Munt v. MN Department of Corrections et al

Filing 67

ORDER denying 38 Plaintiff's Motion for Judgment on the Pleadings; denying without prejudice 49 Plaintiff's Motion to Appoint Counsel; adopting as modified 52 Report and Recommendation; denying 3 Plaintiff's Motion for TRO; denying 5 Plaintiff's Motion for Expedited Preliminary Relief; and overruling in part and sustaining in part 54 Plaintiff's Objections(Written Opinion). Signed by Judge Susan Richard Nelson on 03/29/17. (MJC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Joel Marvin Munt,

Civil No. 16-1206 (SRN/SER)
Plaintiff,
MEMORANDUM OPINION
AND ORDER

v.
Minnesota Department of Corrections,
Tom Roy, Gloria H. Andreachi, Bruce
Julson, Steve Hammer, and Bruce Reiser,
Defendants.

Joel Marvin Munt, pro se, 236179, MCF–Stillwater, 970 Pickett St. N., Bayport, MN
55003
Lindsay LaVoie, Minnesota Attorney General’s Office, 445 Minnesota St., Suite 900, St.
Paul, MN 55101, for Defendants

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Report and Recommendation (“R & R”) of
Magistrate Judge Steven E. Rau dated January 27, 2017 [Doc. No. 52]. In the R & R,
Magistrate Judge Rau recommended that Plaintiff Joel Marvin Munt’s First Motion for
Temporary Restraining Order (“Motion for TRO”) [Doc. No. 3] and First Motion for
Expedited Preliminary Relief (“Motion for Expedited Relief”) [Doc. No. 5] (collectively,
“Motions for Injunctive Relief”) be denied by this Court. In the R & R, Magistrate Judge Rau

1

also recommended that Plaintiff’s Motion for Judgment on the Pleadings [Doc. No. 38] be
denied. Finally, before the Court is Munt’s Motion to Appoint Counsel [Doc. No. 49].
Plaintiff filed timely objections to the R & R, (Pl.’s Obj. [Doc. No 54]), to which
Defendants responded. (Def.’s Obj. Resp. [Doc. No. 58]). Pursuant to federal law, the
Federal Rules of Civil Procedure, and local rules, the Court must perform a de novo review
of any portion of the magistrate judge’s opinion to which objections are made. 28 U.S.C. §
636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); D. Minn. L.R. 72.2(b)(3). Based on that de novo
review, the Court adopts the R & R as modified, denies Plaintiff’s Motions for injunctive
relief, and denies without prejudice Plaintiff’s Motion to Appoint Counsel.
I.

BACKGROUND
A.

Factual Background

Plaintiff is an inmate currently incarcerated at the Minnesota Correctional Facility
(“MCF”)-Stillwater. (R&R of July 30, 3015 at 2 [Doc. No. 74].) Plaintiff asserts a claim
under U.S.C. § 1983, against the Minnesota Department of Corrections (“DOC”) and Tom
Roy, Gloria H. Andreachi, Bruce Julson, Steven Hammer, and Bruce Reiser (collectively,
“Defendants”), all of whom are alleged to be employees of the DOC. (Compl. at 1-4 [Doc.
No. 1].)1 Munt contends that Defendants violated the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”) and article 1, section 16 of the Minnesota
Constitution by failing to accommodate his religious beliefs. (Id. at 1). Specifically, Plaintiff

1

Because the Complaint does not contain consecutively numbered paragraphs
throughout, the Court’s citations are to particular page numbers.
2

asserts that his “deeply held” Christian “religious beliefs include a prohibition against
indecent displays,” including “exposure that results from changing clothes in a public area,
sharing a cell with someone, using the toilet in a public area, and showering in a public area.”
(Id. at 4).

Plaintiff complains of inadequate privacy at the shower facilities at

MCF-Stillwater, notwithstanding their designation as “individual occupancy showers” and
therefore refrains from showering, instead resorting to “bird baths” because he is “totally
exposed to anyone looking down” on him. (Id. at 4-6). Because he refrains from showering,
Plaintiff believes that he is “denied the same level of services as other inmates.” (Id. at 6).
Additionally, because MCF-Stillwater corrections officers can ordinarily view inmates in
their cells, Plaintiff hangs a privacy sheet when changing his clothing, taking a “bird bath,”
or using the toilet. (Id. at 4-6). According to Plaintiff, MCF-Stillwater “inmates frequently
hand [sic] things in their cells for privacy. This usually goes unpunished” and often does not
elicit comments from guards. (Id. at 6). Plaintiff also states that the lack of privacy at
MCF-Stillwater forces him “to choose between potential discipline and adhering to his
religion.” (Id. at 5). He understands that hanging a privacy sheet violates MCF-Stillwater
policy against hanging such objects in cells, and he fears retaliation for the exercise of his
religious beliefs by doing so. (Id. at 12-13.)
Between January and March 2016–and prior to filing this lawsuit–Plaintiff filed
several kites, one grievance, and a subsequent grievance appeal with various Defendants in
order to address his privacy concerns and fear of retaliation. (See id. at 7-11). In each of the
aforementioned communications, Plaintiff stated his religious beliefs prohibit “indecent
3

displays.” Id.
In response to his grievances, Defendants offered alternatives consistent with safety
and security concerns at MCF-Stillwater (e.g., compliance with the Prison Rape Elimination
Act “PREA”). (See, e.g., id. at 10) (proposing that Plaintiff use a towel to address privacy
concerns when using the toilet). In the final disposition of Plaintiff’s grievance, Defendant
Reiser dismissed the appeal. (Id. at 11.) He indicated that Plaintiff's “religious beliefs are
being accommodated,” citing considerations of staff and inmate safety, noting previous
suggestions to address Plaintiff's privacy concerns, and stating that “showers are considered
single occupancy and have curtains or doors that cover the body’s mid-section.” (Id.)
B.

