–7], which
he describes as an Islamist militant movement “mandated by Islam.” [#181-1 at 141:12]. Within
two years of converting to Islam Mr. Chesser’s Jihadist beliefs became extreme. He began
developing and utilizing social media websites (i.e., Facebook, Twitter, and YouTube) to
promote and encourage violent Jihadist acts, including threatening the creators of the television
series South Park and coining the term “Open Source Jihad”—a strategy that promotes
“inspired” or “decentralized” acts of terrorism by Westerners “without overseas direction.” See,
e.g., [#180-6 at ¶¶ 3–31, 35–39, 42–44, 46–48; #180-9; #180-27 at 32–34; #181-1 at 292:20–
293:18, 305:4–9; #181-2 at ¶ 5; #181-3; #181-4; #181-5; #193-18 at 3–6]. Mr. Chesser sought to
influence others with his social media posts and communications, testifying that he influenced
several notable domestic terrorist attacks “as well as virtually every terrorist plot in the West
since July 2010[.]” [#180-27 at 32–33]; see also [#19-1 at 1 (“My criminal history is notorious”
16
(emphasis in original)); #181-1 at 292:20–293:18; #181-15]. In July 2010 Federal Bureau of
Investigation agents apprehended Mr. Chesser at John F. Kennedy Airport attempting to board a
flight to Uganda with an ultimate destination of Somalia to aid a designated terrorist organization
Al-Shabaab.
See [#180-6 at ¶ 50].
On October 20, 2010, Mr. Chesser pleaded guilty to
communicating threats, soliciting others to threaten violence, and providing material support to
terrorists and terrorist organizations. See [#1-1; #58 at ¶ 5; #180-4 at 2; #181-2 at ¶ 9].
Beginning around May 2, 2011, the BOP housed Mr. Chesser at the Communication
Management Unit at USP Marion, Illinois (“CMU Marion”). See [#67-3 at ¶ 9; #67-4 at 2;
#180-10 at 3; #180-32 at 3; #180-39 at 3; #181-2 at ¶ 24]. “[A] CMU is a general population
housing unit where inmates ordinarily reside, eat, and participate in all educational, recreational,
religious, visiting, unit management, and work programming, within the confines of the CMU.”
[#67-3 at ¶ 9]; see also [#181-2 at ¶ 25; #193-6 at 2]. Inmates receive roughly 16 hours of “outof-cell time every day, from approximately 6 a.m. to approximately 9:15 p.m.,” during which
they are completely “unrestrained” and in direct contact with other inmates and BOP personnel.
See [#181-2 at ¶ 25; #193-6 at 7–9]. CMUs also provide the BOP with the ability to monitor all
non-legal communications between inmates and the community. See [#181-2 at ¶ 12; #193-6 at
2].
Mr. Chesser received seven (7) incident reports for violations of jail policy at CMU
Marion. Although he disputes the nature/severity of his underlying conduct, see generally
[#193-1; #193-2], it is undisputed he received the following incident reports:
•
four (4) incident reports, dated November 3, 2011 to September 17, 2012, for being in an
unauthorized area/participating in an unauthorized meeting or gathering, see [#67-3 at ¶
10; #67-5 at 3–4; #67-6 at 9; #67-11 at 4; #181-2 at ¶ 51; #181-5 at 3; #193-1 at p. 18
¶ 25, p. 19 ¶ 28; #193-2 at ¶ 101; #193-5 at 2–5];
17
•
one (1) incident report, dated August 14, 2013, for assaulting a fellow inmate, see [#67-3
at 10; #67-5 at 2; #67-6 at 9; #67-7 at 2–5; #180-19 at 2–5; #181-1 at 165:1–3; #181-2 at
¶ 42; #181-4 at 1; #193-2 at ¶102; #193-7 at 2–5];
•
one (1) incident report, dated December 4, 2013, for “extorting/blackmail/protecting”
regarding an email Mr. Chesser sent to CMU Marion personnel about the purported
safety of an inmate at CMU Marion and his suggestion that the inmate would be safe if
BOP personnel dropped a second inmate’s proposed transfer to ADX, see [#67-3 at ¶ 10;
#67-5 at 2; #67-6 at 9; #67-9 at 2–8; #180-22 at 2–5; #181-2 at ¶¶ 44–45, 47; #181-4 at 2;
#193-2 at ¶ 103; #193-10 at 2–5]; and
•
one (1) incident report, dated December 5, 2013, for “possessing a non-hazardous tool,”
i.e., instructions for a cypher key to communicate in code, see [#67-3 at ¶ 10; #67-5 at 2;
#67-6 at 9; #67-8 at 2–3; #181-2 at ¶ 49; #181-14 at 2–3; #193-2 at ¶ 104; #193-12 at 2–
3].
The BOP placed Mr. Chesser on administrative detention status at CMU Marion following his
two incident reports in December 2013. See [#67-14 at 2; #193-1 at ¶ 4]; see also [#67-3 at ¶¶
20–22; #67-13 at 2–3].
On December 19, 2013, former CMU Marion Warden J.S. Walton referred Mr. Chesser
for placement at ADX due to institutional security and safety concerns, citing Mr. Chesser’s
violations of CMU Marion policies, his purported intent to continue to violate jail policies he did
not agree with because they violated his religious beliefs, his encouragement of other inmates to
violate jail policies, and his “radicalized Islamic philosophy”, among others, as reasons for the
referral. See [#67-11; #180-20; #181-2 at ¶¶ 33–37, 52, 55–59; #193-2 at ¶105; #193-13]; see
also [#67-3 at ¶ 13; #180-24 at 3, 4 (listing several factors for ADX referral); #181-3 through
#181-5; #181-6 through #181-13 & #181-15 (discussing his Jihadist beliefs); #191-1 at 7–8
(stating he has openly “advocated jihad” at CMU Marion, ADX General Population, and ADX
Step-Down Program)]. Mr. Chesser received a hearing regarding his ADX referral on April 9,
2014. See generally [#180-25; #181-2 at ¶ 60]. Despite Mr. Chesser’s written statements and
evidence challenging his referral, the Hearing Administrator concluded Mr. Chesser met both
18
criteria for placement in the ADX—his conduct posed a risk to CMU Marion security and order
and his status made general population unsafe. See [#180-25 at 3]. The Hearing Administrator’s
report continued with a summation of Mr. Chesser’s underlying conviction and his CMU Marion
incident reports. See [id. at 3–10]. “The Assistant Director of the BOP’s Correctional Programs
Division approved [Mr.] Chesser for placement in the ADX on April 30, 2014.” [#181-2 at
¶ 60]; see also [#180-26 at 2]. The BOP transferred Plaintiff to ADX on June 12, 2014. See
[#67-3 at ¶ 16; #67-4 at 1; #180-31 at ¶ 6; #193-1 at p.10 ¶ 4; #193-14 at 2].
“The ADX is the most secure prison in the federal system, housing less than 0.3% of all
[BOP] inmates”—inmates that require “an uncommon level of security.” [#180-31 at ¶ 6]; see
also [#180-33 at 2–5; #180-37 at ¶¶ 4, 8–9; #193-1 at 22–27 (detailing restrictions at ADX)].
The BOP specifically designed the ADX’s security and control procedures to facilitate its
mission of managing and progressing some of the most dangerous federal inmates from its most
restrictive conditions of confinement to placement in less-restrictive or open-population
institutions.
See [#180-31 at ¶ 6; #180-37 at ¶¶ 3–13].
Notwithstanding these protocols,
inmate-on-inmate and inmate-on-staff violence is not uncommon. See [#180-37 at ¶ 12].
Mr. Chesser spent approximately two-and-one-half years in ADX General Population.
See [#180-31 at ¶ 8; #193-1 at p.10 ¶¶ 4–5]. In ADX General Population Mr. Chesser occupied a
single-inmate cell that did not provide meaningful ways to communicate with others outside his
cell. See [#193-1 at p.24 ¶ 50]. Inmates in ADX General Population receive two hours of
recreation time five days per week; recreation alternates between indoor and outdoor, but in most
instances, inmates do not have direct contact with one another. See [id. at 25–27; #180-33 at 3–
4]. As an ADX General Population inmate Mr. Chesser had limited interactions with other
Muslim inmates and could not perform religious prayers, classes, gatherings, celebrations, or
19
interactions, as required by his religion, with a group of Muslims. See [id. at 31–32; #193-2 at
1–4]. BOP policy prohibits congregate religious services at the ADX. See [#67-15 at 4 (“No
congregate services will be conducted at the ADX.”)].
