KEMP et al v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION et al

Filing 69

ORDER - ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT; Defendant's invocation of his qualified immunity defense has not been overcome by Plaintiffs. We GRANT Defendant David Liebel's Motion for Summary Judgment Dkt. No. 57 and DENY Plaintiffs' Motion for Summary Judgment Dkt. No. 48 . Judgment shall enter accordingly. Signed by Judge Sarah Evans Barker on 1/20/2017. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

LARRY KEMP and BRIAN WOODRING, )
)
Plaintiffs,
)
)
vs.
)
)
DAVID LIEBEL,
)
Indiana Department of Correction,
)
Director of Religious Services,
)
)
in his individual capacity,
)
Defendant.
)

1:14-cv-1728-SEB-DKL

ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT
This matter comes before us on cross Motions for Partial Summary Judgment filed
by Plaintiffs Larry Kemp and Brian Woodring and by Defendant David Liebel. Dkt. Nos.
48 and 57, respectively. Plaintiffs, prisoners within the Indiana Department of Correction
(“DOC”), seek an award of nominal and punitive damages against Mr. Liebel in his
individual capacity for allegedly violating their First Amendment right to practice their
religion through services and study for a period of time following their transfers from one
DOC correctional facility to another. For the following reasons, we GRANT Defendant’s
Motion for Partial Summary Judgment and DENY the Motion for Partial Summary
Judgment filed by Plaintiffs Larry Kemp and Brian Woodring.
FACTUAL BACKGROUND
The parties stipulate that there are no contested issues of material fact in this case.
Mr. Kemp and Mr. Woodring are Jewish. They were formerly confined at the Pendleton

Correctional Facility and, since April 2014, have been housed at the Wabash Valley
Correctional Facility in Carlisle, Indiana.
DOC inmates who adhere to certain religions, including Judaism, are
permitted to pray and worship as a group. Pursuant to DOC policy, “[o]ffenders
shall be free to practice and adhere to the requirements of a personal religious
belief within the limitations of [Department] policy and administrative procedure.”
DOC Policy and Administrative Procedure, Dkt. No. 17-4 at 2. Regarding Judaism
specifically, the DOC Handbook of Religious Beliefs and Practices recognizes the
importance of congregate worship and study to its adherents. DOC Handbook of
Religious Beliefs and Practices, Dkt No. 17-3 at 5. “Jewish services may be led by
trained lay persons as well as by Rabbis, teachers of Judaism and spiritual leaders
of congregations,” though Jewish services need not necessarily be led by a rabbi or
other religious leader. Id. at 3, 6.
DOC administrative policy provides that “[t]o protect the integrity and authenticity
of belief and practice, Chaplains, religious specialists or qualified volunteers, shall
provide leadership of religious programs whenever possible.” DOC Policy and
Administrative Procedure at 3. The DOC employs chaplains at its various facilities. On a
regular basis, the chaplains lead Christian services, but they do not do so for other
religious traditions. In the case of services for other religious traditions,
[w]hen a staff Chaplain is not empowered to conduct a religious
program or ceremony according to the tenants of a particular faith
or custom, and there is sufficient offender interest, the Chaplain or
the Community Involvement Coordinator may seek to recruit
appropriate individual(s) from the community.
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Id. at p. 3. When a suitable leader is not available, the facility’s superintendent or
designee may select an offender to facilitate the group’s religious services. Id.
However, “[w]hen possible, facilities shall consult with outside authorities before
selecting offender facilitators.” Id.
Wabash Valley imposes an additional requirement for inmates to lead or facilitate
services where a chaplain or an outside volunteer is not available to do so. Before leading
such services, an inmate must have been certified by an outside religious authority as
sufficiently knowledgeable to conduct a service. Further, any offender serving as a leader
of religious services must also have resided at the facility for a certain length of time
under good behavior and be approved by the Security Threat Group Coordinator.
At Pendleton Correctional Facility Mr. Kemp and Mr. Woodring along with
other offenders attended weekly services and study for Jewish prisoners. They and
other offenders who participated in Jewish services and study were visited once a
month by rabbis from the Lubavitch of Indiana, a group of Orthodox Jewish
practitioners, who had contracted with Pendleton and three additional DOC
correctional facilities. Offenders led other services and study sessions for Jewish
adherents.
In addition to attending Jewish services and study sessions at Pendleton
Correctional Facility, Mr. Kemp, Mr. Woodring, and certain other offenders were

