Abdullah v. Seba et al

Filing 42

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 9/29/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
D. Kansas.
Mohammed SALEH, Plaintiff,
v.
M.E. RAY. et al., Defendants.
No. Civ.A.02–3241–CM.
Nov. 12, 2003.
Mohammed Saleh, Florence, CO, pro se.
Robin Barkett Moore, Wichita, KS, for Defendants.
MEMORANDUM AND ORDER
MURGUIA, J.
*1 Plaintiff, a federal inmate appearing pro se, brings
this action against defendants M.E. Ray, Walter Wood,
Raymond Darrow, “John Doe I” and the United States of
America, alleging that while incarcerated at the United
States Penitentiary, Leavenworth, Kansas, (USP
Leavenworth), defendants placed him in administrative
detention because of his Muslim faith in violation of his
First Amendment right to religious freedom. Additionally,
plaintiff alleges that defendants subjected him to excessive
force, also due to his Muslim faith, when he was placed in
ambulatory restraints on March 20, 2001, in violation of
both his First and Eighth Amendment rights. Plaintiff has
further alleged these acts have violated his statutory rights
under the Religious Freedom Restoration Act of 1993
(RFRA), 42 U.S.C. § 2000bb–1(a). This matter is before
the court on plaintiff's Motion for Discovery (Doc. 31) and
defendants' Motion to Dismiss or for Summary Judgment
(Doc. 24).
I. Motion for Discovery
On July 16, 2003, this court granted defendants'
Motion to Stay Discovery pending a ruling on defendants'
dispositive motion. That same day, plaintiff filed the
instant Motion for Discovery. In light of the court's July

16, 2003 order staying discovery, the court denies
plaintiff's Motion for Discovery as moot.
II. Motion for Summary Judgment
A. Facts FN1
FN1. The court construes the facts in the light
most favorable to plaintiff as the nonmoving
party pursuant to Fed.R.Civ.P. 56. With that in
mind, the court points out that plaintiff's
statement of facts contains merely outlined
headings followed by numbered statements.
However, it does not appear those numbered
statements correspond with any of the
enumerated facts presented by defendants in their
statement of material facts, and it is not readily
apparent which of the defendants' facts, if any,
are specifically controverted as required by D.
Kan. Rule 56.1. Thus, to the extent that plaintiff
fails to specifically controvert defendants'
statement of undisputed facts, the court deems
them to be admitted.
During the times relevant to this action, plaintiff was
incarcerated at USP Leavenworth. On March 6, 2001,
defendants removed plaintiff from general population and
placed him in administrative detention. Plaintiff claims
that defendants placed him in administrative detention due
to an investigation into plaintiff's washing of his hands and
feet, a religious ritual performed by followers of the
Islamic faith. Defendants, on the other hand, assert they
placed plaintiff in administrative detention pending an
investigation into plaintiff's safety at the prison and attach
as evidence the Administrative Detention Order stating
this reason.
Senior Officer Specialist Douglas P. Nee was
assigned to D cellhouse and was supervising inmates on
Four Gallery, including plaintiff, who was housed in cell
D–425. On March 20, 2001, at approximately 11:15 a.m.,
Lieutenant Torix informed Officer Nee that Five Gallery
needed to be cleared of all inmates and that available cells
on other ranges needed to be located for those inmates in

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Five Gallery. Specifically, Officer Nee was instructed to
check with the single celled inmates on Four Gallery to
see if the inmate had someone with whom he wanted to be
celled. If an inmate did not state a preferred cellmate, that
inmate was instructed that a cellmate would be assigned to
them.FN2
FN2. All of the cells on Four Gallery are
designed for two man occupancy. However,
during certain periods of time, some inmates are
celled alone in two man designed cells. The
general rule is that inmates are celled two to a
cell.
At approximately 12:10 p.m., the Four Gallery
inmates became disruptive due to the impending cell
rotations. Lieutenant Torix was assaulted by an inmate
near cell D–409. Other inmates on the gallery began
breaking the fire sprinkler heads in their cells, which
caused flooding, and several inmates broke the porcelain
toilets in their cells and threw porcelain pieces out of their
cells. Defendants contend that, based on the violent and
assaultive behavior of the inmates on the gallery, the fact
that one staff member already had been assaulted, the
destruction of government property, and the refusal of the
inmates to comply with institutional regulations and staff
directives, defendants determined that use of force
procedures would be used.
*2 Defendants assembled three force cell teams.
During the use of force procedures, some inmates
barricaded themselves in their cells, brandishing
homemade weapons. Defendants determined that, at times,
it was necessary to fire a 37 mm stun gun with a low
impact round into the cell to subdue uncooperative
inmates and, at other times, defendants introduced
chemical agents through the vent in the inmate's cell in
order to remove the inmate.
There is a dispute regarding whether plaintiff engaged
in disruptive behavior during the disturbance. Plaintiff
contends that he did not, yet defendant Darrow filed an
incident report, charging plaintiff with engaging in a group
demonstration and stating that plaintiff was yelling at other
inmates not to cooperate. In any event, as a matter of
procedure, inmates were requested to voluntarily submit

