Chesser v. Rivas et al

Filing 223

MEMORANDUM AND ORDER, The Court ADOPTS the Report (Doc. 214 ) AS MODIFIED by this order to correct the date of the Iqbal decision to 2009; OVERULES Chesser's (Doc. 217 ) and the defendants' (Doc. 220 ) objections; GRANTS in part, DENIES in part, and DECLARES MOOT in part the defendants' first motion for summary judgment (Doc. 112 ); GRANTS the defendants' second motion for summary judgment (Doc. 113 ); GRANTS in part and DECLARES MOOT in part the defendants' thir d motion for summary judgment (Doc. 138 ); DENIES Chesser's motion to consider judgment on the responses (Doc. 186 . The Court further ORDERS the parties to submit a proposed final pretrial order to Magistrate Judge Reona J. Dalys chambers on or before November 30, 2016. Signed by Judge J. Phil Gilbert on 11/2/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZACHARY CHESSER,
Plaintiff,
v.

Case No. 13-cv-456-JPG-RJD

HENRY RIVAS, JEFFREY WALTON,
WENDY ROAL, STEVEN CARDONA,
PAUL KELLY, MILTON NEUMANN,
ROBERT ROLOFF, MCCLEARY, WINN,
LESLIE SMITH, APRIL CRUITT, T.
CAPALDO, STEPHEN COLT and J.
SIMMONS,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
214) of now-retired Magistrate Judge Philip M. Frazier recommending that the Court grant in part,
deny in part, and declare moot in part the defendants’ first motion for summary judgment (Doc.
112); grant the defendants’ second motion for summary judgment (Doc. 113); grant in part and
declare moot in part the defendants’ third motion for summary judgment (Doc. 138); and deny
Chesser’s motion to consider judgment on the responses (Doc. 186). Chesser (Doc. 217) and the
defendants (Doc. 220) have filed objections to the Report, and Chesser has responded to the
defendants’ objections (Doc. 221).
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.
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).

Chesser filed this multi-count action in May 2013 complaining of various aspects of his
confinement in the communication management housing unit (“CMU”) at the United States
Penitentiary at Marion, Illinois (“USP-Marion”) from May 2, 2011, to June 2, 2014.1 The only
counts remaining in this case are Counts 1, 2, 5, 6, 13, 14, 21 and 23, which the Court will address
in turn.
Counts 1, 13 and 14: Religious Freedom Restoration Act
Chesser complains about the rule restricting him from teaching or learning Arabic (Count
1), the failure to provide access to a qualified Imam for his religious guidance (Count 13), and the
failure to accommodate some of his religious fasts (Count 14). He claims that each of these
instances violated the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1,
because it substantially burdened his exercise of religion without being the least restrictive means
of furthering a compelling governmental interest.
In the Report, Magistrate Judge Frazier noted that RFRA provides only injunctive, not
monetary, relief. He further found Chesser had not shown he was likely to be retransferred to the
CMU at USP-Marion or that, if he were transferred there, he would have a current dispute with the
defendants, who have either retired or taken new positions and are no longer assigned to the
USP-Marion CMU. Magistrate Judge Frazier concluded that these counts are therefore moot.
In his objection, Chesser maintains there is a fifty-fifty chance he will return to the
USP-Marion CMU when he is released from ADX-Florence because there are only two CMU
units in the Bureau of Prisons (“BOP”). He points to several cases holding that a transfer out of a
CMU does not moot his claims for injunctive relief where the factors supporting placement in a
CMU still exist. See, e.g., Aref v. Holder, 953 F. Supp. 2d 133, 144 (D.D.C. 2013).