Procedural Background

On the basis of the aforementioned facts, Plaintiff filed suit on May 9, 2016, alleging
violations of RLUIPA and article 1, section 16 of the Minnesota Constitution due to
Defendants’ alleged failure to accommodate his religious beliefs. Defendants filed an answer
in their official capacities on September 19, 2016. (See Answer of Defs. Minn. DOC, Gloria
Andreachi, Bruce Julson, Steve Hammer, Bruce Reiser, and Tom Roy) [Doc. No. 19 at 1,
n.1] (“Answer”).)2 Among their responses to the Complaint, Defendants also assert various
2

As a result of difficulties with effectuating service of process, Defendants filed
multiple answers in their individual and official capacities. In addition to the answer filed
for Defendants in their official capacities on September 19, 2016, answers were also filed
on October 4, 2016 and October 19, 2016, for Defendants in their individual capacities.
(Answer of Defs. Gloria Andreachi, Bruce Julson, and Bruce Reiser [Doc. No. 26 at 1, n.
1]; Answer of Def. Hammer [Doc. No. 31 at 1, n. 1]; see also Answer at 1, n. 1). For the
purposes of this Order, the pertinent portions of the aforementioned answers are the same,
and the Court refers only to the answer filed on September 19, 2016 for Defendants in
their official capacities.
4

defenses. (See id. at ¶¶ 45-54.) For example, Defendants contend that their “conduct was
authorized by law, was reasonable, and was taken in good faith” and they also claim
entitlement to qualified, official, or discretionary immunity. (Id. ¶¶ 46-47).
Plaintiff filed his Motions for Injunctive Relief concurrently with the Complaint on
May 9, 2016. The Motions for Injunctive Relief seek to enjoin Defendants from taking any
disciplinary measures against Plaintiff for observing his religious belief in the prohibition of
“indecent displays.” (See Mot. for TRO at 3; Mot. for Expedited Relief at 2.) Munt explains
that the Motion for TRO was filed as a provisional measure while the Court evaluated the
Motion for Expedited Relief. (See Mot. for TRO at 1.) However, both the Motion for TRO
and the Motion for Expedited Relief rest on the same factual allegations and are
indistinguishable with respect to the relief Plaintiff seeks. (Compare, e.g., Mot. for TRO at
3 with Mot. for Expedited Relief at 2.) Both seek to enjoin Defendants from disciplining
Plaintiff for hanging a privacy sheet, confiscating Plaintiff’s privacy sheet, forcing Plaintiff
to shower, or moving Plaintiff to a double occupancy cell. (See Mot. for TRO at 3; Mot. for
Expedited Relief at 2.)
For purposes of responding to Plaintiff’s motions, Defendants do not dispute the
sincerity of Plaintiff’s religious beliefs. (Defs.’ Opp’n Mem. at 8 [Doc. No. 27].) However,
they contend that they have not substantially burdened Plaintiff’s religious practice, and that
even if they did, their policies are narrowly tailored to achieve a compelling governmental
interest. (Id. at 8-9.)
In his reply memorandum, Munt raises a new issue, asserting a lack of access to a law
5

library and also argues that Defendants’ multiple answers were not authorized under the law,
that Defendants’ factual assertions and affidavits are untruthful, that Defendants’ arguments
are not properly pleaded as affirmative defenses and are therefore waived, and that there
cannot be a compelling security interest when other inmates also use privacy sheets. (Reply
at 1-3, 5-7, 11, 15 [Doc. No. 37].)
C.

The Magistrate Judge’s Findings and Recommendations

The magistrate judge first noted that many of the arguments that Munt raised in his
reply were unrelated to either the Defendants’ response in opposition to Munt’s motions or
Munt’s Complaint. (R&R at 4.)

Because they were not properly before the Court, the

magistrate judge declined to consider them. (Id. at 6.) The magistrate judge also rejected
Munt’s contention that Defendants’ arguments raised in opposition to his motions were
waived because they were not raised as affirmative defenses. (Id. at 7-10.) As to the
Motions for Injunctive Relief, Magistrate Judge Rau applied the factors set forth in
Dataphase Systems v. CL Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (commonly
referred to as the “Dataphase factors”). Because he found that all four Dataphase factors
weighed in favor of Defendants, he recommended the denial of the motions. (R&R at 1017.) The magistrate judge also recommended the denial of Plaintiff’s Motion for Judgment
on the Pleadings, finding that Defendants’ Answer raised issues of fact. (Id. at 18-19.)
Munt raises numerous objections to the R&R, which the Court generally categorizes
as follows: (1) disagreement with the magistrate judge’s determinations that the pleading
requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
6