The BOP approved Mr. Chesser for placement in the ADX Step-Down Program on
January 17, 2017. See [#180-31 at ¶ 8; #180-33 at 5; #193-1 at p.10 ¶ 5]. The Step-Down
Program is “the primary way in which the [BOP] achieves [its] mission of cycling inmates back
to open-population institutions.” See [#180-31 at ¶ 7]. It consists of four distinct steps, each
with the goal of preparing an inmate for less-restrictive conditions of confinement, and
advancement through the program requires an inmate to meet several conduct-related objectives.
See [#180-33 at 8–10].
Mr. Chesser has advanced from the Intermediate Phase to the
Transitional Unit (“B/B Unit Phase 1”) to the Pre-Transfer Unit (“B/B Unit Phase 2”)
(collectively, “B/B Unit”). See [#180-31 at ¶¶ 9–10; #180-33 at 5–10; #193-2 at 4–10; #199-2 at
¶ 3]. Inmates receive more out-of-cell recreation time at each phase, and have unrestrained
contact with the other inmates housed in their range. See [#180-31 at ¶¶ 12–14; #180-33 at 5–8].
Currently, two other inmates in Mr. Chesser’s range identify as Muslim, and Mr. Chesser
can engage in group prayer/gatherings with these inmates in a designated room during indoor
recreation, see [#180-36 at 2], or in the outdoor recreation yard. See [#180-31 at ¶¶ 12–14, 16–
18, 23; #180-35; #180-36 at 2; #181-1 at 185:16–22, 186:2–11, 203:8–12, 223:6–14, 224:4–6,
230:11–13 (“there’s no particular restriction on what I do when I’m outside my cell.”), 248:6–
249:25, 254:3–24; #193-1 at p. 19, ¶ 26 (“since coming to B/B Unit, I have led the ‘Id Prayer,
Salah Al-Jumu’ah and As-Salawah Al-Maktubah whenever feasible.”); #193-2 at ¶ 86
(“Religious gatherings are allowed.”), ¶ 87 (“Because there is no ban on religious gatherings in
B/B Unit, I am able to engage in group prayer at recreation.”); #198-3 at ¶ 2]. Despite the
20
increases in out-of-cell time and contact with Muslim inmates, Mr. Chesser maintains that he
cannot perform his religious prayers, classes, gatherings, and interactions in the manner
prescribed by his religious beliefs, i.e., for 10 to 14 hours per day with as many as Muslim
inmates as possible.
See generally [#193-2 at 4–10]; see also [#181-1 at 186:22–187:14
(testifying that he must perform his morning prayer alone in his cell because he is not released
for recreation), 223:6–14, 224:4–6, 248:6–249:25, 254:3–24; #186-1 at ¶¶ 1–4 (attesting that the
BOP banned Friday group prayers in the B/B Unit Phase 1 in addition to all classes or
gatherings)]. The BOP considered transferring Plaintiff to a CMU but determined that such a
placement was not warranted; he currently remains in the ADX Step-Down Program in B/B Unit
Phase 2. See [#193-22 at 4; #199-2 at ¶ 3].
ANALYSIS
I.
The Religious Freedom Restoration Act, 28 U.S.C. § 2000bb-1 et seq.
“The genesis of [] RFRA lies in a protracted exchange between the Supreme Court and
Congress over the proper standard to apply when reviewing laws that burden religion.” United
States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011). Congress enacted RFRA in 1990 in
response to the United States Supreme Court’s holding in Employment Division v. Smith, 494
U.S. 872 (1990) that neutral laws of general applicability burdening the exercise of religion are
subject to rational-basis scrutiny.
Thus, § 2000bb–1(a) of RFRA provides that the
“[g]overnment shall not substantially burden a person’s exercise of religion.”
42 U.S.C.
§ 2000bb–1(a); accord Holt v. Hobbs, 135 S. Ct. 853, 860 (2015) (observing that the Religious
21
Land Use and Institutionalized Persons Act (“RLUIPA”) permits state prisoners “to seek
religious accommodations pursuant to the same standard as set forth in RFRA.”).4
“[A] plaintiff establishes a prima facie claim under RFRA by proving the following three
elements:
(1) a substantial burden imposed by the federal government on a (2) sincere
(3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). “The burden
then shifts to the government to show that the ‘compelling interest test is satisfied through
application of the challenged law ‘to the person’—the particular claimant whose sincere exercise
of religion is being substantially burdened.’” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1126 (10th Cir. 2013) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 420 (2006)). The government must also establish that the substantial
burden “is the least restrictive means” of furthering that interest. Yellowbear v. Lampert, 741
F.3d 48, 56 (10th Cir. 2014).
Neither Party truly disputes that Mr. Chesser has demonstrated a substantial burden on
his sincerely held religious beliefs. Even still, the court has assured itself by review of the record
before it that Mr. Chesser has established a prima facie RFRA claim. E.g., Small v. Lehman, 98
F.3d 762, 767 (3d Cir. 1996) (deeming that the denial of congregate worship “may amount to a
substantial burden on the exercise of [] religion.”), overruled on other grounds by City of Boerne
v. Flores, 521 U.S. 507 (1997). The court’s inquiry therefore focuses on the BOP’s assertion
that the restrictions on Mr. Chesser’s sincerely held religious beliefs are the least restrictive
means of furthering its compelling interests. In this regard, the “court does not consider the
prison regulation in its general application, but rather considers whether there is a compelling
For this reason, I also look to RLUIPA precedent in evaluating Mr. Chesser’s RFRA claim.
See Dobson v. Sebelius, 38 F. Supp. 3d 1245, 1254 (D. Colo. 2014) (noting the “substantial
burden standard is the same” for RFRA and RLUIPA).
4
22
government reason, advanced in the least restrictive means, to apply the prison regulation to the
individual claimant.” Kikumura, 242 F.3d at 962 (emphasis added); see also id. (explaining that
this inquiry is stricter than the more deferential inquiry under Turner v. Safley, 482 U.S. 78, 89
(1987)).
Compelling interests are “‘only those interests of the highest order.’” United States v.
Hardman, 297 F.3d 1116, 1127 (10th Cir. 2002) (listing examples of compelling interests)
(quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)). At summary judgment, the BOP must
come forth with evidence of the existence of a compelling interest; a simple declaration of a
compelling interest is insufficient. See Yellowbear, 741 F.3d at 59 (“[T]he deference this court
must extend to the experience and expertise of prison administrators does not extend so far that
prison officials may declare a compelling governmental interest by fiat.”). “This is not to say,
however, that prison officials do not have a compelling interest under RFRA in maintaining
institutional safety and order.” Kikumura, 242 F.3d at 962; see also Cutter v. Wilkinson, 544
U.S. 709, 722 (2005) (“We do not read RLUIPA to elevate accommodation of religious
observances over an institution’s need to maintain order and safety.”). Whether an interest
qualifies as compelling is a question of law.
But even if the BOP can establish a compelling interest in restricting Mr. Chesser’s
sincerely held religious beliefs, it must also “demonstrate that there are no feasible
less-restrictive alternatives.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012).
This burden is two-fold: the government “must support its choice of regulation, and it must
refute the alternative schemes offered by the challenger, but it must do both through the evidence
presented in the record.”
Wilgus, 638 F.3d at 1289 (emphasis added); accord Fowler v.
Crawford, 534 F.3d 931, 940 (8th Cir. 2008) (noting, “[i]t would be a herculean burden to
23
require prison administrators to refute every conceivable option in order to satisfy the least
restrictive means prong of RFRA.” (citation and internal quotation marks omitted)).
With this framework in mind, the court considers Plaintiff’s two RFRA claims.
II.
The Transfer to ADX - Claim III
As interpreted by the court, Claim III asserts that the BOP’s consideration of Mr.
Chesser’s association with Jama’ah Ad-Da’wah As-Sahihah (“JDS”) and his organization of
Islamic group prayer (his so-called “ties to terrorism”) were the primary justifications for his
transfer to ADX in violation of his sincerely held religious beliefs. See, e.g., [#86; #149; #159;
#163]. Only Defendant moves for summary judgment on Claim III. See [#181 at 32–24]. Mr.
Chesser must therefore demonstrate, with all reasonable inferences drawn in his favor, a genuine
dispute of fact that his transfer violated RFRA. See Celotex Corp., 477 U.S. at 323. This Mr.
Chesser fails to do. E.g., [#191 at 10 n.4, 19–20 (explaining that he is pursuing Claim III only to
preserve his right to appeal the court’s limiting of it, and will not pursue Claim III at trial)].
To start, the BOP retains sole authority and discretion over inmate housing designations.
See 18 U.S.C. § 3621(b); 28 C.F.R. § 0.96(c) (delegating to the BOP the designation of places of
imprisonment or confinement). Indeed, courts do not have authority to designate an inmate’s
place of imprisonment.
See United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995)
(concluding sentencing court “has no authority to order that a convicted defendant be confined in
a particular facility” because that decision was “within the sole discretion of the [BOP].”); Foy v.
