Shaw v. Kaemingk et al

Filing 138

ORDER denying 85 Motion for Judgment on the Pleadings by CBM Defendants. Signed by U.S. District Judge Karen E. Schreier on 3/27/19. Sent to James Elmer Shaw via USPS. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:17-CV-04116-KES

Plaintiff,
vs.
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; ROBERT
DOOLEY, DIRECTOR OF PRISON
OPERATIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; JENNIFER DRIESKE,
DEPUTY WARDEN; INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
STANWICK-KLEMIK, DEPUTY
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO, ASSOCIATE
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; ARTHOR ALCOCK,
ASSOCIATE WARDEN; INDIVIDUAL
AND OFFICIAL CAPACITY; DAVID
LENTSCH, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
DERRICK BIEBER, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
AL MADSEN, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
JOSH KLEMIK, UNIT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
TAMMI MERTINS-JONES, CULTURAL
ACTIVITIES COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
ELIZABETH VITETTA, UNIT
COORDINATOR; INDIVIDUAL AND
OFFICIAL CAPACITY; BRITINEY
ULMER, UNIT COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
MELISSA MATURAN, ADMINISTRATIVE

ORDER DENYING CBM
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS

REMEDY COORDINATOR; INDIVIDUAL
AND OFFICIAL CAPACITY; STEVE
BAKER, MAJOR; INDIVIDUAL AND
OFFICIAL CAPACITY; LINDA MILLERHUNHOFF, MAIL SUPERVISOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
SHARRON REIMANN, MAILROOM;
INDIVIDUAL AND OFFICIAL CAPACITY;
JORDAN STOREVIK, MAILROOM;
INDIVIDUAL AND OFFICIAL CAPACITY;
NICK ANDERSON, CORRECTIONAL
OFFICER, SDSP; PRESTON PERRETT,
CORRECTIONAL OFFICER;
INDIVIDUAL AND OFFICIAL CAPACITY;
JUDY JACOBS, CORRECTIONAL
OFFICER; INDIVIDUAL AND OFFICIAL
CAPACITY; LISA FRASIER,
CORRECTIONAL OFFICER;
INDIVIDUAL AND OFFICIAL CAPACITY;
NICK REDDMAN, TEACHER;
INDIVIDUAL AND OFFICIAL CAPACITY;
DR. MARY CARPENTER, MD;
INDIVIDUAL AND OFFICIAL CAPACITY;
ER REGIER, MD; INDIVIDUAL AND
OFFICIAL CAPACITY; BRAD ADAMS,
PA-C; INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA SCHREURS, RN;
INDIVIDUAL AND OFFICIAL CAPACITY;
HEATHER BOWERS, RN; INDIVIDUAL
AND OFFICIAL CAPACITY; UNKNOWN
DEPARTMENT OF
HEALTH/CORRECTIONAL HEALTH
SERVICE (DOH/CHS) EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; CBM CORRECTIONAL
FOOD SERVICES, INDIVIDUAL AND
OFFICIAL CAPACITIES; JOHN
TWEIRWEILLER, CBM DISTRICT
MANAGER; INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN CBM
EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES; DELMER
WALTER, CONTRACTED DOC
ATTORNEY; INDIVIDUAL AND
OFFICIAL CAPACITY; AND MARK
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BIDNEY, CONTRACTED DOC
PARALEGAL; INDIVIDUAL AND
OFFICIAL CAPACITY;
Defendants.

