Native American Council of Tribes et al v. Weber et al
Filing
196
REMEDIAL ORDER re 189 Memorandum Opinion and Order. Signed by U.S. District Judge Karen E. Schreier on 1/25/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NATIVE AMERICAN COUNCIL OF
TRIBES,
BLAINE BRINGS PLENTY, and
CLAYTON CREEK,
Plaintiffs,
vs.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary,
and DENNIS KAEMINGK, Secretary
of the Department of Corrections,
Defendants.
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CIV. 09-4182-KES
REMEDIAL ORDER
Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings
Plenty, and Clayton Creek, succeeded in a court trial against defendants,
Douglas Weber and Dennis Kaemingk, showing that a complete ban of tobacco
in Department of Correction (DOC) facilities violates the Religious Land Use
and Institutionalized Persons Act (RLUIPA). Native Am. Council of Tribes v.
Weber, ___ F. Supp. 2d ___, No. Civ. 09-4182, 2012 WL 4119652 (D.S.D.
Sept. 19, 2012). Plaintiffs sought injunctive relief in order to use tobacco
during their religious ceremonies that take place at penal institutions.1 This
court ordered the parties to meet and confer about the terms of a narrowly
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Defendants’ policy banning all tobacco, including tobacco used in
Native American ceremonies, in DOC facilities was the precursor to plaintiffs’
suit.
tailored tobacco policy and if unable to agree, to submit separate proposals and
objections to the court. The parties failed to agree on a specific proposal.
Accordingly, the parties have submitted to the court their proposals and
objections.
I.
Legal Standard
The Prison Litigation Reform Act (PLRA) provides that “[p]rospective relief
in any civil action with respect to prison conditions shall extend no further
than necessary to correct the violation of the Federal right of a particular
plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Specifically, “[t]he court shall not
grant or approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of
the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right.” 18 U.S.C. § 3626(a)(1). “Narrow tailoring requires
a fit between the remedy’s ends and the means chosen to accomplish those
ends.” Brown v. Plata, 131 S. Ct. 1910, 1939 (2011) (internal quotation
omitted). “The scope of the remedy must be proportional to the scope of the
violation . . . [and] must be determined with reference to the constitutional
violations established by the specific plaintiffs before the court.” Id. at 1940.
Additionally, the court “must give substantial weight to any adverse impact on
public safety or the operation of a criminal justice system caused by the relief.”
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Id. at 1929. With these principles in mind, the court will now set out plaintiffs’ remedy.
II.
Remedy
Before discussing the specific relief to which plaintiffs are entitled, it is
useful to articulate the basic premise that guides this order: A complete ban of
tobacco in South Dakota penal institutions is a substantial burden on the
exercise of the Native American religion. Accordingly, inmates who participate
in the Native American religion must be afforded the opportunity to use tobacco
during certain religious ceremonies. Thus, all remedies should be implemented
in a manner to fulfill this objective.
1.
Mixtures used during Native American ceremonies that include
tobacco will not contain more than 1 percent tobacco by
volume.
Plaintiffs’ expert witness, Richard Bernard Moves Camp, testified that
tobacco need only be in the mixture and that even a 1 percent amount is
suitable. In light of defendants’ expressed security concerns relating to the
existence of tobacco within DOC facilities, the court concludes that a 1 percent
limit is narrowly drawn, is not too intrusive, and corrects the violation.
Plaintiffs have not proffered any rationale as to why a 10 percent amount is
needed. Based on plaintiffs’ own expert testimony, which established that only
a 1 percent amount is necessary for religious exercise, a 10 percent amount
would not be a narrowly drawn remedy.
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Defendants also argue that the tobacco in the mixtures should be cherryblend tobacco. Defendants have not offered any rationale as to why only
cherry-blend tobacco should be allowed. Plaintiffs, however, argue that cherryblend tobacco is not easily smoked because it damages the pipe used for
smoking. Therefore, the court will not impose a restriction on the type of
tobacco used in the mixtures.
2.
Tobacco ties and prayer flags can contain mixtures that
include tobacco. All tobacco ties and prayer flags used during
ceremonies must be burned at the conclusion of the
ceremonies.
Plaintiffs demonstrated at trial that tobacco ties and prayer flags which
include tobacco play an important role in the exercise of their religion.
