Gowers v. Haleen et al
Filing
75
MEMORANDUM DECISION granting 60 Motion for Summary Judgment. Signed by Judge Clark Waddoups on 04/04/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DAVID GOWERS,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
v.
Case No. 2:11-CV-111 CW
TAMMIE HALEEN et al.,
District Judge Clark Waddoups
Defendants.
Plaintiff, David Gowers, filed this pro se civil rights suit under 42 U.S.C. § 1983 while
incarcerated at the Central Utah Correctional Facility (CUCF). See 42 U.S.C.S. § 1983 (2013).
Plaintiff was allowed to proceed in forma pauperis. See 28 id. § 1915. The Court now considers
Defendants’ Motion for Summary Judgment.
ANALYSIS
I. Introduction
Plaintiff is an inmate in the custody of the Utah Department of Corrections (UDC) who
asserts that Defendants violated his rights under the First and Fourteenth Amendments by
interfering with his right to freely exercise his religion while at CUCF. Specifically, Plaintiff
alleges that Defendants barred him on multiple occasions from attending worship services and
other functions of The Church of Jesus Christ of Latter-day Saints (LDS) available to CUCF
inmates. Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages,
attorneys fees and costs.
On April 10, 2012, Defendants filed a Martinez Report addressing Plaintiff’s allegations,
along with declarations of numerous officers involved with Plaintiff’s claims.1 (Doc. Nos. 4151.) Defendants now move for summary judgment asserting that the evidence does not support
the conclusion that Plaintiff’s rights were violated, and even if Plaintiff could show a
constitutional violation Defendants are entitled to qualified immunity because the rights at issue
were not clearly established when the violations occurred.
II. Summary Judgement Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “One of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.” Cellotex v. Catrett, 477 U.S. 317, 324 (1986).
The party moving for summary judgment bears the initial burden of showing “that there is an
absence of evidence to support the non-moving party’s case.” Cellotex, 477 U.S. at 325. This
burden may be met merely by identifying portions of the record which show an absence of
evidence to support an essential element of the opposing party’s case. Johnson v. City of
Bountiful, 996 F. Supp 1100, 1102 (D. Utah 1998). Once the moving party satisfies its initial
burden, “the burden then shifts to the nonmoving party to make a showing sufficient to establish
that there is a genuine issue of material fact regarding the existence of [the disputed] element.”
Id. A fact in dispute is “material” only if it might affect the outcome of the suit under governing
1
In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), the Tenth Circuit approved the practice of
district courts ordering prison administrators to prepare a report to be included with the
pleadings in cases where an inmate alleges a constitutional violation by prison officials.
2
law. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). The dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A non-movant who “would bear the burden of persuasion at trial” must “go beyond the
pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of a trial
from which a rational trier of fact could find for the nonmovant.” Adler v. Wal-Mart Stores, 144
F.3d 664, 671 (10th Cir. 1998). Mere allegations and references to the pleadings will not suffice,
instead, the specific facts put forth by the non-movant “must be identified by reference to an
affidavit, a deposition transcript or a specific exhibit incorporated therein.” Thomas v. Wichita
Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Moreover, “the nonmovant’s
affidavits must be based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d
1106, 1111 (10th Cir. 1991). The court must “examine the factual record and reasonable
inferences therefrom in the light most favorable to the party opposing the motion.” Lopez v.
LeMaster, 172 F.3d 756, 759 (10th Cir. 1999).
III. Material Facts
The following facts form the basis for Plaintiff’s claims and Defendants’ summary
judgment motion.2
2
The facts presented here are drawn from Defendants’ Memorandum in Support of Motion for
Summary Judgment (Doc. No. 61) and Plaintiff’s Memorandum in Opposition (Doc. No. 64).
Although areas of disagreement are noted, as discussed below, these disputes are not deemed to
be genuine for purposes of resolving this motion.
3
Parties
1.
Plaintiff, David Karl Gowers, is an inmate at CUCF in Gunnison, Utah. (Compl.
(Doc. No. 5) at 1.)
2.
Tammie Haleen was, at all relevant times, a Corrections Officer at CUCF
assigned to the Boulder Programming Area. (Id. at 1–2 ¶ 3.) (Decl. of Tammie Haleen (“Haleen
Decl.”)(Doc. No. 44) at 1–2 ¶¶ 2-4.)
3.
Frank Estey was, at all relevant times, a Corrections Officer at CUCF assigned to
the Boulder Programming Area. (Compl. at 2 ¶ 4; Decl. of Frank Estey (“Estey Decl.”) (Doc.
No. 45), at 1-2, ¶¶ 2–4.)
4.
Captain Devon Blood was, at all relevant times, the Programming Captain at
CUCF assigned to the Boulder Programming Area. (Compl. at 2 ¶ 5; Decl. of Captain Devin
Blood (“Blood Decl.)(Doc. No. 59) at 2 ¶¶ 2–4).
5.
Lt. Vaun Christensen was, at all relevant times, the Programming Lieutenant over
the Boulder Programming Area at CUCF. (Compl. at 3 ¶ 6.)
