Arendas v. Lewis

Filing 138

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE as to Defendants' motion to dismiss (ECF #72). The status conference set before United States Magistrate Judge Gordon P. Gallagher for 12/19/2016 is hereby vacated and will be re-set by the Court if necessary. The Clerk of Court shall mail Defendant a copy of the attached recommendation and this Order by certified mail. by Magistrate Judge Gordon P. Gallagher on 11/29/16. (ggall, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Gordon P. Gallagher, United States Magistrate Judge

Civil Action No. 16-cv-00256-GPG

PETER JOHN ARENDAS,
Plaintiff,
v.
MESA COUNTY SHERIFF MATT LEWIS,
SGT. ROUNDTREE, M.C.S.D.,
S/D CHAMBERS, M.C.S.D.,
S/D KEIFER, M.C.S.D.,
S/D ERKMAN, M.C.S.D.,
S/D HEMPHILL, M.C.S.D.,
SGT. TATE, M.C.S.D.,
SGT. HODSON, M.C.S.D.,
S/D #2469 aka JOHN OR JANE DOE, M.C.S.D.,
S/D WESTERMIRE, M.C.S.D.,
S/D WILTGEN, M.C.S.D.,
SGT. MONTEZ, M.C.S.D.,
A. MOSLEY, Utah D.O.C.,
R. CHRISTENSEN, Utah D.O.C.,
STATE OF UTAH, Operations Director of Utah State Prison, John or Jane Doe, and
ROLLIN COOK, Utah Dept. Of Corrections Commissioner,
Defendants.

RECOMMENDATION REGARDING DEFENDANTS’ MOTIONS TO DISMISS

1

This matter comes before the Court on the following motion: Defendants’(collectively),
motion to dismiss (ECF # 72), 1 Plaintiff’s responses (ECFs # 76, 79, & 81) (a number of other
filings from Plaintiff could loosely be construed as responses and all have been considered by the
Court) and Defendants’ reply (ECF #90) This motion has been referred to this Magistrate Judge
for recommendation. (ECF #86). 2 The Court has reviewed the pending motion, responses, reply
and any attachments. The Court has also considered the entire case file, the applicable law, and
is sufficiently advised in the premises. Oral argument is not necessary for resolution of these
matters. This Magistrate Judge recommends that the motion to dismiss be GRANTED.

Jurisdiction and Venue
Jurisdiction and venue are established for the single claim which was drawn in this
action.

Pro se Proceedings
Plaintiff now proceeds pro se. The court must construe the pleading(s) liberally because
Mr. Arendas is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. Id. at 1110.
1

“(ECF #72)” is an example of the convention I use to identify the docket number assigned to a specific paper by the Court’s
case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
2

Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain
reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically
identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous,
conclusive or general objections. A party’s failure to file such written objections to proposed findings and recommendations contained in
this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United
States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed
findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the
factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985);
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

2

Procedural Summary
Plaintiff’s amended complaint (ECF # 36) included several claims. Only claim one, and
that only against limited Defendants (see stricken Defendants above) was ultimately drawn. The
remaining claims were dismissed, claim two for being legally frivolous and claim three for being
legally frivolous. The surviving claim one, titled “offending my religious practices” (ECF # 36,
p. 11) was construed as a claim for alleged violations of Plaintiff’s First Amendment right to
freely exercise his religion under 42 U.S.C. § 1983 (ECF #40, p.3). Upon further review, and
keeping in mind the liberal construction requirements for a pro se pleading, the Court has
determined to also view this as a claim under the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA) 42 U.S.C. §§ 2000cc-1. Essentially, claim one will be reviewed
as both a free exercise claim and as a RLUIPA claim.

Factual Summary
Plaintiff is an inmate in the Mesa County Detention Facility. Plaintiff is required to wear
an identification wrist band and is not allowed to remove said wrist band. ECF #36, p.11, para.
1. The wrist band is not medically related. Id. Plaintiff has been required to wear the wrist band
since 10/23/15. Id. Plaintiff has been sanctioned and/or lost privileges for removing the wrist
band. Id. at pp. 11-12, paras. 2-4.

The wearing of the wrist band violates Plaintiff’s Roman

Catholic observances in that he must pray without “have[ing] items affixed to [his] body that did
not come out of [his] mothers (sic) womb.” Id. at pp. 11-12, paras. 1 & 5. Plaintiff seeks
injunctory (sic) relief, the ability to remove the wrist band in his cell during religious observance

3

(perhaps also while possessing an ID card) and $1,000,000.00 for pain, suffering and
discrimination. Id. at p.23.
Plaintiff’s specific statements regarding the wristband in his amended complaint, as they
relate to religion, are as follows:
My religious doctrine and practices I follow do not permit me to wear an
unremovable item from my body that is not medically related. This also offends
my prayer as a Roman Catholic. (ECF #36, p. 11, para. 1).
The jail policy [] violates my religious Roman Catholic observances. . . . The jail
policy has no allowance for my Roman Catholic observance that I not have items
affixed to my body that did not come out of my mothers womb. (ECF #36, p. 12,
para. 5) (sic).
I am requesting injunctory relief and a court order permitting me to remove the
I.D. wristband in my cell. The wrist band has adjustable notches to affix the set
screw in a more loose fashion, so I can screw in a more loose fashion, so I can
slide it off in my cell during religious observance daily. (ECF #36, p. 23) (sic).

