CLOVER v. CHAPLAIN SMITH et al

Filing 36

Entry Discussing Motion for Summary Judgment - Plaintiff Sean Clover, an Indiana inmate, brings this action alleging that, while he was incarcerated at the Correctional Industrial Facility ("CIF"), his right to practice his religion guar anteed by the First Amendment was violated when Friday Islamic Jummah prayer time was modified from 1:00 - 3:00 p.m. to 12:00 - 2:00 p.m.1 The remaining defendant, Chaplain Smith, moves for summary judgment and Clover has responded. For the follo wing reasons, Smith's motion for summary judgment [dkt 28 ] is granted. Judgment consistent with this Entry shall now issue. (See Entry.) Copy to plaintiff via US Mail.Signed by Judge Jane Magnus-Stinson on 3/10/2017.(RSF) Modified on 3/10/2017 (RSF).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SEAN CLOVER,
Plaintiff,

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v.
CHAPLAIN SMITH,

Defendant.

No. 1:15-cv-01513-JMS-MPB

Entry Discussing Motion for Summary Judgment
Plaintiff Sean Clover, an Indiana inmate, brings this action alleging that, while he was
incarcerated at the Correctional Industrial Facility (“CIF”), his right to practice his religion
guaranteed by the First Amendment was violated when Friday Islamic Jummah prayer time was
modified from 1:00 – 3:00 p.m. to 12:00 – 2:00 p.m. 1 The remaining defendant, Chaplain Smith,
moves for summary judgment and Clover has responded. For the following reasons, Smith’s
motion for summary judgment [dkt 28] is granted.
I. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
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.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
1

Clover had also alleged a request for injunctive relief under the Religious Land Use and
Institutionalized Persons Act, but that claim was dismissed as moot when Clover was transferred
out of CIF.

the record in the light most favorable to the nonmoving party and draw all reasonable inferences
in that party’s favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490.
Finally, the non-moving party bears the burden of specifically identifying the relevant evidence
of record, and “the court is not required to scour the record in search of evidence to defeat a
motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II. Facts
During the time that Clover’s claims in this case arose, he was incarcerated at CIF and
Smith was the Chaplain at that facility. In August of 2015, Clover filed an informal grievance
regarding the scheduling of Islamic Jummah. Jummah is an Islamic community prayer service,
conducted on Fridays, which involves a sermon by an Imam, followed by a prayer.
On August 25, 2015, Chaplain Smith responded to Clover’s informal grievance noting
that “all chapel movement is from 12-2:00 p.m. for all groups,” and that he “consulted with
Islamic Chaplain Aleem prior to and after scheduling Islam groups.” 2 In further investigation of
his grievance, on September 9, 2015, Chaplain Smith indicated to Superintendent Wendy Knight
that other facilities visited by Islamic Chaplain Aleem, including Miami Correctional Facility,
Indiana State Penitentiary, and Pendleton Correctional Facility, have their Jummah services the
same time as CIF.
Chaplain Smith does not dispute that Clover’s desire for a different time for Jummah is
based on his sincerely held beliefs, but explains that CIF offers general services, intended to
2

Clover objects to the admission of evidence regarding information Chaplain Aleem provided to
Smith concerning the scheduling of prayer time as inadmissible hearsay. But this evidence is not
inadmissible hearsay because it is not being used to prove the truth of Chaplain Aleem’s
statements, but to show Chaplain Smith’s efforts in considering Clover’s grievance regarding
prayer time. See Fed. R. Evid. 801(c).

accommodate a wide variety of Muslim practices, and does not adopt the practices of any
specific Muslim sect. Clover could continue to attend Friday services with the general Muslim
community in corporate worship. 3 CIF weekly religious services balance the needs of corporate
worship and accommodating a wide variety of Muslim practices and times when volunteers
could be present at the facility.
David Liebel is the Director of Religious and Volunteer Services for the IDOC. As the
Director of Religious and Volunteer Services for the IDOC, he oversees religious and volunteer
policies, and provides technical assistance to facilities. On September 15, 2015, Liebel responded
to Clover’s Level II Formal Grievance Appeal stating that “There are a variety of teachings and
understandings of the proper time for Jummah, whether it may be combined with other prayers.
It is impossible for the IDOC to accommodate every understanding, nor does the department
attempt to state which view is correct.”
Correctional Industrial Facility Policy and Operational Procedure 01-03-101, is the policy
governing religious programs and worship services. Operational Procedure 01-03-101 provides
the policy for approval of religious programs and worship services. It provides in part that:
“Religious programs approved by the Facility Head/designee shall be scheduled in an equitable
manner and with regard to facility security, order, resources, and manageability. Staff shall be
assigned to supervise religious programs as needed to provide adequate security and
orderliness.”

3

Clover responds that his beliefs regarding the appropriate time for Jummah are not specific to a
small sect, but reflect a general teaching of the Muslim faith. But Smith has submitted evidence
that many other Muslim inmates participate in Jummah as scheduled and that the selection of the
time was based on a consultation with a Muslim Chaplain. This is sufficient to support a
conclusion that Smith based the scheduling for Jummah on an accommodation of as many
Muslim inmates as possible.

