NEELY-BEY TARIK-EL v. LEMMON et al

Filing 84

ORDER granting Defendants' 70 Motion for Summary Judgment. Judgment shall now enter. ***SEE ENTRY*** Signed by Judge William T. Lawrence on 9/19/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DERRICK DION NEELY-BEY TARIK-EL,

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Plaintiff,
v.
OFFICER CONLEY, et al.,
Defendants.

Case No. 1:15-cv-1522-WTL-DML

Entry Discussing Motion for Summary Judgment
and Directing Entry of Final Judgment
Plaintiff Derrick Neely-Bey Tarik-El (“Mr. Tarik-El”), an Indiana prisoner incarcerated at
the Pendleton Correctional Facility (“Pendleton”), brings this action pursuant to 42 U.S.C. § 1983.
He seeks an award of monetary damages against the defendants in their individual capacities for
allegedly violating his First Amendment rights to practice his religion when the defendants
enforced a Moorish Science Temple of America resolution that prohibited him from teaching,
facilitating, or serving in the operation of religious services. The defendants are Daniel Conley,
Richard Sidwell and Chaplain David Smith.
The defendants moved for summary judgment. The plaintiff filed a response in opposition
and the defendants replied. For the following reasons, the motion for summary judgment, Dkt. No.
70, is granted.

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I. Undisputed Facts1
Construed in a manner most favorable to Mr. Tarik-El, the following facts are undisputed
for purposes of summary judgment:
In 2013, Mr. Tarik-El submitted an affidavit to former Indiana Department of Correction
(“IDOC”) Commissioner Bruce Lemon which challenged the IDOC’s authority to hold him in
prison. He stated in the affidavit “I Derrick D. Neely-Bey Tarik-El, am a Sovereign Moorish
National of the Missouri Republic of Nativity, thus of America (Al Morocco), and a Moorish
American.” Dkt. [70]-3. In this affidavit, Mr. Tarik-El challenged the IDOC’s jurisdiction to
incarcerate him.
On Sunday, April 6, 2014, Brother M. Doles Bey, Minister Volunteer, sent a memorandum
to David Libel, IDOC Director of Religious Services; IDOC Chaplains Alan McCraine and David
Smith; Pendleton Superintendent Wendy Knight; and Offenders B. Crosby-Bey and Tarik-El. Dkt.
[1]-1, pp. 7-8. This memorandum contained a resolution issued by the Moorish Science Temple of
America (“MSTA”) that informed the recipients that Mr. Tarik-El was no longer permitted to
teach, facilitate, or serve in the operation of the MSTA because he was designated with a Security
Threat Group (“STG”). He was to be considered a guest and, as such, was permitted to participate
in Sunday school but was prohibited from dominating, debating, or giving instruction as to the
operation of the Temple. As a guest, Mr. Tarik-El was also not permitted to participate in Friday
Holy Day Service. The resolution informed Mr. Tarik-El that any violation of the memorandum

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Mr. Tarik-El states in his response that the defendants’ facts one through five are material facts
in dispute. Dkt. No. 81, pp. 2-3. This statement is not supported by the record. Each of the
defendants’ facts one through five are statements set forth in Mr. Tarik-El’s complaint, documents
attached to the complaint, or Mr. Tarik-El’s affidavit. He also has not complied with Local Rule
56-1 by supporting his statements that the defendants’ facts are in dispute with citation to any
evidence. As such, Mr. Tarik-El has conceded the defendants’ version of the facts. Waldridge v.
Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994).
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would permit IDOC to punish any violations with any policies IDOC had in place. Dkt. No. 1-1,
pp. 7-9.
On March 23, 2015, Chaplain David Smith sent a memorandum to Mr. Tarik-El that stated
“I will need you to understand that by returning to [the MST of A] group you agree to fully
cooperate with and follow the April 6 2014 sanction placed on you by MST of A, Inc.” Dkt. No.
1-1, p. 3. The memorandum set forth the restrictions contained in the MSTA resolution which
included:

Dkt. No. 1-1, p. 3.
On August 21, 2015, Mr. Tarik-El received a report of conduct for refusing an order after
he was observed speaking and openly participating in religious services on Friday Holy Day. Dkt.
No. 70-2, p. 9. He was found guilty and received sanctions of a written reprimand and twenty hours
of extra work duty. Dkt. No. 1, p. 3; 70-2, p. 11.
Mr. Tarik-El has a STG classification of sovereign citizen. Dkt. No. 70-1, pp. 4-6. Inmates
with a STG classification are prohibited from participating in, recruiting for, talking or teaching
about a STG. Dkt. No. 70-1, pp. 4-6.2

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The defendants state that Mr. Tarik-El was suspended from MSTA meetings for one year. Dkt.
No. 71, p. 1. The record does not reflect this. Rather, the record reflects that Mr. Tarik-El received
sanctions of a written reprimand and twenty hours of extra work duty. Dkt. No. 1, p. 3; 70-2, pp.
11-12. Nonetheless, this is immaterial because Mr. Tarik-El is not arguing that a one year
restriction violated his rights under the First Amendment, but that his inability to participate
violated his rights under the First Amendment.
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II. Summary Judgment Standard
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 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 nonmoving 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).
III. Discussion
Defendants assert two grounds for summary judgment. First, they argue that Mr. Tarik-El’s
claim under the First Amendment fails as a matter of law. Second, they argue that the doctrine of
qualified immunity precludes liability on Mr. Tarik-El’s constitutional claim because it was not
clearly established that defendants’ conduct violated Mr. Tarik-El’s constitutional rights. Qualified
immunity “[i]s an immunity from suit rather than a mere defense to liability; ... it is effectively lost
if a case is erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001). “It
is important to resolve immunity questions at the earliest possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991). For this reason, the Court will address the immunity defense