Standard of Review
The Court may dismiss a complaint for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). To withstand a Rule 12(b)(6) motion to dismiss, a complaint
must contain enough allegations of fact, which, taken as true, “state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Although allegations of fact are
accepted as true, legal conclusions are not. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Mere
“labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will
not suffice. Twombly, 550 U.S. at 555. Accordingly, the Court disregards conclusory statements
and looks only to whether the remaining factual allegations plausibly suggest the defendant is
liable. Khalik, 671 F.3d at 1190-91.

4

Where the allegations in a complaint “are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal
quotations omitted). “The nature and specificity of the allegations required to state a plausible
claim will vary based on context . . . [and] requires the reviewing court to draw on its judicial
experience and common sense.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214-15
(10th Cir. 2011).

RLUIPA and §1983
Plaintiff entitled his first cause of action “offending my religious practices.” (ECF # 36,
p. 11). When this matter was drawn, the cause of action was liberally construed as a §1983
claim. The Court will analyze this claim from a RLUIPA perspective given the significantly
more “capacious” protection provided for religious liberty under that statute. See Holt v. Hobbs,
135 S.Ct. 853, 860-62 (2015) (discussing the effective repudiation of the prior analysis engaged
in for free exercise claims in favor of the broader protections set forth in RLUIPA); see also
Hammons v. Saffle, 348 F.3d 1250 (10th Cir. 2003) (remanding an action construed as a free
exercise claim for determination as to whether a RLUIPA framework should have been applied).

§1983 Free Exercise Claim
Prisoners are subject to the denial of some rights due to the underlying fact that they are
incarcerated in a penal system. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).
“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if
it is reasonably related to legitimate penalogical interests.” Ben-Levi v. Brown, 136 S.Ct. 930,
5

932 (2016) (citations removed).

In this case, requiring the wearing of an ID bracelet is

rationally related to the legitimate penalogical interest of being able to quickly and accurately
identify those inmates in the facility.
Defendant argues that the defense of qualified immunity would shield the individual
Defendants to this action. Government officials have immunity from civil liability when they are
performing discretionary functions and when their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person should have known. Harlow v.
Fitzgerald, 102 S.Ct. 2727, 2738 (1982). When looking at qualified immunity from a motion to
dismiss context, a court must determine (1) whether a plaintiff has alleged facts supporting a
violation of a constitutional right and (2) whether the right was clearly established at the time of
defendant’s conduct. Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011).
A court has the “sound discretion” to determine which of the two prongs set forth above to
address first. Pearson v. Callahan, 129 S.Ct. 808, 818 (2005).
I choose to begin the analysis at step 2, whether the right was clearly established. I must
determine whether the right was clearly established and whether it would be clear to a reasonable
officer that their conduct would be unlawful. Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir.
2010). A preliminary issue is how to define the right we are discussing. An official may, in
some cases, be on notice that their conduct violates established law perhaps even in a discrete
circumstance. See Hope v. Pelzer, 122 S.Ct. 2508, 2516 (2002). However, it is generally true
that a right needs to be established with some particularity so that it has some clarity for the
official exercising their duties. See Reichle v. Howards, 132 S.Ct. 2088, 2094 (2012). In this
action, it would be far too broad to define the right as the exercise of religion while incarcerated
and leave it at that. That lack of specificity would unreasonably place at risk officers for almost
6

any potential act they might perform, were that act to be later claimed as a right’s violation. I
characterize the right as follows: would a reasonable officer known that their specific action
(enforcing a penal regulation) impinged on an inmate’s right to free exercise of religion. See
Stewart v. Beach, 701 F.3d 1322 (10th Cir. 2012). In reviewing the penal regulation, it is
appropriate to rely on factual similarities because of the need for officers to have reasonable
warning if their conduct was libelous. See Id. at 1331.
Here, the conduct was requiring Plaintiff to wear an ID bracelet. I find no case law,
either within or outside the 10th Circuit, to indicate a clearly defined right having to do with the
manner in which a penal institution identifies inmates for security purposes.

