Saleh v. Pfister et al

Filing 153

MEMORANDUM Opinion and Order: This Court grants in part and denies in part defendants' motion to dismiss 114 . The Court dismisses defendant Randy Pfister from this lawsuit. Signed by the Honorable Sharon Johnson Coleman on 1/27/2021. Mailed notice. (ym, )

Case: 1:18-cv-01812 Document #: 153 Filed: 01/27/21 Page 1 of 7 PageID #:1188

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ABDEL JABER SALEH (#R57679),
Plaintiff,
v.
RANDY PFISTER, 1 Warden, Stateville
Correctional Center, JOEY DETHROW,
former Stateville Correctional Sergeant,
Defendants.

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Case No. 18 C 1812
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Abdel Jaber Saleh brings the present second amended complaint against officials at
Stateville Correctional Center (“Stateville”) alleging violations of the First Amendment’s Free
Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, and the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq. On May 6, 2020, the
Court granted defendants’ first Federal Rule of Civil Procedure 12(b)(6) motion to dismiss without
prejudice while also granted Saleh leave to file a second amended complaint. Before the Court is
defendants’ Rule 12(b)(6) motion to dismiss the second amended complaint. For the following
reasons, the Court grants in part and denies in part defendants’ motion.
Background
Saleh, a professing Muslim, has been incarcerated at Stateville during the relevant time
period. In his second amended complaint, Saleh alleges that on September 8, 2017, defendant Joey
Dethrow, a Stateville correctional sergeant, gave him the choice of either going to the Friday
afternoon Islamic Jumu’ah prayer services or to the commissary to complete his shopping – but not
Pursuant to Federal Rule of Civil Procedure 25(d), David Gomez, the current warden of Stateville
Correctional Center, is substituted for Randy Pfister, the former warden at Stateville, as to Saleh’s official
capacity claims.

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both. Saleh chose to go to the Jumu’ah services. Saleh alleges that as the sergeant in charge of his
cellblock on September 8, 2017, Dethrow had the authority to determine whether Saleh would be
able to go in the first group to the commissary. On September 11, Saleh asked Dethrow if he could
go to the commissary because he missed the September 8 opportunity to do so. Dethrow refused
this request. Correctional officers did not allow Saleh to go to the commissary until October 3.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss,
plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible when the
plaintiff alleges “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009).
Discussion
First Amendment Claim
In Count I, Saleh alleges that defendants violated the Free Exercise Clause of the First
Amendment. The Free Exercise Clause, “‘protects religious observers against unequal treatment’
and against ‘laws that impose special disabilities on the basis of religious status.’” Espinoza v. Montana
Dept. of Revenue, 140 S.Ct. 2246, 2254 (2020) (citation omitted). “The free exercise inquiry asks
whether government has placed a substantial burden on the observation of a central religious belief
or practice and, if so, whether a compelling governmental interest justifies the burden.” Hernandez v.
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C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). “A substantial burden ‘put[s]
substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Thompson v.
Holm, 809 F.3d 376, 379-80 (7th Cir. 2016) (citation omitted).
In his second amended complaint, Saleh alleges that due to the choice Dethrow gave him
between attending Jumu’ah services or going to the commissary, Dethrow prohibited him from
buying halal foods and hygiene products necessary to practice his religion. Under these allegations,
Saleh has alleged sufficient factual details making his claim plausible under controlling law. In
Thompson, for example, the Seventh Circuit concluded that it was a substantial burden on a Muslim
prisoner’s religion when guards withheld his Ramadan meals for two days. Id. at 380. Similarly, in
the context of a RLUIPA claim, the Seventh Circuit has held “[w]hen the state forces a prisoner to
choose between adequate nutrition and religious practice, it is imposing a substantial burden on his
religious practice.” Jones v. Carter, 915 F.3d 1147, 1150 (7th Cir. 2019); see also Hunafa v. Murphy, 907
F.2d 46, 47 (7th Cir. 1990) (same, applying free exercise inquiry). In addition, the Supreme Court
has held that a Muslim prisoner established a prison grooming policy substantially burdened his
exercise of religion. Holt v. Hobbs, 574 U.S. 352, 361, 135 S. Ct. 853, 862, 190 L.Ed.2d 747 (2015).
With this precedent in mind and viewing the facts in Saleh’s favor, he has plausibly alleged that his
religious practice of eating halal foods, along with his religious grooming needs, were substantially
burdened in violation of the First Amendment’s Free Exercise Clause. 2
Next, Saleh contends that defendant Pfister, as warden, was personally involved in the
violation of his Free Exercise rights because he turned a blind eye to grievances about Islamic
practices at Stateville. Whether Pfister ignored general grievances about Islamic practices does not

