Perry v. Hawkins

Filing 107

OPINION AND ORDER: The Court DENIES Mr. Perry's motion for leave to file a surreply 95 ; DENIES Mr. Perry's motions for appointment of counsel 102 , 103 ; GRANTS the defendants' motion for summary judgment 80 ; and DIRECTS the clerk to enter judgment in favor of the defendants and against Rodney S. Perry, Sr., and to close this case. Signed by Judge Damon R Leichty on 3/10/2025. (Copy mailed to pro se party)(ash)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RODNEY S. PERRY, SR.,
Plaintiff,
v.

CAUSE NO. 3:22-CV-629 DRL

D. HAWKINS et al.,
Defendants.
OPINION AND ORDER
Rodney S. Perry, Sr., a prisoner without a lawyer, is proceeding in this case on two
claims. First, he is proceeding against Officer David Hawkins, a former property officer
at Indiana State Prison (ISP), “in his individual capacity for monetary damages for
impeding the exercise of his religion by depriving him of his religious materials without
a legitimate penological objective, in violation of the First Amendment[.]” ECF 17 at 4.
Second, he is proceeding against Warden Ron Neal for injunctive relief under the
Religious Land Use and Institutionalized Persons Act (RLUIPA) to prevent Warden Neal
from “depriving him of his religious materials, if the restrictions are not the least
restrictive means of furthering a compelling governmental interest, in violation of
RLUIPA[.]” Id. The defendants filed a motion for summary judgment. ECF 80. Mr. Perry
filed a response, and the defendants filed a reply. ECF 87, 88, 94. Mr. Perry then filed a

motion for leave to file a surreply, and the defendants filed a response. ECF 95, 96. 1 Mr.
Perry also filed motions for appointment of counsel. ECF 102, 103. The summary
judgment motion is now fully briefed and ripe for ruling.
Summary judgment must be granted when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of
Civil Procedure 56(a). A genuine issue of material fact exists when “the evidence is such
that a reasonable [factfinder] could [find] for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine issue of material fact
exists, the court must construe all facts in the light most favorable to the non-moving
party and draw all reasonable inferences in that party’s favor. Heft v. Moore, 351 F.3d 278,
282 (7th Cir. 2003). A party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in its own pleading but must “marshal and
present the court with the evidence she contends will prove her case.” Goodman v. Nat’l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
A. First Amendment Claim.
Mr. Perry is proceeding against Officer Hawkins “for impeding the exercise of his
religion by depriving him of his religious materials without a legitimate penological
objective, in violation of the First Amendment[.]” ECF 17 at 4. Prisoners have a right to
exercise their religion under the free exercise clause of the First Amendment. Vinning-El

Northern District of Indiana Local Rule 56-1(b) provides an opportunity for only a single
response. Nevertheless, the court has reviewed the contents of Mr. Perry’s surreply, and
concludes the arguments raised in it have no impact on the disposition today. Therefore, his
motion for leave to file a surreply will be denied.

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v. Evans, 657 F.3d 591, 592-93 (7th Cir. 2011). Nevertheless, correctional officials may
restrict the exercise of religion if the restrictions are reasonably related to legitimate
penological objectives, such as the safety and security of the prison facility. Turner v.
Safley, 482 U.S. 78, 89-91 (1987). The court considers (1) whether the restriction is
rationally connected to a legitimate government objective; (2) whether there is an
“alternative means of exercising” the restricted religious right; (3) what impact the
restriction would have on other inmates as well as prison staff and facility resources; and
(4) the existence of other options that would suggest the prison is exaggerating its
concerns. Id. at 89-91.
Officer Hawkins argues summary judgment is warranted in his favor because
there’s no evidence he intentionally deprived Mr. Perry of any religious materials. In
support of this argument, he provides four exhibits.
First, Officer Hawkins provides an affidavit 2 from Dawn Buss, the Deputy Warden
of Re-Entry at ISP, who attests to certain facts. Mr. Perry arrived at ISP on December 15,
2021, and was placed in restrictive housing due to conduct he’d committed at his
previous prison facility. ECF 80-1 at 1. Inmates in restrictive housing are allowed access
to religious materials, including religious books and texts. Id. at 2. However, because of
the security threats associated with restrictive housing, the amount and nature of
2 Mr. Perry argues repeatedly that each of the affidavits provided by Officer Hawkins should be

