American Humanist Association et al v. Bureau of Prisons et al

Filing 33

Opinion and Order signed on 10/30/2014 by Judge Ancer L. Haggerty. Defendant's Motion to Dismiss 25 is DENIED. (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

AMERICAN HUMANIST ASSOCIATION
and JASON MICHAEL HOLDEN,
Plaintiffs,

Case No.: 3:14-cv-00565-HA
OPINION AND ORDER

v.
UNITED STATES OF AMERICA; FEDERAL
BUREAU OF PRISONS; FEDERAL
CORRECTIONAL INSTITUTION SHERIDAN,
OREGON; JUAl'l D. CASTILLO, Western Regional
Director of the Bureau of Prisons; MARION FEATHER,
Warden of the Federal Correctional Institution Sheridan,
Oregon; and RICHARD KOWALCZYK, Chaplain of the
Federal Correctional Institution Sheridan, Oregon,
Defendants.

HAGGERTY, District Judge:
Plaintiffs, the American Humanist Association and imnate Jason Michael Holden, bring
this action seeking declarat01y, injunctive, and monetary relief alleging that defendants, the
federal government, Bureau of Prisons ("BOP"), the Federal Correctional Institution ("FCI")
Sheridan, Oregon, as well as individual officials, BOP Regional Director Juan D. Castillo, FCI
Sheridan Warden Marion Feather, and Sheridan Chaplain Richard Kowalcyzk, violated Holden's
1 - OPINION AND ORDER

constitutional rights under the First and Fifth Amendments. Defendants have filed a Motion to
Dismiss [25] pursuant to Federal Rules of Civil Procedure 12(b)(I) and 12(b)(6). Defendants
argue that plaintiffs' claims are moot; that they failed to state either an Establishment Clause or
Equal Protection claim; that their Bivens claim is improper; that the individual defendants are
entitled to qualified immunity; that the court does not have personal jurisdiction over defendant
Castillo; and that the plaintiffs failed to allege Castillo's personal involvement. For the following
reasons, defendants' Motion to Dismiss [25] is denied.

FACTUAL BACKGROUND
Plaintiff Jason Holden has been in the custody ofFCI Sheridan since April 21, 2010. A
professed Humanist, Holden alleges that defendants violated his First Amendment and Fifth
Amendment rights by their refusal to authorize either a Humanist study group or an Atheist study
group, or to recognize Humanism as a religious assignment.
When an inmate is admitted to FCI Sheridan, he may designate a religious preference
assignment, which the institution staff will then enter into the SENTRY system, a real time
information system for processing sensitive but unclassified inmate information necessary for
running the institution. At the time that plaintiffs filed suit, FCI Sheridan recognized the
following religious assignments: Atheist, Adventist, American Indian, Buddhist, Catholic,
Church of Cluist, Hindu, Jehovah's Witness, Jewish, Messianic, Moorish Science Temple,
Mormon, Muslim, Nation ofislam, No Preference, Non-Trinitarian, Otihodox, Other, Pagan,
Protestant, Rastafarian, Santeria, Sikh, and Unknown. The FCI Sheridan also permitted the
following sub-groups to meet in study groups: Spanish Protestant, Native American Church,
Native American (Hawaiian), Druid, and Odinist/Asatru. Inmates ofFCI-recognized religious
assignments are entitled to the following benefits: (1) "proscription days" for religious holidays;
2 - OPI!'lION AND ORDER

(2) at least one hour per week of group study time; and (3) at least one hour per week of group
worship time.
On April 15, 2012, Holden sought permission to make Humanism his religious
assignment but was told by then Assistant Chaplain Jason Henderson that Humanism was not an
option. Holden selected Atheist as his religious assignment instead despite the fact that Atheism
does not adequately capture his system of beliefs. At that time, neither Humanists nor Atheists,
despite the fact that the latter was listed on SENTRY, had a venue for group meetings. Holden
asserts that at least ten additional inmates incarcerated at FCI Sheridan identify as Humanists and
are interested in joining a Humanist study group. That same day, Holden asked Assistant
Chaplain Henderson if he could fonn a Humanist study group. Henderson provided Holden with
form BP-822, which an inmate must fill out to have a new or unfamiliar religion officially
recognized with the FCI. Henderson warned Holden that the BOP views Humanism as a
philosophy rather than a religion and recommended that instead he should info1mally request
"cop out" time for Atheists. A cop out is a BP S148.055 "Inmate Request to Staff" form, which
is used for inmate grievances and requests.
Heeding Henderson's advice, on April 29, 2012, Holden submitted the cop out f01m to the
Chaplain's office requesting time for Atheists to meet. On June 11, 2012, then Head Chaplain
Ronald Richter informed Holden and another Humanist inmate that his request was denied.
Richter informed them that chapel programming was limited to religious programs and that
programs that are moralistic or philosophical in nature may be conducted in the education
depaiiment.
On July 13, 2012, Holden· submitted a cop out form to Supervisor of Education Sue Cain
requesting a venue for Humanists to meet in the Education Department. Additionally on July 18,
3 - OPINION AND ORDER