United States, 285 F.R.D. 407, 410 (N.D. Iowa 2012) (same). Courts have consistently held that
once the BOP assumes custody of a prisoner, the court has no authority to designate a place of
imprisonment. Foy, 285 F.R.D. at 410. But it seems to this court that it can review whether the
BOP, in exercising its discretion, violated RFRA, even if it cannot specifically order the BOP to
24
place Plaintiff in a particular facility. Cf. Aref v. Lynch, 833 F.3d 242, 252 (D.C. Cir. 2016)
(entertaining a challenge to the BOP’s procedures for CMU placement). And the court further
notes that the BOP itself does not argue that Plaintiff fails to state a cognizable claim as a matter
of law.
After review of the record, I conclude that the undisputed evidence reveals that the BOP
did not consider Mr. Chesser to be a member of, or otherwise associated with, JDS. See [#181-2
at ¶ 63]. Plaintiff’s response does not dispute this fact; he instead relies on inadmissible hearsay
that unidentified persons told him he was in ADX because of his involvement with JDS and his
speculation that the BOP’s conclusions in this regard were the product of his relationship with
another inmate that was, in fact, transferred to ADX for his recruitment of members to JDS. See
[#191-1 at p.11, ¶ 23 & p.18]. And, it is also undisputed that Plaintiff’s organization of group
prayer was not the second motivating factor for his transfer to ADX. Rather, his unauthorized
organization of group activities was but one of several incidences of misconduct at CMU Marion
that contributed to his transfer to ADX. See, e.g., [#67-5; #67-7; #67-9; #180-19; #180-20;
#180-22; #180-24; #180-25]. Mr. Chesser’s attempts to dispute the conduct giving rise to his
seven (7) incident reports does not create a dispute of fact that he received such reports for
violating CMU Marion rules, and the BOP could properly consider his behavior in the transfer
decision.
On this record I find that the BOP had a compelling interest in transferring Mr. Chesser
to ADX to promote and maintain institutional security at CMU Marion. Mr. Chesser makes
much of the notion that the BOP’s asserted national security interests are post-hoc rationales for
transferring him to ADX. See [#193 at 10–12]. The court is not persuaded that this is so, as the
undisputed evidence reveals that the BOP transferred Mr. Chesser to ADX based on its
25
determination that he satisfied the criteria for such placement, which included, among others,
those inmates convicted of terrorist-related offenses and who “present national security
management concerns.” [#67-3 at ¶¶ 11–12; #67-10 at 3 (emphasis added)]. Nor does it appear
that Defendant was less than forthcoming in discovery regarding the security concerns Mr.
Chesser posed. But even if the court were to disregard any national security interests, it would
still find institutional security as a compelling interest for transferring Plaintiff to ADX. See
Kikumura, 242 F.3d at 962; cf. Hale v. Fed. Bureau of Prisons, No. 14-CV-0245-MSK-MJW,
2018 WL 1535508, at *12–15 (D. Colo. Mar. 28, 2018) (holding the BOP had a compelling
interest in maintaining institutional security by restricting the plaintiff’s mail access given his
involvement with Creativity, a religious group designated a security threat by the BOP).
I also find that no less-restrictive means existed given Mr. Chesser’s conduct at CMU
Marion. And the court will not second-guess the BOP’s exercise of discretion on this matter,
especially considering Plaintiff’s representations that he would not pursue Claim III at trial.
Accordingly, the court GRANTS summary judgment in favor of Defendant on Claim III.
III.
The Conditions of Confinement - Claim IV
Claim IV challenges the conditions of confinement at ADX as substantially burdening
Mr. Chesser’s sincerely held religious beliefs. Both Parties move for summary judgment on this
claim. Because it is undisputed that Mr. Chesser establishes a prima facie RFRA claim, the
question then becomes whether the BOP has demonstrated that its restrictions on Mr. Chesser’s
sincerely held religious beliefs are the least restrictive means of furthering its compelling
interests.
But before reaching this question I must first address the Parties’ arguments
implicating the court’s subject matter jurisdiction. See United States v. Springer, 875 F.3d 968,
973 (10th Cir. 2017) (“Jurisdiction is a threshold question that a federal court must address
26
before reaching the merits” (internal quotation marks omitted)). And because Defendant raises
an exhaustion argument, and exhaustion is a prerequisite to suit, I must also address that
contention before considering the merits of Claim IV. See Fitzgerald v. Corr. Corp. of Am., 403
F.3d 1134, 1141 (10th Cir. 2005) (explaining that “the plain language of the statutory text [of the
Prison Litigation Reform Act] does not allow the court to skip ahead to the merits of the suit,”
except in limited circumstances).
A.
Mootness - ADX General Population
Mootness is a threshold issue as federal court jurisdiction depends on a live case or
controversy—without a live, concrete controversy, the court cannot consider the plaintiff’s
claim(s) no matter how meritorious. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1110 (10th Cir. 2010).5 “If an intervening circumstance deprives the plaintiff of a
personal stake in the outcome of the lawsuit, at any point during litigation, the action can no
longer proceed and must be dismissed as moot.” Brown v. Buhman, 822 F.3d 1151, 1165 (10th
Cir. 2016) (internal quotation marks omitted). The inquiry focuses on whether the court’s
determination of the issues will have “some effect in the real world,” which is especially true in
actions for prospective relief. Wyoming v. U.S. Dep’t of Argic., 414 F.3d 1207, 1212 (10th Cir.
2005) (internal quotation marks omitted). “When prospective equitable relief is requested, the
requesting party must show an ongoing, personal stake in the outcome of the controversy, a
5
In addition to constitutional mootness, courts may exercise their discretion to not grant the
declaratory or injunctive relief sought despite having the power to do so. See S. Utah Wilderness
All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997) (noting that prudential mootness applies in
circumstances that are “so attenuated that conditions of prudence and comity for coordinate
branches of government counsel the court to stay its hand,” as in when the plaintiff seeks an
injunction against the government). Defendant argues prudential mootness as an alternative to
constitutional mootness, see [#199 at 10–11], but because the court concludes that Claim IV is
constitutionally moot as to the portions challenging ADX General Population, it does not address
Defendant’s prudential mootness arguments.
27
likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at
law.” Rezaq, 677 F.3d at 1008. Because of its jurisdictional nature, parties may raise mootness
at any stage of the proceedings, Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir.
2015), and courts may raise it sua sponte, McClendon v. City of Albuquerque, 100 F.3d 863, 867
(10th Cir. 1996).
There are exceptions to mootness, however. Two are relevant here. One concerns the
defendant’s voluntarily cessation of the challenged conduct for purposes of evading judicial
review but which the defendant is free to continue at any time. See Chihuahuan Grasslands All.
V. Kempthorne, 545 F.3d 884, 892 (10th Cir. 2008). The defendant bears the “formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)
(internal quotation marks omitted). The second applies where “(1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration; and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action again.”
Ghailani v. Sessions, 859 F.3d 1295, 1301 (10th Cir. 2017) (citations and internal quotation
marks omitted). Contrary to the voluntary cessation exception, where the BOP bears the burden,
Mr. Chesser bears the burden of proving both elements of the capable of repetition yet evading
review exception. Al-Owhali v. Holder, 687 F.3d 1236, 1242 (10th Cir. 2012). I consider each
exception in turn.
Voluntary Cessation: Mr. Chesser argues that no portion of Claim IV is moot, including
his challenges to the conditions at ADX General Population. This is because Defendant has not
and cannot meet the formidable burden of establishing that its illegal conduct could not
reasonably be expected to recur by merely progressing him through the ADX Step-Down
28
Program. See [#191 at 2, 19; #193 at 30–31; #207 at 1, 7–9]. He maintains that Defendant could
send him back to ADX General Population at any time because he still satisfies the criteria for
placement in ADX General Population. See [#191 at 19; #193 at 31; #207 at 8, 9].
The BOP contends that the voluntary cessation exception does not apply because of Mr.
Chesser’s transfer to the B/B Unit. See [#199 at 9]. But even if it did apply, it has not
voluntarily ceased its ADX General Population prohibition on congregate prayer and Plaintiff
will not return to ADX General Population. See [#199 at 9–10; #199-2 at ¶ 5]. The court agrees
with Defendant that the voluntary cessation exception is inapplicable.
Here, Mr. Chesser seeks a declaration that the conditions at ADX violate his sincerely
held religious beliefs in violation of RFRA and injunctive relief righting those alleged wrongs at
ADX. See generally [#58]. But “[w]here the prisoner’s claims for declaratory or injunctive
relief relate solely to the conditions of confinement at the penal institution at which the prisoner
is no longer incarcerated, courts have concluded that they are unable to provide the prisoner with
effective relief”, rendering the claim(s) moot. Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir.