Chesser is now housed at the United States Penitentiary – Administrative Maximum at Florence,
Colorado (“ADX-Florence”).
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The Court has reviewed the matter de novo and finds that, while it is possible Chesser
could return to the USP-Marion CMU, he has not shown it is likely that he will be retransferred to
the USP-Marion CMU to face the same conditions for which the current defendants could provide
relief. The defendants have shown that Chesser still has several steps to complete before leaving
his current placement at ADX-Florence and that there are several options for where he would then
go. They have further shown that at least one of the objectionable policies in the USP-Marion
CMU – regarding learning Arabic – has been changed since Chesser was housed there. There is
insufficient evidence to suggest it is likely Chesser will again face the same conditions he
complains about in Counts 1, 13 and 14. Additionally, the defendants are no longer connected
with the USP-Marion CMU and are therefore unable to change any conditions in that unit.
Counts 2 and 6: First Amendment Free Exercise Claims
Chesser complains about the rules restricting him from teaching or learning Arabic (Count
2) and prohibiting him from wearing shortened pants (Count 6). He brings these counts under
Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971), claiming that each of these rules violated his First Amendment right to freely exercise his
religion because it placed a substantial burden on his religious exercise without sufficient
justification.
In the Report, Magistrate Judge Frazier found that the defendants are entitled to qualified
immunity because it was not clearly established at the time the defendants enforced these rules that
doing so would violate Chesser’s constitutional rights. In coming to this conclusion, Magistrate
Judge Frazier examined Ashcroft v. Iqbal, 556 U.S. 662 (2009), noted that it was decided after the
events in this case and had nothing to do with teaching or learning Arabic or altering prison
uniforms. He also found other cases cited by Chesser did not clearly establish the conduct alleged
in this case was unconstitutional
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In his objection, Chesser argues the defendants are not entitled to qualified immunity,
again pointing to Iqbal and other cases as clearly establishing the relevant First Amendment law.
The Court has reviewed the matter de novo and notes that Magistrate Judge Frazier was
incorrect to find Iqbal was decided in 2014, after the conduct at issue in this case. It was actually
decided in 2009, so if it clearly established the law, it would have done so by the time of the
defendants’ conduct in this case.
However, as Magistrate Judge Frazier found, the issues in Iqbal were sufficiently different
than the issues in this case such that a reasonable official in the particular situation faced by the
defendants would not have known their conduct violated the free exercise clause. Iqbal involved
the designation of harsh confinement conditions on the basis of race, religion and/or national
origin. Id. at 668-69. The principles established by Iqbal related to the need to plead facts
plausibly suggesting intentional discrimination in designation decisions. Iqbal did not address
the specific conduct or circumstances in this case or anything like it – restricting Chesser from
teaching or learning Arabic and from wearing shortened pants where those things are asserted to
pose a danger to the security of a prison unit housing inmates whose communications must be
monitored for security reasons. Iqbal did not establish that such conduct constituted a substantial
burden on an inmate’s exercise of his religion without a legitimate governmental interest, the
critical inquiry in a free exercise claim. See Thompson v. Holm, 809 F.3d 376, 379-80 (7th Cir.
2016). Likewise, none of the other cases cited by Chesser clearly establishes that enforcing these
rules in the defendants’ situation violated Chesser’s free exercise rights. To the extent that the
defendants’ conduct may have violated constitutional guarantees by treating one religion
differently than another, those claims survive in Counts 5 and 23.
Counts 5 and 23: Fifth Amendment Equal Protection Claim
In this Bivens claim, Chesser complains that the rules restricting him from teaching or
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learning Arabic (Count 5) and prohibiting him from wearing shortened pants (Count 23) also
violated the equal protection guarantee in the due process clause of the Fifth Amendment. With
respect to Count 5, Chesser believes he was singled out for disparate treatment because he wanted
to gather with other Muslim inmates to learn Arabic while other inmates were allowed to gather to
study foreign languages. With respect to Count 23, Chesser claims the defendants only enforced
the shortened pants rule against Islamic inmates and not against non-Muslims.
In the Report, Magistrate Judge Frazier found the defendants had underdeveloped their
qualified immunity argument and that Chesser had pointed to a case, Grayson v. Schuler, 666 F.3d
450 (7th Cir. 2012), which established the unconstitutionality of discrimination in hairstyles based
on religion, a situation sufficiently similar to the allegations in Counts 5 and 23 to put the
defendants on notice their alleged conduct was unconstitutional.
The defendants object to this portion of the Report on the grounds that Magistrate Judge
Frazier gave short shrift to the first requirement for qualified immunity – that the defendants’
conduct amounted to a constitutional violation – by ignoring whether Chesser was intentionally or
purposefully treated differently from other inmates based on a suspect classification or a
fundamental right. They also fault Magistrate Judge Frazier with placing the burden on them to
affirmatively show that the constitutional right was not clearly established at the time as opposed
to placing the burden on Chesser to show that it was.
The Court has reviewed the matter de novo and finds that the defendants’ qualified
immunity argument dealt almost exclusively with the question of whether a First Amendment free
exercise right to teach and/or learn Arabic or to wear shortened pants was clearly established at the
time of their conduct. As discussed above, those rights were not clearly established. However,
only obliquely do the defendants touch on the question of whether it was constitutional to treat
Muslims wanting to learn or teach Arabic differently than other inmates wanting to learn or teach
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foreign languages, or to treat Muslim inmates wanting to shorten their pants differently from other
inmates wanting to shorten their pants or otherwise alter their prison uniforms. Chesser’s
complaints in Counts 5 and 23 center on discriminatory application of the “no learning/teaching”
or “no shortened pants” rules in violation of equal protection guarantees in the Fifth Amendment
due process clause. Magistrate Judge Frazier is correct the defendants have not adequately
developed their qualified immunity argument as to those claims.
Even if the defendants had not waived this argument by failing to develop it in their
motion, the Court would find qualified immunity does not apply. Chesser has provided affidavit
testimony, based on personal knowledge from his own observations, that the two rules in issue
were intentionally not applied in the same way to different categories of inmates, and the
defendants have not offered any evidence showing that such different treatment was justified.
That Chesser’s affidavit may be “self-serving,” as argued by the defendants, does not mean it
cannot constitute evidence to withstand summary judgment as long as it is based on personal
knowledge. See Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (“Provided that the evidence
meets the usual requirements for evidence presented on summary judgment – including the
requirements that it be based on personal knowledge and that it set forth specific facts showing that
there is a genuine issue for trial – a self-serving affidavit is an acceptable method for a non-moving
party to present evidence of disputed material fact.”).
Additionally, as Magistrate Judge Frazier noted, the law was clearly established at the time
that purposeful disparate treatment on the basis of religion without sufficient justification violated
equal protection guarantees. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Grayson v. Schuler, 666
F.3d 450 (7th Cir. 2012); Sasnett v. Litscher, 197 F.3d 290 (7th Cir. 1999)..
Count 21: Access to Courts Claim
Chesser complains in this Bivens claim that he has been deprived of his right of access to
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the courts when defendants Roal and Neumann did not allow him to access discovery materials on
a hard drive or on fifteen compact discs sent to him by his attorneys in his criminal case. He
claims this interfered with his ability to evaluate or file a motion to vacate his sentence under 28
U.S.C. § 2255.
In the Report, Magistrate Judge Frazier rejected the defendants’ legal argument that there
is no remedy available under Bivens for violation of the First Amendment, finding the argument
insufficiently developed. Magistrate Judge Frazier further rejected the defendants’ request for
judgment based on insufficient pleading because the Court had already conducted a review of the
pleading earlier in this case under 28 U.S.C. § 1915A. Nevertheless, Magistrate Judge Frazier
found no evidence Neumann was personally involved in the decision to prohibit Chesser from
reviewing his criminal discovery material. As for Roal, Magistrate Judge Frazier found that,
although there is evidence she was personally involved in denying Chesser access to his criminal
discovery, it was not clearly established at the time that, in the circumstances that existed –
Chesser’s guilty plea, criminal discovery in the possession of his criminal attorney, Chesser’s
ability to do legal research and to communicate with attorneys who possessed the discovery –
Roal’s conduct violated Chesser’s constitutional rights. Accordingly, he found Roal was entitled
to qualified immunity.
In his objection, Chesser agrees that his request for injunctive relief on Count 21 is moot in
light of the fact that he has filed a § 2255 motion, and he agrees that summary judgment should be
granted for Neumann. He maintains, however, that Roal’s denying him his case discovery
prevented him from accessing the court in a § 2255 proceeding. Chesser claims that the right to
due process by making a knowing and voluntary plea was clearly established at the time he was
denied access to the discovery, and that Roal should have known failing to allow him access to his
discovery would have resulted in a violation of that due process right by allowing his conviction to
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go unchallenged.
The Court first reviews the sequence of events as revealed by the evidence in the file. At
first, Roal denied permission for Chesser to receive the discovery on a hard drive, which could not
be viewed on the computers used by inmates, but indicated the material could be send in paper
form. When the information was later sent on fifteen compact discs, Roal reviewed the content of
the discs with staff specializing in information technology, counter terrorism and the law and
determined that the content of the discs was a security risk to the prison. At the time the discs
arrived at the prison and Roal made her decision, she believed Chesser’s one-year deadline for
filing a § 2255 motion had expired. Later, Chesser filed a § 2255 motion with the assistance of
counsel. That motion remains pending.
The Court has reviewed the question de novo and finds that Magistrate Judge Frazier was
correct in the Report. Chesser has not cited any cases from the Supreme Court, the Seventh
Circuit Court of Appeals or any other jurisdiction clearly indicating Roal’s actions – withholding
material from Chesser that she believed was an institutional security risk and that she believed
could no longer be useful in a collateral challenge to his criminal sentence while Chesser retained
access to counsel and was able to do legal research – were unconstitutional as of 2012, when Roal
made her decision. It is Chesser’s burden to show the law clearly established at the time that an
official’s conduct was unconstitutional and that a reasonably competent official would have
known that. Mustafa v. City of Chi., 442 F.3d 544, 548 (7th Cir. 2006). He has simply failed to
make this showing and, accordingly, Roal is entitled to qualified immunity.2

