Hogan v. Idaho State Board of Correction et al

Filing 33

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED: 1) Defendants Motion for Summary Judgment (Dkt. 22 ) is DENIED; 2) Plaintiffs Motion to Strike (Dkt. 29 ) is DENIED as moot; and 3) Plaintiffs Motion to Strike (Dkt. 31 ) is DENIED as moot. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES HOGAN,
Case No. 1:16-CV-00422-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER (DKTS 22; 29; 31)

v.
IDAHO STATE BOARD OF
CORRECTIONS; DEBRA FIELD;
DAVID MCCLUSKY; CINDY
WILSON; IDAHO DEPARTMENT OF
CORRECTION; HENRY ATENCIO1;
JEFF ZMUDA; SHANNON CLUNEY;
HOWARD YORDY; GARRETT
COBURN; JEFF KIRKMAN; DAN
COPELAND; and JOSH TEWALT,
Defendants.

Pending before the Court are three motions: Defendants’ Motion for Summary
Judgment (Dkt. 22), and Plaintiff’s motions to strike (Dkt. 29; Dkt. 31.) The motions are
ripe for the Court’s consideration. All parties have consented to the jurisdiction of a

1

Henry Atencio is now the Director of the Idaho Department of Corrections. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Henry Atencio is substituted for Kevin Kempf as a
defendant in this suit.

MEMORANDUM DECISION AND ORDER - 1

United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. 16.) In the interest
of avoiding delay, and because the Court conclusively finds the decisional process would
not be significantly aided by oral argument, the motions will be decided on the record and
without oral argument. Dist. Idaho L. Rule 7.1(d). As discussed more fully below, the
Court will deny Defendants’ motion for summary judgment and will deny Plaintiff’s
motions to strike.
FACTUAL BACKGROUND
Plaintiff James Hogan is a prisoner in the custody of the Idaho Department of
Correction (IDOC), currently incarcerated at the Idaho State Correctional Institution
(ISCI). Hogan alleges his religious beliefs, as a practicing Muslim, require him to wear a
full-length beard and a kufi at all times. (Dkt. 3 at 5.) A kufi is a knit skullcap. Id.
IDOC adopted a standard operating procedure (SPO) “to provide guidance and
direction for recognized religious activities, and provide procedures for reviewing inmate
requests for accommodations of religious activities not covered” by the SOP. Religious
Activities Standard Operating Procedure, 403.02.01.001 et seq., Version 8 (May 1, 1996)
(Religious Activities SOP). The Religious Activities SOP permits an inmate to keep a
beard of up to one-inch if grown for religious purposes. SOP 403.02.02.001. IDOC has
adopted also an SOP governing religious property. Religious Property Standard
Operating Procedure, 320.02.01.001, et seq., Version 8 (Jan. 9, 2010) (Religious Property
SOP). The Religious Property SOP permits an inmate to wear a head covering, such as a
kufi, during religious ceremonies and while in his or her cell.

MEMORANDUM DECISION AND ORDER - 2

The dispute in this case arose when Hogan requested permissions exceeding those
set forth in the Religious Activities and Religious Property SOPs. Hogan asked to grow a
fist-length beard of four inches, and permission to wear his kufi throughout the facility, at
all times. IDOC staff denied these requests as inconsistent with the SOPs.
PROCEDURAL BACKGROUND
On September 15, 2016, Hogan filed a pro se prisoner complaint against
Defendants alleging a violation of his rights to exercise religious beliefs, as protected by
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc
et seq.2
In his Complaint, Hogan seeks declaratory relief that Defendants violated
RLUIPA by denying his requests, and injunctive relief for himself and other similarlysituated prisoners permitting them to grow and keep a fist-length beard of four-inches,
and permitting such inmates to wear a kufi throughout prison facilities at all times. Hogan
also sought reasonable costs, attorney fees, and monetary damages.
On December 9, 2016, the Court issued its Initial Review Order, finding Hogan
stated plausible RLUIPA claims, but that he could not continue to pursue his claim for
monetary damages because money damages not recoverable in RLUIPA actions. (Dkt. 8.)
On November 13, 2017, Defendants filed the instant motion for summary judgment.

2

Suit is filed against Defendants in their official capacities and against their successors in office.