Because it is defendants’ burden to show that any such restrictions on Saleh’s religious practice are justified
by legitimate penological interests, this issue is best left for summary judgment. See Singer v. Raemisch, 593
F.3d 529, 536-37 (7th Cir. 2010); King v. Federal Bureau of Prisons, 415 F.3d 634, 639 (7th Cir. 2005).
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plausibly suggest that Pfister was personally involved in the alleged constitutional violation
concerning the restrictions placed on Saleh’s ability to get halal food and hygiene products in
September 2017. Specifically, these allegations do not raise a reasonable inference that Saleh’s
specific constitutional deprivation occurred due to Pfister’s direction or with his knowledge and
consent. Williams v. Shah, 927 F.3d 476, 482 (7th Cir. 2019).
Saleh further contends that Pfister was personally involved in the First Amendment
deprivation because Pfister was deliberately indifferent to his duty of reviewing prisoners’ grievances
by delegating this duty to other prison staff. Not only does the Illinois Administrative Code allow
wardens to delegate this task, 20 Ill. Admin. Code §§ 504.805(a), 504.830(e), but any suggestion that
violating the Illinois Administrative Code amounts to a constitutional violation is untenable under
Seventh Circuit law. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (violation of
“state law is completely immaterial as to the question of whether a violation of the federal
constitution has been established.”). Furthermore, Saleh’s arguments based on Pfister’s “deliberate
indifference” are misplaced because the deliberate indifference standard concerns Eighth
Amendment conditions of confinement and prison medical claims, see Machicote v. Roethlisberger, 969
F.3d 822, 827 (7th Cir. 2020), or Monell failure to train claims. See J.K.J. v. Polk County, 960 F.3d 367,
380 (7th Cir. 2020) (en banc). The Court grants this aspect of defendants’ motion to dismiss.
Equal Protection Claim
In Count II, Saleh brings an Equal Protection claim asserting that Dethrow intentionally
discriminated against him based on his religion. “The equal protection clause of the Fourteenth
Amendment protects individuals against intentional, arbitrary discrimination by government
officials.” Lauderdale v. Illinois Dep’t of Human Serv., 876 F.3d 904, 909–10 (7th Cir. 2017) (citation
omitted). In general, the Equal Protection Clause and the Establishment Clause prohibit prison
officials from treating members of some religions more favorably than others. See Kaufman v. Pugh,
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733 F.3d 692, 696 (7th Cir. 2013). To establish an Equal Protection claim, a plaintiff must show
purposeful or intentional discrimination, which exists when “a decisionmaker singled out a particular
group for disparate treatment and selected his course of action at least in part for the purpose of
causing its adverse effects on the identifiable group.” Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir.
1996) (citation omitted). A showing that a defendant was negligent will not suffice. Id.
In support of his Equal Protection claim, Saleh alleges that defendant Dethrow allowed
Christian inmates to attend rescheduled commissary trips to accommodate their religious services
and classes in contrast to Dethrow’s refusal to accommodate his religious needs in September 2017.
In the May 2020 ruling, the Court concluded that Saleh’s allegation of an isolated event that
adversely affected him did not plausibly suggest an Equal Protection violation. Shango v. Jurich, 681
F.2d 1091, 1104 (7th Cir. 1982) (“mere inconsistency in prison management [] may not in itself
constitute a cognizable equal protection claim.”) (citation omitted).
Saleh disputes this conclusion arguing that Dethrow’s intentional conduct existed within the
context of other Stateville officials’ unequal treatment of Muslim prisoners. Specifically, Saleh
maintains that Stateville has never had a Muslim in its Chaplain’s office during his incarceration, did
not set holiday schedules to accommodate Muslim services, put stringent requirements on Muslim
but not Christian volunteer instructors, among other examples of the alleged unequal treatment.
From these allegations, it appears that Saleh is attempting to bring a Monell pattern and