2011) (footnote omitted) (collecting cases). Indeed, the purpose of declaratory and injunctive
relief is to have some effect on the defendant’s conduct toward the plaintiff, not “simply the
satisfaction of a declaration that a person was wronged.” Cox v. Phelps Dodge Corp., 43 F.3d
1345, 1348 (10th Cir. 1994); see also Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997)
(finding as moot claims against a former prison institution because a declaratory judgment would
“amount to nothing more than a declaration that [the plaintiff] was wronged, and would have no
effect on the defendant’s behavior towards him.”).
Mr. Chesser is correct to note that he is not merely suing individuals at a previous
institution but the Director of the BOP—a sometimes important distinction. “[W]here a prisoner
29
brings a lawsuit challenging policies that apply in a generally uniform fashion throughout a
prison system, courts have been disinclined to conclude that the prisoner’s declaratory or
injunctive claims are moot, even after he has been transferred to another prison in that system.”
Jordan, 654 F.3d at 1028 (emphasis added) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301,
1312 (10th Cir. 2010) (concluding that the plaintiff’s RLUIPA challenge to uniform correctional
policies was not moot where the plaintiff sued the director of the correctional department and the
plaintiff remained in the defendant’s custody despite transferring institutions)). Certainly, the
Director of the BOP, defendant here, has the authority to craft the relief Mr. Chesser seeks. The
problem, however, is that Mr. Chesser challenges an institution-specific policy, i.e., the
prohibition of all congregate religious worship at ADX General Population. See [#67-15 at 4
(“No congregate services will be conducted at ADX.” (emphasis added))]. Any declaratory or
injunctive relief would therefore have no effect on Defendant’s conduct toward Plaintiff, Jordan,
654 F.3d at 1033—a point discussed below.
Capable of Repetition Yet Evading Review: As mentioned, this exception applies where
the conduct at issue is too short in duration to be fully litigated before its expiration, and “there is
a reasonable expectation” the plaintiff will be subject to the same conduct again. Fleming v.
Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015). This exception, however, is narrow and applies
only in “exceptional situations.” Wyoming v. U.S. Dep’t of the Interior, 674 F.3d 1220, 1229
(10th Cir. 2012); cf. Roe v. Wade, 410 U.S. 113, 125 (1973) (explicating that disputes about
abortion regulation are the iconic examples of cases meeting this narrow exception).
Mr.
Chesser fails to demonstrate that this matter is one of those exceptional situations.
Mr. Chesser asserts that the length of confinement in ADX General Population is too
short a duration to fully litigate, such that he would leave ADX General Population before the
30
end of this suit. See [#207 at 9; #207-1 at ¶ 2]. The record indicates that, at a minimum, an
inmate must spend 12 months in ADX General Population before being eligible for the ADX
Step-Down Program. See [#180-33 at 10]. While an inmate’s assignment to ADX General
Population may exceed 12 months based on his conduct, indeed, Plaintiff spent roughly two-andone-half years there, see [#180-31 at ¶ 8; #193-1 at p.10 ¶¶ 4–5], assuming an inmate’s
assignment lasted only 12 months I find that this would be too short to fully litigate for purposes
of this exception. Cf. Turner v. Rogers, 564 U.S. 431, 440 (2011) (holding that imprisonment for
no more than 12 months too short to fully litigate).
Nevertheless, Mr. Chesser fails to establish that he is reasonably likely to be subject to
ADX General Population again. Cf. [#207 at 10 (arguing that other “terrorists have been
returned to ADX itself after leaving.”)]. Indeed, a majority of Plaintiff’s summary judgment
filings and his proffered evidence argues that the BOP should not have transferred him to ADX
initially, and that the BOP failed to send more violent inmates to ADX despite receiving more
severe incident reports. See, e.g., [#193-2 at ¶ 138]. Further, the record reveals that Plaintiff has
been steadily progressing through the ADX Step-Down Program and is in the last phase; and the
Associate Warden attests that there is no reason for Mr. Chesser to return to ADX General
Population upon completion of the Step-Down Program. See [#180-31 at ¶ 10; #199-2 at ¶¶ 3,
5]. It appears mere speculation then that Mr. Chesser will return to ADX General Population,
which is insufficient for purposes of the capable of repetition yet evading review exception to
mootness. See Ind, 801 F.3d at 1216 (holding the plaintiff’s RLUIPA claim moot, because the
court “decline[d] to assume” that the plaintiff would “repeat the misconduct” that put him in
administrative segregation—the basis for his suit); McAlpine v. Thompson, 187 F.3d 1213, 1218
(10th Cir. 1999) (finding the parolee’s RFRA challenge to his conditions of confinement moot,
31
because the court was “not inclined to speculate that [Mr.] McAlpine [would] break the law or
otherwise violate” his conditions of release and be sent back to the same institution).
Based on the foregoing, the court concludes that Claim IV’s challenges to conditions at
ADX General Population are moot. Cf. Chesser I, 2016 WL 6471435, at *4. I now address
Defendant’s exhaustion argument before turning to the merits of Claim IV’s challenges to the
conditions in the B/B Unit.
B.
Exhaustion
The Prison Litigation Reform Act (“PLRA”) provides, “No action shall be brought with
respect to prison conditions under Section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement
applies to all inmate suits concerning prison life, whether they involve general circumstances or
specific episodes. Woodford v. Ngo, 548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731,
741 (2001) (holding that prisoners must exhaust administrative remedies before filing a lawsuit
regardless of the type of relief prayed for in the complaint). Exhaustion of administrative
remedies is mandatory and is intended to give corrections officials an opportunity to address
complaints internally before initiation of a federal lawsuit. See Woodford, 548 U.S. at 93.
Defendant bears the burden of proving this affirmative defense by a preponderance of the
evidence. See Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007).
Defendant argues that Mr. Chesser filed only one administrative grievance related to this
action that vaguely referred to religious classes, and did not sufficiently articulate that this
included his desire to learn from Islamic scholars up to 10 to 14 hours per day so that he may
teach Muslim inmates. See [#181 at 23, 34–35]; see also [#180-38 at ¶¶ 17, 20–26; #180-44 at
32
5]. Mr. Chesser responds, and the court agrees, that his Grievance “sufficed to explain to the
BOP what it needed to do to address [his] claims[.]” [#191 at 19].
The Grievance states,
As a Muslim, I sincerely believe a number of group activities such as five-time
daily group prayer, classes and other activities are recommended and/or obligated
by my faith. Long-term solitary confinement substantially burdens my ability to
engage in these activities. I request this policy be amended to allow me to
practice my religion. By “classes,” I mean religious classes. . . .
[#180-44 at 5]. While the Grievance lacks specificity as to the breadth of what religious classes
entails, the court concludes that this Grievance “provides prison officials with enough
information to investigate and address the inmate’s complaint internally.” Kikumara v. Osagie,
461 F.3d 1269, 1285 (10th Cir. 2006), overruled on other grounds by Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), as explained in Robbins v. Oklahoma, 519 F.3d 1242, 1246–47 (10th Cir.
2008).
Indeed, the Grievance captures the very nature of Claim IV, i.e., his inability to
congregate with other Muslims for group prayer or classes, and otherwise violates his religious
rights.
Accordingly, the court concludes that Mr. Chesser has properly exhausted his
administrative remedies insofar as Claim IV alleges that the conditions of the B/B Unit that
prevent his congregation with other Muslim inmates violate RFRA.
C.
Merits - B/B Unit
Both Parties move for summary judgment regarding the restrictions on Mr. Chesser’s
sincerely held religious beliefs while housed in the B/B Unit. Because it is the BOP’s burden to
demonstrate that those restrictions are the least restrictive means of furthering its compelling
interests, the subsequent discussion begins with an examination of the BOP’s proffered
compelling interests, followed by an examination of Mr. Chesser’s suggested less-restrictive
means, and concludes with the BOP’s reasoning for refuting those suggestions.
33
i.
Compelling Interests
The BOP contends that the restrictions on Mr. Chesser’s ability to engage in congregate
prayers, religious classes, gatherings of religious remembrance, religious celebrations, and
interactions to promote spiritual and communal well-being with as many Muslims as possible for
up to 10 to 14 hours per day further its compelling interests in maintaining institutional and
national security. Defendant focuses on Mr. Chesser’s radical Jihadist beliefs that he harbored
and promoted while in CMU Marion, his assault of another inmate at CMU Marion, his
intentional violation of CMU Marion rules and his encouragement of other inmates to defy CMU
Marion rules, and the security risks posed to the ADX Step-Down Program that would arise from
providing Mr. Chesser the religious accommodations he desires. See [#67-3; #180-36; #180-37;
#180-38; #181 at 2–17, 21–22; #199 at 11–15; #200 at 8–9]; accord Hale, 2018 WL 1535508, at
*14 (finding justified the BOP’s mail-restrictions on the plaintiff given the plaintiff’s conviction
for soliciting the murder of a federal judge and his attempts to induce others to incite violence
despite the plaintiff’s professions that he was innocent and non-violent). In the BOP’s judgment
it is imperative for Mr. Chesser to complete the ADX Step-Down Program so that he may
successfully reintegrate into an open population institution without the risk of repeating his
disruptive CMU conduct. See [#180-31 at ¶¶ 25–32].