2012, Holden submitted a request to Warden Marion Feather to establish "Humanists of
Sheridan" as an inmate organization. On August 1, 2012, Feather denied Holden's request. On
August 6, 2012, Holden sent a second request to Feather seeking to establish a Humanist group;
along with the request, Holden sent additional background information in support of his request.
Holden's second request was also denied. On September 4, 2012, Holden received a response
from Cain also denying his request. Cain told Holden that the Education Department cannot
support groups that are "either for or against theism."
On September 15, 2012, Holden spoke with new Head Chaplain Myers about the BP-822
form. Myers advised Holden that Humanism is not a religion and that his application to
recognize Humanism would not be successful. On October 5, 2012, Holden submitted the BP822 fo1m requesting that Humanism be his religious assignment in SENTRY. Holden provided
materials detailing the histmy of Humanism as a religion along with the form. Myers informed
Holden that he was not interested in reading Holden's BP-822 form and that he would forward
his request to .the Warden.
On December 7, 2012, Holden spoke with Warden Feather about his application and she
suggested that he speak with the Chaplain. On February 28, 2013, Holden spoke with Chaplain
Richard Kowalczyk, who was Supervisor of Religious Services at that time. Kowalczyk told
Holden that his BP-822 form was denied. Kowalczyk explained to Holden that Humanism is an
"individualized religion" and that it would be a contradiction to accommodate "a congregation of
individuals."
On March 4, 2013, Holden submitted a Informal Resolution form (BP-8) which is
required prior to filing a Request for Administrative Remedy form (BP-9). On or about March
11, 2013, Holden submitted the BP-9 form to the Warden along with supporting documentation.
4 - OPINION AND ORDER

On March 14, 2013, Warden Feather affirmed the denial of the request. Warden Feather said that
the "designation of'Atheist' already exists to encompass the Humanist point of view."
Notwithstanding that fact, FCI Sheridan officials had denied Holden's request to form an Atheist
study group despite the fact that Atheism is considered a religion at the FCI Sheridan.
On March 18, 2013, Holden mailed the Administrative Remedy Fo1m (BP-10) to the
BOP Western Regional Office along with his BP-9 foim and suppmiing exhibits. On April 24,
2013, Holden received a response to his BP-10 form from BOP Western Regional Director Juan
D. Castillo. Signed April 3, 2013, Castillo affirmed the denial of Holden's request to allow
Humanist inmates to meet as a group in Religious Services as well as the creation of a Humanist
religious assignment.
On April 28, 2013, Holden mailed the Administrative Remedy Form (BP-11) to the BOP
Office of the General Counsel, attaching supporting exhibits along with the copies of previous
administrative remedy forms and their responses. On May 26, 2013, Holden received a Notice of
Rejection of his BP-11 Fo1m because it lacked the required copies. The notice had been mailed
on May 9, 2013, and its resubmission deadline was May 24, 2013. On May 29, 2013, Unit
Manager S. Price sent a letter to the Department of Justice on Holden's behalf explaining that he
was unable to timely resubmit his form because he did not receive the notice until after the
resubmission deadline had passed. On May 30, 2009, Holden resubmitted his BP-11 form.
Nonetheless, on July 2, 2013, Holden's BP-11 form was rejected as untimely.
On July 5, 2013, Holden was instructed to send a cop out form to Administrative
Coordinator Thompson for instructions on how to proceed in order to exhaust his administrative
remedies. On July 8, 2013, Holden sent a cop out form to Thompson. On July 16, 2013, Warden