3

authorized to receive kosher meals beginning in 2010. 1 When DOC first offered
kosher meal service, the food was pre-packaged in the style of TV dinners. In
2013, DOC created what it describes as separate kosher kitchens in four of its
facilities, including Wabash Valley. This decision was made because preparing
meals certified as kosher by appropriate religious authorities selected by DOC in
one of the special kosher kitchens is less expensive than providing pre-packaged
meals. Several DOC officials, including Defendant Liebel, were involved in or
consulted about the creation of the kosher kitchens.
Mr. Liebel is DOC’s Director of Religious and Volunteer Services. In this
capacity, he—in cooperation with the Superintendents of each correctional
facility—is responsible for ensuring, consistent with DOC policy, that religious
programming is offered to inmates at DOC facilities. Generally speaking, Mr.
Liebel’s duties include the establishment of the contours of religious programming
in DOC institutions, and the management of religious services, programs, and
DOC staff. Mr. Liebel determines standards for religious services programs and
DOC’s chaplaincy staff; works with DOC policy staff to determine the frequency
and under what circumstances religious groups meet; provides guidance regarding
religious programming, including development and management; assists facilities

The DOC provided and continues to provide kosher meals to prisoners who
request them so long as it ascertains that the offender requesting kosher food on
religious grounds is sincere and that no factors weigh against receiving kosher
meals. Some offenders within the DOC request and receive kosher meals for
dietary, as opposed to religious, reasons.

1

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in recruiting volunteers, and prepares and updates the DOC’s Handbook of
Religious Beliefs and Practices. Mr. Liebel, however, does not directly supervise
chaplains at DOC facilities and is not involved in any day-to-day activities or
operations occurring at that level. The recruitment of volunteers is conducted at
the facility level, with no involvement by Mr. Liebel. Similarly, it is the role of
facility officials, not Mr. Liebel, to address issues concerning whether a particular
religious group is allowed to meet together within the facility or whether certain
religious meetings must be suspended.
In July 2013, Mr. Liebel became involved in the initial discussions surrounding
DOC’s creation of kosher kitchens. DOC had determined that inmates who were eligible
for and who wished to maintain a kosher diet would be housed in facilities where the new
kitchens that were capable of serving kosher meals had been installed. This required
certain inmates at the Pendleton Correctional Facility to be moved to the Wabash Valley
Correctional Facility. During the process of certifying the kitchens as kosher, DOC
informed offenders then receiving kosher meals that they would be moved to Wabash
Valley or another properly equipped facility in order to continue their kosher diets. All
offenders eligible for transfer to a facility that would accommodate their kosher diet
requirements received a notice from Mr. Liebel to that effect and were given the choice
of whether to move to the new location in order to continue access to the diet or to remain
at a location where kosher diets would not be available. Some offenders at Pendleton
chose to withdraw their requests for kosher diet rather than be transferred to another