The Court also believed this access to the courts claim may be barred by Heck v. Humphrey, 512
U.S. 477, 486-86 (1994), which held that a convicted criminal cannot not bring a § 1983 civil suit
where a civil judgment would necessarily imply the invalidity of his conviction until that
conviction is overturned. See Burd v. Sessler, 702 F.3d 429, 434-35 (7th Cir. 2012) (finding
access to courts damages claim barred by Heck where inmate was denied access to law library so
he could prepare petition to withdraw guilty plea); Hoard v. Reddy, 175 F.3d 531, 534 (7th Cir.
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Counts 16, 24 and 25
Magistrate Judge Frazier noted that the defendants’ request for summary judgment on
these counts was moot in light of the fact that these claims have already been dismissed from this
case. No party objects to this part of the Report, which is not clearly erroneous and will therefore
be adopted.
Consideration of Judgment on the Responses
Magistrate Judge Frazier considered Chesser’s request for injunctive relief on his
“religious” claims and for injunctive and monetary relief, including compensatory and punitive
damages, on his “access” claims. Magistrate Judge Frazier recommends rejecting some of
Chesser’s requests as moot because they address dismissed claims or because they seek injunctive
relief the defendants are no longer in a position to provide. He recommends denying the
remainder of the requests because they seek judgment beyond the dispositive motion deadline and
because there appear to be disputed issues of material fact that would preclude summary judgment
for Chesser.
Chesser’s requests for injunctive relief were addressed in conjunction with his RFRA
claims in Counts 1, 13 and 14 and in his access to the courts claim in Count 21. No party objects
to the Report with respect to its recommended disposition of the remainder of Chesser’s motion.
The Report is not clearly erroneous in this regard and will therefore be adopted by the Court.
For the foregoing reasons, the Court:


ADOPTS the Report (Doc. 214) AS MODIFIED by this order to correct the date of the
Iqbal decision to 2009;



OVERULES Chesser’s (Doc. 217) and the defendants’ (Doc. 220) objections;

1999) (“[W]here the prisoner is complaining about being hindered in his efforts to get his
conviction set aside, the hindrance is of no consequence if the conviction was valid, and so he
cannot get damages until the conviction is invalidated”). This issue was not addressed by either
of the parties or by Magistrate Judge Frazier.
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

GRANTS in part, DENIES in part, and DECLARES MOOT in part the defendants’
first motion for summary judgment (Doc. 112);



GRANTS the defendants’ second motion for summary judgment (Doc. 113);



GRANTS in part and DECLARES MOOT in part the defendants’ third motion for
summary judgment (Doc. 138);



DENIES Chesser’s motion to consider judgment on the responses (Doc. 186); and



DIRECTS the Clerk of Court to enter judgment as follows at the close of the case:
o On Counts 2 and 6, against Chesser and in favor of Roal, Rivas, Cardona, Roloff,
Neumann, and Walton;
o Counts 1, 13 and 14 are dismissed as moot; and
o On Count 21, against Chesser and in favor of defendants Roal and Neumann.

Count 5 against Roal, Rivas, Cardona, Roloff, Neumann and Walton and Count 23 against Roal,
Rivas, Roloff, Neumann and Walton remain for trial. The Court further ORDERS the parties to
submit a proposed final pretrial order to Magistrate Judge Reona J. Daly’s chambers on or before
November 30, 2016. Magistrate Judge Daly will then hold a final pretrial conference at which the
parties should be prepared to discuss the use of videoconferencing for the trial of this case and
coordination of this trial with the trial of Chesser v. Walton, 12-cv-1198-JPG-RJD, to minimize
transportation needs and security risks. The current final pretrial conference and trial dates before
Judge Gilbert are VACATED and will be reset following Magistrate Judge Daly’s final pretrial
conference.
IT IS SO ORDERED.
DATED: November 2, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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