5 - OPINION AND ORDER

Feather responded to the cop out, directing Holden to discuss his inability to file his remedy with
Unit Manager Price, which Holden had done previously.
On April 8, 2014, plaintiffs filed suit against defendants. On or about May 20, 2014,
Chaplain Kowalczyk notified Holden that his BP-822 request for a Humanist group was being
revisited. On or about June 24, 2014, Chaplain Kowalczyk, informed Holden that Holden could
form a Unitarian Universalist study group. Holden said that this was unacceptable since he does
not consider himself a Universalist Unitarian. When Holden asked to have the group called
Humanist, Kowalcyzk responded that the label might exclude others.
Sometime in early July 2014, the FCI Sheridan Religious Services Depatiment added a
Humanist Study Group to the program schedule. Holden claims he was not informed of this
change but began attending meetings on July 7, 2014. Despite these accommodations, plaintiffs
allege that defendants are still singling out Humanists for unequal treatment. Study groups are
permitted to have outside volunteers attend and lead meetings. But after Holden requested a
volunteer to meet with the Humanist study group and suggested that officials contact the
Humanists of Greater Portland, he was told that he could not have a volunteer from that
organization because he had mentioned the organization. Defendants allege that they denied
Holden's request to contact Humanist minister Bernie Dehler, who is affiliated with the
Humanists of Greater Portland, because he had been in contact with Holden previously and so
FCI Sheridan had sent a follow up request to Humanists of Greater Poliland seeking a different
volunteer and is still awaiting a response. In addition, Holden had made several requests in July
to obtain Humanist books and DVDs on the same tenns that other groups received similar
materials. On September 11, 2014, Religious Services responded, stating that the materials

6 - OPli'lION AND ORDER

Holden requested would be considered for purchase. Defendants state that to date, FCI Sheridan
has purchased four books that Holden had requested.

ANALYSIS
Defendants argue that the case should be dismissed under Rule 12(b)(6) of the Federal
Rules of Civil Procedure because plaintiffs have failed to state a claim, and dismissed in part
under 12(b)(l) for lack of personal jurisdiction. First, defendants claim that the accommodations
that the FCI Sheridan has made to Holden render plaintiffs' claims moot. Second, defendants
argue that plaintiffs have failed to state a cognizable Establishment Clause claim. Third,
defendants argue that plaintiffs have failed to state an Equal Protection claim. Fomih, defendants
assert that a Bivens remedy is not available to plaintiffs and that even if it were, the individual
defendants are entitled to qualified immunity. In addition, defendants argue that the case against
defendant Castillo should be dismissed for lack of personal jurisdiction and for lack of personal
involvement. The court will consider each of defendants' arguments in tum.

a.

Rule 12(b)(6) Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6), a
complaint must allege sufficient facts to state a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When considering a motion to dismiss, the court
must determine whether the plaintiff has made factual allegations that are "enough to raise a right
to relief above the speculative level." Bell At/. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
Dismissal under FRCP 12(b)(6) is proper only where there is no cognizable legal theoty, or an
absence of sufficient facts alleged to suppoti a cognizable legal theo1y. Shroyer v. New Cingular

Wireless Servs., Inc., 622 F .3d 103 5, 1041 (9th Cir. 2010). The reviewing court must treat all
facts alleged in the complaint as true and resolve all doubts in favor of the nonmoving party.
7 - OPINION AND ORDER

Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 n.1 (9th Cir. 2009) (citation omitted). The court
need not accept any legal conclusions set forth in a plaintiffs pleading. Ashcroft, 556 U.S. at
678.

1.

Mootness

Defendants first argue that now that Humanism has been added to the program schedule
at the FCI Sheridan, plaintiffs' claims that defendants are not providing time and space
accommodation to Humanists are moot. Aiiicle III of the United States Constitution limits this
comi'sjurisdiction to actual cases or controversies. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081,
1086 (9th Cir. 2011) (citing U.S. Const. art. III, § 2, cl. 1). This restriction requires that an
actual, ongoing controversy exist at all stages of the federal co111i proceeding. Id (citation
omitted). Once the dispute between the parties no longer exists, or the parties lack a legally
recognizable interest in the outcome of the litigation, the case becomes moot and must be
dismissed. Id at 1086-87 (citations omitted). The party asserting mootness, however, has a
heavy burden to meet. Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008). Moreover, a
defendant's "voluntary cessation of a challenged practice does not deprive a federal comi of its
power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., 528 U.S. 167, 180 (2000) (quoting City ofivfesquite v. Aladdin's Castle, Inc., 455 U.S.
283, 289 (1982)). Accordingly, the voluntary cessation of challenged conduct moots a claim
only if "subsequent events [make] it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur," Id (quoting United States v. Concentrated Phosphate

Export Assn., 393 U.S. 199, 203 (1968)). Defendants have the burden of demonstrating "why
repetition of the wrongful conduct is highly unlikely." Rosemere NeighborhoodAss'n v. US.