INTRODUCTION
Plaintiff, James Elmer Shaw, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. Shaw filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized
Persons Act (RLUIPA). The court screened Shaw’s complaint under 28 U.S.C.
§ 1915A and directed service. CBM Food Services, John Tweirweiller, and
unknown CBM Food Service employees (CBM defendants) now move for
judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Docket
85. Shaw resists the motion. Docket 112. For the following reasons, the court
denies the motion.
FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Shaw, the nonmoving party, the facts are:
Shaw alleges several violations of his civil rights relating to the practice
of his religion occurring at both SDSP and MDSP. Docket 1 ¶ 44. Shaw was an
inmate at the Mike Durfee State Prison (MDSP) in Springfield, South Dakota
from approximately April 2017 to June 2018. Id.; Docket 66. Prior to April
2017 and after June 2018, Shaw was incarcerated at the SDSP. Docket 1
¶ 44.
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Shaw’s religion, Dorcha Cosàn (DC), follows a strict code of ethics called
“The Nine Laws of Dorcha Cosàn” (NLDC). Id. ¶ 57. By adhering to the NLDC,
Shaw can attain Godhood, connect with the source of his spiritual path, and
perform “true Magick.” Id. ¶¶ 58-60. Law II of DC mandates adherence to a
religious diet. Docket 112 at 7. Shaw explains the diet as follows:
I must purify my body by eating all natural, farm fresh, organic
fruits and vegetables (they must be consumed raw, boiled, stewed
or juiced) and grass fed, no-growth-hormone meats four (4) times
daily (and between meals); I am unable to consume any foods with
chemicals or artificial additives; DC calls this the ‘Before Christ’ diet,
in essence, if my ancestors before Christianity could not fish it, hunt
it, grow and harvest it, it is repugnant and violates my geise; All
questionable ingredients are forbidden; I am unable to consume any
beverages that are not fresh water from the spring (or boiled of
impurities), all natural, organic herbal teas, whole “organic” milks
(goat or bovine), freshly squeezed fruit and vegetable beverages four
(4) times daily, with every meal (and between meals); All beverages
must be made with all natural organic ingredients. I am unable to
consume any liquids with chemical or artificial additives.
Id. When unable to consume food in accordance with Law II, Shaw “believes
he is defiling himself by doing something that is completely forbidden by his
religion.” Docket 1 ¶ 71. Law II of DC also mandates that Shaw celebrate his
holy day called Sabbats and Ebats with “Ritual and Feast.” Id. ¶ 74.
CBM, a company contracted by the South Dakota Department of
Corrections (DOC), provides all meals to inmates incarcerated at the SDSP and
MDSP. Docket 85 at 2. CBM also provides meals to inmates who require a
special diet due to their religious beliefs. Id. CBM does not provide Shaw a
special diet due to his religious beliefs. Dockets 1 ¶ 69; Docket 112 at 2. When
Shaw inquired about the denial of special diets for DC members, an unknown

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CBM employee stated, “ ‘If you don’t like it don’t eat anymore.’ ” Docket 1 ¶ 70.
Shaw is unable to follow his religious diet requirements. Id. ¶ 73.
CBM provides commissary products to inmates. Docket 85 at 2. CBM
makes available certain products to allow religious inmates to conform to their
sincerely held religious beliefs. Id. CBM did not make available any products
to allow Shaw to conform to his sincerely held religious beliefs. Docket 112 at
2. CBM defendants falsely advertised that their commissary products complied
with Shaw’s religious requests and that their commissary products were a
particular name-brand, price, and quantity. Docket 1 ¶ 112. CBM employees
replaced the name-brand products with cheaper, generic, smaller quantity,
non-compliant products without posting the changes. Id. ¶ 113. And Shaw did
not receive notice of the changes until his order was delivered. Id. ¶ 114. CBM
employees refused to reimburse Shaw. Id.
CBM has provided free special meals for mainstream religions on
religious holidays. Id. ¶ 111. CBM provided Shaw celebratory meals. Id. ¶ 110.
But these meals are the same as the main line general population meals. Id.
And CBM raised the prices for a meal that is otherwise free. Id. On December
21, 2016, Shaw canceled the Yule Sabbat feast and celebration because CBM
refused to allow Shaw to order “all natural” foods from Hy-Vee. Id. ¶¶ 124-26.
Hy-Vee is an approved vender for the DOC. Id. ¶ 126. Hy-Vee has catered
Buddhist, Jewish, and Muslim group meals. Id. ¶ 127.
CBM allowed other religious groups to buy and receive donations from
outside approved venders for religious or cultural gatherings. Id. ¶ 108. CBM
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defendants allowed other religions to purchase foods, commissary, and
religious items from vendors other than CBM. Id. ¶ 117. This allowed other
groups to comply with their dietary restrictions. Id. ¶ 108. CBM denied Shaw
this ability. Id. Shaw can only purchase foods for religious gatherings and
celebrations through CBM. Id. CBM also denied Shaw the ability to receive
care packages from friends and family even though he is an indigent inmate.
Id. ¶ 97.
STANDARD OF REVIEW
When reviewing a motion for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c), the court applies the same standard as that on a
motion to dismiss under Rule 12(b)(6). 1 See Westcott v. City of Omaha, 901
F.2d 1486, 1488 (8th Cir. 1990) (noting that courts review a Rule 12(c) motion
under the same standard that governs a Rule 12(b)(6) motion). “Judgment on
the pleadings is appropriate when there are no material facts to resolve and the
moving party is entitled to judgment as a matter of law.” Mills v. City of Grand