550 U.S. 544 (2007) (“Iqbal/Twombly”), are inapplicable to affirmative defenses and that
Defendants’ defenses were appropriately raised and not waived; (2) a related objection to the
magistrate judge’s determination regarding Plaintiff’s Motion for Judgment on the Pleadings;
(3) concerns regarding access to legal research; and (4) disagreement with the magistrate
judge’s analysis and assessment of the Dataphase factors.
Plaintiff also filed two self-styled Supplements to Plaintiff’s Objections
(“Supplements”) that essentially provide updated factual information. (See Pl.’s Supp. to
Obj. [Doc. No. 56]; Pl.’s Second Supp. to Obj. [Doc. No. 59].) Because it appeared from the
Supplements that changes had been made to the shower facilities since the initial round of
briefing, the Court directed Defendants to submit a supplemental affidavit addressing the new
facts in Plaintiff’s Supplements. (Order of March 6, 2017 at 3 [Doc. No. 61].) Defendants
filed the Affidavit of John Quist [Doc. No. 63] in response to the Court’s directive. Shortly
thereafter, Munt objected to the filing of the Quist Affidavit (Obj. to Quist Aff. [Doc. No.
64]) and submitted his own affidavit (Munt Aff. [Doc. No. 65].) In light of the updated facts
and the Court’s directive to the Defendants to provide a supplemental affidavit, the Court has
reviewed the supplemental submissions, including the Munt Affidavit and Munt’s Objections
to the Quist Affidavit.
II.

DISCUSSION
A.

Affirmative Defenses/Adequacy of Defendants’ Pleadings
1.

Defenses and Waiver

Plaintiff contends that the magistrate judge erred in permitting Defendants to assert
7

certain arguments in response to Plaintiff’s motions, specifically arguments regarding
Defendants’ interests in the safety and security of inmates. (Pl.’s Obj. at 1-2.) Munt argues
that because Defendants did not raise these specific arguments as affirmative defenses in
their Answer, Defendants waived them. The Court disagrees.
RLUIPA prohibits federally-funded correctional institutions from placing a substantial
burden on a prisoner’s religious exercise, unless the government can demonstrate that the
burden furthers a compelling governmental interest and is the least restrictive means of doing
so. 42 U.S.C. § 2000cc-1(a). The Act defines “religious exercise” to include “any exercise
of religion, whether or not compelled by, or central to, a system of religious belief.”
§ 2000cc-5(7)(A). A “substantial burden exists if the prison policy significantly inhibits or
constrains religious conduct, meaningfully curtails an inmate’s ability to express adherence
to his faith, or denies an inmate reasonable opportunities to engage in fundamental religious
activities.” Jihad v. Fabian, 680 F. Supp. 2d 1021, 1026 (D. Minn. 2010) (citing Van Wyhe
v. Reisch, 581 F.3d 639, 656 (8th Cir. 2009)). This protection “extends even to religious
practices that are not ‘compelled by, or central to,’ a certain belief system.” Van Wyhe, 581
F.3d 639, 656 (8th Cir. 2009) (citation omitted). Thus, the court does not inquire as to
whether a particular religious belief or practice is central to a prisoner’s religion. Id. After
a prisoner shows that a prison policy substantially burdens his free exercise of religion, the
burden shifts to the prison to demonstrate that its policy is the least restrictive means of
furthering a compelling governmental interest. See Holt v. Hobbs, __ U.S. __, 135 S. Ct.
853, 863 (2015).
8

While Defendants’ Answer does not expressly track the statutory language regarding
the defense of compelling governmental interest/least restrictive means, one of their separate
defenses is that their conduct “was authorized by law, was reasonable, and was taken in good
faith.” (Answer ¶ 47.) The Court agrees with the magistrate judge that this pleading is
sufficient to withstand a motion for judgment on the pleadings. While Munt contends that
Defendants’ Answer fails to meet the specificity-pleading standards of Iqbal/Twombly, the
Court need not reach the issue of whether these pleading requirements apply to the defenses
asserted here.3 Nor must the Court necessarily decide whether the compelling governmental
interest/least restrictive means defense is technically an affirmative defense under Fed. R.
Civ. P. 8(c). Rather, even if the Court assumes for purposes of these Objections that the
compelling governmental interest/least restrictive means defense is an affirmative defense,
when such a defense “is raised in the trial court in a manner that does not result in unfair
surprise, technical failure to comply with Rule 8(c) is not fatal.” Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). Given that RLUIPA spells out this
defense, Munt cannot claim unfair surprise. Moreover, the responses of MCF-Stillwater
3

The Eighth Circuit does not appear to have addressed the question of whether the
requirements of Iqbal/Twombly apply to the pleading of affirmative defenses. See
Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 342 n.5 (D. Neb. 2013)
(noting lack of authority, collecting cases, and finding Iqbal/Twombly inapplicable to the
affirmative defenses in question); Wells Fargo & Co. v. United States, 750 F. Supp. 2d
1049, 1051-52 (D. Minn. 2010) (Schiltz, J.) (acknowledging split of opinion, but finding
that Iqbal/Twombly requirements are inapplicable to the pleading of affirmative defenses
for several reasons, including the lack of any such requirement in the text of Fed. R. Civ.
P. 8, and the different positions of plaintiffs, who may have years to prepare a case and
therefore must assert their claims with specificity, versus defendants, who typically have
only 21 days in which to respond to a complaint).
9

staff to Munt’s administrative grievances–which Munt quotes verbatim in his
Complaint–clearly identify facility security and safety as reasons for denying his requests,
(see Compl. at 8, 10-11), and further indicate that staff proposed alternative suggestions for
accommodating Munt’s concerns. (See id. at 10-11.) Nor has Munt been prejudiced by the
assertion of this argument in Defendants’ response to his motions, to which he fully
responded in his reply briefing [Doc. Nos. 37, 44]. For all of these reasons, Plaintiff’s
Objection on this basis is overruled.
2.