to restraints. If an inmate voluntarily submitted to
restraints, he was removed from his cell, placed in
ambulatory restraints, FN3 and then placed back into either
the same cell or another assigned cell.
FN3. Ambulatory restraints consist of handcuffs,
a chain around the inmate's waist, and leg
restraints around the ankles. Ambulatory
restraints are defined as approved restraint
equipment which allow the inmate to eat, drink,
and take care of basic human needs without staff
intervention.
Defendants contend that plaintiff voluntarily
submitted to hand restraints, was removed from his cell,
placed in ambulatory restraints, and returned to his cell
without incident. Plaintiff asserts that he was extracted
from his cell and that defendant Woods ordered the team
to place him in ambulatory restraints. Plaintiff also claims
that defendant Woods ordered the restraints to be extra
tight. Defendant Woods testified that he did not give any
such order.
Plaintiff contends that at approximately 4:40 p.m., he
complained that his restraints were too tight but that the
supervising lieutenant never showed up to loosen the
restraints. Yet, defendants submit as evidence a completed
Inmate Injury Assessment form, indicating that on March
20, 2001, at approximately 4:30 p.m., Physician's
Assistant Haider Al–Rubiie conducted an injury
assessment and medically evaluated plaintiff while
plaintiff was in ambulatory restraints. According to both
the Inmate Injury Assessment form and P.A. Al–Rubiie's
sworn testimony, plaintiff voiced no complaints regarding
pain or discomfort, and the assessment of plaintiff's
ambulatory restraints did not indicate any problems. Then,
according to the evidence in the record, P.A. Al–Rubiie
conducted another medical evaluation of the plaintiff later
that evening while plaintiff was in ambulatory restraints.
At that time, plaintiff's circulation was within normal
limits, the tightness of the restraints was normal, there was
no evidence of injury to the wrist area, and plaintiff did
not comment on pain or problems with the restraints.
The next morning, at approximately 4:25 a.m.,
Physician's Assistant Pierre E. Camps performed a

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medical evaluation on plaintiff while plaintiff was in
ambulatory restraints. The evidence in the record shows
that P.A. Camps checked the restraints for tightness by
placing his finger between the restraints and plaintiff's
wrist, that plaintiff was able to move all his extremities,
that there was no evidence of injury to the wrists, and that
plaintiff did not make any comments to P.A. Camps
regarding pain or problems with the restraints.
*3 Approximately eighteen to twenty-four hours after
plaintiff was placed in restraints, the restraints were
removed. FN4 Plaintiff contends that, after the restraints
were removed, defendant Woods stated to the warden that
plaintiff had done nothing wrong but that, because plaintiff
was a Muslim, it would have looked bad in front of other
Muslims who were placed in restraints if plaintiff was left
unrestrained. Defendant Woods testified that at no time
did he advise the warden that plaintiff had been placed in
restraints only because plaintiff was Muslim or that it
would look bad if plaintiff was not placed in restraints
when the other Muslim inmates were restrained.
FN4. The amount of time plaintiff spent in
ambulatory restraints is not entirely clear from
the record. Plaintiff states in two of his
administrative appeals that he was placed in
restraints “for almost 18 hrs,” yet in his response
brief plaintiff states that it was twenty-four hours.
B. Standards
Summary judgment is appropriate if the moving party
demonstrates that there is “no genuine issue as to any
material fact” and that it is “entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). In applying this
standard, the court views the evidence and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Adler v. Wal–Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is “material”
if, under the applicable substantive law, it is “essential to
the proper disposition of the claim.” Id. (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986)). An issue of fact is “genuine” if
“there is sufficient evidence on each side so that a rational