Eliminating tobacco from tobacco ties and prayer flags, as proposed by
defendants, undermines this court’s previous determination that banning
tobacco substantially burdens plaintiffs’ right to exercise their religion. The
requirement that the mixture used in the ties and flags contain only 1 percent
tobacco, coupled with the requirement that the ties and flags be burned at the
conclusion of the ceremonies, alleviates defendants’ security concerns, making
the remedy narrowly tailored and limited in its intrusiveness.
3.
The mixtures used for tobacco ties and prayer flags must be
ground, but the mixtures that are smoked in pipes do not need
to be ground.
Defendants argue that grinding the mixtures reduces the possibility of
the tobacco being separated from the rest of the mixture and subsequently
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inserted into the “black market.” Plaintiffs have no objections to grinding the
tobacco mixture that is used for tobacco ties and prayer flags. Additionally,
grinding the tobacco mixture that is used in tobacco ties and prayer flags is a
“narrowly drawn” remedy that ensures the exercise of the Native American
religion is free from a substantial burden. Thus, the mixtures used for tobacco
ties and prayer flags must be ground.
Separately, plaintiffs argue that smoking the mixture after it is ground is
difficult because smoking the ground mixture “is like breathing dust into one’s
lungs” and can cause the person to “get sick off of it.” Docket 194 at ¶ 2;
Docket 170 at 193. Defendants maintain their “separation” objection with
regards to the mixture used for smoking. With respect to defendants’ objection,
decreasing the amount of tobacco present in the mixture to only 1 percent
reduces the possibility of separation. Plaintiffs, on the other hand, introduced
evidence at trial that showed smoking the ground mixture may lead to physical
ailments. Because the 1 percent limit severely decreases the possibility of
separation, plaintiffs’ health concerns carry more weight here. Thus, the
tobacco mixtures used for smoking does not need to be ground.
4.
The mixtures used during ceremonies will be provided by
volunteers who are cleared by the DOC.2 The volunteers must
be eligible for and receive a “pink-tag” or some equivalent
2
The DOC can implement procedures for mandating and documenting
the reimbursement of the volunteers by the inmates for those volunteers who
seek reimbursement.
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clearance level.3 Volunteers who violate the tobacco policy
may be refused admission to any DOC facility and may be
subject to prosecution.
Plaintiffs argue that requiring “pink-tag” certification, which requires
several hours of training, “would, in effect, be equivalent to a ban on tobacco,
because it would be virtually impossible to recruit any volunteer to comply with
such a burdensome requirement,” and thus, “orange-tag” volunteers should be
allowed to provide the mixtures. Docket 194 at ¶ 4. But the evidence presented
at trial contradicts plaintiffs’ objection because the volunteer who previously
provided the mixture, Mary Montoya, had received “pink-tag” certification.
Plaintiffs’ argument that finding a volunteer who is willing to receive “pink-tag”
certification is “virtually impossible” carries no weight when, in fact, it was the
standard operating procedure prior to the tobacco ban.
Moreover, volunteers with “orange-tag” certification require a constant
escort from DOC staff. Defendants’ staffing concerns regarding the allowance of
“orange-tag” volunteers to bring in mixtures is persuasive because forcing the
DOC to increase its staffing obligations increases DOC costs. An increase in
costs is an adverse impact on the operation of DOC facilities to which the court
3
“Pink-tags” are given to (1) individuals who enter an adult DOC
institution more than once a month, have reviewed the DOC volunteer
handbook, have completed the required information requested within the
handbook, and have completed a minimum of thirty-two hours of core
curriculum during pre-service training and a minimum of four hours of
mandatory topics during annual in-service training; (2) staff members who
have not completed “blue-tag” training; and (3) contract psychiatrists or other
specialists. Docket 190-1 at 1-4.
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must give substantial weight when fashioning a remedy. Brown, 131 S. Ct. at
1929. Thus, the court’s remedy necessitating “pink-tag” volunteers is sufficient
to remedy the violation without adversely impacting the DOC facilities.
5.
Mixtures provided by the approved volunteers must be brought
into the facility in a sealed, clear plastic bag that is subject to
search and marked for identification. Mixtures must be
premixed to comply with the 1 percent tobacco by volume
requirement.