Environmental Protection Agency, 581F.3d1169, 1173 (9th Cir. 2009). This stringent
8 - OPINION AND ORDER

requirement exists to prevent pmiies from evading judicial review by temporarily altering
questionable behavior. City News & Novelty Inc. v. ·City of Waukesha, 53 l U.S. 278, 284 n. 1
(2001). As a result, "[t]he voluntary cessation of challenged conduct does not ordinarily render a
case moot." Knox v. Serv. Emps. Int'! Union Local 1000, 132 S. Ct. 2277, 2287 (2012).
Here, while the defendants argue that they have accommodated Holden's requests after
more than two years-his requests for Humanist study materials and a community volunteer were
not addressed until after defendants filed their motion to dismiss-they have not stipulated or
demonstrated that their behavior is unlikely to reoccur after this case is dismissed. Since
defendants have not satisfied their burden, the comi finds that plaintiffs' claims are not moot.

Rosemere Neighborhood Ass'n, 581 F.3d at 1173.

2.

Establishment Clause Claim

Defendants next assert that plaintiffs fail to state a cognizable First Amendment claim
under the Establishment Clause. Defendants argue that the plaintiffs have failed to allege a law
or government policy that purports to favor one religion over another. Moreover, defendants
state the plaintiffs have failed to show that Humanism is a religion for Establishment Clause
purposes. In fact, defendants asse1i that the Ninth Circuit has definitively held in Peloza v.

Capistrano Unified School Dist., that Humanism is not a religion for Establishment Clause
purposes. 37 F.3d 517, 521 (9th Cir. 1994).
The Establishment Clause, states that "Congress shall make no law respecting an
establishment of religion." U.S. Const. amend. I. The clause "means at least 'that [n)either a
state nor the Federal Government ... ca11 pass laws which aid one religion, aid all religions, or
prefer one religion over another.'" Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d
1114, 1125 (9th Cir. 2013) (quoting Everson v. Board ofEducation ofEwing Twp. et al., 330
9 - OPINION AND ORDER

U.S. 1, 15 (1947)). For the purpose of an Establishment Clause violation, "a government policy
need not be formal, written, or approved by an official body to qualify as state sponsorship of
religion." Canel! v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998). Where a governmental law
or policy gives a preference to one religion over another, the court must treat that policy as
suspect and apply strict scrutiny. Larson v. Valente, 456 U.S. 228, 246 (1982). Such a policy
will be presumed unconstitutional unless it is "justified by a compelling govemmental interest,"
and the policy "is closely fitted to futiher that interest." kl at 247. Other districts in the Ninth
Circuit have applied this test to prisoner claims. See Warrior v. Gonzalez, C 08-00677 CRB,
2013 WL 6174788 (E.D. Cal. Nov. 20, 2013) (finding that prison strip search "policy
significantly burdens Muslim inmates attending Ramadan religious programming, and that no
such policy is applied to Catholic and Jewish inmates attending comparable religious
programming"); Evans v. California Dep't of Corr. & Rehab., CV 07-07090 DDP SSX, 2012
WL 137802 (C.D. Cal. Jan. 18, 2012) (prison officials violated the Establishment Clause by
providing kosher meals to Jewish inmates, but not providing similar accommodations to Muslim
inmates).
Thus, if Humanism is considered a religion for Establishment Clause purposes, plaintiffs
have made a colorable claim that defendants have violated Holden's First Amendment rights.
The comi believes that defendants' reliance on Peloza, is misplaced. That case focused primarily
on whether the teaching of evolutionary biology violated the Establishment Clause and the Ninth
Circuit held that it did not. Peloza, 37 F.3d 521-522. In fact, the Ninth Circuit has cast doubt on
defendants' broad interpretation of Peloza. See Grove v. kfead Sch. Dist., 753 F.2d 1528, 1534
(9th Cir. 1996) (considering but not deciding whether Secular Humanism is a religion); id. at
1537 (Canby, J. concuning) (suggesting that an organized group of Secular Humanists, but not
10 - OPINION AND ORDER

Secular Humanism generally, might be covered by the Establishment Clause). Moreover, the
Ninth Circuit appears to be moving toward the view that the "disparate treatment of theistic and
non-theistic religions is as offensive to the Establishment Clause as disparate treatment of theistic
religions." Faith Ctr. Church Evangelistic i\1inistries v. Glover, 480 F.3d 891, 902 (9th Cir.
2007) (Bybee, J., dissenting). Such a view is consistent with longstanding Supreme Court
jurisprudence. In Torcaso v. Watkins, the Supreme Court said that the government must not "aid
those religions based on a belief in the existence of God as against those religions founded on
different beliefs." 367 U.S. 488, 495 (1961). Among these latter religions, in a footnote the
Court included Seculm· Humanism. Id. at 495 n. 11. Therefore, the cou1i finds that Secular
Humanism is a religion for Establishment Clause purposes and that plaintiffs have alleged
sufficient facts to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678.