Plaintiff’s Motion for Judgment on the Pleadings

Munt further objects to the magistrate judge’s determination that the allegations in
Defendants’ Answer do not require judgment as a matter of law under Fed. R. Civ. P. 12(c).
(Pl.’s Obj. at 11-13.)

The nature of Munt’s argument on this ruling suggests that he is

confusing the legal standard for judgment on the pleadings with the standard for summary
judgment. (Id. at 11-12) (referring to Defendants’ failure to offer any evidence and
Defendants’ burden to establish a compelling governmental interest, using the least
restrictive means). The magistrate judge applied the correct legal standard for a motion
brought under Rule 12(c), namely, that the Court must “accept as true all facts pleaded by
the non-moving party and grant all reasonable inferences from the pleadings in favor of the
non-moving party,” and that judgment is appropriate when no material issue of fact remains
in dispute. (R&R at 17-18) (citing United States v. Any & All Radio Station Transmission
Equip., 207 F.3d 458, 462 (8th Cir. 2000); Faibisch v. Univ. of Minn., 304 F.3d 797, 803
(8th Cir. 2002)). The Court agrees with the magistrate judge that material issues of disputed
10

fact remain, as reflected in Defendants’ Answer, which contains numerous denials of the
allegations asserted in the Complaint. (R&R at 18.) Munt’s objections to the R&R are
overruled as to this basis of appeal.
B.

Legal Access

In the course of presenting his objections to the rulings on his motions, Plaintiff also
argues that he lacks access to certain legal authority and has insufficient time in which to
conduct research. (See, e.g., Pl.’s Obj. at 1.) As noted in the R&R, Munt raised similar
arguments in his Reply before the magistrate judge. (R&R at 4-5.) The Court agrees with
the magistrate judge that such arguments are unrelated to the substance of Plaintiff’s motions.
Nor is there any relationship between his arguments about legal access and the allegations
in his Complaint or in Defendants’ Answer. Accordingly, because these issues are not
properly before this Court, this basis of objection fails.
C.

Motions for Injunctive Relief

Munt objects to the magistrate judge’s analysis and determination concerning his
Motions for Injunctive Relief. (Pl.’s Obj. at 2-11.) Magistrate Judge Rau applied the proper
test for determining whether injunctive relief will issue, using the Dataphase factors. (R&R
at 6-17.) The Dataphase factors require the court to consider: “(1) the threat of irreparable
harm to the movant; (2) the state of the balance between this harm and the injury that
granting the injunction will inflict on other parties litigant; (3) the probability that the movant
will succeed on the merits; and (4) the public interest.” 640 F.2d at 113. The factors are
then balanced to determine whether the extraordinary remedy of injunctive relief should
11

issue. Roudachevski v. All-American Care Ctrs., Inc., 648 F.3d 701, (8th Cir. 2011). “[T]he
burden of establishing the propriety of an injunction is on the movant.” Id. In addition, in
the context of a prison setting, a request for injunctive relief “must always be viewed with
great caution because judicial restraint is especially called for in dealing with the complex
and intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520 (8th
Cir. 1995).
1.

Irreparable Harm

Munt objects to the magistrate judge’s determination that he has failed to establish a
real or immediate threat of irreparable injury. (Pl.’s Obj. at 2-4.) Munt claims that he has
suffered irreparable harm in the context of his free exercise rights and (1) the DOC’s policy
against the use of privacy sheets; (2) access to showers; and (3) the possibility of having to
share a cell with another inmate. The magistrate judge found that Munt’s stated irreparable
harm was speculative, noting that Munt admitted that he has not yet been disciplined for
violating policy, has not been forced to “shower publicly,” has not been subject to discipline
for hanging a privacy sheet, has not had his privacy sheet confiscated, nor has he been
transferred to a double cell. (R&R at 12-13.) Munt, however, argues that because the threat
of disciplinary action exists, he is harmed by: (1) choosing between exercising his religion
and violating prison rules by hanging a privacy sheet and therefore receiving punishment;
(2) the prospect of possibly having to share a prison cell with another inmate in the future,
in violation of his beliefs; and (3) by adhering to his religious beliefs, he is denied the
“essential benefit” of showering. (Pl.’s Obj. at 2-3.)
12

“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality). The Supreme Court found in Holt that requiring an inmate to adhere to his
religious beliefs or face discipline for rule violations constitutes a substantial burden. 135
S. Ct. at 862. The Court therefore considers that being placed in such a predicament may
constitute irreparable harm. But a movant seeking injunctive relief must still demonstrate
that the threat of injury is neither remote nor speculative, see City of Los Angeles v. Lyons,
461 U.S. 95, 111 (1983), but actual, imminent, and “more than a mere possibility.”4 Rogers
v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (citing Connecticut v. Massachusetts, 282 U.S.
660, 674 (1931)).
a.