6.
Each DOC facility will determine where ceremonies take place
within the facility, including the locations where tobacco ties
and prayer flags are made. The DOC may require certain
activities that involve tobacco to take place under video
surveillance. The video surveillance requirement does not
apply to the sweat lodge ceremony.
Video surveillance is not a condition precedent to the happening of sweat
lodge ceremonies because such ceremonies are conducted in the dark within
the sweat lodge. Plaintiffs established at trial the significant role that the sweat
lodge ceremony and the presence of tobacco involved in such ceremony plays in
their religious exercise.
Defendants propose that tobacco should not be present inside the sweat
lodge because DOC staff cannot supervise that area, implying that inmates will
be able to separate the tobacco from the mixture and then insert the tobacco
into the “black market.” There are several facts that eliminate defendants’
concerns. First, only a limited number of inmates can fit inside of a sweat
lodge. Second, the environment inside of a sweat lodge is very dark, thus
making it difficult for an inmate to successfully separate tobacco from other
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ingredients in the mixtures. Third, the mixtures will only include 1 percent
tobacco, also making separation difficult. Fourth, the non-smoking mixtures
will be ground, making it difficult to separate the tobacco from the rest of the
mixture. Fifth, inmates can be searched following the sweat lodge ceremony to
guarantee that they are not attempting to smuggle tobacco into the “black
market.” Therefore, tobacco can be used during the sweat lodge ceremony even
though the inside of the sweat lodge is not under video surveillance.
7.
Inmates participating in the Native American religion can
participate in the making of tobacco ties and prayer flags.
Defendants’ propose that inmates should not be allowed to make tobacco
ties or prayer flags because there are not enough staff members to properly
supervise the inmates to ensure tobacco is not improperly removed from the
mixtures. As noted above, removing all tobacco from tobacco ties and prayer
flags was established at trial to be a substantial burden on plaintiffs’ religious
exercise. Thus, tobacco ties and prayer flags will continue to be made by
inmates prior to ceremonies in which the ties and flags are used. The threat of
inmates improperly removing tobacco during these events is minimized by
requiring the tobacco in the mixture to be ground prior to the volunteer
bringing it to the prison, by decreasing the percentage of tobacco in the
mixture to 1 percent, and by implementing a video surveillance requirement.
With these limitations, there is no reason to limit the number of participants as
defendants propose.
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8.
The process for handling and distributing tobacco ties and
prayer flags will revert back to the procedures used prior to
the tobacco ban.
Plaintiffs’ proposal asks for pipe carriers to be allowed to handle and
distribute the tobacco ties and prayer flags prior to ceremonies. Neither party
has shown how or why the old system for handling and distributing the
tobacco ties and prayer flags was inadequate. Thus, the court concludes that
the previous way of handling and distributing tobacco ties and prayer flags
should be reinstated.
9.
An abuse of ceremonial tobacco by an inmate will result in a
one-year suspension from any ceremony that includes
tobacco.
10.
Further Instructions:
All other procedures and processes should revert back to the manner in
which they were done prior to the tobacco ban and consistent with this order.
As discussed at the beginning of this section, inmates who practice the Native
American religion must be afforded the opportunity to use tobacco during
certain religious ceremonies. Because the DOC previously permitted and
implemented a system in which members of the Native American religion used
tobacco during ceremonies, reimplementing such a system with the additional
requirements discussed above is limited in its intrusiveness and still provides a
narrowly tailored remedy to plaintiffs.
Additional proposals were submitted by plaintiffs and defendants that
were not addressed above. Docket 190; 191. These additional proposals were
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not specifically addressed in this order because they did not rely on any
specific reasoning, legal or practical, as to why they should be implemented in
addition to the rules set forth in this order. The court refuses to fashion its
remedy based on conclusory proposals that lack any foundation in law or
practicality. In addition, without any accompanying rationale the court cannot
determine whether the proposals satisfy the requirements created by the PLRA.
Thus, such proposals will not be implemented.
Accordingly, it is
ORDERED that defendants are enjoined from banning tobacco used
during Native American religious ceremonies.
IT IS FURTHER ORDERED that defendants must amend their policies
and procedures to comply with this order.
Dated January 25, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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