6.
Heidi Johnson was, at all relevant times, a Correctional Specialist, or caseworker
assigned to Plaintiff at CUCF. (Id. at 4 ¶ 7; Decl. of Heidi Johnson (“Johnson Decl.”) (Doc. No.
46) at 2 ¶ 5.)
7.
Lt. Robert Painter was, at all relevant times, a correctional officer assigned to
CUCF with the rank of Lieutenant. (Compl. at 4 ¶ 8.)
8.
Captain Michael Allen was, at all relevant times, a corrections officer at CUCF
with the rank of captain. (Id. at 4 ¶ 9.)
4
9.
Doyle Cutler is employed at CUCF. (Id. at 4 ¶ 10.)
10.
Captain Melvin Coulter was, at all relevant times, the Grievance Coordinator at
CUCF with the rank of Captain. (Id. at 4 ¶ 11; Decl. of Mel Coulter (“Coulter Decl.”)(Doc. No.
48) at 1–2 ¶ 5). Captain Coulter was not a captain over Plaintiff’s housing unit at any relevant
time. (Id.)
11.
Captain Craig Balls is a Level 3 Grievance Hearing Officer at CUCF. (Id. at 4 ¶
12.
Captain Don Taylor is a corrections officer at CUCF with the rank of Captain
12.)
assigned to CUCF. (Id. at 4 ¶ 13.)
13.
Deputy Warden John Irons, was, at all relevant times, a Deputy Warden at CUCF.
(Compl. at 4.)
LDS Services at CUCF
14.
The Boulder Programming Area, to which Officers Halleen and Estey, Lieutenant
Christensen, and Captain Blood were assigned, is used to facilitate religious services–including
LDS religious services–for CUCF inmates. (E.g., Haleen Decl. at 2 ¶ 5; Blood Decl. at 2 ¶ 6).
15.
LDS religious services are typically held in the Boulder Programming Area each
Sunday according to the following schedule: 7:00-8:00 a.m. for choir practice; 8:00-9:00 a.m. for
church meeting; 9:00-10:00 a.m. for Sunday school; and 10:00-10:40 a.m. for organ and piano
practice. (E.g., Haleen Decl. at 2 ¶ 6; Blood Decl. at 2 ¶ 7.)
Plaintiff’s Response: Plaintiff asserts that the 10:00 a.m. hour is designated as
LDS Orientation/Interviews. (Pl.’s Opp’n Memo at 1.)
5
16.
At the start of the 10:00 a.m. hour, movement is called for inmates who are not
cleared for piano or organ practice to return to their housing units . (Blood Decl. at 2 ¶ 8.)
Plaintiff’s Response: Plaintiff contends that the entire block from 7:00-11:00 a.m.
is designated as “open attendance LDS services” for the general population and
does not require any additional approval/clearance besides general access to the
programming area. (Pl.’s Opp’n Memo at 2, 11 ¶ 1.)
17.
At the conclusion of LDS worship services at 10:00 a.m., security calls for all
inmates to return to their housing units, except those who are involved in the Boulder area choir
or are approved for piano and organ practice. (Blood Decl. at 3 ¶ 9.)
Plaintiff’s Response: Plaintiff asserts that the 10:00 a.m. movement is voluntary
and that all inmates are encouraged to stay and meet with missionaries, clergy, or
sing hymns in the chapel. (Pl.’s Opp’n Memo at 2, 12 ¶ 3.)
18.
All inmates are required to receive programming clearances from the
programming supervisors, who at all times relevant to Plaintiff’s Complaint, were Lt.
Christensen and Captain Blood. These clearances are necessary in order to participate in choir
practice, and organ or piano practice. (Blood Decl. at 3 ¶ 10.)
Plaintiff’s Response: Plaintiff denies that Sunday choir and organ or piano
practice requires additional approval from programming supervisors. Plaintiff
asserts that special approval is only required to participate in those activities on
days other than Sunday. (Pl.’s Opp’n Memo at 3.)
6
19.
The programming supervisors provide security with a list of inmates who have
been given clearance to attend choir practice. Also, prior to Sunday, a typewritten list of inmates
who are cleared to practice piano and/or organ (“Organ and Piano List for Bishops for Services”)
is provided to the security office. (Blood Decl. at 3 ¶ 11.)
Plaintiff’s Response: Plaintiff contends that the 7:00 a.m. choir practice on
Sundays is open attendance and there is no list of enrollment. (Pl.’s Opp’n Memo
at 3.)
20.
Changes, additions or corrections to the clearance list are typed and computer-
generated by the programming supervisors, not handwritten. (Blood Decl. at 3 ¶ 12.)
21.
Lists of inmates who are suspended from the Boulder Programming Area are also
posted around the programming office. Officers understand that these suspension lists are
updated weekly. (Estey Decl. at 2–3 ¶¶ 9–10.)
Plaintiff’s Access to LDS Group Services in the Boulder Programming Area
22.
