Spivey v. Lt. Chapman et al

Filing 162

MEMORANDUM AND ORDER ADOPTING 150 REPORT AND RECOMMENDATIONS in part and REJECTING in part; Denying 132 Motion for Summary Judgment in its entirety; ORDER TO SHOW CAUSE why this Court should not dismiss RLUIPA claim; Denying 135 MOTION for Summary Judgment in its entirety, Denying 113 MOTION for Order to filed by William O Spivey, Denying 114 MOTION for Order to filed by William O Spivey, Denying 115 MOTION for Order to MOTION for Temporary Restraining Order filed by William O Spivey, Denying 119 MOTION for Temporary Restraining Order filed by William O Spivey, denying 143 MOTION for Federal Injunction filed by William O Spivey, Denying 149 MOTION for Preliminary Injunction filed by William O Spivey, Denying 154 MOTION for Permanent Injunction filed by William O Spivey, Denying as moot 157 MOTION to ask this Court the Status of these Cases filed by William O Spivey, Reconsidering sua sponte Spivey's motion for appointment of counsel (Doc. 57) and will attempt to recruit counsel for Spivey for purposes of trial. Spivey's RLUIPA and First Amendment free exercise claims remain pending against Defendants. Signed by Judge J. Phil Gilbert on 5/10/13. (bkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM O. SPIVEY,
Plaintiff,
vs.

Case No. 11-cv-329-JPG-PMF

LT. CHAPMAN, WARDEN FLAG, and
SAGER,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“R & R”) (Doc.
150) of Magistrate Judge Philip M. Frazier recommending this Court (1) grant in part and deny
in part plaintiff William O. Spivey’s motion for summary judgment (Doc. 132); (2) deny
defendants Lt. Chapman and Warden Flag’s (collectively “Defendants”) motion for summary
judgment (Doc. 135); and (3) deny as moot Spivey’s motions for injunctive relief (Docs. 113115, 119, 143, 149). Defendants filed an objection to the R & R (Doc. 152) to which Spivey
responded (Doc. 155). For the following reasons, the Court adopts in part and rejects in part the
R & R.
1. Alleged Facts
Spivey, currently an inmate at Menard Correctional Center (“Menard”), identifies his
religion as Reform Judaism. His religion requires that he rest on Shabbat, his religion’s Sabbath,
which lasts from Friday to Saturday. The Illinois Department of Corrections’ (“IDOC”) records
incorrectly list Spivey’s religious affiliation as Protestant. Spivey was incarcerated at Centralia
Correctional Center (“Centralia”) from March 11, 2010, to February 16, 2011. While
incarcerated at Centralia, Spivey worked as a laundry porter and was scheduled to work on

Friday and Saturday. Spivey asked Chapman, his supervisor with authority over Spivey’s work
schedule, to change his schedule so that he could rest on his Sabbath. Chapman refused to alter
Spivey’s work schedule and told Spivey to update his religious affiliation in his prison records.1
Spivey then told Flag that his religion was Reform Judaism and asked that Flag adjust his
schedule so he could rest on his Sabbath. Flag told Spivey to “sue the prison.” Upset that his
request was denied, Spivey spit on the wall. As a result, Sager wrote Spivey a disciplinary
ticket. He was found guilty and sent to segregation.
Spivey originally filed his complaint pursuant to 42 U.S.C. § 1983 on August 31, 2010,
under case number 10-cv-689-JPG, listing unrelated causes of action against multiple
defendants. The Court severed the unrelated claims, and this case is one of those severed claims.
In its referral order, this Court divided Spivey’s case into two counts as follows: (1) Count One
was his freedom of religion claims against Defendants; and (2) Count Two was his claims related
to the disciplinary ticket against Sager. The Court found that Count Two did not survive
threshold review and dismissed that count and Sager from the case. Spivey’s freedom of religion
claims stated in Count One remain pending against Defendants.
The parties filed cross motions for summary judgment and Spivey filed several motions
for injunctive relief. Judge Frazier took up these motions in the instant R & R. Specifically, the
R & R recommends this Court grant Spivey’s motion for summary judgment with respect to his
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim and deny his motion
for summary judgment with respect to his First Amendment free exercise claims.2 The R & R

1

Spivey has another case before this Court in which he complains about his difficulties in requesting IDOC change
his religious affiliation from Protestant to Reform Judaism. See Spivey v. Chaplain Love, Case Number 11-cv-327JPG-PMF.
2
In his motion for summary judgment, Spivey lists multiple causes of actions to which he believes he is entitled to
summary judgment. The threshold review order found only that Spivey’s freedom of religion claims survived.
Accordingly, the Court need not address Spivey’s additional arguments in this order.