Plaintiff has

identified no precedent on which I can rely. For the law to be “clearly established [as it must be
for a right to be identified], there must be a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts must have found the law to be as
plaintiff maintains.” Id. (citation removed). Defendants in this action were not given, by the
courts, clear and fair warning that their conduct in requiring Plaintiff to wear an ID bracelet
would be libelous as a violation of his First Amendment right to pursue and exercise his religion.
I cannot say that Defendants were on any sort of notice that their enforcement of the
detention facility ID bracelet requirement violated a clearly established right. Nor can I say that
Defendants’ conduct was objectively unreasonable. See Harlow v. Fitzgerald, 102 S.Ct. 2727,
2738 (1982). Thus, Defendants are entitled to qualified immunity and I recommend that the
motion to dismiss as it applies to the free exercise claim be GRANTED.

7

RLUIPA
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution, as defined in section 1997 of
this title, even if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that person-- (1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.

42 U.S.C. §2000cc-1(a). As a threshold matter, a prisoner’s request for accommodation must be
sincerely based on a religious belief and not some other motivation. Burwell v. Hobby Lobby
Stores, Inc., 134 S.Ct. 2751, 2774 n. 28 (2014) (emphasis added).

Plaintiff has the initial

burden of showing that he has a sincere religious belief. Holt supra at 862.

[A]t least one feature of the statute’s “religiosity” requirement often proves
relatively unintrusive in its application and not infrequently dispositive: the
question of sincere belief. RLUIPA does not offer refuge to canny operators who
seek through subterfuge to avoid laws they’d prefer to ignore. Like those who set
up “churches” as cover for illegal drug distribution operations. Or those who,
facing the difficult realities of prison life, are tempted to seek special
dispensations through fraudulent assertions of faith. But in suggesting we may
ask whether a claimant truly holds a religious belief isn’t to suggest we may
decide whether the claimant’s religious belief is true. . . . [O]ur task . . . [is]
limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud
on the court - whether he actually holds the beliefs he claims to hold – a
comparatively familiar task for secular courts that are regularly called on to make
credibility assessments – and an important task, too, for ensuring the integrity of
any judicial proceeding.
Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014); see also Ochs v. Thacker, 90 F.3d 293,
296 (8th Cir. 1996) (RFRA’s legislative history urges courts to discern false claims that may be
attempts to disrupt prison life and/or gain privileges, e.g., religious preferences regarding timing
of meals, numbers of showers, television programs, “or most any other aspect of prison life”).

8

This matter is at the 12(b) stage. Thus, it is incumbent upon the Court not to question the
truthfulness of Plaintiff’s factual allegations (as I must assume they are true) but to instead
determine if sufficient factual allegations have been made to plausibly state a claim upon which
relief may be granted. The issue at this interesting intersection of plausibility, from a Rule 12(b)
perspective, and sincerity, from a RLUIPA perspective, is how to make that determination. This
determination must be made keeping in mind that I may not judge the significance of the
particular belief in question (to either Plaintiff or his professed religion) nor may I judge the
truthfulness of his factual assertions, as I must take them as true. How then can I determine if
this claim has been “nudged” across the line from conceivable to plausible?

While not

questioning the truthfulness of factual assertions or the underpinnings of the religious belief, I
must determine if Plaintiff’s statements are sufficient to state a sincere religious belief and
nothing more.
To be plausibly sincere, there must be some hallmarks of that sincerity. Plaintiff’s claim
is devoid of any assertions or hallmarks that would compel the Court to determine that they bear
such assurances of sincerity. In fact, under these circumstances the targeted nature of the claim,
which appears to be a cleverly faceted attempt to only avoid wearing an identity bracelet but
which is not aimed at other requirements such as his jail uniform, is in no way supported by
sufficient statements which state a sincere religious belief. Plaintiff provides no information in
his complaint regarding how praying while wearing a wrist band may be any different from
praying while clothed in a required jail uniform or while wearing a medical device, neither of
which would not have originated from his “mother’s womb.” Harkening back to Yellowbear,
“RLUIPA does not offer refuge to canny operators who seek through subterfuge to avoid laws
they’d prefer to ignore.” Id. at 54.
9

It is not the province of the Court to question either the truthfulness of the claim or the
sincerity of the belief. As it is within our bailiwick to be the gate keepers of implausible claims,
I must, even in this tightrope of an area, determine whether enough sincerity has been professed
to be plausible. See Cutter v. Wilkinson, 125 S.Ct. 2113, 2124, n. 13 (2005) (The truth of a
belief is not open to question’; rather, the question is whether the objector’s beliefs are truly
held) (citations and internal quotations removed).
At this stage, in order to proceed, Plaintiff bears the burden of plausibly setting forth facts
to show that he has a sincere religious belief. I must, as in any other action, apply the Rule 12(b)
standards incumbent at this stage. Doing so, I find that Plaintiff has failed in this burden, his
burden, and not plausibly stated a claim upon which relief may be granted. For that reason, I
respectfully recommend that the motion to dismiss be GRANTED.

Dated at Grand Junction, Colorado, this November 29, 2016.

Gordon P. Gallagher
United States Magistrate Judge

10