Privacy Sheets

Applying these precepts to the facts before the Court, only one of the bases upon
which Munt seeks injunctive relief demonstrates the threat of irreparable harm–his claim
regarding privacy sheets–for which the need for injunctive relief might apply. Because the
prison policy prohibits inmates from blocking the full view into their cells, and Munt’s
religious beliefs prohibit “indecent displays,” thereby causing him to use a privacy sheet, if
4

The magistrate judge also observed in a footnote that the lack of a “real or
immediate threat” suggested that Munt’s claims were not yet ripe for consideration.
(R&R at 10, n. 4.) Munt objects to this language in the R&R, arguing that having to wait
for his claims to ripen deprives him of meaningful access to the courts. (Pl.’s Obj. at 4.)
However, the magistrate judge made clear that he did not rule on the basis of ripeness and
instead analyzed Munt’s motions for injunctive relief under the Dataphase factors. (R&R
at 10, n. 4) (stating, “Instead, in the interest of fairness, the Court analyzes Munt’s
motions under the Dataphase factors. . . .”). Accordingly, this ground of objection is
moot.
13

he contravenes that policy by hanging a privacy sheet, Munt faces disciplinary action.5
Because Munt acknowledges that he continues to use privacy sheets, discipline for using the
sheets is neither speculative nor remote. See City of Los Angeles, 461 U.S. at 111; Rogers,
676 F.2d at 1214. Therefore, as to this particular threat of injury, the Court respectfully
disagrees with the magistrate judge’s finding that Munt’s stated threat of injury is not
sufficiently real or immediate. (See R&R at 10-11.) Munt’s objections are sustained in
regard to irreparable harm regarding privacy sheets, although the Court must examine the
remaining Dataphase factors with respect to his basis for relief.
b.

Shower Access

The Court agrees with the magistrate judge, however, that Munt has not established
irreparable harm, such that immediate injunctive relief is necessary, with respect to his
shower access claim. Defendants aver that the shower stalls in Munt’s unit are individual
shower stalls. (Andreachi Aff. ¶ 8; Quist Aff. ¶ 4.) Munt requests either “a private shower
or . . . upgrading all showers to provide the required level of privacy.”6 (Compl. at 11, 14.)

5

The Court considers Munt’s stated fear of the confiscation of his privacy sheet as
part of the potential disciplinary action.
6

In one of his administrative grievances, quoted in his Complaint, Munt provides
more specificity regarding his desired accommodation, requesting “the use of a private
shower (at minimum comparable to the privacy provided by CX3 and CX2 showers at
[Oak Park Heights] at the time of my transfer to [Stillwater]).” (Compl. at 11.) In his
affidavit, he further states that none of the various curtains installed in his unit have met
the level of privacy required by his religious beliefs, as they “have failed to address the
gap below the door that leaves you exposed if you must crouch down - such as to find the
soap. The current ones do not even obscure the view of those passing the showers.”
(Munt Aff. ¶ 4.)
14

Munt argues that he suffers irreparable harm because he is denied the “essential benefit” of
showering in order to adhere to his religious beliefs.7 (Pl.’s Obj. at 3.) But the decision not
to shower does not force Munt to choose between violating prison policy concerning hygiene
or adhering to his religious beliefs. See Holt, 135 S. Ct. at 863. Munt uses his cell sink to
take “bird baths,” which, he acknowledges, “get [ ] you clean.” (Compl. at 5.) Defendants
also attest that inmates may “thoroughly clean [themselves] by using water from their [incell] sink and soap.” (Andreachi Aff. ¶ 9.) While Munt does not consider the use of his cell
sink to be ideal, any potential harm is not irreparable harm that requires immediate injunctive
relief.
Nor does Munt’s fear of being forced to take a shower give rise to a finding of
irreparable harm. Again, deciding not to access the prison’s showers does not require Munt
to choose between adhering to his religious beliefs and complying with prison hygiene rules.8
See Holt, 135 S. Ct. at 862. Munt is able to comply with the hygiene rules by using his in7

Munt grounds his “essential benefit” argument in Moussazadeh v. Texas Dep’t
of Criminal Justice, 703 F.3d 781, 784 (5th Cir. 2013). Moussazadeh, however, arose in
the context of summary judgment, with a fully developed record, not as a motion for
injunctive relief, and is a non-binding decision of the Fifth Circuit, whereas this Court is
bound by the precedent of the Eighth Circuit. And substantively, in Moussazadeh, the
Fifth Circuit observed that “unlike our definition [of “substantial burden”], . . . , the
Eighth Circuit’s definition of substantial burden makes no reference to denial of generally
available benefits.” Id. at 794 (distinguishing facts before the court from those in Patel v.
U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)).
8

Although Munt does not appear to identify the prison policy that would authorize
such measures, prison rules require the maintenance of a “socially acceptable level of
personal hygiene.” (See R. 030, Ex. 5 to Andreachi Aff.) Defendants aver that forced
showers are infrequent, and when they do occur, they typically arise in the segregation
unit, as opposed to the general population unit in which Munt resides. (Quist Aff. ¶ 19.)
15

cell sink for his bathing and personal hygiene. (See Compl. at 5.)
c.