2 

further recommends the Court deny Defendants’ motion for summary judgment in its entirety
and deny all six of Spivey’s motions for injunctive relief. The Court will consider each
recommendation and the relevant objections from Defendants in turn.
2. R & R Standard
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Ordinarily, arguments raised for the first time in an objection to a report and
recommendation are waived. See United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000);
Divane v. Krull Elec. Co., 194 F.3d 845, 849 (7th Cir. 1999). “Failure to raise arguments will
often mean that facts relevant to their resolution will not have been developed; one of the parties
may be prejudiced by the untimely introduction of an argument . . . . Additionally, a willingness
to consider new arguments at the district court level would undercut the rule that the findings in a
magistrate judge’s report and recommendation are taken as established unless the party files
objections to them.” Melgar, 227 F.3d at 1040. The Court will first consider the R & R with
respect to the parties’ cross motions for summary judgment.
3. The Parties’ Motions for Summary Judgment
Summary judgment is appropriate where “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.

3 

R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Where the moving party
fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving
party even if the opposing party fails to present relevant evidence in response to the motion.
Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
Where the nonmovant bears the burden of persuasion, “the movant’s initial burden ‘may
be discharged by ‘showing’ – that is, point out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.’” Modrowski v. Pigatto, No. 11-1327, 2013
WL 1395696, at *2 (7th Cir. Apr. 8, 2013) (citing Celotex, 477 U.S. at 325). In such a case, the
movant need not “support its motion with affidavits or other similar materials negating the
opponent’s claim.” Modrowski, 2013 WL 1395696, at *2 (citing Celotex, 477 U.S. at 323).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26;
Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material
fact is not demonstrated by the mere existence of “some alleged factual dispute between the
parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine
issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving
party] on the evidence presented.” Anderson, 477 U.S. at 252.