Mr. Chesser raises several arguments in opposition to the BOP’s institutional and
national security interests, but after considering the evidence before it, this court concludes that
none creates a genuine dispute of material fact on this point or establishes that these compelling
interests fail as a matter of law. I consider each in turn.
First, Plaintiff argues that the BOP’s compelling interests are invalid because they violate
his First Amendment rights. He spends great lengths arguing that the BOP cannot restrict his
34
right to promote his Jihadist beliefs in prison; he further argues that the BOP cannot demonstrate
that his Jihadist writings would incite violence. See [#191 at 12–17]. But Plaintiff’s arguments
are misguided. While he is correct that RFRA imposes a stricter burden on the government than
the “relaxed standard from Turner,” Ghailani, 859 F.3d at 1305 (internal brackets and quotation
marks omitted), and that courts may draw guidance from First Amendment case law, there is no
claim regarding a violation of Plaintiff’s free speech included in this action. The RFRA inquiry
focuses on the justifications provided by the BOP for its restrictions imposed on Plaintiff’s
ability to congregate with other Muslims in the various religious prayers and gatherings required
by his faith, so whether Plaintiff’s writings (satirical or not) invoked violence or constituted a
clear threat is irrelevant to this matter. Instead, it is undisputed that the BOP found that Mr.
Chesser’s Jihadist beliefs and violent writings played a role in his disruptive conduct at CMU
Marion and was but one of several reasons for the restrictions in the ADX Step-Down Program.
E.g., [#67-3 at ¶¶ 13–15; #67-11 at 3–6; 180-27 at 32–33; #180-31 at ¶¶ 25–27, 47–50; #181-1 at
87:15–16, 141:5–10, 282:5–7, 292:20–293:18; #181-2 at ¶¶ 33–37, 52, 55–59; #181-3 through
#181-5; #181-6 through #181-13 & #181-15; #191-1 at 4(admitting to writing “offensive articles
and poems and explicitly advocated jihad” for purposes of a “censorship” claim), 7–8 (stating he
has openly “advocated jihad” at CMU Marion, ADX General Population, and ADX Step-Down
Program)].
Second, Mr. Chesser disputes the nature/severity of his CMU Marion conduct giving rise
to his transfer to ADX and highlights the BOP’s recent decision not to return him to a CMU,
urging that he is not as dangerous as the BOP’s compelling interests suggest. See [#191 at 9–10,
17; #191-1 at ¶¶ 14–15, 20–21, #193 at 14–19; #193-1 at 2, 3; #193-2 at 13–25; #193-22 at 4].
But Plaintiff admits to intentionally flouting CMU Marion’s rules prohibiting unauthorized
35
group activities, see [#67-11 at 3–4; #193-1 at p. 18, ¶ 25 (“I ignored this ban [on group prayer]”
at the CMU); #193-2 at ¶¶ 106, 131 (admitting to advocating group prayer despite restrictions on
congregate activities)]; he admits to assaulting another inmate, see [#191-1 at 9–10; #193-2 at ¶¶
102, 125–130)]; he admits to possessing code instructions, see [#181-2 at ¶ 49; #193-2 at ¶¶ 104,
120–123; #193-12 at 2]; and he did email CMU Marion staff to discuss an inmate’s apparent
safety at CMU Marion and to explain that “if you all will drop the attempt to send [redacted
inmate’s name] to ADX or SMU, then I believe I could probably work something out with
regard to this unit” [#108-21 at 2]. Plaintiff’s re-characterization of his conduct does not create a
genuine dispute of material fact that the BOP perceived and found this conduct to be a security
risk to CMU Marion personnel and institutional safety. See [#67-3 at ¶ 15 (“At bottom, Chesser
was recommended for ADX designation not because of his radicalized ideology or with whom
he associated, but because of how he attempted to exert control over that association of inmates,
how he fomented disruption and violence between groups in CMU Marion, and how his actions
displayed a very real attempt to organize mass resistance to Bureau policy and institutional
security.”)]. Nor is the court persuaded that the BOP’s recent decision not to return Plaintiff to a
CMU supports his notion that he is not as dangerous so as to warrant placement in the B/B Unit.
This evidence connotes only that the BOP considered and rejected his placement at a CMU, and
the court will not infer any implicit concession that this rebuts the BOP’s compelling interests.
Third, Plaintiff again argues that the BOP’s national security interest is a post-hoc
rationale and, therefore, does not pass summary judgment muster. See [#191 at 4–5; #193-1 at 1
n. 16, 2]. While most of Plaintiff’s arguments appear focused towards the reasons for his
transfer to ADX, rather than the conditions at ADX and the B/B Unit, the court concludes that
the BOP’s national security interests are not post-hoc rationales. Cf. Yellowbear, 741 F.3d at 57–
36
58 (deeming the defendant’s safety concerns, raised for the first time on appeal, as post-hoc
rationales for denying the plaintiff access to a sweat lodge). Mr. Chesser argues that Defendant
“lied” and “evade[d]” discovery on national security interests and cannot now raise this as a
compelling interest. See [#193 at 11; #193-1 at 2]. But, as above, the BOP does consider
whether an inmate presents “national security management concerns which cannot adequately be
met in an open population institution.” [#67-3 at ¶¶ 11–12; #67-10 at 3]. Indeed, Plaintiff even
quotes this factor in his TAC. See [#58 at 5]. And the BOP explained in discovery that
Plaintiff’s writings and communications were not the sole reason for his transfer; rather it was
how his Jihadist beliefs and writings had motivated and manifested in his disruptive CMU
Marion conduct that prompted the transfer. E.g., [#67-6; #67-11; #147-1 at 11; #193-21 at 4
(explaining that Defendant was not concerned with Plaintiff’s ideology for its own sake but,
rather, it is charged with protecting “the safety of staff, the inmate population, and the general
public” to the extent Plaintiff would act on those beliefs to jeopardize institutional safety and
order), 11]. Further, it does not appear that the BOP evaded discovery into the national security
interests implicated by the conditions of confinement at the ADX and B/B Unit. See generally
[#147-1; #193-21; #193-22]. Even disregarding the BOP’s national security interest altogether,
Mr. Chesser fails to dispute the BOP’s compelling interest in maintaining institutional security
and safety, which justify his restrictions in the B/B Unit.
Lastly, Mr. Chesser argues that Defendant’s compelling interests must fail because of
their underinclusiveness, i.e., the BOP permits secular exceptions more readily than religious
ones. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)
(stating that a law’s compelling interest may not be so compelling “when it leaves appreciable
damage to [the] supposedly vital interest unprohibited.” (internal quotation marks omitted)). Mr.
37
Chesser declares that the BOP has recently banned religious gatherings, but that “[g]angs, for
example, are given free reign [sic] to meet at ADX and B/B Unit . . . and they can and do talk
about how to run their gangs and commit crimes.” [#186-1 at ¶ 9]. He also proclaims that
Neo-Nazis have the same ability, and it is only Muslims that face discipline for such gatherings
even though Muslim inmates could exert control and influence over other inmates during
allowed group prayer. See [id. at ¶¶ 9–10]; see also [#193-24 at ¶ 3 (Mohamed Saddiq Odeh
declaring to a ban on Muslim-led “religious discussion or sermon” but not secular gatherings)].