3.

Equal Protection Claim

Defendants next assert that because plaintiffs do not allege any discriminatory intent on
the pmi of defendants, plaintiffs have failed to state an Equal Protection claim. The Equal
Protection Clause mandates that prison officials cannot discriminate against particular religions.

Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). Prisons must afford an inmate ofa
minority religion "a reasonable opportunity of pursuing his faith comparable to the oppmiunity
afforded fellow prisoners who adhere to conventional religious precepts." Cruz v. Beto, 405 U.S.
319, 322 (1972) (per curiam). Prisons need not provide identical facilities or personnel to
different faiths, see id. at 322 n. 2, but must make "good faith accommodation of the [prisoners']
rights in light of practical considerations." Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987).
To avoid dismissal, a plaintiff must plausibly suggest the existence of a discriminatory
intent. Recinto v. US. Dep't of Veterans Affairs, 706 F.3d 1171, 1177 (9th Cir. 2013). However,
11 - OPINION AND ORDER

discriminatory intent can sometimes be infened by the mere fact of different treatment. Sischo-

Nownejad v. 1'1ferced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991 ). The Ninth
Circuit has held that to defeat a summary judgment motion, a plaintiff need only "'set forth
specific facts showing that there is a genuine issue' as to whether he was afforded a reasonable
opportunity to pursue his faith as compared to prisoners of other faiths and that such conduct was
intentional." Freeman, 125 F.3d at 737 (quoting Fed. R. Civ. P. 56(e)).
Here, plaintiffs have clearly shown that Holden's religious beliefs were the reason why
defendants refused to grant his requests. Defendants' actions need not be malicious, only
motivated by the fact that plaintiffs' hold a different set of religious beliefs. Allowing followers
of other faiths to join religious group meetings while denying Holden the same privilege is
discrimination on the basis of religion. Therefore, the court finds that plaintiffs have alleged
sufficient facts to state an equal protection claim for relief that is plausible on its face. Iqbal, 556
U.S. at 678.

4.

Bivens Claim

Defendants next argue that plaintiffs' claims for damages against the individual
defendants under Bivens are improper because plaintiffs could have brought an action under the
Religious Freedom and Restoration Act (RFRA). Moreover, even if plaintiffs could bring a
damages action against the individual defendants, they argue that they are entitled to qualified
immunity.
A.

Bivens and the Religious Freedom Restoration Act

A Bivens action seeks damages for constitutional violations committed by federal agents
acting under federal authority. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971). Although "more limited in some respects," it is analogous to an action against state or
12 - OPINION AL'ID ORDER

local officials under 28 U.S.C. § 1983. Hartman v. 1Yfoore, 547 U.S. 250, 254 n. 2 (2006). The
Supreme Court has said that the decision to recognize a Bivens remedy requires the court to
engage in a two part inquiry. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). First, the court must
detennine whether any "alternative, existing process for protecting" the constitutional interest
"amounts to a convincing reason for the Judicial Branch to refrain from providing a new and
freestanding remedy in damages." Id. This alternative remedial scheme need not be equally
effective as a Bivens remedy. Correctional Services Corp. v. 1\,Jalesko, 534 U.S. 61, 69 (2001)
(refraining from creating a judicially implied remedy even when the available statutory remedies
"do not provide complete relief' for a plaintiff that has suffered a constitutional violation).
Second, in the absence of an alternative remedy,"the federal courts must make the kind of
remedial dete1mination that is appropriate for a common-law tribubal, paying pmticular heed,
however, to MY special factors counseling hesitation before authorizing a new kind of federal
litigation." Bush v. Lucas, 462 U.S. 367, 378 (1983).
The Supreme Court has never held that Bivens extends to First Amendment claims.

Reichle v.

