Leishman v. Patterson et al

Filing 80

MEMORANDUM DECISION and ORDER denying 44 Motion for Summary Judgment; granting 49 Motion for Partial Summary Judgment; granting 63 Motion for Partial Summary Judgment. Signed by Judge Clark Waddoups on 05/20/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH CENTRAL DIVISION
PHILLIP M. LEISHMAN,
Plaintiff,

MEMORANDUM DECISION & ORDER
Case No. 2:11-cv-00309 CW

v.
Judge Clark Waddoups
TOM PATTERSON et al.,
Defendants.
Plaintiff, Phillip M. Leishman, an inmate at Utah State Prison (the “Prison”), filed this
pro se civil-rights suit. See 42 U.S.C.S. § 1983 (2014). At the court’s request, Defendants filed a
Martinez report addressing Plaintiff’s allegations. (Dkt. No. 48.) At the same time, Defendants
filed a Motion for Partial Summary Judgment and Supporting Memorandum on Plaintiff’s claims
regarding wooden runes. (Dkt. Nos. 49 & 50.) Defendants later supplemented the Martinez
report, (Dkt. Nos. 56–62), and filed another Motion for Partial Summary Judgment that
addressed Plaintiff’s claims about group worship, (Dkt. No. 63). Both motions are now fully
briefed and before the Court.
I. INTRODUCTION
Plaintiff is an adherent of the “ancient Norse Spiritual tradition known as Asatru, (also
Odinism).” (Compl., ¶ 4, Dkt. No. 6.) His Complaint asserts claims under §§11 1983 and 1985,
the First and Fourteenth Amendments, and the Religious Land Use and Institutionalized Persons
Act of 2000 (the “Religious Land Act”), based on alleged interference with his right to exercise
freely his religion. Specifically, he alleges that Defendants infringed on his religious rights by

denying his requests for rune sets made of a natural substance, such as wood, and the possibility
of conducting Blot ceremonies. Plaintiff also asserts an Equal Protection claim that Defendants
have allowed other inmates of different religions to possess items similar to the rune sets and to
conduct worship services.
Plaintiff’s Complaint names Defendants in both their individual and official capacities
and seeks declaratory and injunctive relief, compensatory and punitive damages and costs.
Defendants move for summary judgment on each of Plaintiff’s claims, asserting they
have lawfully accommodated Plaintiff’s religious practices while taking into account the nature
of the requested materials and activities, overall prison security, and the safety of inmates and
staff. Defendants further assert that even if Plaintiff could show a constitutional violation
Defendants are entitled to qualified immunity because the rights at issue were not clearly
established at the time of the alleged acts. Plaintiff argues against each of Defendants’ points.
II. FACTS1
1.

Plaintiff, Phillip Leishman, is an inmate in the custody of Utah Department of

Corrections (DOC), and is currently housed at the Prison.
2.

Plaintiff is an adherent of the Asatru religion.

3.

Prison policy allows inmates to possess rune cards made of paper or plastic. (Decl. Craig

Burr, Ex. 1 to Martinez Report, ¶ 6, Dkt. No. 48-1.) The cards are similar to playing cards. (Id.)
4.

Prison policy also allows inmates to have “one approved religious symbol in their

possession.” (See FDr 14, “Inmate Property,” Ex. 3 to Martinez Report, Dkt. No. 48-3.) The
symbol must comply with the Inmate Property Matrix, with certain exceptions. (Id.)
1

The material facts presented here are drawn from Defendants’ Motions for Partial Summary
Judgment (Dkt. Nos. 50, 63).
2

5.

Plaintiff requested wooden rune tiles. (Compl., ¶ 21, Dkt. No. 6.) Plaintiff believes that

“[n]o synthetic substitute can retain [the energies and divinity of Life].” (Id.)
6.

Plaintiff was offered a rune set made from synthetic material and he declined the offer.

(Compl., ¶ 28, Dkt. No. 6.)
7.

Plaintiff has not been able to conduct a religious Blot ceremony for more than ten years.