trier of fact could resolve the issue either way.” Id. (citing
Anderson, 477 U.S. at 248).
The moving party bears the initial burden of
demonstrating an absence of a genuine issue of material
fact and entitlement to judgment as a matter of law. Id. at
670–71. In attempting to meet that standard, a movant that
does not bear the ultimate burden of persuasion at trial
need not negate the other party's claim; rather, the movant
need simply point out to the court a lack of evidence for
the other party on an essential element of that party's
claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met this initial burden, the
burden shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n.
1 (concerning shifting burdens on summary judgment).
The nonmoving party may not simply rest upon its
pleadings to satisfy its burden. Anderson, 477 U.S. at 256.
Rather, the nonmoving party must “set forth specific facts
that would be admissible in evidence in the event of trial
from which a rational trier of fact could find for the
nonmovant.” Adler, 144 F.3d at 671. “To accomplish this,
the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated
therein.” Id. Finally, the court notes that summary
judgment is not a “disfavored procedural shortcut;” rather,
it is an important procedure “designed to secure the just,
speedy and inexpensive determination of every action.”
Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
*4 The court acknowledges that plaintiff appears pro
se and his response is entitled to a somewhat less stringent
standard than a response filed by a licensed attorney. Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
However, this does not excuse plaintiff from the burden of
coming forward with evidence to support his claims as
required by the Federal Rules of Civil Procedure and the
local rules of this court. Pueblo Neighborhood Health
Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988).
Even a pro se plaintiff must present some “specific factual
support” for his allegations. Id.
C. Discussion

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Plaintiff's Complaint does not clearly allege the basis
for invoking jurisdiction. Plaintiff first alleges that
jurisdiction is invoked pursuant to 28 U.S.C. § 1331 and
RFRA, 42 U.S.C. § 2000bb–1(c), and then proceeds to
assert constitutional claims under the Eighth Amendment
(Count I) and the First Amendment (Count II). Later in his
Complaint, plaintiff asserts that he has filed a “Tort
Claim,” and attaches a claim he filed under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), along with
a letter denying that claim. Plaintiff asserts in his response
brief that he is suing under the FTCA.
Section 1346(b) grants the federal district courts
jurisdiction over a certain category of claims for which the
United States has waived its sovereign immunity and
“render[ed]” itself liable. Richards v. United States, 369
U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). This
category includes claims that are: “[1] against the United
States, [2] for money damages, ... [3] for injury or loss of
property, or personal injury or death [4] caused by the
negligent or wrongful act or omission of any employee of
the Government [5] while acting within the scope of his
office or employment, [6] under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C. § 1346(b).
Thus, to be actionable under § 1346(b), a claim must
allege, inter alia, that the United States “would be liable
to the claimant” as “a private person” “in accordance with
the law of the place where the act or omission occurred.”
Construing this provision, the Supreme Court held that a
constitutional tort claim could not contain such an
allegation. F.D.I.C. v. Meyer, 510 U.S. 471, 477–78, 114
S.Ct. 996, 127 L.Ed.2d 308 (1994). The Court stated:
“[W]e have consistently held that § 1346(b)'s reference to
the ‘law of the place’ means law of the State—the source
of substantive liability under the FTCA. By definition,
federal law, not state law, provides the source of liability
for a claim alleging the deprivation of a federal
constitutional right.... [T]he United States simply has not
rendered itself liable under § 1346(b) for constitutional
tort claims.” Id. (internal citations omitted).
Plaintiff in this case has alleged only constitutional
tort claims based upon violations of the First and Eighth
Amendments of the United States Constitution and RFRA.