Prior to filing his Complaint, Hogan pursued administrative remedies with IDOC staff: On June
27, 2016, he filed an Offender Concern Form (Dkt. 3-1 at 2); and on July 8, 2018, an Idaho Department of
Correction Grievance Form. Id. at 3-4.

MEMORANDUM DECISION AND ORDER - 3

(Dkt. 22.) On December 4, 2017, Hogan filed his response. (Dkt. 25.) Defendants filed a
reply on December 22, 2017.3 (Dkt. 27.) Hogan filed a sur-reply on January 8, 2018,
(Dkt. 28) and an additional sur-reply on January 17, 2018. (Dkt. 30.)
Hogan filed the instant motions to strike on January 8, 2018, and January 17,
2018, respectively. (Dkt. 29; Dkt. 31.) The Court notes, however, that Hogan’s motions,
although styled as motions “to strike” are not motions to strike in substance. Instead, the
motions are additional sur-replies in opposition to Defendants’ motion for summary
judgment. In fact, the two motions are exact copies of one another, with the exception
that the first motion (Dkt 29), is missing page 7. Plaintiff’s first-filed sur-reply (Dkt. 28),
is also an exact copy missing a page that should have appeared at page 7. However,
Plaintiff’s second-filed sur-reply, (Dkt. 30) includes the missing page 7. Therefore, the
Court will consider the contents of Plaintiff’s second-filed sur-reply (Dkt. 30) only and
will deny the two motions to strike as moot.
STANDARDS OF LAW
1.

Motion for Summary Judgment
Federal Rule of Civil Procedure 56 directs a Court to “grant summary judgment if

the movant shows 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). One of the principal

3

Defendants’ reply included a request that the Court strike certain statements in the Declaration
filed by Hogan with his response to the motion for summary judgment. Defendants assert that Hogan
introduced bare, conclusory and hearsay statements in his Declaration to support his opposition to the
motion for summary judgment. However, the Court did not consider these statements in its analysis of the
merits of the motions before the Court. Therefore, the Court will not reach the merits of Defendants’
evidentiary objections at this time. Such objections are preserved for further proceedings.

MEMORANDUM DECISION AND ORDER - 4

purposes of summary judgment “is to isolate and dispose of factually unsupported
claims….” Celotex Corp v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is
the “principal tool[] by which factually insufficient claims or defenses [can] be isolated
and prevented from going to trial with the attendant unwarranted consumption of public
and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment…” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, if
there is no genuine dispute as to any material fact, the motion is proper. Material facts are
facts “that might affect the outcome of the suit.” Anderson at 247-48.
“The moving party initially bears the burden of proving the absence of a genuine
issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citing Celotex, 477 U.S. at 323). “Where the moving party meets that burden, the burden
then shifts to the non-moving party to designate specific facts demonstrating the
existence of genuine issues for trial.” Id. The non-moving party must go beyond the
pleadings and show through affidavits, interrogatories, depositions, or admissions on file
that a genuine issue of material fact exists. Celotex, 477 U.S. at 324. “If a party fails to
properly support an assertion of fact or fails to properly address another party’s assertion
of fact as required by Rule 56(c), the court may … consider the fact undisputed for the
purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
The party bearing the burden of proof at trial “must establish beyond controversy
every essential element of its ... claim.” S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d
885, 889 (9th Cir. 2003). A party who does not have the burden “may rely on a showing
MEMORANDUM DECISION AND ORDER - 5

that a party who does have the trial burden cannot produce admissible evidence to carry
its burden as to the fact.” Fed. R. Civ. P. 56(c)(1)(B) (advisory committee’s note.) As a
general rule, the “party opposing summary judgment must direct attention to specific
triable facts” supportive of the claims that have been made. S. Cal. Gas Co., 336 F.3d at
889.4 [T]here must be evidence on which the jury could reasonably find for the [nonmoving party]. Anderson, 477 U.S. at 252.
2.

Religious Land Use and Institutionalized Persons Act
RLUIPA applies to entities receiving federal funding or financial assistance,

including prisons like ISCI. See Sossamon v. Texas, 131 S. Ct. 1651, 1655 (2011.) The
statute provides prison inmates with protection from substantial burdens on religious
exercise:
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution, … even if the burden
results from a rule of general applicability, unless the government establishes
that imposition of the burden on the person –
(1)

is in the 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).
A RLUIPA claim is analyzed under a burden shifting framework. The inmate
bears the burden initially to show that the governmental action constitutes a substantial

4

An exception to this rule exists when cross-motions for summary judgment are filed. In such
cases, the Court must independently review the record for issues of fact. Fair Housing Council of
Riverside Co., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Here, Hogan did not file a
cross motion.