The court applies a similar standard when performing an initial screening of a
complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. Although the court is
unaware of any Eighth Circuit precedent directly addressing this issue, the fact
that a complaint survives screening should not foreclose subsequent Rule 12
motions even though the standards overlap. See Teahan v. Wilhelm, 481 F.
Supp. 2d 1115, 1119 (S.D. Cal. 2007) (concluding that the screening and
dismissal procedure in § 1915A “is cumulative of, not a substitute for, any
subsequent Rule 12(b)(6) motion that the defendant may choose to bring”); see
also Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (noting that the
Prison Litigation Reform Act “provides that a district court may dismiss an
action filed in forma pauperis at any time if the court determines that the
action fails to state a claim on which relief may be granted” (internal quotation
omitted)).
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Forks, 614 F.3d 495, 497-98 (8th Cir. 2010) (citing Faibisch v. Univ. of Minn.,
304 F.3d 797, 803 (8th Cir. 2002)). “The facts pleaded by the non-moving party
must be accepted as true and all reasonable inferences from the pleadings
should be taken in favor of the non-moving party.” Id. at 498. “The court may
consider the pleadings themselves, materials embraced by the pleadings,
exhibits attached to the pleadings, and matters of public record.” Id. (citing
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)).
Pro se complaints, “ ‘however inartfully pleaded,’ [are] held to ‘less
stringent standards than formal pleadings drafted by lawyers[.]’ ” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). Nonetheless, a pro se complaint must comply with the minimal
requirements set forth in the Federal Rules of Civil Procedure, which
specifically require pleadings to contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although a pro se complaint need not contain detailed factual allegations, it
must contain “more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A pro se complaint must “allege sufficient facts to
support the claims advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004). The court is not required to “ ‘supply additional facts, nor will [it]
construct a legal theory that assumes facts that have not been pleaded.’ ” Id.
(quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)). If the complaint

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does not contain these bare essentials, dismissal is appropriate. Beavers v.
Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
DISCUSSION
I.

Religious Land Use and Institutionalized Persons Act
RLUIPA provides that:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person—(1) in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that compelling
governmental interest.

42 U.S.C. §§ 2000cc-1(a)(1)-(2). Section three protects inmates’ religious
exercises “when the substantial burden is imposed in a program or activity that
receives Federal financial assistance.” 42 U.S.C. §§ 2000cc-1(b).
To establish a prima facie case under RLUIPA, a plaintiff must show “1)
that he engaged in a religious exercise; and 2) that the religious exercise was
substantially burdened.” Smith v. Allen, 502 F.3d 1255, 1276 (11th Cir. 2007)
(abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011)); see
also 42 U.S.C. § 2000cc-1(a). If the plaintiff succeeds in making a prima facie
showing, the defendant bears the burden to prove that the challenged
regulation is the least restrictive means of furthering a compelling
governmental interest. Allen, 502 F.3d at 1276. If the plaintiff fails to put forth
a prima facie case, the court need not inquire further. Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004).

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“[W]hen faced with both a Free Exercise claim and a RLUIPA claim, a
court must, as a threshold matter, inquire as to whether the prison has placed
a ‘substantial burden’ on the prisoner’s ability to practice his religion.” Gladson
v. Iowa Dep’t of Corr., 551 F.3d 825, 833 (8th Cir. 2009) (citing Patel v. U.S.
Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)). The Eighth Circuit Court
of Appeals explained various ways for an inmate to make this threshold
showing:
[T]o demonstrate a substantial burden on the exercise of religion, a
government policy or action “must significantly inhibit or constrain
[religious] conduct or [religious] expression . . . ; must meaningfully
curtail a person’s ability to express adherence to his or her faith; or
must deny a person reasonable opportunities to engage in those
activities that are fundamental to a person’s religion.”
Van Wyhe v. Reisch, 581 F.3d 639, 649 (8th Cir. 2009) (alterations in original)
(quoting Patel, 515 F.3d at 813 n.7).
Here, CBM defendants argue Shaw’s pleadings fail to demonstrate a
substantial burden on his exercise of religion. Docket 85 at 8. CBM defendants
do not dispute that RLUIPA applies to them or that Shaw’s religious beliefs are
sincerely held. See Dockets 85 & 115.
Shaw alleges that CBM defendants have substantially burdened his
exercise of DC. Docket 1 ¶¶ 69-75. Law II of DC mandates that Shaw adhere to
his religious diet. Docket 112 at 7. Shaw explains that he “must purify my body
by eating all natural, farm fresh, organic fruits and vegetables . . . .” Id. Shaw
cannot consume anything “with chemical or artificial additives.” Id. Shaw