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facility. Mr. Kemp and Mr. Woodring accepted transfers to Wabash Valley so that they
could continue to receive kosher meals.
The decision regarding which offenders were to be transferred to which facility
was a classification decision involving, among other things, considerations of security,
medical and mental health issues, programming, and the need to separate certain
prisoners, in addition to their kosher diet preferences. Accordingly, the final decision as
to the housing of prisoners was made by the DOC Commissioner. Mr. Liebel did not
know to which facility each offender would be moved, and he had no control over that
process. Apparently, however, Mr. Liebel was aware that no religious services and study
were available at Wabash Valley and that Jewish prisoners housed there had been upset
over the lack of these programs. Mr. Liebel apparently did have the authority to delay the
transfers of Jewish prisoners, including Mr. Kemp and Mr. Woodring, by requesting such
by DOC’s classification department.
In early 2014, Mr. Liebel arranged for the visit of an Orthodox Jewish rabbi to
each facility’s kitchen to ensure that the DOC kitchens were certified as kosher.
Thereafter, offenders were transferred to facilities where they could avail
themselves of a kosher diet. Mr. Kemp and Mr. Woodring were transferred to
Wabash Valley in April 2014. Three other offenders who adhered to a kosher
regimen remained at Pendleton because they had been placed in special housing for
reasons unrelated to their religious preferences, i.e., mental health treatment,
disciplinary reasons, and restrictive house status. DOC eventually discontinued the
provision of kosher meals at Pendleton Correctional Facility.
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Before April 2014, Jewish inmates were housed at Wabash Valley, some of whom
received a kosher diet, but no Jewish services or group meetings were available prior to
the arrivals of Mr. Kemp and Mr. Woodring. Wabash Valley prisoners were not
authorized to serve as leaders of Jewish services and study pursuant to DOC policy
because there had been no contact with or approval from an outside religious authority—
DOC had been unsuccessful in its attempts since December 2013 to recruit any outside
authority to come to Wabash Valley to evaluate, and ideally to certify, prisoners who
could lead Jewish services and study. Many synagogues expressed a willingness to
answer questions over the phone about Jewish services, but none agreed to send an
authorized official to visit the facility.
After Jewish prisoners were transferred to Wabash Valley, Mr. Liebel met with a
rabbi in an attempt to arrange visits to that facility. Mr. Liebel also attempted to enlist the
chaplains and volunteer coordinator at Wabash Valley to contact Jewish congregations in
Terre Haute and Evansville, Indiana. He maintained regular communications with
Wabash Valley staff to determine whether any volunteers had been located so inmate
services and study could commence.
Jewish services and study at Wabash Valley finally were made available in
January 2015, when a lay Jewish leader designated prisoners to lead services, after which
time a rabbi began making regular visits to that facility. Services and congregate study
commenced and continue to be offered on an ongoing basis with prisoners, including Mr.
Kemp, serving as leaders. The rabbi leads study when he is present; otherwise, prisoners
lead these sessions.
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Plaintiffs filed their complaint in this action on October 22, 2014, seeking
declaratory and injunctive relief and an award of money damages, after having exhausted
their administrative remedies through the applicable DOC grievance procedures. In their
complaint, Plaintiffs alleged that the actions and inactions of Mr. Liebel and other DOC
Defendants violated their rights under the First Amendment to the United States
Constitution and under the Religious Land Use and Institutionalized Persons Act, 42
U.S.C. § 2000cc, et seq., for which they are entitled to both injunctive and declaratory
relief and an award of damages. As noted above, religious services and study at Wabash
Valley commenced to Plaintiffs’ apparent satisfaction during the pendency of this
litigation. Accordingly, Plaintiffs have now rescinded their request for injunctive and
declaratory relief, and they moved for, and DOC defendants did not oppose, dismissal of
the chaplain at Wabash Valley Correctional Facility, the DOC Commissioner, and Mr.
Liebel in his official capacity, which motion we granted. Having trimmed their
allegations, Mr. Kemp and Mr. Woodring now seek an award of nominal and punitive
damages against Mr. Liebel in his individual capacity only covering the nine-month
period during which they were deprived of congregate religious services and study for
want of the involvement by an outside religious authority.
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment should
be granted when the evidence establishes that “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). The purpose of
8