MEMORANDUM DECISION AND ORDER - 6

burden on the exercise of the inmate’s sincerely held religious beliefs. Warsoldier v.
Woodfort, 418 F.3d 989, 994 (9th Cir. 2005). A substantial burden is one that imposes “a
significantly great restriction or onus upon such exercise.” San Jose Christian College v.
City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). If the plaintiff satisfies this
burden, the government must “show that its action or policy (1) is in furtherance of a
compelling governmental interest and (2) is the least restrictive means of furthering that
interest.” Holt, 135 S.Ct. at 783.
DISCUSSION
The IDOC Defendants seek summary judgment on two grounds. First, Defendants
contend Hogan cannot demonstrate that IDOC policies substantially burdened his
religious practice based on the facts in the record. Defendants assert further that, even if
the Court finds there are sufficient facts to support Hogan’s RLUIPA claims, undisputed
evidence in the record demonstrates the IDOC policies further compelling governmental
interests by the least restrictive means. Second, Defendants contend Hogan failed to
allege evidence of affirmative acts sufficient to establish RLUIPA claims against
individually named Defendants Debra Field, David McClusky, Cindy Wilson, Kevin
Kempf, Jeff Zmuda, Shannon Cluney, Jeff Kirkman, Dan Copeland, and Josh Tewalt.
Hogan opposes the motion on several grounds. First, he asserts there are facts in
the record to support his claim that that IDOC’s policies place significant pressure on him
to abandon his sincerely held religious beliefs. He argues that IDOC’s interests in
security and inmate identification are not threatened by his requests, and that the policies
in the SOPs are not the least restrictive means to further such interests. Second, Hogan
MEMORANDUM DECISION AND ORDER - 7

argues that he did allege sufficient facts against the individually named Defendants at
issue. The Court will address the merits of each argument in turn.
1.

RLUIPA Claims
A.

Sincerity of Belief and Substantial Burden

Defendants contend that IDOC’s policies do not substantially burden Hogan’s
religious beliefs that he must grow a fist-length beard of four inches and wear a kufi at all
times. The thrust of Defendants’ argument is that Hogan did not actually state, explicitly,
in his Complaint that his sincerely held religious beliefs require him to grow his beard to
four inches and require him also to wear a kufi at all times. Instead, they assert, Hogan
“simply asked to grow a fist-length beard and wear his kufi throughout the institution.”
(Dkt. 22-7 at 16.) The Defendants’ own language is perhaps the best illustration of their
argument:
While he must grow a beard, nothing present in the record supports his bare
assertion that he must grow it to any length. Additionally, nothing in the
record requires Plaintiff to wear his head-covering at times other than prayer.
Aside from Plaintiff’s claim that these practices are “common” in the practice
of the Muslim faith, the record is silent as to whether these specifically
requested practices are consistent with the community of believers and
practitioners.
(Dkt. 27 at 3.)
However, RLUIPA specifically provides that religious exercise includes “any
exercise of religion, whether or not compelled by, or central to, a system of religious
belief.” 42 U.S.C. § 2000cc-5(7)(A). The statute thus “bars inquiry into whether a
particular belief or practice is ‘central’ to a prisoner’s religion.” Cutter v. Wilkinson, 544
U.S. 709, 725 n.13 (2005). Therefore, contrary to Defendants’ arguments, courts must not
MEMORANDUM DECISION AND ORDER - 8

attempt to test the sincerity of a belief by “determin[ing] the place of a particular belief in
a religion or the plausibility of a religious claim.” 5 Emp’t Div., Dep’t Human Res. of
Ore., v. Smith, 494 U.S. 872, 887 (1990). Additionally, Courts may not question the
validity of a prisoner’s interpretation of religious creeds. Nance v. Miser, 700 F. App’x
629, 631 (9th Cir. 2017) (citing Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). Further,
“at the summary judgment stage the judge’s function is not … to weight the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986).
According to Hogan’s complaint, “[i]t is held in several areas of the tenents of
[his] faith in regards to the wearing of a beard.” (Dkt. 3 at 6-7.) Each of the texts Hogan
cites instruct him to either “leave the beard,” or engage in the practice of “growing the
beard.” Id. at 6. Hogan cites other texts that set forth that mustaches must be trimmed and
other specific body hair must be groomed within certain timeframes. He uses these
citations to illustrate his belief that the tenets of his faith, as set forth in such instructions,
require him to grow his beard and not cut it.
Although Hogan does not provide citations to religious texts to support his belief
that he must wear a kufi at all times, he expressly states that his faith requires him to wear
his kufi all day. (Dkt. 3 at 5, 7.) This expression comports with the complaint made by
Hogan in Idaho Department of Correction Grievance Form number 67876, which is