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a. Spivey’s Motion for Summary Judgment
In his motion for summary judgment filed January 8, 2013, Spivey basically recounts the
facts in his complaint. He states that Chapman failed to give him days off so he could rest on his
Sabbath. He also recounts an event in which he told Flag his religion was Reform Judaism and
Flag told Spivey “to sue them.” Doc. 132, p. 1. In his affidavit, dated January 22, 2013, and
filed January 25, 2013, Spivey attests that Defendants refused to alter his work schedule so he
could rest on his Sabbath. Doc. 11-329, p. 2. Spivey maintains that Defendants denied his
request for time off to observe his Sabbath “because they are both racist toward Jews.” Doc.
132, p. 1. In his affidavit, Spivey similarly asserts that Defendants denied his request because of
his religious beliefs. Doc. 138, p. 2.
Defendants’ response to Spivey’s motion for summary judgment, in pertinent part, is as
follows:
Plaintiff claims that Defendants violated his rights under Federal and State laws
when they ignored his requests to not have to work on his Sabbath day. . . .
Plaintiff makes no citations to the record which support his Motion. He has not
presented any Undisputed Material Facts which make clear that he is entitled to
judgment in his favor. Plaintiff merely reiterates the statements made in his
Complaint. He does not support his request for summary judgment with any
undisputed facts which would entitle him to summary judgment. For this reason,
Plaintiff’s Motion for Summary Judgment should be denied.
Doc. 141, pp. 1-2. This is the extent of Defendants’ argument in their response. Defendants do
not dispute Spivey’s affidavit or attach any supporting evidence that would indicate the reason
they declined to give Spivey time off work to rest on his Sabbath.
i. Spivey’s “Affidavit”
As an initial matter, the Court declines to disregard Spivey’s “affidavit.” For the first
time in their objection to the R & R, Defendants complain that Spivey’s “affidavit” should be
disregarded because it was filed after the dispositive motion deadline. First, the Court notes
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Spivey is pro se. McCormick v. City of Chi., 230 F.3d 319, 325 (7th Cir. 2000) (courts must
liberally construe pro se filings). Further, district courts have discretion to consider untimely
motions for summary judgment. See Jones v. Coleman Co., 39 F.3d 749, 753-54 (7th Cir. 1994).
Spivey filed his original motion for summary judgment before the dispositive motion deadline of
January 21, 2013. His supplementing affidavit is dated January 22, 2013, only one day after the
dispositive motion deadline. See Houston v. Lack, 487 U.S. 266, 276 (1988) (a prisoner “files” a
document when he turns it over to a prison official to be sent to the Court). The affidavit was
filed on January 25, 2013, eleven days before Defendants filed their motion for summary
judgment. The factual statements in the affidavit should not have caught Defendants off guard
resulting in any prejudice because the affidavit contains the same statements Spivey has made in
his filings throughout this case. The Court also notes that Defendants do not even acknowledge,
let alone object, to Spivey’s affidavit in their response to his motion for summary judgment.
Thus, their argument is now waived. Finally, Defendants correctly point out that Spivey’s
affidavit is actually a declaration because he did not swear to its content before someone
authorized to administer oaths. However, “a declaration under § 1746 is equivalent to an
affidavit for purposes of summary judgment.” Owens v. Hinsley, 635 F.3d 950, 954-55 (7th Cir.
2011). Accordingly, the Court will consider Spivey’s affidavit in the following analysis.
ii. RLUIPA Claim
The R & R recommends that Spivey’s motion for summary judgment be granted on his
RLUIPA claim. RLUIPA prohibits a prison from
imposing 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 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.
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42 U.S.C. § 2000cc-1(a). The statute provides that a claimant may receive “appropriate relief.”
42 U.S.C. § 2000cc-2(a). Sovereign immunity, however, prohibits RLUIPA suits against state
officials in their official capacities for money damages. Sossamon v. Texas, 131 S. Ct. 1651,
1658-59 (2011); Maddox v. Love, 655 F.3d 709, 717 (7th Cir. 2011). The Seventh Circuit has
further held that “RLUIPA does not allow for suits against prison official in their individual
capacities.” Id. Ultimately, prisoners may “enforce the statute through injunctive or declaratory
relief.” Charles v. Verhagen, 348 F.3d 601, 606 (7th Cir. 2003).
Defendants’ objection contends the R & R was erroneous, arguing Spivey’s RLUIPA
claim did not survive threshold review. Defendants further raise new arguments that Spivey is
not entitled to summary judgment on his RLUIPA claim. With respect to their newly raised
arguments, the Defendants waived those arguments for failing to raise them in their response to
Spivey’s motion for summary judgment. See United States v. Melgar, 227 F.3d 1038, 1040 (7th
Cir. 2000) (arguments not made before a magistrate judge are normally waived).
The Court finds that Spivey’s claim still contains an RLUIPA claim. Defendants’ claim
to the contrary is implausible for several reasons. First, Defendants have no basis for assuming
the RLUIPA claim did not survive threshold review. The case law is clear that pro se prisoner
free exercise actions include a claim under RLUIPA even if the prisoner does not specifically
invoke RLUIPA in his complaint. See Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012)
(noting plaintiff did not mention RLUIPA, “but he is proceeding pro se and in such cases we
interpret the free exercise claim to include the statutory claim”); Ortiz v. Downey, 561 F.3d 664,
670 (7th Cir. 2009) (a prisoner who does not plead a RLUIPA violation specifically, but does
allege unconstitutional restrictions on religious practice, states a claim under the statute). The
Court indicates in its threshold order if a claim does not survive, as it did, for example, when it
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explained why Spivey’s due process claim did not survive. Nowhere in its threshold review did
the Court dismiss Spivey’s RLUIPA claim. Most notably, in his R & R dated September 14,
2012, Judge Frazier indicated “[t]he Court found Spivey stated a First Amendment (Free
Exercise Clause)/[RLUIPA] claim in Count [One].” Doc. 87, p. 2. Thus, the Defendants have
had notice that an RLUIPA claim exists in this case and have failed to object to its inclusion.
Accordingly, the Court will address the RLUIPA claim.
Regardless of whether Spivey has carried his burden, the Court must deny Spivey’s
motion for summary judgment on his RLUIPA claim. This Court’s jurisdiction is limited to
“actual, ongoing controversies.” U.S. Const. art. III, § 2. “‘[W]hen the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome,’ the case is (or the
claims are) moot and must be dismissed for lack of jurisdiction.” St. John’s United Church of
Christ v. City of Chi., 502 F.3d 616, 626 (7th Cir. 2007). Any prisoner claim for injunctive relief
against a prison is moot upon the prisoner’s transfer to another prison “unless ‘he can
demonstrate that he is likely to be retransferred.’” Higgason v. Farley, 83 F.3d 807, 811 (7th
Cir. 1996) (quoting Moore v. Thieret, 862 F.2d 148, 150 (7th Cir. 1988)). Further, the “capableof-repetition doctrine applies only in exceptional situations, and generally only where the named
plaintiff can make a reasonable showing that he will again be subject to the alleged illegality.”
City of L.A. v. Lyons, 461 U.S. 95, 109 (1983).
Here, Spivey may not recover money damages under RLUIPA and thus he is limited to
injunctive or declaratory relief. However, the alleged constitutional violation took place while
Spivey was incarcerated in Centralia. He has since been transferred to Menard. He has made no
suggestion that he is likely to be retransferred to Centralia and again be subject to constitutional
violations. Thus, Spivey’s RLUIPA claim is now moot because he is no longer incarcerated in