On or about April 15, 2010, Plaintiff was given a thirty-day suspension from the
programming area for possession of an altered item of personal property. (Compl. at 6 & Ex. A;
see also C-Notes USP-000005, Martinez Report, Ex. A; Disciplinary History, USP-000054,
Martinez Report, Ex. D; Incident Reports, USP-0047, Martinez Report, Ex. C.)
23.
Plaintiff was released from the suspension following an Offender Management
Review (OMR) on May 18, 2010. (Johnson Decl. at 2 ¶¶ 6–8.)
24.
Plaintiff alleges that on May 23, 2010, he tried to attend LDS services in the
Boulder Programming Area, but was denied by “program security.” (Compl. at 6.)
7
25.
Because the suspension lists are updated weekly, and because of her work
schedule, Officer Haleen’s first knowledge that Plaintiff’s thirty-day suspension was lifted was
on Tuesday, May 25, 2010. (Haleen Decl. at 3 ¶¶ 13-14.) Additionally, Officer Haleen was not
working on May 23, 2010 and could not have denied Plaintiff any access to the Boulder
Programming Area that day. (Id. ¶ 16 & Martinez Report, Ex. E, USP000056.)
Plaintiff’s Response: Plaintiff does not dispute that it was someone other than
Haleen who denied him access on this date. (Pl.’s Opp’n Memo at 3.)
26.
Plaintiff alleges that, on or about July 4, 2010, Officer Haleen sent another inmate
to tell Plaintiff that he could not attend LDS services or the “fireside” meeting. (Compl. at 6 ¶
3.)
27.
Officer Haleen was not working on Sunday, July 4, 2010, and thus could not have
denied Plaintiff any access to the Boulder Programming Area, nor instructed any inmate to deny
Plaintiff access to the area on that day. (Id. at 3–4 ¶ 17 & Martinez Report, Ex. E, at
USP0000059.)
Plaintiff’s Response: Plaintiff states that the actual date of this incident may have
been June 27, 2010, rather than July 4, 2010. (Pl.’s Opp’n Memo at 4.)
28.
On July 11, 2010, Plaintiff was playing the organ in the Boulder Programming
Area at approximately 10:10 a.m., after the conclusion of LDS services. (Haleen Decl. at 4 ¶ 18;
Incident Report, Martinez Report, Ex. C, at USP000050; Haleen Decl. at 2 ¶ 6.) Officer Haleen
interrupted Plaintiff’s playing because he had not been included on the typewritten list of
inmates cleared to play the organ. (Id.; see also Compl. at 6 & Ex. B.; Blood Decl. at 3 ¶¶
8
10–11.) Plaintiff claimed that a volunteer had added his name in pencil, and that his case worker
had approved the privilege. (Compl. at 6 & Ex. B; Incident Report, at USP000050.) Based on
her understanding that permission to play the organ must be received from the programming
office, and that the cleared list is normally typewritten, (see, e.g., Blood Decl. at 3 ¶¶ 10–12),
Haleen sent an email to Plaintiff’s case worker, Heidi Johnson, to confirm Plaintiff’s story.
Johnson responded that Plaintiff was not authorized to play the organ. (Haleen Decl. at 4 ¶ 20;
Incident Report, at USP000050.)
Plaintiff’s Response: Plaintiff asserts that October, 19, 2010, was the first time he
was officially restricted from playing the piano or organ. Plaintiff also asserts
that at the time of the incident Haleen did not have the modified list, which was
not produced until later. (Pl.’s Opp’n Memo at 4-5.)
29.
Haleen wrote an Administrative Incident Report describing Plaintiff’s conduct
and actions. (Incident Report, Martinez Report, Ex. C, at USP000048–50). Because Plaintiff
was not authorized to play the organ, he was considered “out of bounds.” Haleen further noted
that Plaintiff had lied to her. (Id.)
30.
Based on the Incident Report, Plaintiff underwent an OMR and inmate Case
Action Plan (CAP) conference which resulted in Plaintiff receiving a ninety-day suspension from
all programming, education, and library privileges for being out of bounds. (Johnson Decl. at 3 ¶
9; Blood Decl at 3 ¶ 13; C-Notes, Martinez Report, Ex. A, at USP-000004–05.) Plaintiff
requested during another OMR one week later, and again in September 2010, to be allowed to
9
attend religious services, but because the suspension was still in place, his requests were denied.
(Johnson Decl. at 3 ¶¶ 10–11; C-Notes, Martinez Report, Ex. A, at USP-000004.)
Plaintiff’s Response: Plaintiff asserts that during this OMR he presented
evidence showing that he was on the organ/piano list and was actually cleared for
programming at the time of the incident, but his arguments were rejected. (Pl.’s
Opp’n Memo at 10.)
31.
On or about October 19, 2010, Plaintiff had another OMR in which his
suspension was lifted and he was given permission to return to programming, including religious
services. Plaintiff was informed, however, that he was not allowed to play the organ or piano
without further permission from Captain Blood, and that he was only approved to attend services
until the next quarter began. (Johnson Decl. at 3 ¶ 12; C-Notes, Martinez Report, Ex. A, at
USP-000004.)
32.