Accordingly, this court lacks jurisdiction over plaintiff's
claims brought pursuant to the FTCA. See Johnson v.
Sawyer, 47 F.3d 716, 727 (5th Cir.1995) (en banc)
(holding that neither a violation of federal law nor the
Constitution can provide the basis for a cause of action
under FTCA; plaintiff must allege a violation of duty
imposed by state law).
*5 With respect to plaintiff's assertion of jurisdiction
under § 1331, the court will construe plaintiff's action as
one brought under Bivens v. Six Unknown Named Agents,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). FN5
As noted by defendants, the United States has not waived
sovereign immunity in Bivens actions. Meyer, 510 U.S. at
483–86; Chapoose v. Hodel, 831 F.2d 931, 935 (10th
Cir.1987). To the extent that plaintiff seeks monetary
damages from the defendants in their official capacities,
the action must be construed as one against the United
States. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985). As such, any claims for
recovery against the United States and defendants in their
official capacities for constitutional violations pursuant to
Bivens are hereby dismissed. Pleasant v. Lovell, 876
F.2d 787, 793 (10th Cir.1989) (to maintain a Bivens cause
of action, plaintiff must proceed against federal officials
in their individual capacities). The court therefore
analyzes plaintiff's Complaint as alleging federal
constitutional and statutory violations against defendants
in their individual capacities.
FN5. Bivens v. Six Unknown Named Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
provides a remedy against federal officials for
violations of federal rights.
1. Eighth Amendment Claim
In an Eighth Amendment claim for excessive force,
the court must determine “whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson v.
McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992). Whether force is excessive in violation of the
Eighth Amendment depends upon the circumstances
confronting the officer as well as the nature and amount of
force applied in reaction. Whitley v. Albers, 475 U.S. 312,

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321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
Under Hudson, it is clear that, while the extent of injuries
suffered by an inmate is relevant to whether the force
involved was unnecessary and wanton, the mere absence
of injury does not, itself, end the inquiry. Minor injury
does not preclude an action for excessive force, but “de
minimis uses of physical force” ordinarily will not support
a claim. Hudson, 503 U.S. at 9–10. As such, a plaintiff
need not show that he suffered serious injury, but the
extent of his injury is relevant in evaluating the necessity
and wantonness of the force.
In this case, there is no evidence in the record that plaintiff
suffered any injury at all. Plaintiff's Complaint alleges that
he suffered back pain and partial loss of feeling in his
hands and feet. In his response brief, plaintiff also alleges
he suffered psychological pain. However, the evidence in
the record, which plaintiff does not controvert, shows that
plaintiff never complained that his restraints were too
tight. More significantly, the medical records pertaining to
plaintiff include no entries indicating treatment for any
physical injuries as alleged by plaintiff. To the contrary,
plaintiff was medically evaluated three times, and the
medical records indicate that each time plaintiff was
evaluated, there appeared no signs of injury. Further, there
is no evidence in the record that plaintiff sought medical
treatment, either physical or psychological, after the
restraints were removed. Plaintiff's conclusory,
unsupported allegations are simply insufficient to refute
the medical records.
*6 Taking into account the lack of evidence of any injury
sustained by plaintiff, the court turns to whether there is
evidence in the record that defendants applied excessive
force. An inmate may be restrained by the use of force so
long as that force is applied in a good faith effort to
maintain or restore discipline and not maliciously and
sadistically for the very purpose of causing harm. Whitley,
475 U.S. at 319 (“The infliction of pain in the course of a
prison security measure ... does not amount to cruel and
unusual punishment simply because it may appear in
retrospect that the degree of force authorized or applied
for security purposes was unreasonable, and hence
unnecessary in the strict sense.”).
Plaintiff has described, and the facts produced by

defendants corroborate, that there was a disturbance on
March 20, 2001, in plaintiff's housing unit (D–Cell House)
by inmates protesting cell assignments. These facts
demonstrate that prison officers had a legitimate concern
in restoring order to the unit. Plaintiff claims that he was
not participating in the disturbance, yet there is evidence
in the record to the contrary. In any event, even taking
plaintiff's allegations as true, the placement of plaintiff
(and other inmates) in amubulatory restraints to quell a
prison disturbance does not amount to cruel and unusual
punishment. Plaintiff's allegations do not show that the
defendants used more force than was necessary to
maintain or restore discipline during a time when many of
the inmates in D–Cell House were vigorously protesting
cell assignments.
Additionally, plaintiff makes no allegation that defendants
applied force in the actual placement in restraints. In fact,
plaintiff alleges that he complied and cooperated
completely, and there is no allegation that the manner in
which defendants placed plaintiff in restraints was
inappropriate. And the fact that plaintiff remained in
ambulatory restraints for eighteen hours to twenty-four
hours does not, itself, rise to the level of an Eighth
Amendment violation. See Cunningham v. Eyman, 17 Fed.
Appx. 449, 453–454 (7th Cir.2001) (finding no Eighth
Amendment violation were prisoner spent sixteen hours in
shackles and four to five hours in soiled clothing); Key v.
McKinney, 176 F.3d 1083, 1086 (8th Cir.1999) (holding
that prisoner who was restrained in handcuffs and shackles
for twenty-four hours, making it more difficult for him to
relieve himself, did not suffer a constitutional violation).
Plaintiff makes no allegation that his movement was
restricted while he was restrained or that he was deprived
of food, water, or bathroom breaks. To the contrary,
plaintiff was free to move about in his cell. As such, this
case differs from the recently decided Supreme Court case
Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153
L.Ed.2d 666 (2002), in which the Court found an Eighth
Amendment violation where prison guards handcuffed an
inmate, placed him in leg irons, shackled him to a hitching
post in the outdoors for seven hours, forced the inmate to
remove his shirt while the sun burned his skin, gave the
inmate only one or two water breaks but no bathroom
breaks, and taunted the inmate about his thirst. The Court
determined that the guards “knowingly subjected [the