Ho~wards,

132 S.Ct. 2088, 2093 n. 4 (2012); see also Ashcroft v. Iqbal, 556 U.S. at 675

(declining to decide whether a free exercise claim is actionable under Bivens); Bush v. Lucas, 462
U.S. 367, 368 (1983) (refusing to extend Bivens to a First Amendment speech claim involving
federal employment). Defendants argue that Bivens does not apply to plaintiffs' Establishment
Clause claims because there is an alternative remedial scheme: the Religious Freedom
Restoration Act of 1993 (RFRA). RFRA "prohibits '[g]overnment' from 'substantially
burden[ing]' a person's exercise of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden '( 1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
13 - OPINION AND ORDER

compelling governmental interest."' City ofBoerne v. Flores, 521 U.S. 507, 515-516 (1997)
(quoting 42 U.S.C. § 2000bb et seq.; brackets in original).
However, RFRA focuses on an individual's freedom to practice his religion without
interference from the federal government. Plaintiffs' claim is that the government has violated
the Establishment Clause by favoring other religions over Humanism. As defendants point out in
their brief, RFRA does not apply to the Establishment Clause. 42 U.S.C. § 2000bb-4 ("Nothing
in this chapter shall be construed to affect, interpret, or in any way address that portion of the
First Amendment prohibiting laws respecting the establishment of religion"). The Ninth Circuit
has held that state officials can violate a person's rights under the Establishment Clause without
violating the Religious Land Use and Institutionalized Persons Act (RLUIP A), the federal law
similar to RFRA that applies to state officials. Inouye v. Kemna, 504, F.3d 705, 714 (9th Cir.
2007). Similarly, the Seventh Circuit has held that "the Establishment Clause may be violated
even without a substantial burden on religious practice ... ."Kaufman v. Pugh, 733 F.3d 692, 696
(7th Cir. 2013). Thus, the court finds that RFRA does not apply here. Based on the legal
standard which must be applied, defendants have not demonstrated that plaintiffs have failed to
make factual allegations that are "enough to raise a right to relief above the speculative level."

Twombly, 550 U.S. at 545. Therefore, plaintiffs' Bivens claims survive defendants' motion to
dismiss. While this court is aware that in the absence of an alternative remedy, it "must make the
kind of remedial determination that is appropriate for a common-law tribunal, paying particular
heed ... to any special factors counseling hesitation before authorizing a new kind of federal
litigation," the couti feels that it is unnecessary to engage in this inquity at this stage of the
litigation. 1vfalesko, 534 U.S. at 69 (quoting Bush, 462 U.S. at 378).

Ill
14- OPINION AND ORDER

B.

Qualified Immunity

Defendants argue that even if plaintiffs have a cognizable Bivens claim, the individual
defendants are entitled to qualified immunity. Qualified immunity protects government officials
from "liability for civil damages insofar as their conduct does not violate clearly established
statuto1y or constitutional rights of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Defendants are entitled to qualified immunity where they
"reasonably could have believed that their conduct was lawful 'in light of clearly established law
and the information that they possessed."' Cohen v. San Bernardino Valley College, 92 F.3d 968,
973 (9th Cir. 1996) (quoting Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989)). The
Supreme Court has established a two-part analysis for dete1mining whether qualified immunity is
appropriate in a suit against an officer for an alleged violation of a constitutional right Saucier v.

Katz, 533 U.S. 194, 201 (2001). The court must dete1mine whether the officer violated the
plaintiffs constitutional rights on the facts alleged and whether the constitutional rights were
clearly established. Id. The Supreme Court has since explained that a court can proceed through
these steps in any order. Pearson v. Callahan, 555 U.S. 223, 242 (2009).
This court has already found that plaintiffs have stated plausible claims regarding the
violation of their constitutional rights; thus the court must determine whether those rights were
clearly established. The fact that the action in question has not previously been declared
unlawful does not require a finding of qualified immunity; even in novel circumstances officials
can be on notice that their conduct violates the Constitution. Chappell v. }vfandevil/e, 706 F.3d
1052, 1056-57 (9th Cir. 2013). What is crucial is that "[t]he contours of [a] right [are]
sufficiently clear" that a "reasonable official would have understood that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). A case need not be
15 - OPINION AND ORDER