Officer Haleen was at work on October 19, 2010, and Friday, October 22, 2010,
and did not return to work until Sunday, October 24, 2010. (Haleen Decl. at 5 ¶ 24; Work
records, Martinez Report, Ex. E, at USP000064.)
33.
On Sunday, October 24, 2010, Officer Haleen refused to allow Plaintiff to attend
worship services. Due to her work schedule Officer Haleen was not aware that Plaintiff’s
suspension had been lifted. (Haleen Decl. at 5 ¶ 25.) Officer Haleen states that, had she known
about the change, she would have allowed Plaintiff to attend. (Id.)
34.
On November 21, 2010, after LDS worship services concluded at 10:00 a.m.,
Plaintiff remained in the Boulder Programming Area. Plaintiff was told to leave the area, but he
10
refused. (Haleen Decl. at 5 ¶ 26.) Plaintiff first stated that he was attending choir practice and
then stated that he was waiting to see the bishop. However, Plaintiff did not have permission to
stay for choir and Plaintiff did not follow proper procedures for a bishop visit. (Haleen Decl. at
5 ¶ 27.) Plaintiff eventually left the area and Haleen entered a negative C-Note in Plaintiff’s
records for lingering and arguing with an officer. (Haleen Decl. at 6 ¶ 28.)
Plaintiff’s Response: Plaintiff denies that worship services conclude at 10:00
a.m. or that he refused to leave as directed. Plaintiff states that he was standing
outside the office waiting to see the bishop. (Pl.’s Opp’n Memo at 5-6.) Plaintiff
further asserts that bishop interviews can be arranged in any of three ways: by
signing up on the attendance roll, by making a verbal appointment directly with
clergy, or by simply staying for the hymnal sing-along and waiting for an
opening. (Pl.’s Opp’n Memo at 12 ¶ 4.)
35.
One week later, on November 28, 2010, Plaintiff again lingered in the Boulder
Programming Area after LDS worship services concluded. When Officer Haleen told Plaintiff to
return to his housing unit, Plaintiff argued that his case worker had authorized him to remain
after LDS services to play piano and sing. (Haleen Decl. at 6 ¶ 29.) Plaintiff was informed that
he had not received permission from programming security (Captain Blood) to remain after
services had concluded or to play the piano. (Id. ¶ 30.) Officer Haleen entered another negative
C- Note in Plaintiff’s records. (Id. ¶ 31; C-Notes, Martinez report, Ex. A, at USP000003.)
Plaintiff’s Response: Plaintiff contends that he was not “lingering” but was
seated in the chapel participating in hymnal sing-along when he was confronted.
11
Plaintiff also asserts that the lifting of his suspension on October 19, 2010,
authorized him to remain during this time. (Pl.’s Opp’n Memo at 6-7.)
36.
On the following Sunday, December 5, 2010, Officer Estey was involved in
moving inmates to and from LDS services and auxiliary programming in the Boulder
Programming Area. Estey called for inmates approved to participate in choir practice to come to
the chapel at 7:00 a.m.. (Estey Decl. at 3 ¶ 11.) Plaintiff, who was not cleared to come to the
chapel for choir practice, was in the hallway. Officer Estey instructed Plaintiff to return to his
housing unit and reminded him that he had not been approved to attend choir and was not
authorized to be in the Boulder Programming Area until 8:00 a.m. for LDS worship services.
(Id.) Plaintiff was allowed to attend the services at 8:00 a.m. (Id. at 3 ¶ 12.)
Plaintiff’s Response: Plaintiff denies that the 7:00 a.m. meeting was “auxiliary
programming” which required additional authorization. (Pl.’s Opp’n Memo at 8.)
37.
On December 5, 2010, at 10:00 a.m., after the conclusion of LDS services,
Officer Estey called for movement to have all inmates return to their housing units. The only
inmates allowed to remain were the Boulder area choir inmates and those inmates with approval
for piano and organ practice, who are called for movement back to their housing units at 10:40
a.m. (Id. at 3 ¶¶ 14-15.) When Officer Estey moved the choir members at 10:40 a.m., he
discovered that Plaintiff was attending choir practice without authorization. (Id. at 3–4, ¶¶
15–18.)
12
Plaintiff’s Response: Plaintiff reiterates his belief that this meeting was open to
any inmate allowed in the programming area who wanted to stay and participate.
(Pl.’s Opp’n Memo at 8-10.)
38.
As a result of the December 5, 2010, incident, Officer Estey filed an incident
report asserting that Plaintiff was out of bounds. Plaintiff was initially suspended from all
programming and education for sixty days. (Id. at 4 ¶ 18; Ex. C at USP000051).
39.
However, on December 6, 2010, Plaintiff had another OMR and CAP meeting in
which his suspension was increased to one-year, with reviews to be held every ninety days,
based on Plaintiff’s repeated failures to follow officers’ instructions and being out of bounds.
(Johnson Decl. at 3–4 ¶¶ 13; Ex. A at USP000003, Ex. C at USP 000051–53.) As an alternative
to attending LDS services, Plaintiff was allowed to have up to ten religious books in his cell and
could request a meeting with an LDS bishop by registering his request with the proper
programming staff. (Coulter Decl. at 4 ¶ 17.)