Notably, in the findings related to the consideration of Hogan’s July 8, 2016 grievance form, the
appellate authority response from Warden Yordy, a Defendant in this matter, stated: “We believe the
allowance of beards to 1” confirms with the religious requirements of your faith.” (Dkt. 22-5 at 6.)
5

MEMORANDUM DECISION AND ORDER - 9

attached as an exhibit to Hogan’s Complaint, and Defendants’ Motion for Summary
Judgement. (Dkt. 3-1 at 3 and Dkt. 22-5 at 6.) Therein, Hogan expressed the belief set
forth in his Complaint: “My Muslim faith requires me to wear a head covering (I.E. Kufi)
all day[.]” Id.
As set forth above, protections under RLUIPA apply to religious beliefs even if
there is evidence that such beliefs are not central to the Muslim faith. Additionally, the
Court may not question the validity of Hogan’s interpretation of religious texts or creeds.
Thus, the Court finds that Hogan provided sufficient evidence to support the assertion
that it is his sincerely held belief that his faith requires such exercises. “[A]t best,
Defendants have raised material questions of fact” regarding such beliefs. See Dean v.
Corr. Corp. of Am., 108 F. Supp. 3d 702, 711 (D. Ariz. 2014). Therefore, Defendants are
not entitled to summary judgment on this issue.
Hogan must show also that IDOC’s policies substantially burden such sincerely
held religious beliefs. Although RLUIPA does not define substantial burden, the Ninth
Circuit Court of Appeals described it as a burden that imposes “a significantly great
restriction or onus.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). A
substantial burden is found also where “punishments […] coerce a religious adherent to
forgo her or his religious beliefs.” Warsoldier, 418 F.3d at 996. Further, any “outright
ban on a particular religious exercise is a substantial burden” on that exercise. Greene v.
Solano Cty. Jail, 513 F.3d 982, 988 (9th Cir. 2008); see also Nance v. Miser, 700 F.
App’x 629, 631–32 (9th Cir. 2017). And, even where the compulsion to modify behavior
may be indirect, “the infringement upon free exercise is nonetheless substantial.” 108 F.
MEMORANDUM DECISION AND ORDER - 10

Supp. 3d at 712 (citing Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S.
707, 715–16 (1981).
IDOC’s Religious Activities SOP prohibits Hogan from growing a beard longer
than one-inch. Thus, while the SOP permits him to grow a beard, it directly bans him
from growing his beard without cutting it, or a fist-length beard of four-inches as Hogan
believes his faith dictates. Additionally, if Hogan violates the policy by keeping a beard
longer than one-inch, he faces disciplinary action. Similarly, IDOC’s Religious Property
SOP prohibits Hogan from wearing his kufi at any time other than when he is in his cell,
or during a religious ceremony. Thus, while the SOP permits Hogan to wear a kufi at
times, it directly bans Hogan from wearing it at all times, as he believes is required. If
Hogan violates the policy by wearing his kufi at undesignated times, he will face
disciplinary action. Hogan asserts that these policies put him to the daily decision of
whether to adhere to his sincerely held religious beliefs or to face disciplinary action.
Defendants argue that the limitations in the Religious Activities and Religious
Property SOPs are not “oppressive to a significantly great extent” and that they also do
not place “significantly great restrictions” on the exercise of Hogan’s religion. However,
even though the policies make religious accommodations, such accommodations do not
permit the specific religious beliefs identified by Hogan. See Nance, 700 F. App’x at
632. Additionally, the threat of punishment for a failure to adhere to policies has been
held to be sufficiently coercive under both Supreme Court and Ninth Circuit precedent.
Holt, 135 S. Ct. at 862; Warsoldier, 418 F.3d at 996.