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alleges that nothing the CBM defendants provide, on the mainline or through
commissary, allows Shaw to adhere to Law II.
CBM defendants argue that Shaw failed to show the inadequacy of any
alternative means by which he could practice his faith. See Patel, 515 F.3d at
811-12, 814-15; Gladson, 551 F.3d at 834. “Where a government practice
burdens one means of practicing a religion, but leaves open alternative means,
an inmate must show that the alternative means are inadequate to establish
that the government practice imposes a substantial burden.” Rust v. Neb. Dept.
of Corr. Servs. Religion Study Comm., No. 4:08CV3185, 2009 WL 3836544, at *8
(D. Neb. Nov. 12, 2009). In Patel, plaintiff was provided the option to purchase
halal food from commissary when kosher entrees were inadequate. Patel, 515
F.3d at 811-12, 814-15. Because plaintiff could afford to purchase halal food,
plaintiff could not show that this alternative means was inadequate. Id. In
Gladson, plaintiff desired an eight-hour period of time for celebration but failed
to show inadequacy of the three hours provided for celebration. Gladson, 551
F.3d at 834.
Shaw’s case is distinguishable. First, Shaw alleges that nothing the CBM
defendants offer him allow adherence to his religious diet. In Patel and
Gladson, plaintiffs had alternatives. Shaw also alleges that the CBM defendants
have denied Shaw’s attempts to adhere to his religious diet through alternative
means such as care packages or outside vendors. With no alternatives
available, Shaw cannot show their inadequacy. Shaw’s allegations adequately
show how CBM defendants meaningfully curtail Shaw’s ability to adhere to his
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faith. Thus, Shaw’s allegations demonstrate a genuine issue of material fact as
to whether his ability to practice DC has been substantially burdened by the
CBM defendants.
II.

42 U.S.C. § 1983
“[T]o state a claim for relief under § 1983, a plaintiff must allege

sufficient facts to show ‘(1) that the defendant(s) acted under color of state law,
and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
Cir. 2009)). “[Section] 1983 demands more than a simple claim that the
[defendant] engaged in wrongful conduct and the [plaintiff was] deprived of
constitutional rights. Indeed, to state a cause of action under § 1983, a plaintiff
must plead facts that would tend to establish that the defendant’s wrongful
conduct caused the constitutional deprivation.” Id. at 851 (emphasis in
original).
A. State Actor
First, Shaw must show that the CBM defendants acted under color of
state law. In a § 1983 action, acting under the color of state law means that the
defendant must “have exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic,
313 U.S. 299, 326 (1941)). “The injury complained of must have been caused
by the exercise of some right or privilege created by the state, by a rule of
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conduct imposed by the state, or by a person for whom the state is
responsible.” Parker v. Boyer, 93 F.3d 445, 448 (8th Cir. 1996) (quoting Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). The government’s “ ‘[m]ere
approval of or acquiescence in the initiatives of a private party’ does not
amount to state action.” Sabri v. Whittier Alliance, 833 F.3d 995, 1000 (8th Cir.
2016) (alternation in original) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004
(1982)).
In Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531
U.S. 288 (2001), the Supreme Court stated that “there is no single test to
identify state actions and state actors . . . .” Id. at 294. The Court undertook a
fact-intensive inquiry to determine whether a private entity acted under color of
state law in a § 1983 claim. Id. at 298. The Court applied its analysis from
Rendell-Baker v. Kohn, 457 U.S. 830 (1982). In Rendell-Baker, the Supreme
Court determined that “a private school, whose income is derived primarily
from public sources and which is regulated by public authorities,” did not “[act]
under color of state law when it discharged certain employees.” Id. at 831.
First, the Court in Rendell-Baker reasoned that actions of private
contractors are not state actions “by reason of [the contractor’s] significant or
even total engagement in performing public contracts.” Id. at 841. Second, the
Court held that state regulation, “even if ‘extensive and detailed,’ ” does not
make a private contractor’s actions state action. Id. Third, the Court held that
a private entity is a state actor not when the entity merely performs a public
function, but when “the function performed has been ‘traditionally the
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exclusive prerogative of the State.’ ” Id. at 842 (quoting Jackson v. Metro.
Edison Co., 419 U.S. 345, 353 (1974). Fourth, the court held that there was not
a “symbiotic relationship” between the government and the private school. Id.
at 843; see Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
District courts in the Eighth Circuit have consistently “found that
contracted food service providers at correctional facilities are government
actors for purposes of § 1983 liability because the food service provider has
assumed the state's constitutional obligation to provide a nutritionally
adequate diet to inmates.” Jenkins v. Stutsman Cty. Corr. Ctr. Comm'r
Chairman, No. 3:13-CV-67, 2015 WL 1458158, at *6 (D.N.D. Mar. 30, 2015)
(holding that an employee of a private company that contractually agreed to
provide food services to a county jail was acting under color of state law);
Whitney v. Morse, No. 5:14-CV-5028, 2014 WL 7339140 (W.D. Ark. Dec. 23,
2014) (unpublished opinion) (same); Dale v. CBM Corr. Food Servs., No. 4:14CV-4003, 2018 WL 3320842 (D.S.D. July 5, 2018) (same).
Here, Shaw has pleaded sufficient facts to scrutinize the relationship
between CBM and the state. CBM holds the contract to provide a nutritionally
adequate diet at both MDSP and SDSP. Providing a nutritionally adequate diet
is a public function that has been traditionally the exclusive prerogative of the
state. Thus, the CBM defendants are fairly considered state actors for purposes
of § 1983 liability.