Plaintiff’s Response: Plaintiff asserts that during this suspension he was also
excluded from the library and was unable to receive books directly from clergy.
Plaintiff further asserts that Defendants failed to properly review his suspension
regularly. (Pl.’s Opp’n Memo at 9-10.)
Plaintiff’s Grievances and Alleged Damages
40.
Plaintiff filed prison grievances regarding various elements of his encounters with
staff and his desire to attend LDS worship services and auxiliary programming, and those
grievances were addressed. (Coulter Decl. at 1–5, ¶¶ 7–22.)
13
41.
Plaintiff alleges that as part of his punishment for unauthorized participation in
choir practice he was “sent to solitary confinement.” However, Plaintiff’s Offender Physical
Location History indicates that he was housed in the same cell and bed from January 10, 2009,
until December 6, 2010. (Blood Decl. at 5 ¶ 22; Offender Physical Location History,
USP000055, attached to Amended Martinez Report.) This cell is not solitary confinement. (Id.)
Plaintiff was moved to a similar cell on December 6 which also was not solitary confinement.
(Id.)
Plaintiff’s Response: Plaintiff asserts that the housing section he was moved to
on December 6, 2010, “is considered by inmates” to be like solitary confinement,
given the strict conditions there. (Pl.’s Opp’n Memo at 9.)
42.
Plaintiff alleges that, as a result of being denied access to worship services and
auxiliary programming, on or about September 7, 2010, he suffered complete mental breakdown,
became suicidal, was removed from housing and treated for marking his face. (Compl. at 15.)
Plaintiff also states that he experienced physical symptoms from stress due to the lack of
programming. (Id.) However, records show that Plaintiff was not removed from housing in
September 2010. (Offender Physical Location History, at USP000055). Plaintiff’s medical
records show that, although he mentioned suicide, his treating physicians found no potential for
self-harm (Gowers Medical 000014, Ex. to Decl. of Renee Springman) and was provided only
fish oil (Gowers Medical 000010–13). The fish oil was later discontinued as unnecessary and
there was no diagnosis of depression. (Id.)
14
IV. Legal Standard for Free Exercise Claims
It is well established that “convicted prisoners do not forfeit all constitutional protections
by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545
(1979). “Inmates clearly retain protections afforded by the First Amendment, Pell v. Procunier,
417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974), including its directive that no law shall prohibit
the free exercise of religion.” Id. However, it is also well established that “[l]awful
incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.” Id. “[L]imitations on the
exercise of constitutional rights arise both from the fact of incarceration and from valid
penological objectives, including deterrence of crime, rehabilitation of prisoners, and
institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court established the framework for
evaluating the validity of prison regulations that restrict inmates’ free exercise rights.3 Under
Turner, such restrictions are constitutional if they are “reasonably related” to legitimate
penological interests. Id. at 89. The Turner court identified four factors relevant to the
reasonableness determination, which the Tenth Circuit has summarized as follows:
First, the court considers whether there is a logical connection
between the prison regulation and the asserted penological interest.
Second, the court considers whether alternative means of exercising
3
The Tenth Circuit has recognized that the Turner framework also applies to individual actions
or decisions that interfere with an inmate’s religious exercise. See Boles v. Neet, 486 F.3d 1177,
1181 n. 4 (10th Cir. 2007) (“‘individualized decision to deny a prisoner the ability to engage in
religious exercise is analyzed in the same way as a prison regulation denying such exercise’”
(quoting Salahuddin v. Goord, 467 F.3d 263, 274 n. 4 (2d Cir. 2006)).
15
the religious right in question remain open to inmates. Third, the
court assesses the impact the accommodation of the right in question
would have on guards, other inmates, and on the allocation of prison
resources. Fourth, the court considers whether any policy
alternatives exist that would accommodate the right in question at de
minimis cost to the prison.
Hammons v. Saffle, 348 F.3d 1250, 1255 (10th Cir. 2003) (internal citations omitted).
In applying Turner’s “reasonable basis” test, courts must give appropriate deference to
the expertise of prison authorities. Turner, 482 U.S. at 84. However, “a reasonableness standard
is not toothless” and deference is not a rubber stamp; thus, before acceding to the judgment and
discretion of prison administrators, a court should have evidence that their judgment and
discretion have been exercised. Abbott v. Thornburgh, 490 U.S. 401, 414 (1989). Because the
reasonable basis test is designed to allow prison administrators to “anticipate security problems,”
officials can establish a valid, rational connection based on their past experience and intimate
knowledge of institutional safety concerns. Id. An asserted justification must be accepted unless
it is “so remote as to render the regulation arbitrary or irrational.” Turner, 482 U.S. at 89.
“[T]he absence of ready alternatives is evidence of the reasonableness of a prison regulation . . .
[while] the existence of obvious, easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at 89-91.