(Compl., ¶ 22, Dkt. No. 6.)
III. SUMMARY JUDGMENT STANDARD
“The Court shall grant summary judgment 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). The movant, asserting there is no genuine dispute about material facts, must
support his assertion “by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . ., admissions, interrogatory answers, or other materials; or . . . showing that . . . an adverse
party cannot produce admissible evidence to support the fact.” Id. 56(c). A main purpose of the
summary-judgment rule “is to isolate and dispose of factually unsupported claims or defenses.”
Celotex v. Catrett, 477 U.S. 317, 324 (1986). The party moving for summary judgment has the
initial burden of showing “that there is an absence of evidence to support the non-moving party’s
case.” Id. at 325. This burden may be met merely by identifying portions of the record showing
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

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material fact regarding the existence of [the disputed] element.” Id. Federal Rule of Civil
Procedure 56 requires a nonmovant “that would bear the burden of persuasion at trial” to “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. WalMart Stores, 144 F.3d 664, 671 (10th Cir. 1998). The specific facts put forth by the nonmovant
“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). Mere allegations and references to the pleadings will not suffice. The nonmovant must
cite to materials that would be admissible at trial to create a material issue of fact. Fed. R. Civ.
P. 56(c). The court, however, 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).
IV. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Defendants move for summary judgment on each of Plaintiff’s claims, asserting that
Plaintiff has not presented sufficient evidence to show a constitutional violation or a Religious
Land Act violation. Defendants further assert that even if Plaintiff can show a constitutional
violation, they are entitled to qualified immunity because the relevant standards were not clearly
established at the time of the alleged violations. After explaining the relevant legal standard, the
court will address each of Plaintiff’s claims.
A.

FIRST AMENDMENT STANDARD
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

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(1979). For instance, inmates keep First Amendment protections, including free exercise of
religion. Id. (citing Pell v. Procunier, 417 U.S. 817, 822 (1974). It is also well established,
however, 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. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948). “[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. Under
Turner, such restrictions may be upheld only if they are “reasonably related to legitimate
penological interests.” Id. at 89. Turner identifies 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 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).
When applying Turner’s “reasonable basis” test, courts must give appropriate deference
to the expertise of prison authorities. Turner, 482 U.S. 78, 84-85. However, “‘a reasonableness
standard is not toothless’” and deference is not a rubber stamp; so, before bowing to the
judgment and discretion of prison officials, a court should have evidence that the officials’
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judgment and discretion have been carried out. Thornburgh v, Abbott, 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. Turner, 482 U.S. 78, 89. An
asserted justification must be accepted unless it is “so remote as to render the regulation arbitrary
or irrational.” Id. at 89-90. “[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. 78, 89-90.
B.

RELIGIOUS LAND ACT STANDARD
In 2000, Congress passed the Religious Land Act. See 42 U.S.C.S. § 2000cc-1 (2014).

The Act provides that “no [state or local] government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution,” unless the government
shows that the burden furthers “a compelling governmental interest” and does so by “the least
restrictive means.” Id. § 2000cc-1(a)(1)-(2).
The Religious Land Act applies to all persons confined to an institution that receives
“federal financial assistance,” id. § 2000cc-1(b)(1), and defines “religious exercise” to include
“any exercise of religion, whether or not compelled by, or central to, a system of religious
belief.” Id. § 2000cc-5(7)(A). The Tenth Circuit has held that the Act applies in the prison
context. See Ahmad v. Furlong, 435 F.3d 1196 (10th Cir. 2006). The Act includes an express
private cause of action, which states: “A person may assert a violation of [the Religious Land
Act] as a claim or defense in a judicial proceeding and obtain appropriate relief against a

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government.” 42 U.S.C.S. § 2000cc–2(a) (2014). For purposes of this provision, “government”
includes, inter alia, states, counties, municipalities, their instrumentalities and officers, and
persons acting under color of state law. Id. § 2000cc–5(4)(A).
Under the Religious Land Act, the plaintiff bears the initial burden of “produc[ing] prima
facie evidence to support a claim alleging a violation of the Free Exercise Clause . . . .” Id. §
2000cc-2(b). To satisfy this burden a plaintiff must show that he: (1) is engaged in a religious
exercise; (2) that the religious exercise is motivated by a sincerely held belief; and (3) that the
exercise has been subjected to a substantial burden by correctional officers. See Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010). If a plaintiff satisfies this initial burden, then the
burden of proof shifts to the defendants to show that the substantial burden results from
“compelling governmental interests” and that the government has employed the “least restrictive
means” of accomplishing the compelling interest. 42 U.S.C.S. § 2000cc-1(a) (2014).
Nevertheless, the burden of proof as to whether the challenged government practice substantially
burdens the plaintiff’s exercise of religion remains with the plaintiff. Id. § 2000cc-2(b).
In a recent case, Sossamon v. Texas, 131 S. Ct. 1651 (2011), the Supreme Court held that
by accepting federal funding, states “do not consent to waive their sovereign immunity to private
suits for money damages under [the Religious Land Act].” Id. at 1663. Therefore, Plaintiff is not
entitled to money damages from Defendants in their official capacities under the Act.
Because the Religious Land Act mandates stricter scrutiny of government actions that
burden inmates’ religious freedoms than is required under the Free Exercise Clause, as applied
by the Supreme Court in Turner, the Court will first analyze Plaintiff’s claims under the the
Religious Land Act framework.