directly on point, but "existing precedent must have placed the statutory or constitutional
question beyond debate." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). "Absent binding
precedent," the Ninth Circuit has said that courts should "look to all available decisional law,
including the law of other circuits and district comis, to determine whether the right was clearly
established." Osolinski v. Kane 92 F.3d 934, 936 (9th Cir. 1996).
Defendants argue that they are unaware of any Supreme Court precedent or circuit comt
decision issued before or during the period where the alleged violation occurred that has held that
Humanism is a religion for the purposes of the Establishment Clause. However, as noted above,
the Supreme Court in Torcaso, referred to "Secular Humanism" as a religion. 367 U.S. at 495 n.
11. Moreover, in lvfcCrewy County, Ky. v. American Civil Liberties Union ofKy., the Supreme
Court said that the touchstone of the Establishment Clause was the "principle that the First
Amendment mandates government neutrality between religion and religion, and between religion
and nonreligion." 545 U.S. 844, 860 (2005) (emphasis added). Thus, whether Humanism is a
religion or a nonreligion, the Establishment Clause applies. In addition, the Seventh Circuit has
held that a prison violated inmates' constitutional rights when it refused to allow an Atheist study
group on the grounds that it was not a religion. Kaujinan v. 1vfcCaught1y, 419 F.3d 678 (7th Cir.
2005). This year, the Seventh Circuit laid it out even more clearly, "when making
accommodations in prisons, states must treat atheism as favorably as theistic religion," and that,
"[w]hat is true of atheism is equally true of humanism, and as true in daily life as in prison." Ctr.
for Inquily, Inc. v. Marion Circuit Court Clerk, 758 F.3d 869, 873 (7th Cir. 2014). Although this
decision was issued after the alleged violations occurred, the comt does not find the Seventh
Circuit's opinion to be revelatory or a depaiture from existing doctrine. Rather, the court simply
summarized the law as it is commonly understood. Thus, the court finds that the right was
16 - OPlL'lION AND ORDER

clearly established and that defendants have not presented sufficient evidence to demonstrate that
the individual defendants are entitled to qualified immunity.

b.

Rule 12(b)(1) Legal Standard

Next, defendants argue that the court does not have personal jurisdiction over defendant
Castillo, who is the Director of the Western Region of the BOP which is based in Stockton,
California. Plaintiffs bear the burden of establishing that this court has personal jurisdiction over
defendant. Fireman's Fund Ins. Co. v. Nat'/ Bank of Coops., 103 F.3d 888, 893 (9th Cir. 1996).
However, plaintiffs need only make a prima facie showing of facts that suppmt the exercise of
jurisdiction over defendant. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir.
2006).
Personal jurisdiction over a non-resident defendant is tested under a two-prong analysis.
The exercise of jurisdiction must: (1) satisfy the requirements of the long-arm statute of the state
in which the district court sits; and (2) compo1t with the principles of federal due process.

Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). Oregon Rule of Civil
Procedure (ORCP) 4(B)-(K) provides specific bases for personal jurisdiction and subsection (L)
extends jurisdiction to the limits of due process under the United States Constitution. Nike, Inc.

v. Spencer, 707 P.2d 589, 591 (Or. Ct. App. 1985); see ORCP 4. Therefore, plaintiff need only
satisfy the second prong of the personal jurisdiction test.
The Due Process Clause of the U.S. Constitution protects persons from being subject to
the binding judgments of a forum with which they have "established no meaningful 'contacts,
ties, or relations.'" Burger King Corp. v. Rudzewicz, 471U.S.462, 471-72 (1985) (citingint'l

Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). Due process requires that a defendant have
"minimum contacts with the forum state such that the exercise of personal jurisdiction does not
17 - OPINION AL'ID ORDER

offend traditional notions of fair play and substantial justice." Decker Coal Co. v.

Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986) (citing Int'/ Shoe Co., 326 U.S. at
316). "A court may exercise either general or specific jurisdiction over a nonresident defendant."

Sher v. Johnson, 911F.2d1357, 1361 (9th Cir. 1990) (citation omitted).
For a defendant to be subject to general personal jurisdiction, the defendant must have
such "continuous and systematic contacts with the forum that the exercise of jurisdiction does not
offend traditional notions of fair play and substantial justice." Reebok Int'! Ltd. v. }vfcLaughlin,
49 F.3d 1387, 1391 (9th Cir. 1995) (citation omitted). The standard for general jurisdiction is
high, requiring that the contacts in the forum "approximate physical presence." Tuazon, 433 F.3d
at 1169 (citation omitted). Unless the defendant can be deemed "present" within the forum for
all purposes, general jurisdiction is not appropriate. See 1vfenken v. Emm, 503 F.3d 1050, 1057
(9th Cir. 2007). Because defendant Castillo's contacts in Oregon do not approximate physical
presence in the state and plaintiff does not contend that defendant is subject to general personal
jurisdiction in Oregon, it is clear that general jurisdiction is inappropriate.
In contrast to general personal jurisdiction, specific jurisdiction exists where: (1) the
defendant has purposefully directed his activities or consummated some transaction with the
forum of the resident thereof; or performed some act by which he purposefully availed himself of
the privilege of conducting activities in the forum, thereby invoking the benefits and protections
of its laws; (2) the claim arises out of, or relates to, the defendant's forum-related activities; and
(3) the exercise of jurisdiction is reasonable. Washington Shoe Co. v, A-Z Sporting Goods, Inc.,
704 F.3d 668, 672 (9th Cir. 2012) (citation omitted). If the plaintiff meets the first and second
elements, the burden shifts to the defendant to present a compelling case that the exercise of
jurisdiction would be unreasonable. Id. (citation omitted). However, ifthe plaintiff fails at the
18 - OPINION AND ORDER