V. Sufficiency of Plaintiff’s First Amendment Claims
Plaintiff’s claims fall into three categories: (1) denial of participation in auxiliary
religious activities such as choir, piano or organ practice; (2) random exclusion from worship
services despite having authorization to be in the programming area; and, (3) long-term
16
suspension from all activities in the programming area, including worship services, for
disciplinary reasons. The Court will address each of these categories of claims in turn.
A. Auxiliary Activities
To support a First Amendment free exercise claim, Plaintiff must present evidence
showing that Defendants imposed a substantial burden on his sincerely held religious beliefs.
See Boles, 486 F.3d at 1182. Although Plaintiff generally asserts that he is constitutionally
entitled to attend “every worship service available at CUCF” (Pl.’s Opp’n Memo at 25 ¶ 32), he
has not presented any evidence showing that being excluded from auxiliary activities such as
choir, piano/organ practice, or “hymnal sing-alongs,” imposed a substantial burden on his
religious exercise. The mere fact that these activities are administered by religious volunteers
and are associated with LDS religious services is not sufficient to support the conclusion that
they are actually part of Plaintiff’s religious observance. Moreover, Defendants have presented
ample evidence showing that these auxiliary activities are not part of LDS worship services, but
are special privileges similar to educational or vocational programs requiring separate
authorization. (See Second Blood Decl. ¶¶ 15-16, 25.) Other than his own general statements to
the contrary, Plaintiff has not submitted any evidence to refute this position or create a genuine
issue of fact.
More importantly, even assuming that participation in these activities could be
considered part of Plaintiff’s religious observance, the record shows that the restrictions imposed
on Plaintiff’s participation in these activities were rationally related to legitimate penological
objectives. As discussed in greater detail below (see Part V, § C), safety and security concerns
17
mandate that officials be able to closely monitor and, if necessary, restrict participation in such
group activities. Moreover, the record shows that allowing participation in LDS worship
services is a meaningful alternative to participating in these auxiliary activities. For instance,
Plaintiff does not deny that he has opportunities to sing hymns and even join with the choir
during worship services.4 Finally, Plaintiff has not shown any alternatives that would better
facilitate his participation in these activities at de minimis cost or with minimal impact on guards,
other inmates, or prison resources.
Thus, Defendants are entitled to summary judgment on Plaintiff’s claims regarding denial
of access to auxiliary activities such as choir, piano/organ practice, or hymnal sing-alongs.
B. Random Exclusions from Worship Services
Plaintiff alleges that on several occasions he was excluded from worship services despite
having authorization to access the Boulder Programming Area. Specifically, the record shows
that on May 23, 2010 and October 24, 2010, Defendant Haleen or other “program security”
prohibited him from attending worship services based on incorrect information about his
suspensions.5 These incidents both occurred following Plaintiff’s suspensions from the
programming area for disciplinary reasons. The record shows that in each of these instances the
4
It is not clear whether Plaintiff may play the piano or organ during worship services without
special authorization. However, even if doing so could be considered part of Plaintiff’s religious
observance, this activity obviously cannot be fully accommodated in a prison setting.
5
Plaintiff also cites another incident that occurred on either June 27 or July 4, 2010, however, in
that incident it appears Plaintiff was allowed to attend worship services, but was told to leave
following conclusion of Sunday school at 10:00 a.m.. (Compl. at 6, ¶ 3.) As discussed
previously, exclusion from such auxiliary activities does not violate the First Amendment.
18
officers who excluded Plaintiff were unaware, due to communication errors, that Plaintiff’s
suspensions had recently been lifted. While Plaintiff concedes that these incidents may have
resulted from simple communication problems, he contends that the officers involved were
negligent in failing to update or check the relevant lists, thereby violating his religious rights.
Even assuming that the officers involved were negligent in excluding Plaintiff from
worship services in each of these instances, such mistakes cannot support a First Amendment
claim. In Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009), the Tenth Circuit rejected an
inmate’s claim that he was unconstitutionally denied religious meals due to prison officials’
untimely processing of his meal requests. The Court held that such “isolated acts of negligence .
. . would not violate an inmate’s First Amendment right to free exercise of religion.” Id. at 1070
(citing White v. Glantz, 986 F.2d 1431 (Table), 1993 WL 53098, at *2 (10th Cir. Feb. 25, 1993).
Instead, the plaintiff was required to show a “‘conscious or intentional interference with his free
exercise rights’” Id. (quoting Lovelace v. Lee, 472 F.3d 174, 201 (4th Cir. 2006)). Plaintiff has
not made such a showing here.
Because the record shows that the random exclusions from worship services cited by
Plaintiff were isolated acts, rather than conscious or intentional interference with his free
exercise rights, Defendants are entitled to summary judgment on these claims.