Assuming these allegations to be true, underinclusiveness, by itself, does not
automatically invalidate Defendant’s compelling interests. See United States v. Friday, 525 F.3d
938, 957–59 (10th Cir. 2008) (holding that the government’s greater enforcement of criminal
prosecutions for intentional eagle killings, even if for religious purposes, as opposed to
unintentional killings did not suggest that its compelling interest in protecting eagles was not
really compelling). For instance, it is undisputed that Mr. Chesser may engage in both group
prayer (and may lead such prayers) and religious classes/studies with other Muslims when he is
outside or inside his cell. See [#180-31 at ¶¶ 12–14, 16–18, 23; #180-35; #180-36 at 2; #180-36
at ¶¶ 27–29; #181-1 at 185:16–22 (testifying to praying twice with Muslim inmates during
indoor recreation), 186:2–11, 203:8–12, 223:6–14, 224:4–6, 230:11–13 (“there’s no particular
restriction on what I do when I’m outside my cell.”), 248:6–249:25, 254:3–24; #193-1 at p. 19,
¶ 26 (“since coming to B/B Unit, I have led the ‘Id Prayer, Salah Al-Jumu’ah and As-Salawah
Al-Maktubah whenever feasible.”); #193-2 at ¶ 86 (“Religious gatherings are allowed.”), ¶ 87
(“Because there is no ban on religious gatherings in B/B Unit, I am able to engage in group
prayer at recreation.”); #198-3 at ¶ 2]. What he may not do, similar to all ADX and B/B Unit
inmates, is achieve a formal leadership role over religious gatherings and classes, such that he
38
can preach or sermonize a curriculum of his choosing to other inmates, see [#180-31 at ¶¶ 56–57;
#180-38 at ¶¶ 36–37; #198-3 at ¶¶ 3–4; #199-2 at ¶¶ 7–8]—something Plaintiff aspires to do,
e.g., [#180-27 at 16 (“I am obligated to study until I become a scholar in these [Islamic]
subjects”); #180-46 at 5–7; #180-47; #193-1 at 19–20; #193-2 at 7–8, #193-4 at 22–24]. And
even if Plaintiff witnessed the underenforcement of this policy as to secular groups, the BOP has
still carried its burden of demonstrating why these restrictions on Mr. Chesser further its
compelling interests in maintaining institutional and national security, i.e., Plaintiff’s
subscription to violent Jihadist beliefs that manifested in his disruptive CMU Marion behavior
and his promotion and advocacy of such beliefs to other inmates to encourage their defiance of
BOP policies.
Accordingly, I conclude that the BOP has established its compelling interests in
maintaining institutional and national security as reasons for restricting Mr. Chesser’s sincerely
held religious beliefs. The BOP must now demonstrate that it employs the least restrictive means
of furthering these compelling interests.
ii.
Least Restrictive Means
Throughout his papers and various filings Plaintiff offers several less-restrictive means
that the BOP could employ in the B/B Unit. These include:
1. Imposing Special Administrative Measures (“SAMs”) on Plaintiff to increase his
physical contact with other Muslim inmates though restricting his communications;
2. Transferring Plaintiff back to a CMU;
3. Housing Plaintiff with Muslim neighbors;
4. Opening cells and transporting Muslim inmates to designated areas for religious
activities;
39
5. Co-mingling all ranges in the B/B Unit to increase the number of Muslim inmates
Plaintiff has contact with;
6. Creating Muslim and/or terrorist prisons or prison units;
7. Providing Plaintiff remote access to Islamic scholars; and
8. Lifting all restrictions on religious activities in the B/B Unit.
For its part, Defendant addresses each in kind. For the following reasons, the court respectfully
concludes that the conditions in the B/B Unit as applied to Mr. Chesser are the least restrictive
means of furthering the BOP’s compelling interests in maintaining institutional and national
security.
Alternatives 1–3: Based on the undisputed record, the court can easily dispose of
Alternatives 1–3.
Regarding SAMs, it is undisputed that the Attorney General has sole
discretion over the imposition of SAMs, and Mr. Chesser’s declarations that he meets that
criteria do not refute the fact that the BOP cannot impose such restrictions. See 28 C.F.R.
§ 501.3. Likewise, the BOP has considered and rejected Plaintiff for placement back at a CMU,
determining that he must complete the ADX Step-Down Program; the court will not
second-guess this decision. See 18 U.S.C. § 3621(b); 28 C.F.R. § 0.96(c); see also [#180-31 at ¶
34 (explaining that the BOP has determined that Mr. Chesser must complete the ADX
Step-Down Program)]. In addition, it is undisputed that Plaintiff now has Muslim inmates in his
current range in the B/B Unit, see [#180-31 at ¶¶ 12–14, 16–18, 23; #180-36 at 2#180-35; #1811 at 185:16–22, 186:2–11, 203:8–12, 223:6–14, 224:4–6, 248:6–249:25, 254:3–24; #193-1 at
p.13, ¶10; #193-2 at ¶¶ 72, 86, 141]; and he has explained that access to even one Muslim inmate
“is a significant improvement,” see [#193-2 at ¶ 149 (declaring that there are 4 Muslim inmates
in his recreation group and two other Muslim inmates in the B/B Unit)]; see also [#180-27 at 39
40
(stating the BOP could employ several alternatives to “where [he] would have access to just one
other Muslim.”)].
Alternatives 4 and 5: Mr. Chesser proposes that the BOP transport himself and Muslim
inmates to a designated area for all or some of his required religious prayers and gatherings, like
its transporting of inmates to recreation, medical appointments, and classes. See [#193 at 20–22;
#193-2 at ¶¶ 142, 148]. He also suggests that the BOP could merely “open” his and other
Muslims’ cell doors at certain times so that they could pray together while other inmates are
locked down, which is easier than transporting inmates. See [#181-1 at 203:25–204:23, 224:18–
20, 228:1–21; #193 at 21; #193-2 at ¶ 146]. Or, to avoid transporting inmates and opening cells,
he asserts that the BOP could simply combine certain ranges for recreation so that he has even
greater access to Muslim inmates in the B/B Unit. See [#181-1 at 203:21–24; #193 at 23–25;
#193-2 at ¶¶ 153–156].
Regarding transportation, it appears that this suggestion is most applicable to ADX
General Population, see e.g., [#193-21 at 20–26], and is therefore moot as discussed above.
Further, it does not appear that transportation is required in the B/B Unit. See [#193-2 at ¶ 146
(“In B/B [Unit] . . . staff would only need to open the doors of our cells to let us be together,
which requires no transportation.”)]. Nevertheless, I find that the BOP has put forth undisputed
evidence that transportation of Mr. Chesser and other Muslim inmates to a designated area for
religious activities outside scheduled recreation hours poses serious logistical and security
problems, e.g., requiring the same staff transport the inmates to ensure no contraband is returned
to their cells, coordinating the transportation of a varying group of inmates at various times
throughout the day, and allowing Mr. Chesser to have more physical contact with other inmates
than deemed appropriate by the BOP. See, e.g., [#180-31 at ¶¶ 30–31; #180-37 at ¶ 22; #193-21
41
at 20–26]. Additionally, the appearance that certain inmates are receiving preferential treatment
creates a risk of retribution to not only BOP personnel but to Mr. Chesser and other Muslim
inmates as well. [#180-37 at ¶¶ 17, 19–20]; see also [#180-31 at ¶¶ 32, 43–45; #180-38 at
¶¶ 30–32].
A similar conclusion is warranted regarding the “open” cell doors suggestion. To start,
the BOP explains that providing Mr. Chesser with additional out-of-cell opportunities would
frustrate the BOP’s purpose of carefully limiting his out-of-cell time to successfully reintegrate
him to a less-restrictive institution.
See [#180-31 at ¶ 42; #180-37 at ¶ 22].
Plaintiff’s
self-serving attestations that he is not as dangerous as the BOP suggests does not defeat this
contention. Further, as above, providing additional out-of-cell time to Mr. Chesser creates the
possibility of unrest among other inmates and may pose a risk to institutional security if other
inmates perceive Mr. Chesser as receiving preferential treatment. [#180-37 at ¶¶ 17, 19–20]; see
also [#180-31 at ¶¶ 32, 43–45; #180-38 at ¶¶ 30–32]. Indeed, the BOP carefully calibrates the
B/B Unit activity schedule to ensure all inmates receive the same out-of-cell time to avoid this
situation. See [#180-37 at ¶¶17–20].
Relatedly, the BOP provides sufficient, undisputed explanations for why it cannot
co-mingle all ranges within the B/B Unit or allow only Muslim inmates out of their cells when
Mr. Chesser is out for recreation. In addition to the explanations offered above, e.g., [#180-31 at
¶ 37 (both phases of the B/B Unit were designed to house a small number of inmates to allow
effective monitoring of their progress to less-restrictive conditions); #180-37 at ¶ 20 (allowing
out-of-cell time for Muslim inmates to join Mr. Chesser at recreation would create an appearance
of unfairness)], the BOP explains that limiting the number of inmates in Phases 1 and 2 of the
B/B Unit is critical to maintaining institutional security, as it reduces the risk of violent attacks
42
on staff and inmates—attacks that are not uncommon. See [#180-31 at ¶ 38 (providing examples
of recent violence); #180-37 at ¶¶ 3–13 (same), 19–20 (same)]. The BOP carefully selects and
screens which inmates it can safely house in either phase of the B/B Unit; combining Phases 1
and 2 increases the potential for inmate-on-inmate disputes and violence, see [#180-31 at ¶ 39],
and frustrates the BOP’s purpose of incentivizing inmates to earn more out-of-cell time as they
progress from Phase 1 to Phase 2, see [id. at ¶ 40]. Further, Defendant explains that it does not
have the space at ADX to combine Phases 1 and 2, and forcing the BOP to transfer ADX inmates
to other institutions to accommodate all of the B/B Unit poses unreasonable security risks, as
ADX inmates require a greater level of security than other facilities can provide. [Id. at ¶ 36].