first or second step, then the jurisdictional inquiry ends and the defendant must be dismissed
from the case. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008).
To establish the first prong for specific jurisdiction, plaintiff must demonstrate that
defendant either purposefully availed himself of the privilege of conducting activities in the
fornm, or purposefully directed his activities at the forum. Washington Shoe Co., 704 F .3d at
672. The purposeful availment analysis is used in contract suits, while the effects test is used in
tort cases. Id. at 672-73. The effects test was established in Calder v. Jones, 465 U.S. 783
(1984). This is the proper analytical lense through which to view personal jurisdiction in a t01i
claim such as the one alleged in the present case. lvfavrix Photo, Inc. v. Brand Tech., Inc., 647
F.3d 1218, 1228 (9th Cir. 2011). To satisfy the effects test, "the defendant allegedly must have
(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the
defendant knows is likely to be suffered in the forum state." Yahoo! Inc. v. La Ligue Con/re Le
Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (quoting Schwarzenegger v.
Fred ivfartin i\lotor Co., 374 F.3d 797, 802 (9th Cir. 2004)).

The Ninth Circuit has not decided on whether a district court can exercise personal
jurisdiction of a Regional Director of the BOP who does not reside within that district but whose
official responsibilities and actions include federal facilities within that district. However, the
Tenth Circuit has ruled that out-of-state prison officials were not subject to personal jurisdiction
merely as a result of their supervisory roles. Hill v. Pugh, 75 Fed. 715, 719 (10th Cir. 2003).
However, that decision seemed to focus on the concern that "federal prison officials may be
hauled into court simply because they have regional and national supervisory responsibilities
over facilities within a forum state," just because a inmate had submitted a grievance form to
them. Id. The important inquiry is whether an out-of-state defendant's actions wer,e
19 - OPINION AND ORDER

"purposefully directed" toward the forum state. In another Tenth Circuit case, the court held that
the court had personal jurisdiction over the BOP Director because he had refused to approve
medication recommended for the plaintiffs Hepatitis C infection. Arocho v. Naftiger, 367 Fed.
Appx. 942, 949-950 (10th Cir. 2010). The court found that this refusal was both an intentional
act and aimed at the forum state and thus the court had personal jurisdiction. Id at 950.
Defendant Castillo's actions are analogous to Arocho. Whether or not Castillo's actions
violated Holden's constitutional rights is still subject to debate but Castillo's affirmation of the
denial of Holden's request to allow Humanists to meet as a group and for the creation of a
Humanism religious assignment was an intentional act directed at the forum state, satisfying the
first prong of the test for specific jurisdiction. The second prong is satisfied because plaintiffs'
claim arises out of Castillo's action. Finally, defendants have not made a showing that the court's
exercise of personal jurisdiction over Castillo would be umeasonable. Therefore the court has
personal jurisdiction over Castillo and defendants' motion to dismiss plaintiffs' claims against
him is denied.

c.

Lack of Personal Involvement

Finally, defendants argue that plaintiffs' claims against defendant Castillo must be
dismissed because Castillo did not personally engage in conduct that violated Holden's
constitutional rights. Defendants argue that Bivens actions do not recognize respondeat superior
or group liability. However, as the comi understands it, plaintiffs are not arguing that Castillo is
liable for his supervisory role. Rather, plaintiffs argue that Castillo's affitmance of the denial of
Holden's request constituted a direct violation of his constitutional rights. Thus, defendants'
motion to dismiss defendant Castillo as a defendant is denied.

Ill
20 - OPINION AND ORDER

CONCLUSION
For the foregoing reasons, defendants' Motion to Dismiss [25) is DENIED.
IT IS SO ORDERED.
DATED this 3Q day of October, 2014.

C:::cH~r~
United States District Judge

21 - OPINION AND ORDER