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C.

PLAINTIFF’S RELIGIOUS LAND ACT CLAIMS
1. Runes Claim
Plaintiff argues that by denying him wooden runes and offering only to substitute

synthetic runes, the Prison violates his rights under the Religious Land Act because it is a
substantial burden on his sincerely held Asatru belief. Plaintiff has submitted support for his
claim that he is (1) engaged in a religious exercise, (2) holds a sincere belief that his religious
practices require the use of runes made of natural materials and (3) the denial of wooden runes
imposes a substantial burden upon his religious observances. Accepting for purposes of this
motion only that this support is sufficient to satisfy the three elements of a Religious Land Act
claim, the burden shifts to Defendants to show that there is a compelling government interests to
impose this burden and whether Defendants have employed the least restrictive means of
accomplishing the compelling interest. Defendants must show on a motion for summary
judgment that under the undisputed facts a jury could only find that this burden had been
satisfied.
Defendants argue that the Prison does not allow wooden runes for safety reasons. In
support, Defendants present evidence that prison employees have witnessed small pieces of
wood being used to jam a cell door or to circumvent a cell door’s locking mechanism. (Burr
Decl. ¶ 5; Balls Decl. ¶ 4.) Mr. Balls declares that he has witnessed at least four occasions where
a piece of wood was used to circumvent security devices by jamming the wood into the locking
mechanism at the Draper prison. (Balls Decl. ¶ 4.) Further, Mr. Balls states that he oversaw the
craft area where wood was permitted until it was used to jam door locks, at which point it was
removed from the craft area. (Balls Decl. ¶ 4.) Mr. Burr states that he has seen an inmate jam a

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mechanical lock so that it appears that the security system is locked, in order to set a trap for an
officer. (Burr Decl. ¶ 5.)
Plaintiff responds that wooden furniture is made at the prison and that inmates who work
at the shop have brought pieces of wood back to their cells. He also points to other situations
where prisoners have access to small wooden items, like Scrabble pieces and items in a medicine
bag. Defendants counter that Plaintiff’s examples are not sufficient to show that officials allow
inmates to have wood in their cells, nor do they show that wood is not a safety risk. To succeed
on this motion, however, Defendants must establish that drawing all inferences most favorably to
Plaintiff, a jury could only conclude that Defendants’ explanation creates a compelling interest
that there is a safety concern. Given the other similar items that the Prison allows, such a
conclusion is not required. A jury may reasonably conclude, again drawing all inferences in
favor of Plaintiff, that the fact the Prison allows, or at least tolerates, similar wooden items the
safety concern is not sufficient for the Prison to uniformly enforce its policy. Moreover,
Defendants must demonstrate that the Prison’s prohibition on wooden runes is the least
restrictive alternative to achieve the safety objective. Given the dispute over other similar items
that the Prison permits, the court cannot conclude as a matter of law that a reasonable jury could
only find the prohibition on wooden runes to be the least restrictive alternative. In light of the
conflicting evidence, Plaintiff has offered sufficient support to create a material issue of fact on
whether wooden runes create enough of a safety and security to risk to completely abolish them
from the Prison. There remains an issue of fact of whether in other circumstances small pieces of
wood and other similar items are made available to inmates on a daily basis. It is therefore an
issue of material disputed facts of whether a less restrictive alternative is available that would