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inmate] to a substantial risk of physical harm, to
unnecessary pain caused by the handcuffs and the
restricted position of confinement for a 7–hour period, to
unnecessary exposure to the heat of the sun, to prolonged
thirst and taunting, and to a deprivation of bathroom
breaks that created a risk of particular discomfort and
humiliation.” Id.
*7 Viewing all reasonable inferences in favor of plaintiff,
the court concludes that the actions of defendants
demonstrate that defendants took reasonable steps to quell
a prison disturbance and do not demonstrate the type of
malicious or sadistic behavior required for stating an
Eighth Amendment violation. Defendants are entitled to
summary judgment on this claim.
2. First Amendment Claim
Plaintiff alleges he was placed in administrative
detention on March 6, 2001, “during an investigation into
the performance of religious ablutions (washing hands and
feet) by followers of the Islamic faith.” (Complaint, p. 3).
Plaintiff further claims that the March 20, 2001, incident
involving ambulatory restraints occurred because he was
Muslim and that, as a result, he was deprived of his right
to practice the Islamic faith.
The court notes that plaintiff's response brief makes
no argument to support any claim relating to a restraint or
inhibition from freely practicing his religion, but appears
more to clarify his claim as being that of religious
retaliation. The court will nevertheless address plaintiff's
free exercise allegation.
a. Free Exercise of Religion
A prison inmate is entitled to reasonable opportunity
to practice his religion under the Free Exercise Clause of
the First Amendment. Cruz v. Beto, 405 U.S. 319, 322, 92
S.Ct. 1079, 31 L.Ed.2d 263 (1972). Although inmates
clearly retain their First Amendment right to free exercise
of religion, incarceration necessarily limits that right.
O'Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct.
2400, 96 L.Ed.2d 282 (1987). To state a free exercise
claim, a plaintiff must first show that the official action
burdened a religious belief rather than a philosophy or
way of life. Wisconsin v. Yoder, 406 U.S. 205, 215–19, 92

S.Ct. 1526, 32 L.Ed.2d 15 (1972). Second, the burdened
belief must be sincerely held by the plaintiff, and that
plaintiff must demonstrate that the official action has
interfered with the exercise or expression of her or his own
deeply held faith. Thomas v. Review Bd., 450 U.S. 707,
714–16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).
In this case, plaintiff has not articulated any interference
with the practice of his Muslim beliefs. Plaintiff offers
nothing but his conclusory allegation that “[d]efendant
John Doe I and defendant Woods were aware that their
retaliatory actions ... deprived him of his right to practice
the Islamic faith,” (Complaint, p. 3), but plaintiff has not
alleged any facts showing how the defendants' acts
interfered with that right. As previously noted, there is no
allegation that his placement in detention and ambulatory
restraints interfered with his bodily movement or daily
activity. Clearly, defendants' actions did not interfere with
plaintiff's exercise or expression of plaintiff's Islamic
beliefs.
b. Retaliation
Prison officials may not retaliate against or harass an
inmate because of the inmate's exercise of his
constitutional rights. Smith v. Maschner, 899 F.2d 940,
947 (10th Cir.1990). An inmate claiming retaliation must
“allege specific facts showing retaliation because of the
exercise of the prisoner's constitutional rights.” Frazier v.
Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990). To
establish retaliation, an inmate “must prove that ‘but for’
the retaliatory motive, the incidents to which he refers,
including disciplinary action, would not have taken place.”
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998).
Moreover, in the prison setting, a plaintiff “must show that
‘prison authorities' retaliatory action did not advance
legitimate goals of the correctional institution or was not
tailored narrowly enough to achieve such goals.” ’ Ladd v.
Davis, 817 F.Supp. 81, 82 (D.Kan.1993) (citing Rizzo v.
Dawson, 778 F.2d 527, 531 (9th Cir.1985)).
*8 Regarding plaintiff's claim that he was placed in
administrative detention on March 6, 2001, in retaliation
for practicing the Muslim religion, plaintiff has failed to
allege any specific facts in support. The record indicates
that prison officials questioned plaintiff's safety in the
general population and that the move to administrative
detention was based upon that reason. Plaintiff's