stricken from the record as noncompliant with Rule 56(c)(1)(A) because they do not cite to
materials in the record. Affidavits are not governed by Rule 56(c)(1)(A), but by Rule 56(c)(4),
which provides only that an affidavit “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4). The affidavits provided by Officer Hawkins comply
with Rule 56(c)(4), so are properly considered as evidence.
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property inmates may have in restrictive housing is more limited than general
population. Id. Accordingly, an inmate in restrictive housing can only have up to three
softback books and three magazines in his cell at a time. Id. Allowing an inmate in
restrictive housing to have additional books and magazines beyond this limit poses
significant security concerns, as he could use the excess property to start fires or conceal
weapons and other contraband. Id. Additionally, hardback books are not allowed in
restrictive housing because of their ability to be used as weapons. Id. While an inmate is
in restrictive housing, his excess property is stored in the facility’s property room, and he
can exchange the property in his cell for his other property by submitting a request to the
property room. Id. On December 12, 2022, Mr. Perry was moved out of restrictive housing
and into general population, where he is currently housed. Id.
Second, Officer Hawkins provides his own affidavit, in which he attests to certain
facts. During his time as the facility’s property officer, Officer Hawkins used great care
when handling the inmates’ property. ECF 80-2 at 1. He followed the facility’s applicable
property policies, applied the policies fairly and equally, and didn’t discriminate against
any inmate based on his religion. Id. Officer Hawkins never prevented Mr. Perry from
having any property based on the property’s religious nature, and never destroyed any
of Mr. Perry’s property. Id.
Third, Officer Hawkins provides Mr. Perry’s deposition testimony, where he
testified to certain facts. When Mr. Perry left restrictive housing in December 2022, Major
Wardlow gave him a bag with his property, which contained some religious papers and
legal paperwork, but some religious materials were missing. ECF 80-4 at 34-35. Mr. Perry
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does not know when or how his religious materials got lost, but he believes they got lost
because Officer Hawkins inadvertently mixed his property with other inmates’ property.
Id. at 20, 23. Mr. Perry acknowledged that other prison staff have access to the facility’s
property room aside from Officer Hawkins. Id. at 14-15.
Lastly, Officer Hawkins provides an affidavit from Douglas Wardlow, a
correctional major at ISP, who attests he has searched the facility’s property room and
has not located any property belonging to Mr. Perry or any record of Mr. Perry’s property
being confiscated. ECF 80-3 at 1.
Officer Hawkins argues summary judgment is warranted in his favor because Mr.
Perry doesn’t know what happened to his religious materials and his speculation that
Officer Hawkins lost those materials is insufficient to defeat summary judgment. ECF 83
at 2-3. Moreover, Officer Hawkins argues that, even assuming he inadvertently lost Mr.
Perry’s religious materials, there’s no evidence he did so intentionally and the fact the
materials were religious in nature does not transform the loss of property into a First
Amendment violation. Id. at 3-4.
In response, Mr. Perry argues Officer Hawkins violated his First Amendment
rights because he mishandled and lost his religious materials. ECF 88 at 14-17. But Mr.
Perry provides only speculation that Officer Hawkins was responsible for losing his
religious materials. Specifically, while Mr. Perry testified that some of his religious
materials went missing while he was confined in restrictive housing, he admitted he
didn’t actually know how or when those materials went missing. ECF 80-4 at 20-21, 23.
Mr. Perry speculated his religious materials likely got lost because Officer Hawkins
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mixed his property with other inmates’ property, but he conceded he didn’t actually see
Officer Hawkins go through his property. Id. at 20-21. He also conceded that Officer
Hawkins was not the only member of prison staff with access to the property room. Id. at
14-15. Officer Hawkins attests he used great care in handling Mr. Perry’s property and
never destroyed any of his property, and Mr. Perry’s speculation to the contrary is
insufficient to create a genuine dispute. See Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d
401, 407 (7th Cir. 2009) (“inferences relying on mere speculation or conjecture will not
suffice” to survive summary judgment). Therefore, the record contains insufficient
evidence by which a reasonable jury could conclude Officer Hawkins was responsible for
losing Mr. Perry’s religious materials.
Moreover, even assuming Officer Hawkins was responsible for mishandling and
losing Mr. Perry’s religious materials, this does not show a First Amendment violation
because there’s no evidence Officer Hawkins’ conduct went beyond mere negligence. See
Beese v. Liebe, 51 F. App’x 979, 981 (7th Cir. 2002) (“Negligence, however, does not rise to
the level of a constitutional violation actionable under § 1983”). Mr. Perry’s testimony
alleges only that Officer Hawkins negligently mishandled and lost his religious materials,
and he doesn’t argue or provide any evidence Officer Hawkins intentionally mishandled
those materials due to their religious nature. See Williams-Bey v. Brooks, 3:05-CV-150 RM,
2005 WL 1172438, 2 (N.D. Ind. Apr. 28, 2005) (noting the fact “[t]hat property destroyed