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satisfy relevant safety and security concerns without imposing significant burdens on the prison.
Nevertheless, Plaintiff cannot prevail because of Defendants’ qualified immunity, as is discussed
hereafter.
2. Asatru Spiritual Ceremonies
Plaintiff further complains that Defendants violated the Religious Land Act and the First
Amendment by not allowing him to conduct Asatru Blot ceremonies. (Compl., ¶ 31, Dkt. No. 6.)
A Blot ceremony is alleged to require communal worship. Prison policy requires that a volunteer
be present to monitor such communal worship services. For the past several years no volunteer
has been available at the Prison to conduct or monitor Blot ceremonies. Plaintiff argues that the
volunteer requirement--because it has for many years resulted in restricting Plaintiff to no Blot
ceremonies at all--imposes a substantial burden on his religious exercise. He contends that Blot
is an essential part of Asatru worship. (Compl., ¶ 21., Dkt. No. 6.) Defendants do not dispute
that Blot is an essential part of Asatru worship and do not dispute for purposes of this motion that
Plaintiff is a sincere Asatru adherent. Defendants argue, however, as they did to justify the
prohibition of wooden runes, that their policy of requiring a non-inmate volunteer familiar with
the Asatru to monitor or lead the Blot ceremony achieves a compelling interest in Prison safety
and security and is the least restrictive means available to further this objective.
Using a case-by-case, fact-specific inquiry, courts have certainly held that policies
requiring non-inmate volunteers for group worship are valid. See, e.g., Hathcock v. Cohen, 287
Fed. Appx. 793, 800 (11th Cir. 2008) (applying Turner to decide volunteer policy reasonably
related to security and budgetary concerns); Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004)
(requiring outside volunteer did not substantially burden religious exercise); Jihad v. Fabian,

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Civ. No. 09-1604, 2011 U.S. Dist. LEXIS 46930, at *31 (D. Minn. Feb. 17, 2011) (deciding
volunteer policy not a burden because plaintiff had other ways to practice his religion); but see
Brown v. Alden, No. CV-09-05089-CI, 2011 U.S. Dist. LEXIS 131347, **20-26 (E.D. Wash.
Oct. 13, 2011) (denying summary judgment for state prison officials because record did not show
why outside volunteer was necessary).
Defendants argue that the volunteer requirement furthers the Prison’s safety and security
purposes. Defendants offer evidence that allowing inmates to participate in group worship
without a volunteer creates security problems. (Turley Decl., ¶¶ 13-17, Dkt. No. 61.) In previous
years at the Gunnison facility, inmates were not required to have a volunteer present to engage in
group worship; officers did a “walk through” to check and be sure inmates were engaged in
appropriate activities. (Turley Decl., ¶¶ 18-22, Dkt. No. 61.) During that time, at least two
serious incidents occurred: an Asatru inmate was seriously injured and required emergency
medical treatment after the inmates engaged in “horseplay;” and in another incident, female
corrections officers had their lives threatened after conducting a “walk through” check on
Muslim inmates engaged in group worship. (Id. ¶¶ 23-25.)
Defendants also provide evidence that requiring an officer to be present during the
entirety of group worship is not feasible. The evidence supports that there is inadequate staff to
supervise group worship, (id. ¶ 31), and corrections officers are unfamiliar with Asatru teachings
and would not know whether the activities the inmates engaged in were actually related to
religious worship. (See Taylor Decl., ¶ 10, Dkt. No. 59.)
Defendants further offer evidence that officials have experimented with having
corrections officers oversee group worship. In approximately 1997 and again in 2010, officers

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who had knowledge and experience in a particular religious area were allowed to conduct group
worship. In at least two instances, the officers became so friendly with the inmates, that they
were no longer able to effectively get inmates to comply with their orders. (See Burr Decl., ¶¶
38–43, Dkt. No. 57.) As a result, the officer involved ultimately became unable to continue to
work effectively as a corrections officer in enforcing prison rules. And Defendants offer
evidence that, for a time, inmates were allowed to meet for a group non-denomination service
that was overseen by part-time chaplains. Ultimately, the group worship time became dominated
by one particular religious group, which expressed views that promote ethnic and racial violence.
(Koehler Decl., ¶¶ 13-20, Dkt. No. 64.) The chaplain-supervised open-congregate sessions were
discontinued in 2009.
In addition to providing evidence that shows alternatives to the volunteer policy do not
meet the prison’s safety and security concerns, Defendants have provided evidence that they
have located volunteers in the neo-pagan community who have experience in Wiccan and Asatru
worship. (Turley Decl., ¶¶ 40–47, Dkt. No. 61.) The volunteers have been provided information
about training. Plans are in progress which are intended to allow the Prison to resume providing
the opportunity for religious services at the Prison. Id. at ¶¶ 45-47.
Plaintiff argues in response that a Wiccan volunteer cannot properly perform the ritual of
Blot. He questions whether Defendants’ limited foray into Utah’s Asatru community was enough
to rule out the possibility of more suitable volunteers and whether such volunteers are even
necessary for the Prison to provide a safe and secure context for meaningful group worship.
Nevertheless, Plaintiff fails to provide evidence of material facts that dispute the safety concerns
raised by Defendants. Based on the evidence presented, a jury could only conclude that the