MEMORANDUM DECISION AND ORDER - 11

Therefore, in light of the record before the Court, there is a triable issue of fact as
to whether Defendants’ policies substantially burden Hogan’s ability to exercise his
beliefs by growing a fist-length beard of four inches and wearing a kufi at all times
throughout the facility. As such, Defendants’ motion for summary judgment fails as to
this issue.
B.

Compelling Government Interest and Least Restrictive Means

Defendants assert that, even if the Court finds that Hogan has presented sufficient
evidence that his beliefs are sincerely-held and his beliefs are substantially burdened by
the policies, they are nevertheless entitled to summary judgment because the SOPs
further compelling government interests in maintaining security, identification of
inmates, and reducing religious and racially-motivated violence by the least restrictive
means. The Supreme Court of the United States has acknowledged that “maintain[ing]
good order, security, and discipline, consistent with consideration of costs and limited
resources,” is a compelling government interest. Cutter v. Wilkinson, 544 U.S. 709, 722
(2005). Here, Hogan admits that maintaining security is a compelling government
interest.
The disputed issue on this aspect of the motion is whether the Court can conclude
there are no genuinely disputed material facts relating to the Defendants’ contention that
the government’s policies are the least restrictive means of furthering interests in
maintaining security, identification of inmates, and reducing religious and raciallymotivated violence. “When the moving party also bears the burden of persuasion at trial,
to prevail on summary judgment, it must show that ‘the evidence is so powerful that no
MEMORANDUM DECISION AND ORDER - 12

reasonable jury would be free to disbelieve it.” Shakur v. Schriro, 514 F.3d 878, 890 (9th
Cir. 2008) (citing 11–56 Moore’s Federal Practice–Civil § 56.13) (also citing Edison v.
Reliable Life Ins. Co., 664 F.2d 1130, 1131 (9th Cir.1981)). The government “cannot
meet its burden to prove least restrictive means unless it demonstrates that it has actually
considered and rejected the efficacy of less restrictive measures before adopting the
challenged practice.” “Warsoldier, 418 F.3d at 996.
Here, Defendants assert they have narrowly tailored both the Religious Activities
SOP and the Religious Property SOPs to serve their compelling governmental interests.
Defendants assert the one-inch beard policy is the least restrictive means to promote their
interests in reducing contraband and interests in quickly and accurately identifying
prisoners. (Dkt. 22-7 at 6-7.) They argue the Religious Property SOP serves also the
interests of reducing contraband and suppressing the risk to individuals from gang-related
targeting and victimization of inmates based on their faith.6 Id. at 9; 16.
In response, Hogan points to other IDOC policies and practices that either resolve
the compelling interests asserted or present similar issues regarding security,
identification, or racially or religiously motivated threat of violence. First, Hogan points
to a policy that allows prisoners to grow the hair on their head to any length—thus
presenting a similar concern about concealing contraband. He asserts also that prisoners

6

Notably, pursuant to the Religious Property SOP, a kufi is personal religious apparel that may
only be worn during a religious ceremony or service or in the inmate’s cell. (Dkt. 22-3 at 4.) Other
personal apparel includes neck adornments or medallions, And, unlike a kufi, the Religious Property SOP
permits neck medallions to be worn at any time, providing that they must be kept tucked underneath the
inmate’s shirt except during religious services or ceremonies or in the inmate’s cell. Id.

MEMORANDUM DECISION AND ORDER - 13

may purchase hair dye, makeup and other items that change their appearance—thus
presenting a similar issue related to prisoner identification. Second, Hogan asserts that
prison officials already take multiple pictures of inmates—thus taking an additional photo
of a prisoner once they have grown a beard is not out-of-the-ordinary and that such a
practice would eliminate the government’s concern related to inmate identification.
Third, Hogan alleges that IDOC allows prisoners to wear knitted hats to stay warm
in many of the locations where he wants to wear his kufi—and that the knit hats present
the same type of concern related to concealment of contraband. Fourth and finally, Hogan
argues that the concerns “related to gang affiliation and protection of targeted prisoners
are not based in reality.” (Dkt. 25 at 10.) Hogan asserts that many prisoners have gangrelated or racist tattoos that are not always covered by clothing. He states that, due to the
nature of the prison environment, it is impossible to prevent prisoners from knowing the
faith of others because prisoners of certain faiths attend services at specific times.
Therefore, Hogan asserts wearing his kufi cap would not be any sort of giveaway, as
those in the population already know his faith.
Defendants, in turn, do not present evidence that IDOC actually considered and
rejected the efficacy of less restrictive measures, such as self-searches of longer beards
and kufi caps, or by taking additional photographs of inmates permitted to wear beards.
Instead, the record contains only assertions that denying Hogan’s request to grow a fistlength beard of four-inches and to wear his kufi cap at all times throughout the facility
was the least restrictive means of furthering the government’s asserted interests. See
Shakur v. Schriro, 514 F.3d 878, 890-91 (9th Cir. 2008) (where the record contained only
MEMORANDUM DECISION AND ORDER - 14