Plaintiff’s assertions to the contrary, based on his own speculation and beliefs [#191 at 11; #1911 at p.13, ¶ 26], do not create a genuine dispute of material fact on this issue. See Ciempa v.
Jones, 745 F. Supp. 2d 1171, 1198 (N.D. Okla. 2010) (“Ciempa’s mere speculation that items
could contain pork by-products is insufficient to create a genuine issue of material fact.”).
Alternative 6: Plaintiff makes much of the idea that the BOP could simply house all
Muslims or terrorists in a distinct BOP facility or within a specific range. E.g., [#180-27 at 31,
35–39]. He suggests that, aside from having to build new facilities, the BOP could merely place
all such inmates in an already established CMU, or convert a portion of an existing facility into a
CMU, or it could employ a non-discriminatory set of criteria that would allow the housing of
such inmates in similar ranges. He declares that the BOP regularly discriminates in its housing
decisions, such that his solutions would be feasible. See [#193-2 at ¶¶ 154–155]. I find,
however, that the BOP sufficiently refutes the feasibility of these suggestions.
First, the BOP explains that accommodating Mr. Chesser’s requests, which essentially
amount to a transfer to a new facility, would frustrate its compelling interest in progressing Mr.
43
Chesser through the ADX Step-Down Program. See [#180-31 at ¶ 34]. And, as discussed, this is
likely outside of the court’s authority, given the authority to place inmates within the BOP lies
within the discretion of the executive branch. The court agrees with the BOP that it has
demonstrated with undisputed evidence that, in its judgment, Mr. Chesser must complete the
ADX Step-Down Program given his CMU Marion misconduct and that he is not an appropriate
candidate for returning to a CMU. See [#67-3 at ¶ 15]. Plaintiff has failed to create a genuine
issue material of fact that the BOP violated RFRA in exercising that discretion.
Again,
Plaintiff’s re-characterizations and self-serving declarations that he is not as dangerous as the
BOP believes do not create a genuine dispute of material fact on this point. See Beard v. Banks,
548 U.S. 521, 530 (2006) (explaining that the court “must distinguish between evidence of
disputed facts and disputed matters of professional judgment”; the latter being accorded
deference).
Second, as to building new institutions, the court agrees that this authority lies with
Congress, not the BOP. See Pub. L. No. 71-218, 46 Stat. 325 (1930) (creating the BOP within
the Department of Justice); NATHAN JAMES, CONG. RESEARCH SERV., R42937, THE FEDERAL
PRISON POPULATION BUILDUP: OPTIONS FOR CONGRESS 5 n.10 (2016) (“Congress funds BOP’s
operations through two accounts: Salaries and Expenses [] and Buildings and Facilities [].”).
Further, building new facilities would require a fundamental overhaul of BOP operations that
“extend far beyond alterations to the ADX Step-Down Program.” [#180-31 at ¶ 42]. This is
equally true of the specific housing units Mr. Chesser proposes. And the court agrees with
Defendant that RFRA does not require it to subsidize Plaintiff’s religious beliefs by building new
institutions, creating Muslim/terrorist-specific units, or overhauling its operations. Cf. Werner,
49 F.3d at 1480 (“[RFRA] need not drive a prison to employ clergy from every sect or creed
44
found within its walls”); accord Abdulhaseeb, 600 F.3d at 1320 (agreeing with the district court
that “RLUIPA requires the government to refrain from substantially burdening religion, not to
affirmatively subsidize religion.”).
Third,
the
BOP
contends
that
the
placement
of
Mr.
Chesser
in
these
Muslim/terrorist-specific units poses an unreasonable security risk, given his proclivities for
violent Jihadist rhetoric and beliefs as he would have access to inmates that may harbor similar
beliefs and encourage Mr. Chesser to act on those beliefs. See [#147-1 at 17–18; #193-21 at 9–
10]. For example, Supervisory Special Agent of the Federal Bureau of Investigation (“FBI”)
Mary Sonnen attests that the FBI determined that Mr. Chesser could not depose Mostafa Kemal
Mostafa, a convicted terrorist and an inmate subject to SAMs, because doing so “could cause a
grave risk of bodily harm to others” and may “further radicalize [Mr.] Chesser in ways that may
prove dangerous to other inmates, prison staff, and persons outside the prison” given that Mr.
Chesser appears “extremely susceptible to [Mr. Mostafa’s] influence.” [#121-1 at ¶¶ 8, 16].
Plaintiff counters that there is no evidence that such units would be harder to manage
from a national security standpoint because “it is harder to influence terrorists in a meaningful
way than non-terrorists.” [#193-2 at ¶ 156]. But it is only Plaintiff’s speculation that all Muslim
and terrorist inmates are susceptible to the same conditions of confinement, and it is undisputed
that the BOP renders housing determinations, even those for Muslim inmates or those with
terrorism convictions, on an individualized, case-by-case basis. See [#67-3 at ¶¶ 7–8, 11–12, 17–
27; #147-1 at 14–16; #193-21 at 16]. He also claims that there is concrete evidence that Muslim
and terrorist inmates are not threats to institutional and national security, given that Eljvir Duka,
an inmate convicted of terrorism-related crimes, was housed in an open-population BOP
institution without incident. [#193-23 at ¶¶ 9–10]. While policies at other institutions may be
45
relevant, they are not controlling, see Knight v. Thompson, 797 F.3d 934, 947 (11th Cir. 2015),
and Mr. Chesser’s assertions that this constitutes concrete evidence that all Muslim and terrorist
inmates pose no threat to institutional security does not defeat the BOP’s rationales for rejecting
this alternative as to him, see [#193-21 at 15–20]; cf. Yellowbear, 741 F.3d at 58 (proclaiming
that the relevant inquiry focuses on the context of the particular case, “not in the abstract”). He
further proposes that the BOP could employ “neutral” criteria, such as “the CMU criteria, a lack
of ‘serious violence,’ terrorism ties, or the need for religious accommodation and extend the
same or similar privileges to all similarly situated inmates of each faith.” [#193 at 23; #193-2 at
¶ 154]. Again, it is undisputed that housing determinations are individualized assessments, and it
is simply conjecture that a “neutral” set of criteria would yield the results Mr. Chesser proclaims.
See [#67-3 at ¶¶ 7–8, 11–12, 17–27; #147-1 at 14–16; #193-21 at 16]; see also 28 C.F.R.
§ 551.90 (prohibiting the BOP from “discriminat[ing] against inmates on the basis of race,
religion, national origin, sex, disability, or political belief”, which “includes . . . providing access
to . . . housing . . . .”).
Finally, Defendant highlights the security risks created by the appearance of giving
Muslim and terrorist inmates preference over other inmates in terms of housing decisions,
cellmate selection, and unfettered out-of-cell privileges. See [id. at ¶ 43]. According to the
BOP, if other inmates perceive that Muslim inmates are “streamlined through or given priority of
place in the ADX Step-Down Program, or that special housing conditions . . . are available only
to Muslims, that obvious disparity in treatment would create an untenable security situation in
B/B Unit[.]” [Id. at ¶ 44]; see also [id. at ¶ 32 (Associate Warden declaring that any perceived
preferential treatment towards Plaintiff poses a risk to institutional security and Plaintiff’s
wellbeing)]. As John Oliver attests, the ADX General Population and ADX Step-Down Program
46
are unique institutions housing some of the most dangerous federal inmates, and the BOP has
carefully crafted protocols for managing this population of inmates so that they may progress to
less-restrictive institutions. See [#180-37 at ¶¶ 3–13]. Despite these protocols, violence (both
inmate-on-inmate and against BOP personnel) is not uncommon. See [id. at ¶ 12 (listing notable
incidences of violence); #180-31 at ¶ 38 (same)]. And both the Associate Warden and Mr.
Oliver describe instances of disturbances and violence related to perceived disparities among
inmates. See [#180-31 at ¶ 38 (discussing a fight in the B/B Unit over an inmate’s perception
that another inmate was overusing the communal computer); #180-37 at ¶ 19 (discussing a
potential disturbance at USP Florence over Muslim inmates extended use of the chapel, cutting
into a Christian group’s time)].