summary judgment is to “pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Disputes concerning material facts are
genuine where the evidence is such that a reasonable jury could return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding whether genuine issues of material fact exist, courts construe all facts in
a light most favorable to the nonmoving party and draws all reasonable inferences
in favor of the nonmoving party. See id. at 255. However, neither the “mere
existence of some alleged factual dispute between the parties,” id., 477 U.S. at 247,
nor the existence of “some metaphysical doubt as to the material facts,” Matsushita,
475 U.S. at 586, will defeat a motion for summary judgment. Michas v. Health Cost
Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
Courts often confront cross motions for summary judgment as have been
filed here because Rules 56(a) and (b) allow both plaintiffs and defendants to move
for such relief. In such situations, courts consider each party’s motion individually
to determine if that party has satisfied the summary judgment standard. Kohl v.
Ass’n of Trial Lawyers of Am., 183 F.R.D. 475 (D. Md. 1998). Thus, we have
considered the parties’ respective memoranda and the exhibits attached thereto, and
have construed all facts and drawn all reasonable inferences therefrom in the light
most favorable to the respective nonmovant. Matsushita, 475 U.S. at 574.

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ANALYSIS
In their complaint, Plaintiffs assert that the “denial of the opportunity for
congregate religious meetings has imposed a substantial and unjustified burden on [their]
religious exercise.” Dkt. No. 8 at 8; Dkt. No. 49 at 16. Specifically, Plaintiffs argue that
their First Amendment rights were violated when they were transferred to a facility that
did not accommodate their basic religious entitlement to participate in congregate
services and religious study. (To be clear, Plaintiffs “do not challenge the fact that the
DOC established the kosher kitchens or that the DOC determined to transfer prisoners to
the facilities that had kosher kitchens.” Dkt. No. 49 at 16). Given the practice at Wabash
Valley Correctional Facility that there be an outside religious authority to oversee the
creation of religious meetings in which prisoners participate, the facility was unable to
provide Jewish services and study within its practice at the time of Plaintiffs’ transfers to
that facility. Plaintiffs maintain that Mr. Liebel could have delayed their transfers to
Wabash Valley until services and study were available at that facility or that prisoners
could have been allowed to lead services there. Dkt. No. 65 at 5-6. Regarding the
requirement that religious services be cancelled or suspended when a religious authority
is not available to lead such services, our judicial circuit has addressed similar challenges
by other prisoners on First Amendment grounds. We begin our analysis here by
reviewing that legal landscape.
The First Amendment, as applied to the states and local governments through the
Fourteenth Amendment, protects the “free exercise of religion.” Reed v. Town of Gilbert,
Ariz., —U.S. —,135 S. Ct. 2218, 2226 (2015) (quoting Police Dep’t of Chi. v. Mosley,
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408 U.S. 92, 95 (1972)). As many courts have recognized, prisoners generally maintain a
right to a reasonable opportunity to exercise their First Amendment rights, but these
rights must be balanced against the legitimate goals of penal institutions. Turner v. Safley,