conclusory assertions that denying a prison a kosher diet was the least restrictive means
to further cost containment interests). Thus, Defendants have not met their burden of
showing they actually considered other means of achieving the asserted interests. Further,
Hogan has raised questions of material fact regarding whether Defendants’ policies are
the least restrictive means to achieve such asserted interests. Therefore, summary
judgment is inappropriate on this ground.
In sum, on this record, there is a factual dispute as to: (1) the extent Hogan’s
religious activities are burdened by the SOPs; (2) the extent Defendants would be
burdened if they did accommodate Hogan’s requests; and (3) whether there are less
restrictive alternatives available. Therefore, the Court cannot conclude that summary
judgment on Hogan’s RLUIPA claims is appropriate.
2.

Claims Against Individually Named Defendants
Defendants assert also that Hogan failed to identify specific actions undertaken by

certain individually-named Defendants sufficient to establish their liability.7 They argue
Hogan must allege “an affirmative act by each named defendant, participation by the
named defendant in another’s affirmative act or an omission where the defendant is
legally required to act.” Defendants support their argument by citing Johnson v. Duffy, a
1978 case were an inmate brought suit under 42 U.S.C. Section 1983 after his earnings at
an honor camp were subjected to forfeiture upon his transfer to a county jail. 588 F.2d

7

Defendants concede, that under the legal standard they set forth, Hogan identified specific
actions to adequately support his RLUIPA claims against Warden Yordy and Warden Coburn. (Dkt. 22-7
at 10.)

MEMORANDUM DECISION AND ORDER - 15

740, 744 (9th Cir. 1978). The inmate argued that he was deprived of his property without
due process. Id. The district court granted defendants’ motion for summary judgment
because it found that the named defendants “had not personally participated in the
forfeiture” of the inmate’s earnings. Id. However, the Ninth Circuit reversed the district
court’s judgment, finding the inmate had made a prima facie showing of liability “based
upon the defendants’ omission to perform duties imposed by state law…” Id. Notably,
the Ninth Circuit’s holding focused specifically on the effect and meaning of the
language of Section 1983 and California state law. Id. at 743. Therefore, this case does
not provide the Court guidance to evaluate the sufficiency of claims made under RLUIPA
against individual defendants.
Under RLUIPA, a “person may assert a violation as a claim … in a judicial
proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a).
A government is defined as:
(i)
(ii)
(iii)

a State, county, municipality, or other governmental entity created under the
authority of a State;
any branch department, agency, instrumentality, or official of an entity listed
in clause (i);
and any other person acting under color of state law; and (B) for the purposes
of sections 2000cc-2(b)[.]

42 U.S.C. § 2000cc-5(4)(A).
Thus, RLUIPA permits Hogan to sue IDOC, the Idaho State Board of Corrections
(ISBC), and certain officials and employees of the entities. Further, to receive the
injunctive relief available under RLUIPA, a plaintiff need not prove that a named official
had personal involvement in the alleged RLUIPA violation. Epps v. Grannis, No.
MEMORANDUM DECISION AND ORDER - 16

10CV1949 BEN KSC, 2013 WL 5348394, at *3 (S.D. Cal. Sept. 23, 2013), aff’d, 606 F.
App’x 329 (9th Cir. 2015). “Instead, a plaintiff must name as a defendant a government
official who can appropriately respond and change policy if injunctive relief is ordered.”
Id. Therefore, the proper inquiry for the Court at this stage is whether there is no genuine
issue as to any of the individually-named Defendants’ lack authority to execute any
possible court-ordered relief.
Hogan makes the following allegations regarding the roles of the individuallynamed Defendants at issue. Each has been sued in his or her official capacity:
– Debra Field, David McClusky, and Cindy Wilson: Hogan alleges these officials
are responsible for the management and duties of the ISBC and oversight of
IDOC. Hogan alleges that as such, they are responsible for the implementation of
all rules, policies, and procedures, including SOPs.
– Keven Kempf, Director of IDOC:8 Hogan alleges Mr. Kempf approved the
Religious Activities SOP;
– Jeff Zmuda, Chief of the Division of Prisons: Hogan alleges Mr. Zmuda is
responsible for ensuring that the facility staff implement the SOPs, and that Mr.
Zmuda previously designated individuals to serve on the religious actions review
committee9 (RARC);

