Robertson (ID 76205) v. Biby et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 7 to alter or amend is denied. Signed by Senior District Judge Sam A. Crow on 7/30/2013. (Mailed to pro se party Joshua James Robertson by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSHUA JAMES ROBERTSON,
CASE NO. 12-3109-SAC
CHAUNCEY BIBY, et al.,
MEMORANDUM AND ORDER
This matter is a civil action filed pursuant to the Religious
Plaintiff, a prisoner in state custody, alleges interference with his
religious freedom during his placement in long-term segregation.
By its order entered on January 2, 2013, the court dismissed this
matter for failure to state a claim upon which relief may be granted.
On January 14, plaintiff filed a combined motion to correct
clerical mistakes, motion for relief from judgment, and motion to
alter or amend judgment (Doc. 7). Because the motion was filed within
28 days from the entry of the judgment, the court liberally construes
it as a motion pursuant to Fed.R.Civ.P. 59(e).
To prevail on this motion, the plaintiff must establish either
“(1) an intervening change in the controlling law, (2) new evidence
previously unavailable, [or] (3) the need to correct clear error or
prevent manifest injustice.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). “A Rule 59(e) motion … is designed
to permit relief in extraordinary circumstances and not to offer a
second bite at the proverbial apple.” Syntroleum Corp. v. Fletcher
Int’l, Ltd., 2009 WL 761322 (N.D.Okla. Mar. 19, 2009).
Plaintiff first complains of error in the court’s statement that
he commenced the action while housed in long-term segregation at the
Lansing Correctional Facility. Plaintiff, in fact, was assigned to
such a housing status at the El Dorado Correctional Facility when he
commenced this action. This correction is noted.1
Next, plaintiff complains of error in the court’s statement that
he claimed that his religious belief requires that he hear the Bible
read aloud by another person at least every seven years. However,
paragraph 24 of the complaint reads:
The Bible commands me, “And Moses commanded them,
saying, at the end of every seven years, in the solemnity
of the year of release, in the feast of tabernacles, When
all Israel is come to appear before the LORD thy God in the
place which he shall choose, thou shalt read this law before
all Israel in their hearing.” (Deuteronomy 31: 10-11 KJV).
(Doc. 1, p. 5.)(emphasis in original).
Elsewhere, the complaint states:
The total ban on Christian Chapel service and Christian
callouts for inmates in Administrative Segregation is a
refusal by the defendants to provide for the religious
exercise of hearing the Bible spoken by someone reading the
Bible which creates pressure on me to not hear the Bible
spoken by someone reading the Bible and that the non-hearing
or prevention of hearing the Bible spoken by someone does
not conform with my understanding of the requirements of
Christianity and compels inaction with respect to studying
the Bible. (Doc. 1, p. 7.)
Plaintiff currently resides in the Ellsworth Correctional Facility. He remains
in long-term protective custody.
I am a Christian and there are over 1,800 references
in the Bible to hearing God’s word, but only about 88
references to reading. And of those, two-thirds are to
reading the Bible aloud. In fact, every seven years, the
priests and elders were to “read this law in front of all
Israel in their hearing.” Deuteronomy 31: 10-11 (King James
Version). (Doc. 1, Attach. 8, p.5.)
complaint to allege a need to hear the Bible read aloud every seven
years is reasonable and does not constitute clear error.
Next, plaintiff challenges the dismissal of his request for
injunctive relief due to his transfer to another correctional
facility. He argues that policy allows a prisoner to possess an MP3,
a type of digital audio player, and to retain property as he transfers
between facilities, and he contends that under RLUIPA he should be
permitted to have an MP3 purchased by a third party 2 and an audio
version of the Bible.
Plaintiff sought the accommodation of his religious practice by
submitting a request, as contemplated by IMPP 10-110, Section V. He
also filed an administrative grievance.
In response, his Unit Team prepared a reply that advised him that
no prisoner in long-term segregation has access to an MP3, that if
released from segregation, plaintiff would be required to purchase
the device with personal funds, and that no download of the Bible was
currently available from the contract provider used by the prison
population. (Doc. 1, Ex. 8, p. 4.) The Warden approved this response
in a memorandum dated March 2, 2012, (id., p. 3), and both Gloria
Plaintiff owes the Kansas Department of Corrections in excess of $700.00. Doc.
1, p. 3.
Geither, Director of Religious Programs, and Douglas Burris, the
Secretary’s designee, concurred with this response in a grievance
response dated April 2, 2012 (id., p. 1).
The RLUIPA bars a government from “impos[ing] a substantial
burden on the religious exercise” of a prisoner “unless the government
demonstrates that imposition of the burden … (1) is in furtherance
interest.” 42 U.S.C. § 2000cc-1(a).
Plaintiff, as a prisoner seeking relief under RLUIPA, must
establish that “he wishes to engage in (1) a religious exercise (2)
motivated by a sincerely held belief, which exercise (3) is subject
to a substantial burden imposed by the government.” Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010).
In Abdulhaseeb, the Tenth Circuit held that a government imposes
participation in an activity prohibited by a sincerely held religious
belief”, “prevents participation in conduct motivated by a sincerely
held religious belief” or “places substantial pressure on an adherent
… to engage in conduct contrary to a sincerely held religious belief.”
Id. at 1315. Plaintiff’s claim implicates the second of these, that
is, his participation in conduct that would allow him to hear the Bible
read aloud by another person.
Here, plaintiff’s long-term protective custody status serves the
compelling interest in providing safe conditions of confinement.
While plaintiff’s status necessarily renders his participation in
religious activities more challenging, it does not follow that the
Kansas Department of Corrections must respond with plaintiff’s
preferred alternative, namely, an MP3 funded by a third party and
access to an electronic download of the Bible. Indeed, it is apparent
that the Chaplain in the El Dorado Correctional Facility personally
visited the segregation unit, (Doc. 1, p. 3), and plaintiff offers
no statement concerning access to clergy or religious services in his
current confinement in the Ellsworth Correctional Facility. The court
finds no clear error in the decision to dismiss this matter.
Having carefully considered the record, the court finds no basis
to grant relief on the motion to alter or amend.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
alter or amend (Doc. 7) is denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
This 30th day of July, 2013, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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