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first.
Qualified Immunity
When suit is brought against a government official in his or her individual capacity, the
official may raise any relevant personal immunity defense. See Kentucky v. Graham, 473 U.S. 159,
165–67 (1985). The doctrine of qualified immunity protects government officials from liability for
civil damages when their conduct “does not violate clearly established statutory or 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). In other
words, a plaintiff must show that not only his constitutional rights were violated, but that any
reasonable official under the circumstances would have realized his rights were being violated. 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 (1993).
The qualified immunity defense consists of two prongs, both of which Mr. Tarik-El must
overcome to defeat the defendants’ 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. 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 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. We
shall follow that analytical approach here.
As noted, Mr. Tarik-El must demonstrate a violation of his clearly established rights under

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the First Amendment in order to defeat the defendants’ qualified immunity defense. Purvis v. Oest,
614 F.3d 713, 717 (7th Cir. 2010). To be clearly established, a right must be specific to the relevant
factual context of a cited case and not generalized with respect to the amendment that is the basis
of the claim. Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008). However, a case with similar facts
is not necessarily required; the violation may be so obvious in light of law existing at the time that
a reasonable person would have known that his or her conduct was unconstitutional. Brokaw v.
Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000). Mr. Tarik-El can demonstrate that the right he
identifies was “clearly established” by presenting a sufficiently analogous case which establishes
that the defendants’ conduct was unconstitutional or by presenting evidence—even in the absence
of applicable precedent—that the defendants’ 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). Mr. Tarik-El need not cite a case that is factually identical
to his case, but the “existing precedent must have placed the right or constitutional question beyond
debate.” Al–Kidd, 563 U.S. at 741.
Mr. Tarik-El argues that his rights under the First Amendment Free Exercise clause were
violated when he received a disciplinary sanction for violating the MSTA resolution prohibiting
him from actively engaging in MSTA religious services. Mr. Tarik-El directs the Court’s attention
to Isby v. Lemmon to show that the defendants’ enforcement of the MSTA resolution banning him
from participating in religious services was a clearly established violation of his First Amendment
right. Dkt. No. 81, p. 5.3 He states that the Isby v. Lemmon case stands for the proposition that “this

Mr. Tarik-El does not provide a citation for the Isby v. Lemmon case. There is one Seventh Circuit
case Isby-Israel v. Lemmon, 674 Fed. Appx. 569, (7th Cir. 2017) (unpublished) that dismissed his
appeal for failing to disclose to the district court that he was a restricted filer. The district court
case that Mr. Isby-Israel appealed from involved an alleged Eighth Amendment violation for
placement in long-term segregation.
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Court recognizes that the First Amendment Free Exercise Clause prohibits the government from
imposing a substantial burden on a central religious belief or practice.” Dkt. No. 81, p. 11. In
essence, Mr. Tarik-El argues that the general protections of the Free Exercise Clause of the First
Amendment are sufficient to defeat the defendants’ claim of qualified immunity. Mr. Tarik-El also
points to the IDOC Administrative Polices that protect his right to practice his religion. Both the
Isby v. Lemmon case and the IDOC Administrative Policies, Mr. Tarik-El argues, clearly establish
his right to practice his religion.
The general principles of First Amendment law prohibiting officials from placing a
substantial burden on the free exercise of religion by inmates are clearly established, Ortiz v.
Downey, 561 F. 3d 664, 669 (7th Cir. 2009) (stating that the First Amendment right to freely
exercise one’s religion extends to inmates), but the qualified immunity defense turns on whether
the application of those principles to the circumstances faced by the defendants was clear at the
time. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).
Here, Mr. Tarik-El cannot prevail in his effort to overcome qualified immunity by relying
on general principles of First Amendment right. 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. ––––,
137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (citing Al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074).
“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.
The defendants state that their diligent search of our Circuit and Supreme Court law yields
no case that establishes a clearly established right analogous to the facts of this case. Similarly, the
Court’s research confirms that there are no decisions directly establishing that the defendants’
conduct in this case, where state officials enforced a ban from participating in religious activities

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that was put in place by the religious entity itself, violated Mr. Tarik-El’s rights under the First
Amendment.
Mr. Tarik-El has failed to meet the “clearly established” standard sufficient to defeat the
defendants’ qualified immunity defense to his claim. Well-settled Supreme Court 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, 129 S.Ct. 808. 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, 131 S.Ct. 2074 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986)). The defendants’ reliance on this defense is well placed.
IV. Conclusion
The defendants are entitled to qualified immunity defense. Accordingly, the defendants’
motion for summary judgment, Dkt. No. 70, is granted. Judgment shall now enter.
IT IS SO ORDERED.
Date:9/19/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
DERRICK D. NEELY-BEY TARIK-EL
973338
PENDLETON - CIF
CORRECTIONAL INDUSTRIAL FACILITY
Electronic Service Participant – Court Only
Electronically registered counsel

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