482 U.S. 78 (1987); Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990). Prison officials
may not unjustifiably place a substantial burden on inmates’ religious practices. See, e.g.,
Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680, 699 (1989); Vinning-el v.
Evans, 657 F.3d 591, 592 (7th Cir. 2011). The Supreme Court has articulated the
analytical standard to be applied in reviewing prisoners’ constitutional claims directed
towards prison rules or regulations that allegedly violate their constitutional rights, to wit,
the challenged regulation is invalid and the burden unjustified if it does not reasonably
relate to legitimate penological interests. Turner, 482 U.S. at 89; O’Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987). The Supreme Court laid out four factors to guide
lower courts in applying this standard:
(1) whether the restriction is rationally related to a legitimate and neutral
governmental objective; (2) whether there are alternative means of exercising
the right that remains open to the inmate; (3) what impact an accommodation
of the asserted right will have on guards and other inmates; and (4) whether
there are obvious alternatives to the restriction that show that it is an
exaggerated response to penological concerns.
Turner, 482 U.S. at 89-91.
Applying these Turner factors to the issues regarding cancellation of religious
services in the absence of an appropriate leader of religious services, the Seventh Circuit
held in relevant part in Hadi v. Horn, 830 F.2d 779, 784-88 (7th Cir. 1987), that the
challenged prison policy cancelling services where no authority was able to lead did not
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violate the prisoners’ First Amendment free exercise rights and that the prison was not
required to allow prisoners to conduct their own non-guided religious services. In Hadi,
prison officials asserted that allowing inmates to serve as religious leaders or authorities
would jeopardize facility security and, if an inmate leader lacked religious expertise,
conflicts among prisoners could likely result. Hadi, 830 F.2d at 784.
Under similar circumstances, in Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th
Cir. 1988), the Seventh Circuit reiterated that prison officials “need not . . . allow inmates
to conduct their own religious services, a practice that might not only foment conspiracies
but also create (though more likely merely recognize) a leadership hierarchy among the
prisoners.” More recently, the Seventh Circuit ruled that it was not clearly established in
this circuit that prison officials violated the prisoner’s free exercise rights by prohibiting
group worship when an outside authority was unavailable to lead services. Turner v.
Hamblin, 590 F. App’x 616, 620 (7th Cir. 2014) (citing, inter alia, Johnson-Bey, 863
F.2d 1310, Hadi, 830 F.2d at 784, and Cruz v. Beto, 405 U.S. 319, 322, n.2 (1972)
(noting that prisons need not provide chaplains of different faiths “without regard to the
extent of the demand[.]”)). The Turner v. Hamblin court further held that the Ninth and
First Circuit case law relied on by the inmate did not clearly establish that his right to free
exercise was violated. Turner, 590 F. App’x at 620. Indeed, the Court in denying the
requested relief noted that it “[has] declined to find a matter clearly established based on
the existence of one case from another circuit.” Id. Thus, the inmate did not overcome the
prison official’s qualified immunity defense.