8

Henry Atencio is now the Director of the IDOC. Plaintiffs contend Mr. Atencio should be
substituted as the successor in officer to Mr. Kempf. The Court agrees. See supra note 1.
9

The RARC is a committee that consists of at least three individuals and is responsible for
making written recommendations regarding requests for new or unfamiliar religious components. Such
recommendations must be submitted to the Division of Prisons Chief or designee for final decision.
(Religious Activities SOP, Dkt. 22-2 at 13-14.)
The Religious Activities SOP defines the responsibilities of the Chief of the Division of Prisons
to include: Designating persons to serve on the RARC, and serving as the approval authority for new and
unfamiliar religious component requests. (Dkt. 22-2 at 3-4.)

MEMORANDUM DECISION AND ORDER - 17

– Shannon Cluney, Deputy Chief of the Division of Prisons: Hogan alleges Ms.
Cluney is responsible for providing daily oversight at IDOC’s prisons, including
ISCI;
– Jeff Krikman, Dan Copeland, and Josh Tewalt, members of the RARC: Hogan
alleges these Defendants are responsible for reviewing the facility religious
activities oversight committee (RAOC) 10 recommendations, reviewing and
updating the SOPs, and advising the Deputy Chief of Prisons on issues relating to
religious activities. Hogan alleges that Mr. Krikman, Mr. Copeland, and Mr.
Tewalt knew or should have known the Religious Activities SOP would violate
Hogan’s rights.
Defendants assert that the claims against these individually named defendants
must be dismissed because the claims are made based on the Defendants’ roles and
responsibilities, and not any affirmative act or omission. Yet, as set forth above, that is
exactly the basis required for asserting such claims.
For instance, Defendants point out that the claims against Debra Field, David
McClusky and Cindy Wilson are made based on their management duties as members of
the Board of Correction. This sort of authority is the type necessary to respond to a court
order and to change policy if injunctive relief is issued. Similarly, Defendants assert the
claim against Kevin Kempf, now Henry Atencio, cannot stand because it is made solely
based on his appointment as the Director of Idaho Department of Correction. Yet, the
authority inherent in the position of Director at IDOC is exactly the type of authority
10

The RAOC is a committee of at least three individuals, as designated by a facility head, that
oversees religious activities at the facility and communicates with the RARC. The RAOC meets when a
request for a new or unfamiliar practice is received through an inmate Grievance Form. The RAOC
provides a detailed description of whether restricting a requested practice will substantially burden an
inmate’s ability to exercise their beliefs, to determine if there is any compelling government interest to
restrict the practice, and if so, to identify least restrictive alternatives to allow the practice as requested.
(Religious Activities SOP, Dkt. 22-2 at 13-14.)

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necessary to respond if injunctive relief is ordered. Again, Defendants assert the claim
against Jeff Zmuda, Deputy Director of the IDOC must fail—yet it appears from the
record that Mr. Zmuda may have authority necessary to respond to injunctive relief. The
same reasoning lies for the remainder of the individually-named Defendants. Therefore,
because Defendants failed to show that there is no genuine issue as to any of the
individually named Defendants’ lack of authority to execute any possible court-ordered
relief, the claims against such Defendants will not be dismissed at this stage.
CONCLUSION
The Court concludes that summary judgment on Hogan’s RLUIPA claims is
inappropriate, and that he has alleged sufficient facts to support his RLUIPA claims
against each of the individually named Defendants in their official capacities as those
with authority to respond to a court order and change or modify policy.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Motion for Summary Judgment (Dkt. 22) is DENIED;

2)

Plaintiff’s Motion to Strike (Dkt. 29) is DENIED as moot; and

3)

Plaintiff’s Motion to Strike (Dkt. 31) is DENIED as moot.

May 15, 2018

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