Double-Bunking

Munt also seeks injunctive relief, requesting that a single-cell restriction be placed on
him. (Compl. at 14.) The Court agrees with the magistrate judge, however, that Plaintiff’s
alleged fear of double bunking is too remote and speculative to demonstrate a threat of
irreparable injury warranting immediate injunctive relief. See City of Los Angeles, 461 U.S.
at 111; Rogers, 676 F.2d at 1214. Munt appears to assert that in a two-bunk cell, he would
have to undress or use the toilet in the presence of another inmate, in violation of his
religious beliefs against “indecent displays.” (See Pl.’s Obj. at 7.) While Munt alleges that
prison staff are allowed to reassign prisoners “arbitrarily,” (Compl. at 6), he is not presently
in a double cell. The Court agrees with the magistrate judge that there is no immediate
irreparable harm warranting injunctive relief, as the possibility of a cell transfer is entirely
speculative. (R&R at 10-11.)
In sum, the Court finds that Plaintiff has shown a threat of irreparable harm with
respect to privacy sheets, but not with respect to showers or double bunking. Accordingly,
the Court analyzes the remaining Dataphase factors only with respect to Munt’s privacy sheet
claim, since having found no irreparable harm as to showers and double bunking, the Court’s
inquiry is finished as to those bases. See Gelco Corp. v. Coniston Partners, 811 F.2d 414,
420 (8th Cir. 1987).
2.

Likelihood of Success on the Merits

Munt objects to the magistrate judge’s finding that he is unlikely to succeed in this
16

lawsuit. (Pl.’s Obj. at 7-10.) He contends that Magistrate Judge Rau incorrectly determined
that Defendants’ policy against privacy sheets does not impose a substantial burden on the
free exercise of his religion. (Id. at 7.) Rather, Munt asserts that the choice between
violating his religion and facing disciplinary action constitutes a substantial burden. (Id.)
In ruling on this factor, a court does not decide whether the movant for injunctive
relief will ultimately prevail. O’Connor v. Peru State College, 728 F.2d 1001, 1002 (8th Cir.
1984) (“The proceedings are at an early stage and to prejudge the evidence before it is fully
collated and demonstrated is basically unfair. Under these circumstances, the court should
avoid deciding with any degree of certainty who will succeed or not succeed.”). A movant
seeking injunctive relief need not show a “greater than fifty percent likelihood” of prevailing
on the merits. Dataphase, 640 F.2d at 113. But if the other factors tip in the movant’s favor,
a preliminary injunction may be granted if the movant raises serious and difficult questions
that require further investigation. Id.
As noted, under RLUIPA and the Minnesota Constitution, the government cannot
impose a substantial burden on the free exercise of Munt’s religion, unless the government
can show that the policy in question furthers a compelling governmental interest and the
restriction is the least restrictive means to do so. See Gladson v. Iowa Dep’t of Corrs., 551
F.3d 825, 833 (8th Cir. 2009); Odenthal v. Minn. Conf. of Seventh-Day Adventists, 649
N.W.2d 426, 442 (Minn. 2002) (noting that Minnesota courts consider whether: “(1) the
objector’s belief is sincerely held; (2) the state action burdens the exercise of religious
beliefs; (3) the state’s interest is overriding or compelling; and (4) the state action uses the
17

least restrictive means.”). RLUIPA does not require inquiry into whether the particular belief
is a central tenet of the prisoner’s religion. Cutter v. Wilkinson, 544 U.S. 709, 725 (2005).
Nor does it require that the belief in question be shared by all of the members of the religious
group. Holt, 135 S. Ct. at 859. The magistrate judge correctly noted that because Defendants
do not challenge whether Plaintiff’s religious beliefs are sincerely held, the Court’s focus is
on whether Munt’s exercise of his religion has been substantially burdened, and if so,
whether the restrictions giving rise to the burden are the least restrictive means of furthering
a compelling governmental interest. (R&R at 14.)
However, the Supreme Court has cautioned that in applying RLUIPA’s standard,
“courts should not blind themselves to the fact that the analysis is conducted in the prison
setting.” Holt, 135 S. Ct. at 866. Moreover, if the prison believes that the inmate is using
religious belief as subterfuge for illicit conduct, prison officials may properly question
whether the asserted religious reasons for accommodation are genuine. Id. at 866-67 (citing
Cutter, 544 U.S. at 725, n.13.). Finally, even when a religious accommodation is granted,
prisons may withdraw the accommodation if it appears that the inmate is abusing the
accommodation “in a manner that undermines the prison’s competing interests.” Id. at 867.
As noted, Munt seeks an exception to MCF-Stillwater’s policy against privacy sheets.
(See Compl. at 11.) As with the magistrate judge’s finding of no irreparable harm on this
ground for relief, the Court likewise respectfully disagrees with the magistrate judge’s
finding that Munt is unlikely to establish a substantial burden on the exercise of his religion
based on his alleged fear of violating the prison policy against privacy sheets. (R&R at 15.)
18

In Holt, the U.S. Supreme Court found that a prisoner, put to the choice of adhering to a
prison’s grooming policy generally prohibiting beards or violating his religious beliefs, had
established the imposition of a substantial burden, as he would face serious disciplinary
action were he to adhere to his religious beliefs by growing a beard. 135 S. Ct. at 862.
Here, while this litigation is at a preliminary stage, Munt similarly appears able to show that
the prison’s policy of prohibiting privacy sheets forces him to choose between following the
prison rules or violating his religious beliefs regarding “indecent displays.”
Because Munt appears likely to succeed in meeting his burden with respect to this
basis for his claims, the Court examines whether Defendants are likely to meet their burden
of showing that their refusal to grant Munt a privacy-sheet exception to their policy is the
least restrictive means of furthering a compelling governmental interest. See id. at 863. Holt
requires the Court to conduct a “more focused” inquiry, examining the asserted harm of
granting an exception to Munt specifically and to “‘look to the marginal interest in enforcing’
the [proscription against privacy sheets]” in this particular context. Id. (quoting Burwell v.
Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)).
Defendants assert that prison safety and security are the compelling governmental
interests at issue here–interests of such importance that the DOC incorporates them into their
mission statement. (Andreachi Aff. ¶¶ 4-6; Ex. 6.)