Alternative 7: Plaintiff also proposes that he receive “remote” access to Islamic scholars
so he can “study until [he] become[s] a scholar” in specific Islamic subjects and then he can
“teach Muslims what [he] know[s].” [#180-46 at 5]. He asserts he should spend about 10 to 14
hours per day attending religious classes to achieve his goal, and “should have however many
teachers it takes to allow [him] to study all of the [Islamic] subjects to the point of becoming a
scholar in them on a full-time basis.” See [id. at 5–7, 10 (explaining the teacher(s) would have to
be from a sect of Islam he does not consider “extremely heretical”)]. He continues that this
could be achieved using a computer (like how he accesses his discovery materials) with
prohibitions on his ability to use the internet or access a keyboard, mouse, or microphone during
the lecture, but with the ability to utilize Skype or other approved methods to ask questions at the
end of the lecture; or he could merely listen to lectures via telephone or audio recording. See
[#180-27 at 41; #191 at 8; #191-1 at ¶ 19].
47
In response, the BOP first argues that it cannot accommodate this request because no
inmate, whether for religious or secular purposes, may ascend to the position of “teacher” so as
to be seen as a leader. The Associate Warden explains that reaching this position contravenes
the “fundamental principle of sound correctional management that no inmate [be] allowed to
exercise authority over or provide directions to any other inmate[.]” [#180-31 at ¶ 50]. He states
this is especially so in Mr. Chesser’s case, because “according [him] the status of a
teacher-scholar gives added authority to his opinions”—opinions that advocate violent Jihadist
beliefs. [Id.]; see also [#199-2 at ¶ 7 (Associate Warden declaring that Plaintiff cannot establish
himself as an imam or instructor, “thereby establishing an alternate leadership structure in the
unit” and that this is prohibited in secular situations as well)]. Chaplain Henderson echoes that
sentiment. See [#180-38 at ¶ 36 (“If Chesser begins to marshal control over other ADX inmates
and to establish himself as a religious leader, he is in a better position to incite inmates to engage
in violent conduct”, and could threaten institutional and national security); #198-3 at ¶¶ 2–3
(“[Plaintiff] may lead any [] prayers . . . [but he] has never been allowed to [] personally assume
a formal leadership role in a congregate activity setting by ‘preaching’ or sermonizing to other
inmates.”)].
Further, the BOP elucidates it would face the added security risk (both
institutionally and to the public) of allowing Mr. Chesser to communicate with Islamic scholars
that may subscribe to the same radical beliefs as Mr. Chesser, requiring constant monitoring of
the communications to ensure they are not used to incite violence. Cf. Hale, 2018 WL 1535508,
at *15 (finding a complete ban on the plaintiff’s correspondences with members of his religious
group the least restrictive means, given the BOP’s determination that the plaintiff’s
correspondences revealed his intent to use his leadership role to “exert influence” on other
48
members). I find these explanations sufficiently supported by the record and undisputed for the
purposes of summary judgment.
Defendant also avers that providing Mr. Chesser remote access to an unlimited number of
Islamic scholars presents an institutional security risk because no other inmates receive this
privilege. See [#180-31 at ¶ 51]; see also [id. at ¶¶ 32, 37, 43–44; #180-37 at ¶¶ 19–20; #180-38
at ¶¶ 30–31].
In this regard, Mr. Chesser has the ability to engage in religious prayers,
gatherings, and other exercises while at outdoor or indoor recreation, similar to all other inmates
in the B/B Unit; he can request pastoral visits from persons outside the institution subject to BOP
approval; he may study unabated in his living quarters, and may request and buy books and
videos for his personal use; and he may purchase and enroll in “any religious correspondence
course” so long as the study materials do not violate BOP rules and institutional guidelines. See
[#180-31 at ¶¶ 12–14, 16–18, 23; #180-35; #180-36 at 2; #180-38 at ¶¶ 27–29; #180-41; #18042; #180-48; #181-1 at 185:16–22, 186:2–11, 203:8–12, 223:6–14, 224:4–6, 230:11–13, 248:6–
249:25, 254:3–24; #193-1 at p. 19, ¶ 26; #193-2 at ¶¶ 86–87; #198-3 at ¶ 2]. Further, no inmates
may possess computers, and the computers used for discovery are read-only machines, allowed
only for discovery purposes, with no ability to access the internet. See [#180-31 at ¶ 53; #191-1
at ¶ 19]. Providing Mr. Chesser access to a computer with internet access or Skype capabilities
for purposes other than discovery would be a privilege no other inmate receives. Again, RFRA
only prohibits restrictions on an inmate’s sincerely held religious beliefs—it does not require the
government to subsidize those beliefs. See Battles v. Anne Arundel Cty. Bd. of Educ., 904 F.
Supp. 471, 477 (D. Md. 1995) (“More to the point, Maryland is not required to ‘subsidize’
Battles’ particular religious beliefs by eliminating contrary viewpoints from the required
[homeschooling] curriculum.”). And, as above, the court concludes that the BOP has sufficiently
49
explained why providing the remote studying opportunities Mr. Chesser seeks could create
disparity between him and other inmates, which could pose serious institutional safety and
security concerns.
Alternative 8: The most obvious solution Mr. Chesser proposes is for the BOP to simply
do away with any restrictions on his ability to engage in religious prayers, gatherings, or
exercises, even if only partially. See [#193 at 20]. This the BOP demonstrates it cannot do.
As discussed, ADX General Population and the ADX Step-Down Program are unique
institutions housing some of the most dangerous federal inmates, and the BOP has carefully
crafted protocols for managing this population of inmates so that they may progress to
less-restrictive institutions. See [#180-37 at ¶¶ 3–13; #180-31 at ¶ 6 (“The ADX is the most
secure prison in the federal system, housing less than 0.3% of all Bureau inmates.”)]; see also
[#67-16]. Indeed, the “Step-Down Program is the primary way in which the [BOP] achieves [its]
mission of cycling inmates back to open-population institutions.”
[#180-31 at ¶ 7].
The
Associate Warden declares that the Step-Down Program’s approach of incrementally granting
additional freedoms to inmates has been “extremely effective,” as “less than 3 percent of the
inmates who complete the Program are returned to ADX.” [Id. at ¶ 29]. To achieve this goal,
the BOP attests that it has carefully calculated the amount of time and the location for inmates in
the B/B Unit to engage in congregate religious exercises, including the designated room during
indoor recreation and anywhere at outdoor recreation. See [id. at ¶¶ 16–24; #180-37 at ¶¶ 15–22;
#180-38 at ¶¶ 27–29]. And Mr. Chesser may engage in unrestricted study in his living quarters
and may request and/or purchase approved religious materials. See [#180-38 at ¶¶ 27–29; #18041; #180-42; #180-48].
50
The BOP has demonstrated that these conditions are the least restrictive means as applied
to Mr. Chesser to carefully monitor his congregate religious exercises to avoid increased risks to
institutional and national security, and Plaintiff has failed to point to any evidence that creates a
genuine issue of material fact that the BOP could achieve its compelling interest with
less-restrictive conditions. See [#180-31 at ¶¶ 16–24]. Put another way, given Mr. Chesser’s
CMU Marion misconduct, Defendant has determined that Mr. Chesser must complete the StepDown Program as is to assure the BOP that he can be effectively managed at a less-restrictive
institution. See [id. at ¶ 27]. And based on the undisputed record before the court, I conclude
that the BOP has established that permitting Mr. Chesser to be out of his cell for 10 to 14 hours
per day so that he may freely engage in congregate religious exercises is not a feasible lessrestrictive alternative. Thus, the restrictions imposed in the B/B Unit are the least restrictive
means of furthering the BOP’s compelling interests, and are not capable of being eradicated or
partially modified.
* * *
Based on the foregoing and the undisputed evidence, the court concludes that the BOP
has considered and rejected the feasibility of all alternatives Mr. Chesser has offered. See
Wilgus, 638 F.3d at 1289. The court further concludes that Defendant has demonstrated that the
restrictions on Mr. Chesser’s sincerely held religious beliefs are the least restrictive means of
furthering its compelling interests, and that no rational fact-finder could conclude otherwise.
Accordingly, the court GRANTS summary judgment in favor of Defendant on Claim IV.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1)
Defendant’s Motion for Summary Judgment [#180] is GRANTED;
51
(2)
Plaintiff’s Second Motion for Partial Summary Judgment [#193] is DENIED;
(3)
Summary Judgment shall be entered in favor of Defendant on Claims III and IV and
against Plaintiff, and Claims III and IV are DISMISSED with prejudice;
(4)
The Clerk of the Court shall ENTER Final Judgment accordingly, and award costs to
the Director Federal Bureau of Prisons as the prevailing party; and
(5)
A copy of this Order shall be sent to the following:
Zachary A. Chesser #76715-083
FLORENCE HIGH
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 7000
FLORENCE, CO 81226
DATED: August 6, 2018
BY THE COURT:
_________________
Nina Y. Wang
United States Magistrate Judge
52
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