by jail officials is legal or religious in nature does not morph the loss of property claim
into a First Amendment free exercise claim”); Beese, 51 F. App’x 979 (affirming grant of
summary judgment in favor of prison official who negligently violated prison’s mail
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policy by opening legal mail outside of inmate’s presence); Bray v. Wilkey, No. 3:20-CV645-MGG, 2023 WL 3295160 (N.D. Ind. Mar. 15, 2023) (defendants’ conduct of negligently
withholding an inmate’s mail did not rise to the level of a First Amendment violation).
Thus, even assuming Officer Hawkins was responsible for mishandling and losing Mr.
Perry’s religious materials, there’s no evidence this conduct rose to the level of a First
Amendment violation.
Mr. Perry raises two additional arguments that must be addressed. First, Mr. Perry
argues Officer Hawkins impeded the exercise of his religion because Mr. Perry submitted
numerous requests to Officer Hawkins for his religious materials while he was in
restrictive housing but Officer Hawkins refused to provide the materials. ECF 88 at 13. In
support, Mr. Perry cites to numerous “Request for Interview” forms he submitted to
Officer Hawkins and Major Wardlow. ECF 87-1 at 18-19, 21-23, 27. However, a review of
these exhibits shows that Mr. Perry only requested “legal materials” from Officer
Hawkins, and does not show Officer Hawkins ever deprived him of any religious
materials. See id.
Specifically, Mr. Perry’s exhibits show the following facts. On January 4, 2022, Mr.
Perry submitted a request to Officer Hawkins that he be provided with all his “legal
materials.” ECF 87-1 at 18. On January 6, 2022, Mr. Perry sent a request to Major Wardlow
stating Officer Hawkins was refusing to provide him his “legal materials.” Id. at 19. Major
Wardlow responded that Mr. Perry was only allowed one box in his cell at a time, and he
could swap that box for a different one if he needed something. Id. Mr. Perry then sent
another request to Officer Hawkins requesting his “legal materials,” and Officer Hawkins
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responded that he’d sent a box over on January 19 to “exchange out.” Id. at 21. On
February 7, 2022, Mr. Perry sent another request to Officer Hawkins stating he’d been
provided the wrong “legal materials.” Id. at 22. Officer Hawkins responded that Mr.
Perry had come to the property room on February 7 and switched out for what he needed.
Id. On February 10, 2022, Mr. Perry sent another request to Officer Hawkins stating he’d
only been allowed to take a box that Officer Hawkins already had put together and hadn’t
been allowed to search for the “legal materials” he needed. Id. at 23. He also stated he’d
been denied access to his hardback religious books. Id. Officer Hawkins responded that
Mr. Perry was “already over here and given what was requested,” and that they were
done conducting business unless he needed hygiene. Id. On July 13, 2022, Mr. Perry sent
a request to Major Wardlow (not to Officer Hawkins) asking Major Wardlow to look
through his personal property and provide all his “religious materials.” Id. at 27. Major
Wardlow responded that he looked through Mr. Perry’s property and only saw legal
work. Id.
Here, the exhibits provided by Mr. Perry show he only submitted requests to
Officer Hawkins for his “legal materials,” and never requested any religious materials
except for hardback books (which prison policy prevented him from having in restrictive
housing). See ECF 87-1 at 18, 19, 21-23, 27. Deputy Warden Buss attests Mr. Perry was
allowed three softback books and three magazines in his cell at a time and could have
submitted requests to exchange these materials, and Mr. Perry provides no evidence
disputing this attestation or showing he ever submitted any requests for religious
materials that were ignored or denied by Officer Hawkins. Thus, because the exhibits
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provided by Mr. Perry show he only requested legal materials from Officer Hawkins and
never requested any religious materials, no reasonable jury could conclude these exhibits
show Officer Hawkins impeded the exercise of Mr. Perry’s religion.
Second, Mr. Perry argues Officer Hawkins impeded the exercise of his religion by
refusing to provide him his hardback religious books from the property room. ECF 88 at
15; ECF 80-4 at 21. Here, Mr. Perry does provide evidence he requested his hardback
religious books from Officer Hawkins and was denied. See id. But it’s undisputed that ISP
policy prevented Mr. Perry from possessing hardback books while in restrictive housing,
and Mr. Perry provides no evidence Officer Hawkins was responsible for creating or
misapplying that policy. Because it’s undisputed Officer Hawkins was not permitted
under ISP policy to provide Mr. Perry hardback books in restrictive housing, no
reasonable jury could conclude Officer Hawkins violated Mr. Perry’s First Amendment
rights by failing to provide those books. See Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir.
2023) (a defendant “cannot be held liable for failing to do something he had no authority
to do.”). Mr. Perry does not argue or provide any evidence that ISP’s policy preventing
inmates in restrictive housing from possessing hardback books was unlawful or
unconstitutional. Regardless, Officer Hawkins provides evidence this policy was
reasonably related to ISP’s legitimate penological objective of maintaining the safety and
security of the facility, as hardback books can be used as weapons and inmates were
allowed to possess softback books and magazines instead. See ECF 80-1 at 1; Turner, 482
U.S. at 89-91. Thus, even assuming Officer Hawkins was responsible for restricting the