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B. Constitutional Violation
Shaw must also show that a constitutional right was violated in order to
satisfy the second element of a § 1983 claim. In the screening order, the court
found that Shaw stated a free exercise of religion claim arising under the First
Amendment and an Equal Protection claim arising under the Fourteenth
Amendment. Docket 7 at 26-29.
1. Equal Protection
In order to establish an equal protection claim, Shaw must show that he
is treated differently from similarly situated inmates and that the different
treatment is based upon either a suspect classification or a fundamental right.
Patel, 515 F.3d at 815. To assert an equal protection claim based on the
suspect classification of religion, an inmate must show that he is “denied a
reasonable opportunity to pursue [his] faith as compared to inmates of other
religions[.]” Runningbird v. Weber, 198 F. App’x. 576, 578 (8th Cir. 2006).
Shaw must also show that defendant’s conduct was “motivated by
intentional or purposeful discrimination.” Patel, 515 F.3d at 816 (citing Lewis
v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007); Phillips v. Norris, 320 F.3d 844,
848 (8th Cir. 2003)). “[P]rison officials may restrict the religious practices of
inmates only if such deprivation is necessary to further legitimate penological
interests.” Rouse v. Benson, 193 F.3d 936, 942 (8th Cir. 1999) (citation
omitted).
Defendants argue that Shaw failed to present evidence to suggest that
the CBM defendants acted with the necessary discriminatory purpose. Docket
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85 at 11. CBM defendants argue that Shaw’s allegations show that the CBM
defendants “tried to accommodate” Shaw’s religion by identifying compliant
commissary products. Id. But Shaw alleges that the CBM defendants “falsely
advertised [that] their commissary products are in compliance with Shaw’s
religious requests that they are a certain name-brand item and a certain
quality for an established price. CBM Employees then replace the name-brand
products with cheaper, generic, less quality products, that do not comply with
Shaw’s religious requests, increase the price for these cheaper products and
they do not post these changes” Docket 1 ¶¶ 112-13 (emphasis added). Shaw’s
allegations demonstrate a genuine issue of material fact as to whether CBM
defendants acted with intentional or purposeful discrimination.
2. Free Exercise
“[I]n making a free exercise claim under 42 U.S.C. § 1983, the inmate
must establish both the existence of a sincerely held religious belief and the
infringement upon that belief by the challenged act or regulation.” Hayes v.
Long, 72 F.3d 70, 73 (8th Cir. 1995) (emphasis added). Here, CBM defendants
again argue that Shaw failed to offer sufficient evidence to create a genuine
issue of material fact as to whether his ability to practice his religion was
substantially burdened. As determined above, Shaw sufficiently alleges CBM
defendants substantially burden his religious practice and no adequate
alternative currently exists. A genuine issue of material fact exists.

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Thus, it is ORDERED that CBM defendants’ motion for judgment on the
pleadings (Docket 85) is denied.
DATED this 27th day of March, 2019.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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