C. Programming Suspensions
Plaintiff’s remaining claims stem from his suspensions from the Boulder Programming
Area for disciplinary reasons. The record shows that from April 15, 2010, through May 18,
2010, July through October 2010, and for one year starting in December 2010, Plaintiff was
19
excluded entirely from the programming area, which prevented him from attending group
worship services and auxiliary programs. Defendants do not dispute that these suspensions
imposed a substantial burden on Plaintiff’s right to exercise his religion, however, they contend
that the suspensions were reasonably related to legitimate penological interests, as shown by
analysis of the four Turner factors discussed below.
i. Rational Connection
Addressing the first Turner factor, Defendants have presented evidence showing a
rational connection between Plaintiff’s suspensions and the legitimate penological objective of
maintaining institutional safety and security. The record shows that each of Plaintiff’s
progressively longer suspensions were precipitated by his repeated violations of prison rules or
failures to follow orders or comply with programming area regulations. In the first incident,
Plaintiff received a thirty-day suspension from the programming area after being found in
possession of contraband. Plaintiff does not dispute the basis for this suspension, and it goes
without saying that discouraging possession of contraband is rationally related to promoting
institutional safety and security. In the second incident, Plaintiff received a ninety-day
suspension after being formally disciplined for being out of bounds based on playing the piano
or organ without approval and for lying to officers. This suspension was imposed following an
OMR hearing in which several officials concurred with the findings and the suspension decision.
Finally, in the two-month period after his ninety-day suspension was lifted, Plaintiff was again
involved in several more incidents in which he failed to comply with programming rules, argued
with officers about his actions, and was found to be out of bounds. Based on these repeated
20
incidents, which began almost immediately after his previous suspension was lifted, Plaintiff
received a one-year suspension from the programming area. This suspension was also imposed
following an OMR hearing in which officers reviewed the evidence and determined that the
suspension was appropriate based on Plaintiff’s behavior and history.
Plaintiff seeks to invalidate the suspensions by disagreeing with the rules and
interpretation of the facts surrounding each of the incidents where he was reprimanded.
However, because there was clearly evidence to support each of the reprimands, the underlying
facts are largely immaterial for determining whether Plaintiff’s suspensions were reasonably
related to legitimate penological objectives. While Plaintiff believes that some officers were
unduly strict in enforcing programming area regulations, Plaintiff has not presented any evidence
showing that Defendants unfairly singled him out or enforced the regulations against him in a
discriminatory or retaliatory manner. Although the record shows that officers may have paid
closer attention to Plaintiff than to other inmates, such attention was justified based on Plaintiff’s
pattern of misconduct and the need to ensure security in the programming area. It was this
pattern of misconduct that led officers to believe that restrictions and escalating suspensions
were necessary to ensure Plaintiff’s strict compliance with programming area regulations.
Plaintiff also appears to challenge the suspensions by arguing that, given the religious
implications of programming area activities, prison officials cannot use restrictions from these
activities as a form of punishment. Plaintiff essentially argues that inmates approved to access
the programming area should be free to participate in any activities they choose, and that specific
restrictions on participation cannot be imposed by corrections officials, but are left to the
21
discretion of religious volunteers. Hence, Plaintiff’s apparent rejection of the notion that special
approval may be required for Sunday activities other than worship services (i.e. choir,
piano/organ practice, bishop interviews, “fireside” meetings, etc.). Plaintiff has not offered any
legal support for this assertion, which clearly runs contrary to established law. Under Turner,
such restrictions are valid so long as they are reasonably related to the legitimate penological
objectives at issue. Thus, the relevant question here is not whether each of the reprimands
Plaintiff received were warranted, but whether the restrictions and suspensions imposed upon
him were rationally related to legitimate penological objectives.
The record shows that the restrictions and suspensions here were not punitive, but were
directly tied to maintaining safety and security in the programming area and ensuring Plaintiff’s
compliance with rules and regulations governing participation. Despite Plaintiff’s explanations
for his conduct, the record shows that Plaintiff repeatedly abused his programming privileges
and challenged the authority of officers responsible for maintaining program security. Plaintiff’s
pattern of behavior shows that he did not appreciate the seriousness with which prison officials
viewed the numerous reprimands he received and, instead, confronted the officers with
overstepping their bounds by interfering with his religious observance. Under these
circumstances it was within Defendants’ discretion to place progressively more severe
restrictions on Plaintiff’s access to the programming area, including imposing escalating
suspensions, in order to ensure Plaintiff’s full compliance. On the record presented it appears
that prison officials may have allowed some uncertainty about which activities required
preapproval for attendance. Plaintiff repeatedly asserts an understanding that is different from
22
the sworn statements of Defendants, who do not offer any written policy statements, postings or
written notices to support their assertions. Thus, prison management may have contributed to
confusion that resulted in Plaintiff “lingering” to sing or play the piano or organ after he should
have returned to his cell. This conduct, however, persisted after Plaintiff had been told several
times he needed clearance, thus supporting the prison officials’ judgment that additional
restrictions were required to address Plaintiff’s disregard for the rules. It also appears on distant
review that the punishment imposed was unnecessarily harsh for the nature of the offenses.
Nevertheless, the nature and type of discipline imposed, within reason, is left to the sound
discretion of prison officials. They are charged with maintaining security under the conditions in
the programming area, where large numbers of inmates have direct interaction with each other
and with outside volunteers under limited supervision. They are in the best position to make
judgments about the nature and type of discipline required. Nothing on this record supports a
claim that their exercise of discretion in this exceeded the authority given to them.