Prison safety and security are

compelling governmental interests, as the Eighth Circuit has found. See Singson v. Norris,
553 F.3d 660, 662 (8th Cir. 2009) (citation omitted). But while courts cannot blindly accept
a prison’s stated security justification, Holt, 135 S. Ct. at 864, the least restrictive means
19

standard does not require prisons to refute every conceivable option. Id. at 868 (Sotomayor,
J. concurring). Rather, the prison must demonstrate why the less restrictive policies
identified by the inmate in the course of the litigation are “insufficient to achieve its
compelling interests.” Id.
Here, Munt requests an exception to the prison’s policy against the hanging of privacy
sheets in his cell. (Compl. at 14.) As to Munt, Defendants appear to assert that only by
refusing to grant Munt an exception to the prohibition against privacy sheet policy can they
satisfy the compelling interest of ensuring Munt’s safety and security. They attest that Munt
has resided in a single-occupancy cell at MCF-Stillwater since September 23, 2015.
(Andreachi Aff. ¶ 2 [Doc. No. 28].) “Munt’s cell, like all cells that house inmates in the
general population at MCF-[Stillwater], is visible from the front of the cell.” (Id. ¶ 3.)
Munt’s cell contains a sink and a toilet, the view of which is partially obstructed by a desk.
(Id.) Defendants state that DOC staff must be able to see into cells at all times to ensure the
inmate’s safety and to ensure that the inmate is not engaging in illicit activities such as
attempting to escape, engaging in sexual behaviors, tattooing, or making alcoholic drinks.
(Id. ¶ 4.) In light of these safety concerns, it is a violation of DOC rules to obstruct the view
of staff into an inmate’s cell by covering cell bars or otherwise obstructing the view into the
cell. (Id. ¶ 5; Ex. 3; Ex. 5 at 7-8.)
Munt argues, however, that Defendants have brought forth no specific evidence to
suggest that he personally engages in any of the illicit activities to which Defendants refer.
(Pl.’s Obj. at 6.) But the Court observes that in Holt, there was no requirement that the
20

defendants, citing concerns about security, were required to show that Holt’s past
disciplinary measures, if any, justified their concerns. In Holt, the prison policy in question
prohibited inmates from growing beards, although it allowed an exception for 1/4-inch beards
for inmates with diagnosed skin conditions. 135 S. Ct. at 856. Because Holt, a devout
Muslin, wanted a full beard for religious reasons, he proposed a compromise, requesting
permission to grow a 1/2-inch beard. Id. Citing prison security–specifically, that the prison’s
grooming policy furthered its compelling interests in reducing the flow of contraband, as
items could be hidden in beards, and preventing prisoners from disguising their identities–the
prison refused to accommodate Holt’s request. Id. at 857. Holt filed suit under RLUIPA.
Id. at 861. Following the grant of a preliminary injunction, followed by remand to the
magistrate judge for an evidentiary hearing, the district court vacated the preliminary
injunction and dismissed the inmate’s claim for failure to state a claim on which relief could
be granted. Id. The Eighth Circuit affirmed. Id.
While the Supreme Court agreed that the prison had a compelling interest in halting
the flow of contraband, it found that “the argument that this interest would be seriously
compromised by allowing an inmate to grow a 1/2-inch beard is hard to take seriously.”
Id. at 863. It found that the prison failed to demonstrate why it could not meet its security
concerns by either searching Holt’s beard or having Holt run a comb through it. Id. at 864.
In contrast here, the argument that the DOC’s interest in ensuring that their staff are afforded
an unobstructed view into inmates’ cells, including Munt’s, is quite easy to take seriously.
The reason for providing sight lines into all prisoners’ cells, including Munt’s, is integral to
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the prison’s safety mission. While Munt discounts any likelihood that he will engage in
illicit activity, regardless of such actions, Munt’s overall safety remains a compelling
governmental interest that Defendants have identified. (Andreachi Aff. ¶¶ 4, 6, Ex. 6.);
See Johnson v. Penn. Bureau of Corr., 661 F. Supp. 425, 432 (W.D. Pa. 1987) (upholding,
in the context of an inmate privacy claim with a lower scrutiny standard, prohibition against
privacy curtains in prison cells for reasons of health and safety, among other reasons). In this
particular context, Defendants’ interest in enforcing the privacy sheet ban as to Munt is not
marginal, see Holt, 135 S. Ct. at 863, as the ability of DOC staff to see into his cell ensures
his safety.9
The Supreme Court also considered evidence concerning an exception to the
grooming policy in Holt, namely, that inmates with certain medical conditions were
permitted to grow 1/4-inch beards. 135 S. Ct. at 865-66. The Court observed that, under the
defendants’ articulated compelling interest, both a 1/4-inch beard for medical reasons and
the 1/2-inch beard requested by Holt posed the same security risk, as the defendant failed to
demonstrate any meaningful difference between the two. Id. at 866. Moreover, the same
contraband risk was present with respect to hair on inmates’ heads, which was permitted to
be longer than 1/2-inch long. Id. Here, there is no evidence of any such exceptions. While
Munt contends that Defendants do not typically enforce the policy against privacy sheets,