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conclusory allegations are not supported in the record and
are, therefore, insufficient to survive summary judgment
on this claim.
The court turns to plaintiff's allegation that he was placed
in ambulatory restraints on March 20, 2001 in retaliation
for practicing his religion. Plaintiff has acknowledged that
there was an inmate disturbance in his housing unit on
March 20, 2001, and that he, as well as other inmates,
were placed in ambulatory restraints.FN6 There remains a
factual dispute whether defendant Wood made the
statement that plaintiff had done nothing wrong but that,
because plaintiff was a Muslim, it would have looked bad
in front of other Muslims who were placed in restraints if
plaintiff were left unrestrained. Plaintiff asserts in his
Complaint that defendant Woods made this statement, yet
defendant Wood testified in a sworn affidavit that he made
no such statement.
FN6. The court notes that conspicuously absent
from plaintiff's Compliant is any allegation that
only Muslim inmates were placed in ambulatory
restraints.
However, even assuming defendant Wood made the
statement as plaintiff claims, the statement itself evidences
a legitimate reason for placing plaintiff in restraints:
treating all inmates on the gallery in a consistent manner.
It is a reasonable conclusion that inmates receiving
different or favorable treatment by prison officials may be
perceived by other inmates as a sign that somehow the
inmate has cooperated or complied with staff. In a
correctional setting, such a perception could place the
inmate in danger of retaliation from other inmates. In the
prison context, prison officials must be given broad
flexibility in managing penal facilities. Sandin v. Conner,
515 U.S. 472, 482–83, 115 S.Ct. 2293, 132 L.Ed.2d 418
(1995). Absent competent evidence of a discriminatory
animus, this court will not second-guess defendants'
decision to place plaintiff in ambulatory restraints in an
effort to restore order to the unit and to ensure the future
safety of plaintiff. Summary judgment on plaintiff's First
Amendment claim is granted.

Plaintiff, in conclusory fashion, states that his claim
falls within the broad language of RFRA, which states that
government officials “shall not substantially burden a
person's exercise of religion.” 42 U.S.C. § 2000bb–1(a)
(2002). “[A] plaintiff establishes a prima facie claim
pursuant to RFRA by proving the following three
elements: (1) a substantial burden imposed by the federal
government on a(2) sincere (3) exercise of religion.”
Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.2001).
Once a plaintiff has met his prima facie burden, the
government must show that the imposition “is in
furtherance of a compelling governmental interest.” Id. at
962 (internal quotations and citation omitted). The Tenth
Circuit has recognized that, in the prison context, the
maintenance of safety and order is a compelling
governmental interest. Id. at 962.
*9 Applying these legal standards, plaintiff clearly has
not satisfied the threshold requirement for stating a RFRA
claim. Plaintiff has failed to allege any facts, and the court
finds nothing in the record, tending to show that
defendants' actions burdened the free exercise of his
religion. Even if plaintiff could satisfy all the elements of
a prima facie RFRA claim, the actions of defendants were
clearly within the government's compelling interest in
maintaining safety and order in its prisons. Defendants are
entitled to summary judgment on plaintiff's RFRA claim.
IT IS THEREFORE ORDERED that plaintiff's
Motion for Discovery (Doc. 31) is denied as moot, and
defendants' Motion to Dismiss or for Summary Judgment
(Doc. 24) is granted. This case is hereby dismissed.
D.Kan.,2003.
Saleh v. Ray
Not Reported in F.Supp.2d, 2003 WL 23484639 (D.Kan.)
END OF DOCUMENT

3. RFRA Claim

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