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Against this background, we turn to the issues presented here. Plaintiffs seek
money damages, both nominal and punitive, against Mr. Liebel in his individual capacity
for the nine-month period during which they did not have access to congregate services
and study at Wabash Valley Correctional Facility, which they claim, was their First
Amendment right.
When suit is brought against a government official in his or her individual
capacity, the official may raise any relevant personal immunity defenses. See Kentucky v.
Graham, 473 U.S. 159, 165-67 (1985). In advancing various arguments that need not be
addressed at this juncture, Mr. Liebel also asserts that there is no clearly established
constitutional right on the part of prisoners to congregate services and study absent
appropriate leadership and supervision at the time of an interfacility transfer and,
accordingly, qualified liability shields him from Plaintiffs’ claims for monetary
damages. 2
The doctrine of qualified immunity protects government officials from liability for
civil damages when their conduct “does not violate clearly established statutory or

2

In his briefing, Mr. Liebel urged the court to find in his favor on the ground that he was
not personally involved in the constitutional violation Plaintiffs alleged because he “did
not decide what facilities would have kosher kitchens and did not decide who would be
transferred where.” Dkt. No. 58 at 4-6; see Palmer v. Marion County, 327 F.3d 588, 594
(7th Cir. 2003) (holding that individual liability under § 1983 requires “personal
involvement in the alleged constitutional deprivation.”). Plaintiffs disagree with this
argument. While based on the evidence before us we have our doubts that Mr. Liebel was
personally involved in the constitutional deprivation alleged by Plaintiffs, since we are
resolving this case on qualified immunity grounds, we need not address whether
Plaintiffs’ summary judgment request fails due to Mr. Liebel’s lack of personal
involvement.
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constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009); see also Ulichny v. Merton Cmty. Sch. Dist., 249
F.3d 686, 706 (7th Cir. 2001). It is a defense available to officials with discretionary or
policymaking authority when sued in their individual capacities under § 1983.
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S.
163, 166 (1993); Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000).
The qualified immunity defense consists of two prongs, both of which Plaintiffs
must overcome to defeat Mr. Liebel’s qualified immunity defense: 1) whether a
constitutional right would have been violated on the facts alleged; and 2) whether the
constitutional right was “clearly established” at the time of the official’s alleged
misconduct. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); Chelios v.
Heavener, 520 F.3d 678, 691 (7th Cir. 2008). This is, in almost every case, a high
evidentiary bar. Under current Supreme Court precedent, “[c]ourts may decide qualified
immunity cases on the ground that a defendant’s action did not violate a clearly
established right without reaching the question of whether a constitutional right was
violated at all.” Pearson, 555 U.S. at 226 (abrogating in part Saucier v. Katz, 533 U.S.
194, 200-01 (2001)). We shall follow that analytical approach here.
Plaintiffs must demonstrate a violation of their clearly established free exercise
rights under the First Amendment in order to defeat Mr. Liebel’s qualified immunity
defense. Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010). “To be clearly established, a
right must be sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Al-Kidd, 563 U.S. at 741 (quoting Anderson v.
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Creighton, 483 U.S. 635, 640 (1987)); see also Volkman v. Ryker, 736 F.3d 1084, 1090
(7th Cir. 2013) (cautioning that rights should not be defined in a highly general fashion).
Plaintiffs can demonstrate that the right they identify was “clearly established” by
presenting a sufficiently analogous case which establishes that Mr. Liebel’s conduct was
unconstitutional or by presenting evidence—even in the absence of applicable
precedent—that his conduct was so patently violative of the constitutional right that a
reasonable official would know without guidance from a court. Hope v. Pelzer, 536 U.S.
730, 739-40 (2002); Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001). Plaintiffs need not
cite a case that is factually identical to their case, but the “existing precedent must have
placed the right or constitutional question beyond debate.” Al-Kidd, 563 U.S. at 741.
In deciding qualified immunity, a lower court “look[s] first to controlling Supreme
Court precedent and [then] our own circuit decisions on the issue.” Jacobs, 215 F.3d at
767. Only “[i]n the absence of controlling precedent, we broaden our survey to include
all relevant case law in order to determine ‘whether there was such a clear trend in the
case law that we can say with fair assurance that the recognition of the right by a
controlling precedent was merely a question of time.”’ Id. (citing Cleveland-Perdue v.
Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)). To survive summary judgment on qualified
immunity grounds, therefore, Plaintiffs must establish that the right they claim was
clearly established in this judicial circuit. Jacobs, 215 F.3d at 767.
In their briefing, Plaintiffs identify the right they claim to have been violated as
the right “to practice their religion without interference absent a legitimate penological
basis for the interference.” Dkt. No. 65 at 11. Accordingly, they say, “Mr. Liebel should
15