practice claim, and, as discussed in the May 2020 ruling, any such claim for money damages is
prohibited under the Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Nonetheless, Saleh is also seeking injunctive relief, therefore,
the Court turns to whether he has plausibly alleged a Monell pattern and practice claim. To
sufficiently allege the existence of a widespread practice so permanent that it constitutes a policy
with the force of law, Saleh must set forth some facts that his incident was not an isolated or
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random occurrence. See Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017). “[T]here is no
clear consensus as to how frequently such conduct must occur to impose Monell liability, ‘except that
it must be more than one instance.’” Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir.
2010) (citation omitted). Recently, for example, the Seventh Circuit concluded three instances that
lower bunk inmates’ prescription needs were ignored did not establish a widespread that had the
force of law. Bridges v. Dart, 950 F.3d 476, 480 (7th Cir. 2020).
Here, not only has Saleh alleged just one instance of having to choose between prayer
services and going to the commissary, but his allegations concerning how Stateville officials generally
treat Muslim inmates are unconnected and dissimilar to his September 2017 incident, and thus do
not save this claim. Id. In the end, whether Saleh brought his Monell pattern and practice claim
under the First Amendment or the Equal Protection Clause, he has failed to plausibly allege any
such claim based on a single incident. See Iqbal, 556 U.S. at 679 (“Determining whether a complaint
states a plausible claim for relief” is “a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”). The Court therefore grants defendants’ motion to
dismiss Count II with prejudice.
RLUIPA Claim
In Count III, Saleh brings a claim under RLUIPA based on Dethrow forcing him to make a
choice between going to Jumu’ah or the commissary. RLUIPA states that “no government shall
impose a substantial burden on the religious exercise of a person residing in or confined to an
institution.” 42 U.S.C. § 2000cc–1(a). Although RLUIPA does not define “substantial burden,” the
Supreme Court has held that a substantial burden exists when an inmate is required to “engage in
conduct that seriously violates [his] religious beliefs.” Holt, 574 U.S. at 361 (citation omitted).
RLUIPA confers greater religious rights than under the Free Exercise Clause. Grayson v. Schuler, 666
F.3d 450, 451 (7th Cir. 2012).
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Viewing the facts in Saleh’s favor, he alleges that Dethrow restricted him from obtaining
halal food and certain hygiene products, which are integral to his religious practices. Saleh’s
RLUIPA claim based on these facts has legal support, as discussed above, including the Seventh
Circuit’s opinion in Jones v. Carter and the Supreme Court’s decision in Holt. RLUIPA’s expansive
protection of religious liberty further supports this conclusion. Accordingly, Saleh has plausibly
alleged his RLUIPA claim.
On a final note, Saleh can only seek injunctive relief under RLUIPA, which is against warden
Gomez in his official capacity claim. Grayson, 666 F.3d at 451 (“the Act does not create a cause of
action against state employees in their personal capacity.”). This is allowable under the
circumstances because “official-capacity actions for prospective relief are not treated as actions
against the State.” Will, 491 U.S. at 71 n.10 (citation omitted). Moreover, despite Saleh’s arguments
to the contrary, Pfister and Dethrow are not defendants to this count because “a suit against a state
official in his or her official capacity is not a suit against the official but rather is a suit against the
official’s office.” Will, 491 U.S. at 71; see also Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099,
87 L.Ed.2d 114 (1985) (“an official-capacity suit is, in all respects other than name, to be treated as a
suit against the entity.”).
Conclusion
For the foregoing reasons, this Court grants in part and denies in part defendants’ motion to
dismiss [114]. The Court dismisses defendant Randy Pfister from this lawsuit.
IT IS SO ORDERED.
Date: 1/27/2021
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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