Thus, the Court finds that the first Turner factor weighs heavily in Defendants’ favor.
ii. Alternatives for Practicing Religion
The second Turner factor requires the Court to consider whether Plaintiff had
alternative means of exercising his religion during the time he was suspended from participating
in group worship services. Defendants assert that throughout Plaintiff’s suspensions he was able
to exercise his religion through access to religious books and visits with clergy members.
Plaintiff argues that he was denied meaningful alternatives because his access to religious books
was limited and many of his requests for clergy visits were ignored or denied.
23
Regarding access to religious books, the record shows that Plaintiff was allowed to have
up to ten books in his cell at all times, including religious books of his choice. Although
Plaintiff admits having access to religious books, he states that he was unable to borrow library
books following his transfer to Section 6 and was also prevented from receiving books directly
from clergy. Even accepting these allegations as true, it is undisputed that Plaintiff could obtain
religious books through official channels and that he was able to continue his religious studies
during his suspensions. Moreover, Plaintiff has not identified any specific books necessary to
his religious observance that were denied to him.
Similarly, Plaintiff has not alleged facts or presented admissible evidence showing that
he was prohibited from visiting with clergy while suspended from group worship services. In his
opposition memorandum Plaintiff states for the first time that he was denied such visits and
includes a list of his “unsuccessful requests to meet with an LDS bishop” during his one-year
suspension. (Pl.’s Opp’n Memo at 23.) Although Plaintiff cites instances where his requests for
clergy visits–mostly through informal channels–were unsuccessful, he admits to receiving at
least two such visits during his suspension. Moreover, Plaintiff’s Complaint does not assert a
separate claim based on denial of clergy visits, but focuses exclusively on his suspension from
group religious services.
Thus, the records shows that Plaintiff was afforded alternative means of exercising his
religion while suspended from group worship services.
24
iii. Third and Fourth Turner Factors
Because Plaintiff’s claims stem from the decision to restrict him from the programming
area for safety and security reasons, rather than from a generally applicable policy or practice,
the remaining Turner factors have limited relevance here. However, to the extent they apply to
Plaintiff’s claims, these factors also support the conclusion that Plaintiff’s suspensions pass
muster under Turner.
Regarding the third Turner factor, there is no evidence that Plaintiff’s right to participate
in group worship services could have been better accommodated without undermining the
legitimate objective of ensuring Plaintiff’s compliance with programming area regulations. As
previously discussed, the decision to suspend Plaintiff from these activities was not an
unreasoned, punitive reaction, but was made only after Plaintiff repeatedly abused his
programming privileges and challenged the authority of programming officers. Defendants
initially tried to correct Plaintiff’s behavior by restricting him only from auxiliary activities,
while still allowing him to attend worship services. However, given the large number of inmates
involved, the limited staff available, and Plaintiff’s continued misconduct, this less-restrictive
alternative proved inadequate and unworkable. Notably, Plaintiff has not presented any less
restrictive alternative that could have been pursued; instead, he continues to assert that any
restriction at all on his access to the programming area violates his rights under the First
Amendment. (Pl.’s Opp’n Memo at 25 ¶ 32.) Under these circumstances, it is apparent that any
effort to further accommodate Plaintiff would have significantly impacted guards, other inmates,
and the allocation of prison resources.
25
Similarly, Plaintiff has not shown that any policy alternatives existed that would have
accommodated his right to attend group worship services at de minimis cost to the prison.
Although the prison presumably could have provided a personal chaperone for Plaintiff, or
perhaps significantly increased the number of staff tasked with monitoring services and ensuring
Plaintiff’s compliance with programming rules, such alternatives obviously would have had a
substantial impact on prison resources.
Thus, consideration of the third and fourth Turner factors also supports the conclusion
that Plaintiff’s suspensions were reasonable under the First Amendment.
VI. Conclusion
Having throughly reviewed the substantial record in this case, the Court finds that
Plaintiff has not met his burden of showing any genuine issues of material fact requiring a trial.
The facts Plaintiff offers to suggest a dispute are either usupported or supported only by
Plaintiff’s conclusory assertions. Other facts Plaintiff cites to raise a genuine issue are not
material, meaning the court would be required to reach the same conclusion even if the facts
were accepted as true. The evidence here does not support the conclusion that Plaintiff’s First
Amendment right to exercise his religion was violated. Instead, the record shows that any
infringement of Plaintiff’s religious rights was reasonably related to legitimate penological
objectives as required under controlling Supreme Court precedent. See Turner, 482 U.S. at 89.
Because Plaintiff has not shown a constitutional violation, there is no need to address the issue of
qualified immunity, and Defendants are entitled to summary judgment on Plaintiff’s claims.
26
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motion for Summary Judgment (Doc. No. 60) is GRANTED; and,
(2) this case is CLOSED.
DATED this 4th day of April, 2013.
BY THE COURT:
____________________________________
CLARK WADDOUPS
United States District Judge
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?