8 

the prison in which the alleged constitutional violation arose. Accordingly, the Court rejects this
portion of the R & R and dismisses Spivey’s RLUIPA claim. The Court will now turn to
Spivey’s motion for summary judgment with respect to his First Amendment free exercise claim.
iii. First Amendment Free Exercise Claim
Spivey asserts he is entitled to judgment as a matter of law on his First Amendment free
exercise claim for the same reasons he is entitled to judgment as a matter of law on his RLUIPA
claim. The R & R recommends this Court deny Spivey’s motion for summary judgment because
of the lack of admissible evidence regarding the Defendants’ motivation for denying his requests
to refrain from work on his Sabbath. The Court has not received an objection to this portion of
the R & R. As such, the Court has reviewed this portion of the R & R and finds that it is not
clearly erroneous. Accordingly, the Court adopts the R & R to that extent and denies Spivey’s
motion for summary judgment with respect to his First Amendment free exercise claim. The
Court will now consider Defendants’ motion for summary judgment on Spivey’s First
Amendment free exercise claim.
b. Defendants’ Motion for Summary Judgment
Defendants argue they are entitled to summary judgment on Spivey’s First Amendment
free exercise claim because the refusal to give Spivey the day off for his Sabbath was rationally
related to a legitimate penological interest. Specifically, they point out that Spivey’s IDOC
records did not indicate his religious affiliation as Jewish, and he was not entitled to
accommodations based on his faith until he complied with the requirements in 10 Ill. Admin.
Code § 425.30 to change his religious affiliation. Defendants also argue they are entitled to
qualified immunity because “the facts alleged do not give rise to a Constitutional violation” and
“if they were to be held liable on the facts alleged, it would constitute a heightened standard for

9 

what makes the claims against them.” Doc. 136, pp. 6-7. Spivey’s response indicated that IDOC
incorrectly recorded his religion as “Protestant,” and IDOC improperly refused to change his
religion as explained in another case he is litigating. See Spivey v. Chaplain Love, 11-cv-327JPG-PMF.
The R & R recommends the Court deny the Defendants’ motion for summary judgment.
Specifically, the R & R points out Defendants failed to contradict Spivey’s allegations that they
acted discriminatorily in denying his request to refrain from work on his Sabbath, and it is not
evident from the record that Defendants were relying on the regulations in their decision to deny
Spivey’s request. Indeed, there is not even an affidavit from which a court could conclude
Defendants relied on the regulations, rather than a discriminatory motive, when they denied
Spivey’s request for days off and told him to change his religion on his records. Finally, Judge
Frazier recommended this Court deny summary judgment on Defendants’ qualified immunity
argument. He noted there is “at least some question as to whether Defendants acted with a
discriminatory pretext.” Doc. 150, p. 12. In such a situation, “qualified immunity is not
available because a reasonable officer would have known that intentional, arbitrary
discrimination violated Spivey’s clearly-established right to freely exercise his religion.” Id.
Because Defendants filed an objection, the Court will review this portion of the R & R de novo.
The First Amendment of the United States Constitution provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Prisoners undoubtedly enjoy freedom of religion as guaranteed by the First Amendment free
exercise clause and applied to the states pursuant to the Fourteenth Amendment. O’Lone v.
Estate of Shabazz, 482 U.S. 342, 348 (1987); Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir.
2011). However, “‘[l]awful incarceration brings about the necessary withdrawal or limitation of