9

And while Munt asserts that “[t]he suggestion that a sheet could facilitate escape
is absurd,” (Pl.’s Obj. at 6), Defendants’ concern appears to be that the use of the sheet
to obstruct the view of DOC staff could facilitate escape, not that the sheet could be used
as a means of escape.
22

(see Compl. at 9), the Court finds that the most relevant inquiry is whether other exceptions
exist, as the relief sought by Munt is in the form of an exception.
Moreover, even under the current policy that prohibits the hanging of privacy sheets,
the location of Munt’s cell toilet affords some privacy. (Andreachi Aff. ¶ 3.) In addition,
DOC policy provides that inmates must be allowed to change clothes, use the toilet, or
shower without a DOC staff of the opposite gender viewing their genitalia or buttocks. (Id.
¶ 7, Ex. 7.) Finally, prison staff have informed Munt that he is free to use a towel to cover
his genitalia when using the toilet.

(Id.) Again, while this case is in its early stages,

Defendants are likely to establish that prohibiting Munt from hanging a privacy sheet in his
cell is the least restrictive means of furthering the compelling governmental interest in his
safety and security.
In sum, while assessing the likelihood of success at an early point in a case is
imprecise, the Court agrees with the magistrate judge’s overall conclusion that Munt is
unlikely to succeed on the merits of his claims.
3.

Public Interest

Munt argues that the magistrate judge incorrectly found that consideration of the
public interest favors Defendants. The Court disagrees. As the magistrate judge observed,
“[T]he determination of where the public interest lies also is dependent on the determination
of the likelihood of success on the merits of the First Amendment challenge because it is
always in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545
F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of
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Manchester, Mo., 697 F.3d 678 (8th Cir. 2012) (en banc). Given the Court’s finding that
Munt is unlikely to succeed on the merits, the Court finds that the public interest would not
be served by issuing the injunctions that Munt seeks. Accordingly, this factor favors
Defendants.
4.

Balance of Harms

Finally, Munt assigns error to Magistrate Judge Rau’s determination that the balance
of harms favors Defendants. This factor requires the Court to balance the harm to the movant
against the injury that granting the motion would inflict on other parties. Dataphase, 640
F.2d at 113. Here, only one of the three bases of Munt’s claims supports a showing of
irreparable harm, while the likelihood of success on the merits favors Defendants, and the
public interest favors Defendants. And as to the portion of Munt’s claim based on privacy
sheets, the Court finds Munt not likely to prevail, as Defendants are likely to establish that
a compelling governmental interest in prison security and safety is furthered by their policy,
using the least restrictive means. On balance, the Dataphase factors predominantly favor
Defendants. While the Court has indicated its respectful disagreement with certain of the
magistrate judge’s findings and modified them accordingly, it reaches the same overall
conclusion. The Court adopts the R&R, as modified, and denies Munt’s Motion for TRO and
his Motion for Expedited Relief.
D.

Motion to Appoint Counsel

Lastly, before the Court is Munt’s motion requesting the appointment of counsel.
Munt argues that he would substantially benefit from the appointment of counsel, he has
24

asserted non-frivolous arguments in this litigation, and this litigation involves complex legal
and factual issues. (Pl.’s Mem. Supp. Mot. for Appointment of Counsel at 1 [Doc. No. 50].)
Further, he states that he is very limited by institutional constraints regarding access to paper,
his ability to gather evidence, and his ability to present his case at trial. (Id. at 2-8.) In
addition, he argues that the complexity of his RLUIPA claim, as well as difficulties that he
has encountered in effecting service of process, warrant the appointment of counsel. (Id. at
2-3, 6-7.)
Pro se litigants do not have a constitutional or statutory right to counsel in civil cases.
Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). Rather, the appointment of counsel
is a matter of the Court’s discretion. McCall v. Benson, 114 F.3d 754, 756 (8th Cir.1997);
Mosby v. Mabry, 697 F.2d 213, 214 (8th Cir. 1982). Among the factors the court should
consider are the factual complexity of the case, the ability of the litigant to present his claims,
the complexity of the legal issues, and whether both the litigant and the court would benefit
from having the litigant represented by counsel. McCall, 114 F.3d at 756; Johnson v.
Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986). Here, the Court finds that neither the
facts nor the legal issues involved in this case are so complex as to warrant appointment of
counsel. Moreover, Munt has demonstrated that he possesses the ability to articulate his
claims and to argue his positions, and he is able to communicate effectively with the Court.
Finally, the Court is satisfied that appointment of counsel would not substantially benefit the
Court or Plaintiff at this time. Should this case go to trial, Munt may renew his motions.
Therefore, Munt’s motion for appointment of counsel is denied without prejudice.
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THEREFORE, IT IS HEREBY ORDERED that:
1.

The Report and Recommendation of Magistrate Judge Steven E. Rau dated
January 27, 2017 [Doc. No. 52] is ADOPTED as modified;

2.

Plaintiff’s First Motion for Temporary Restraining Order [Doc. No. 3] is
DENIED;

3.

Plaintiff’s First Motion for Expedited Preliminary Relief [Doc. No. 5] is
DENIED;

4.

Plaintiff’s Motion for Judgment on the Pleadings [Doc. No. 38] is DENIED;

5.

Plaintiff’s Objections [Doc. Nos. 54] are OVERRULED in part and
SUSTAINED in part; and

6.

Plaintiff’s Motion to Appoint Counsel [Doc. No. 49] is DENIED WITHOUT
PREJUDICE.

Dated: March 29, 2017

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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