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exercise of Mr. Perry’s religion by withholding his hardcover religious books, the
undisputed facts show this restriction was valid under Turner.
Accordingly, there’s insufficient evidence in the record by which a reasonable
jury could conclude Officer Hawkins deprived Mr. Perry of his religious materials in
violation of his First Amendment rights. Therefore, summary judgment is warranted in
favor of Officer Hawkins on this claim. 3
B. RLUIPA Claim.
Mr. Perry proceeds against Warden Neal for injunctive relief to prevent him from
“depriving him of his religious materials, if the restrictions are not the least restrictive
means of furthering a compelling governmental interest, in violation of RLUIPA[.]” ECF
17 at 4. RLUIPA affords even broader protections than the First Amendment. This act
prohibits governmental entities from imposing “a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . unless the government
demonstrates that imposition of the burden on that person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a); see generally Holt v. Hobbs, 574
U.S. 352 (2015).
Warden Neal argues Mr. Perry’s RLUIPA claim is now moot because Mr. Perry
only takes issue with the way a former property officer handled his property and does
not contend that any current facility practice is substantially burdening his religious

3 The court does not reach Officer Hawkins’ alternative argument that he is entitled to qualified

immunity.

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beliefs. ECF 83 at 6. Warden Neal notes Mr. Perry is no longer housed in restrictive
housing and none of his property is currently held in the property room. ECF 83 at 6. In
his response, Mr. Perry argues he was denied religious materials the entire time he was
in restrictive housing and this claim was not “moot at the time of the event.” ECF 88 at
21-23. But it’s well settled that “[f]or a case to be justiciable, a live controversy must
continue to exist at all stages of review, not simply on the date the action was initiated.”
Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006). Because it’s
undisputed Mr. Perry is no longer housed in the restrictive housing unit and there’s no
evidence he has any religious property in the facility’s storage room, the undisputed facts
show Mr. Perry does not have a live claim against Warden Neal for depriving him of his
religious materials.
Mr. Perry also argues this claim is not moot because it could repeat in the future if
he returns to restrictive housing. ECF 88 at 23. The “capable-of-repetition” exception to
the mootness doctrine applies when “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Ciarpaglini v. Norwood, 817 F.3d 541, 546 (7th Cir. 2016). Here, there’s no reasonable
expectation Mr. Perry will be subject to the same action again, as Mr. Perry argues only
that he was denied his religious materials by Officer Hawkins, who no longer works as a
property officer at ISP. Mr. Perry doesn’t argue or provide evidence ISP has any
unconstitutional policy in place that would restrict him from possessing religious

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materials if he returned to the restrictive housing unit. ECF 88 at 21-24. Therefore,
summary judgment is warranted in favor of Warden Neal on this claim.
Last, Mr. Perry filed motions for counsel. ECF 102, 103. But there is a fully-briefed
summary judgment motion before the court, and appointing counsel now would not alter
the outcome. The summary judgment will be granted, and there is no need for counsel
on a continuing basis. Therefore, the motions for counsel will be denied.
For these reasons, the court:
(1) DENIES Mr. Perry’s motion for leave to file a surreply (ECF 95);
(2) DENIES Mr. Perry’s motions for appointment of counsel (ECF 102, ECF 103);
(3) GRANTS the defendants’ motion for summary judgment (ECF 80); and
(4) DIRECTS the clerk to enter judgment in favor of the defendants and against
Rodney S. Perry, Sr., and to close this case.
SO ORDERED.
s/ Damon R. Leichty
Judge, United States District Court

March 10, 2025

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