10 

many privileges and rights, a retraction justified by the considerations underlying our penal
system.’” O’Lone, 482 U.S. at 348 (quoting Price v. Johnston, 334 U.S. 266, 285 (1948));
Vinning-El, 657 F.3d at 592-93. As such, a prison may place restrictions on an inmate’s freedom
of religion rights “if they are reasonably related to legitimate penological objectives.” VinningEl, 657 F.3d at 592-93 (citing Turner v. Safley, 482 U.S. 78, 89-91 (1987)). At the same time,
“[p]risons may not discriminate against a particular religion.” Al-Alamin v. Gramley, 926 F.2d
680, 686 (7th Cir. 1991) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972)).
As noted, Defendants argue they are entitled to summary judgment because the IDOC
regulation at issue is rationally related to a legitimate penological interest. Spivey, however,
does not seem to contest the validity of the IDOC regulations. He asserts that Defendants
refused to give him days off on his Sabbath for discriminatory reasons. Defendants may very
well have had a non-discriminatory intent and may have relied on the regulations when declining
to give Spivey the day off work; however, the Court cannot speculate as to those reasons.
Without supporting evidence establishing Defendants’ reasons for denying Spivey’s request,
Defendants’ motion for summary judgment must fail.
Defendants finally argue they are entitled to qualified immunity. The qualified immunity
inquiry includes two questions: “first whether the plaintiff has a good constitutional claim, and
second whether the right in question was ‘clearly established’ before the contested events.”
Vinning-El, 657 F.3d at 592. Under the second prong, the Court must inquire as to whether “a
reasonable officer would have known that the particular action at issue . . . was unlawful.” Lewis
v. Downey, 581 F.3d 467, 479 (7th Cir. 2009). A court may undertake to resolve either or both
of these questions at its discretion. Id. (citing Pearson v. Callahan, 555 U.S. 223, 233-42
(2009)).

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On the facts alleged, that Defendants used a discriminatory reason for denying Spivey’s
requests for his Sabbath off from work, Spivey has stated a “good constitutional claim.” Further,
it is clearly established that forcing an individual to work on their Sabbath absent a compelling
governmental interest, such as a legitimate penological objective, substantially burdens the free
exercise of religion. See Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829, 834 (1989).
Accordingly, a reasonable officer would have known that denying Spivey days off work to rest
on his Sabbath solely for discriminatory reasons was unlawful. As such, Defendants are not
entitled to judgment as a matter of law on qualified immunity. Thus, the Court adopts the R & R
to the extent it recommends denying Defendants’ motion for summary judgment and denies
Defendants’ motion for summary judgment in its entirety.
4. Spivey’s Motions for Injunctive Relief
Spivey had pending six motions for injunctive relief at the time the R & R was entered
(Docs. 113-15, 119, 143 & 149). The R & R recommends this Court deny all six of these
motions. The Court has received no objection to this recommendation. As such, the Court has
reviewed the R & R and finds that it is not clearly erroneous. Accordingly, the Court adopts the
R & R in this respect and denies Spivey’s motions for injunctive relief (Docs. 113-15, 119, 143
& 149).
Subsequent to the entry of the R & R, Spivey filed another motion for injunctive relief
(Doc. 154). However, the Court dismissed Spivey’s RLUIPA claim, did not grant Spivey’s
motion for summary judgment on his First Amendment free exercise claim, and is no longer
incarcerated at the institution in which this alleged constitutional violation occurred. He has not
alleged, nor does the Court have reason to believe, that Spivey will be retransferred to Centralia

12 

and suffer the same constitutional violation. For these reasons, the Court denies Spivey’s motion
for permanent injunction (Doc. 154) at this time.
5. Conclusion
For the foregoing reasons, the Court


ADOPTS the R & R in part and REJECTS the R & R in part (Doc. 150);



DENIES Spivey’s motion for summary judgment (Doc. 132) in its entirety;



ORDERS Spivey to show cause on or before June 7, 2013, why this Court should
not dismiss his RLUIPA claim against Defendants for lack of jurisdiction;



DENIES Defendants’ motion for summary judgment (Doc. 135) in its entirety;



DENIES Spivey’s motions for injunctive relief (Docs. 113-15, 119, 143, 149 &
154);



DENIES Spivey’s motion for status (Doc. 157) as moot;



RECONSIDERS sua sponte Spivey’s motion for appointment of counsel (Doc.
57) and will attempt to recruit counsel for Spivey for the purposes of trial.

Spivey’s RLUIPA and First Amendment free exercise claims remain pending against
Defendants.

IT IS SO ORDERED.
DATED: May 10, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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