have been aware that the prisoners could not be transferred to an institution where their
religious need for congregate worship could not be met given that there was no pressing
need to move the prisoners.” Id. As explained below, we conclude that this “right” which
they have asserted was not a “clearly established” principle of law in this circuit.
Mr. Liebel persuasively notes that Plaintiffs have cited no case from this circuit
extending First Amendment guarantees to prisoners in the form of a right to congregate
worship. Our research confirms that the Seventh Circuit, in addressing congregate
services when an outside authority is unavailable to lead services, has not recognized
such a clearly established right. As previously noted, in Turner v. Hamblin, supra, the
Seventh Circuit ruled that the law in our circuit does not clearly establish, in the context
of the First Amendment, that prison officials are required to provide or permit religious
services for prisoners if no qualified non-prisoner is available to lead the service. See also
West v. Grahams, 607 F. App’x 561, 565 (7th Cir. 2015) (“It has never been clearly
established that inmates have a right to inmate-led group worship under the First
Amendment. In fact we have rejected this argument on nearly identical facts, where noninmate volunteers are unavailable and prison administrators justify the restriction for
security reasons.”) (internal citations omitted). The Turner v. Hamblin court incorporated
the rationale relied upon in Johnson-Bey v. Lane with respect to prisons prohibiting
inmate-led religious services, specifically, that it is ‘“a practice that might not only
foment conspiracies but also create (though more likely recognize) a leadership hierarchy
among the prisoners.”’ Turner, 590 F. App’x at 620 (quoting Johnson-Bey, 863 F.2d at
1310 and citing Hadi, 830 F.2d at 784-85). Plaintiffs have cited no decision to the
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contrary, particularly in the Seventh Circuit. They attempt to distinguish their case,
pointing out that “[it] is an oddity—prisoners who wished to continue their religious
practices had a choice made for them that resulted in being allowed to maintain one
practice—a kosher diet—but being denied, completely unnecessarily, another equally
important religious practice—congregate worship and religious study.” Dkt. No. 65 at 10.
Even framed in this fashion, Plaintiffs’ constitutional challenge is directed at the
unavailability of group services at Wabash Valley, based on the practice in effect at that
facility.
The cases Plaintiffs do cite do not alter our conclusion. In Thompson v. Holm, 809
F.3d 376 (7th Cir. 2016), a Muslim plaintiff sued prison officials for violating his First
Amendment right to freely exercise his religion by denying him meal bags for proper
fasting during Ramadan. This right is distinguishable from a claimed right to group
worship. The Seventh Circuit viewed the Holm case as involving a forced choice
“between foregoing adequate nutrition or violating a central tenant of [the prisoner’s]
religion,” highlighting the fact that the court has repeatedly regarded this “choice” as a
substantial burden on religious practice. Thompson, 809 F.3d at 380 (listing cases). Such
a situation is neither comparable nor analogous to the facts before us.
Plaintiffs also cite the holdings in Salahuddin v. Coughlin, 993 F.2d 306 (2d Cir.
1993), and Prins v. Coughlin, 76 F.3d 504 (2d Cir. 1996). Salahuddin v. Coughlin, 993
F.2d 306-07, involves an inmate’s transfer to a new prison facility, where no congregate
religious services were permitted, and relies on Young v. Coughlin, 866 F.2d 567 (2d Cir.
1996), which holds that prisoners have a constitutional right to participate in congregate
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religious services. The facts in Salahuddin make it more closely analogous to the case
before us. Even so, the holding there was that factual issues—whether religious services
could have been accommodated at the new prison facility and whether the transfer itself
was reasonable—precluded summary judgment. 993 F.2d 307-10. Further, the Prins case,
76 F.3d at 505, arose under the Religious Freedom Restoration Act, not § 1983 and the
First Amendment, which entails a statutory as opposed to constitutional method of
analysis.
In any event, none of the cases cited by Plaintiffs is determinative of the qualified
immunity issue before us because, having arisen in the Second Circuit, they do not
constitute authoritative Seventh Circuit precedent. See Jacobs, 215 F.3d 758 (explaining
that courts should look to controlling Supreme Court and intra-circuit precedent and, only
absent relevant case law, turn to decisions of other judicial circuits). As we have
previously noted, the Seventh Circuit “has declined to find a matter clearly established
‘based on the existence of one case from another circuit.”’ Turner, 590 F. App’x at 620
(citing Kikumara v. Turner, 28 F.3d 592, 596 (7th Cir. 1994)).
Plaintiffs also have failed to satisfy the “clearly established” standard with regard
to the obviousness of this alleged “right.” See Severino, 256 F.3d at 654-55 (explaining
that a party may prove that a right is clearly established where the violation is so obvious
that a reasonable officer would know that what he is doing violates the Constitution). In