The IDOC currently houses approximately 1,150 Muslim offenders. The IDOC utilizes
islamicfinder.org to calculate prayer times, which is endorsed by the Islamic Society of North
America, and approved by Muslim staff chaplains at the IDOC. Clover can continue to attend
Friday Jummah with the general Muslim community every week.
III. Discussion
Chaplain Smith moves for summary judgment on Clover’s claim, arguing that he is
entitled to qualified immunity. “Qualified immunity protects officers performing discretionary
functions from civil liability so long as their conduct does not violate clearly established
statutory or constitutional rights that a reasonable person would know about.” Mustafa v. City of
Chicago, 442 F.3d 544, 548 (7th Cir. 2006). Analysis of the qualified immunity defense requires
a consideration of: (1) whether the plaintiff’s statutory or constitutional rights were violated and
(2) whether the right was clearly established at the time. Id. “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.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Courts 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. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Smith argues that he is entitled to qualified immunity because there is no clearly
established law that the rescheduling of prayer time at issue here violated Clover’s First
Amendment rights. Smith states that the scheduling of Jummah was based on a consideration of
multiple factors, including the accommodation of other Muslim prisoners and volunteers to lead
the service. It also included consultation with a Muslim Chaplain regarding the calculation of
prayer times. Smith further points out that Clover was never excluded from participating in

Jummah as scheduled at CIF. According to Smith, based on these facts, it was not clearly
established that he violated Clover’s rights.
In response, Clover identifies no specifically analogous case to his claims here. He cites
cases related to the provision of a religious diet in prison, see Koger v. Bryan, 523 F.3d 789 (7th
Cir. 2008); Willis v. Comm’r Ind. Dep’t of Corr., 753 F.Supp. 2d 768 (S.D. Ind. 2010), but cases
based on religious diet issues are not similar enough to Clover’s claim regarding the scheduling
of prayer to provide clearly established law which would govern Smith’s actions. Clover also
argues that Smith is not entitled to qualified immunity because he did know or should have
known that his actions placed a substantial burden on the free exercise of his religion because
Clover was prevented from participating in Jummah prayer at the time Clover believed was
appropriate. While he has not cited a sufficiently analogous case which establishes that Smith’s
conduct was unconstitutional, Clover could defeat Smith’s qualified immunity defense by
presenting evidence that Smith’s conduct was such an obvious violation of the constitutional
right that a reasonable official would know without guidance from a court. Ashcroft v. al-Kidd, –
–– U.S. –––, 131 S.Ct. 2074, 2083 (2011) (To defeat a qualified-immunity defense, a plaintiff
need not point to a case that is factually identical to the present suit, but “existing precedent must
have placed the statutory or constitutional question beyond debate.”); Hope v. Pelzer, 536 U.S.
730, 739-40 (2002).
Clover has not demonstrated that a reasonable official in Smith’s position would have
known that he was violating Clover’s rights and therefore has not defeated the qualified
immunity defense because. In fact, applicable case law exists to support a conclusion that even if
prison officials make prayer time unavailable to certain inmates, they have not violated the First
Amendment if the decision to do so is reasonably related to legitimate penological interests. See
O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (“The very stringent requirements as to

the time at which Jumu’ah may be held may make it extraordinarily difficult for prison officials
to assure that every Muslim prisoner is able to attend that service. While we in no way minimize
the central importance of Jumu’ah to respondents, we are unwilling to hold that prison officials
are required by the Constitution to sacrifice legitimate penological objectives to that end.”); see
also Hall v. Sutton, 581 F. App’x 580, 583 (7th Cir. 2014) (“Prison officials do not violate the
First Amendment when they reschedule religious services because of time conflicts due to group
activities or the unavailability of supervisory chaplains or volunteers to lead services.”); Hadi v.
Horn, 830 F.2d 779, 786–88 (7th Cir. 1987) (no First Amendment violation when prison
cancelled prayer service because of scheduling conflict and no chaplain). Here, there is no
evidence that Clover was excluded from attending the Jummah service. While it was held at a
time that Clover believed was incorrect, deciding when to schedule this service was based on a
number of legitimate factors, including the accommodation of other Muslim prisoners and
volunteers to lead the service and consultation with a Muslim Chaplain regarding the calculation
of prayer times. Based on these facts, Smith could not have known that he was violating Clover’s
First Amendment rights.
IV. Conclusion
For the foregoing reasons, defendant Chaplain Smith is entitled to qualified immunity
against Clover’s claims. His motion for summary judgment [dkt 28] is granted. Judgment
consistent with this Entry shall now issue.
IT IS SO ORDERED.

Date: 3/10/2017

Distribution:
Jonathan Paul Nagy
INDIANA ATTORNEY GENERAL
[e-mail]
SEAN CLOVER
218097
INDIANA STATE PRISON
INDIANA STATE PRISON
Inmate Mail/Parcels
One Park Row
MICHIGAN CITY, IN 46360