their briefing, Plaintiffs assert that they had a clearly established right at the time of their
facility transfer “to practice their religion without interference absent a legitimate
penological basis for the interference.” Dkt. No. 65 at 10-11, 12 (citing Turner v. Safely,
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482 U.S. 78, 89 (1987)). Structuring their argument to align with the four factors outlined
in the Turner case, Plaintiffs maintain that transferring practicing Jewish offenders to a
facility where no Jewish services and study were available obviously violated their First
Amendment rights, which a reasonable prison official would have recognized.
We are not persuaded that Mr. Liebel’s actions constituted such an “obvious
violation” of an established constitutional right. The uncontroverted facts disclose that,
while DOC was arranging for the transfer of offenders from other facilities to Wabash
Valley, both Mr. Liebel and the Wabash Valley Correctional Facility chaplain regularly
undertook efforts to find a way for Jewish services and study to occur at that location.
Plaintiffs have not claimed (and appropriately so) that they have a right to resist transfer
from one facility to another for any reason. See Townsend v. Fuchs, 522 F.3d 765, 771-72
(7th Cir. 2008) (holding that the Constitution “does not create an interest in avoiding
transfer[s] within a correctional facility”); Meachum v. Fano, 427 U.S. 215, 224 (1975).
Plaintiffs instead contest “[t]he unconstitutionality of a choice made for them that
resulted in [their] being allowed to maintain one practice—a kosher diet—but being
denied, completely unnecessarily, another equally important religious practice—
congregate worship and study.” Dkt. No. 65 at 10.
Mr. Liebel responds that in deciding whether he is entitled to qualified immunity
Plaintiffs must go beyond a showing that the “specific rights [implicated here] are clearly
established[.]” Dkt. No. 68 at 3. The Supreme Court has directed that ‘“clearly
established’ law is not to be defined at a high level of generality.” White v. Pauly, 580
U.S.__, 2017 WL 69170, No. 16-67 at *4 (Jan. 9, 2017) (citing al-Kidd, 537 U.S. at 742).
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“Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into
a rule of virtually unqualified liability simply by alleging violation of extremely abstract
rights.” Id. (citing Anderson, 483 U.S. at 639). Plaintiffs cannot prevail in their efforts to
overcome qualified immunity by relying on a general assertion of a First Amendment
right.
Thus we hold that Plaintiffs have failed to meet the “clearly established” standard
sufficient to defeat Mr. Liebel’s qualified immunity defense to their claims. Well settled
Supreme Court Seventh Circuit case law supports this result. The qualified immunity
defense seeks to balance “the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officers from harassment, distraction,
and liability when they perform their duties reasonably.@ Pearson, 555 U.S. at 231.
Qualified immunity gives public officials “breathing room to make reasonable but
mistaken judgments about open legal questions. When properly applied, it protects ‘all
but the plainly incompetent or those who knowingly violate the law.’” Al-Kidd, 563 U.S.
at 741 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Mr. Liebel’s reliance on this
defense is entirely well placed.
Even assuming that after the creation of the kosher kitchens at Wabash Valley and
the other DOC facilities Mr. Liebel knew which prisoners who practiced Judaism would
be moved to which facility, and/or that he could have intervened to delay the timing of
Mr. Kemp’s and Mr. Woodring’s transfers, we cannot say that Mr. Liebel failed to act
reasonably under the circumstances, especially in light of his efforts and those of others
at Wabash Valley to facilitate a visit to that facility by a rabbi to permit congregate
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services and study to occur. See Plumhoff v. Rickard, —U.S. —, 134 S. Ct. 2012, 2023
(2014) (holding that the “crucial question” in conducting a qualified immunity analysis is
“whether the official acted reasonably in the particular circumstances that he or she
faced.”). His actions were consistent with clear, well-established Seventh Circuit case
law. In an analogous case which also challenged the prison’s denial of group worship, the
Court of Appeals wrote:
Given the precedents [in this circuit], however, permitting prison
administrators to deny group worship where no volunteer or chaplain
is readily available to lead services, a reasonable government official
would not have known [he] was violating clearly established law by
refusing Kramer’s requests for Odinist group worship.
Kramer v. Pollard, 497 F. App’x 639, 644 (7th Cir. 2012).
Conclusion
Defendant’s invocation of his qualified immunity defense has not been overcome
by Plaintiffs. Accordingly, we GRANT Defendant David Liebel’s Motion for Summary
Judgment (Dkt. No. 57) and DENY Plaintiffs’ Motion for Summary Judgment (Dkt. No.
48). Judgment shall enter accordingly.
Date: _____________
1/20/2017

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Distribution:
Kenneth J. Falk
ACLU of INDIANA
[e-mail]
David A. Arthur
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Jonathan P. Nagy
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

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