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Defendants have acted out of legitimate safety concerns and that the evidence supports as a
matter of law that there are compelling reasons to support the Prison policy. On this issue,
summary judgment for Defendants is granted.
D. EQUAL PROTECTION STANDARD
The Equal Protection Clause requires that “all persons similarly circumstanced shall be
treated alike.” F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). An equalprotection violation occurs when the government treats someone differently from another person
who is similarly situated, without adequate justification for the difference in treatment. City of
Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432, 439-40 (1985).
A plaintiff alleging an equal-protection violation must present specific facts which
demonstrate that a discriminatory purpose was a motivating factor in the decision attacked by the
complaint. Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir .1988). “‘Discriminatory
purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It
implies that the decision maker . . . selected or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Personnel Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (citation & footnote omitted).
“[T]he standard of review . . . adopted in Turner applies to all circumstances in which the
needs of prison administration implicate constitutional rights.” Washington v. Harper, 494 U.S.
210, 224 (1990); see Turner, 482 U.S. at 85. This includes Equal Protection claims filed by
prisoners. Patel v. Wooteh, 15 Fed. Appx. 647, 650 (10th Cir. 2001) (unpublished). Thus, in the
prison religious context, equal protection does not require “that every religious sect or group
within a prison—however few in numbers—must have identical facilities or personnel.” Cruz v.

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Beto, 405 U.S. 319, 322 n.2 (1972). Instead, prison officials must only ensure that an inmate of a
minority religion enjoys “a reasonable opportunity of pursuing his faith comparable to the
opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Id. at 322.
This standard gives deference to prison administrators to determine which groups will be
allowed to operate within the prison population. Jones v. North Carolina Prisoners' Labor
Union, Inc., 433 U.S. 119, 136 (1977).
When faced with “the decision as to which of many groups should be allowed to operate
within the prison walls, where, confronted with claims based on the Equal Protection Clause, the
courts should allow the prison administration the full latitude of discretion.” Id. Nothing in the
Constitution requires prison officials to treat all inmate groups alike, particularly when
differentiation is necessary to avoid disruption or violence. Id.
E. PLAINTIFF’S EQUAL PROTECTION CLAIMS
Plaintiff argues that Defendants violated his right to equal protection of the laws by
denying him rune sets and restricting his group worship, “while at the same time readily
accommodating other similarly situated prisoners’ religious and institutional practices.” (Compl.,
¶ 40, Dkt. No. 6.) In particular, Plaintiff argues that Native Americans are allowed “wooden
medallions, sacred boxes, beads, and eagle feathers . . . .” (Plnts.’ Defense Against Defs.’ First
Partial Mot. Summ. J., p. 8, Dkt. No. 65.) Plaintiff also argues that the volunteer policy is
unequally enforced at the Prison, where other groups have been allowed group worship under
circumstances different than those set forth by the same policy that, strictly adhered to,
constrains Plaintiff from group worship in his religion of choice.

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Defendants respond that this court has previously held that allowing Native American
inmates to possess some wooden items, while not allowing Asatru followers to possess other
wooden items--in a maximum-security setting--does not violate the Equal Protection Clause. See
Warner v. Patterson, No. 2:08-CV-519 TC, 2011 U.S. Dist. LEXIS 124367, at **50-51 (D. Utah
Oct. 27, 2011) (unpublished). Likewise, this court has held that the Prison offered “perfectly
reasonable explanations for the lack of Wiccan religious services at the prison.” See Kay v. Friel,
2:06-CV-23 TS, 2007 U.S. Dist. LEXIS 6391, at **9-10 (D. Utah Jan. 26, 2007) (emphasis
added). Plaintiff has failed to proffer evidence sufficient to distinguish the holdings in the prior
cases. Defendants have presented evidence that the security concerns upheld in the maximum
security settings also apply in the remainder of the Prison. Plaintiff has failed to present evidence
that Defendants’ motivation for imposing these policies is a pretext or not based upon legitimate
and reasonable concerns for safety. The court finds the reasoning of the prior cases persuasive
and grants partial summary judgment in favor of Defendants on Plaintiff’s equal protection
claims.
F. QUALIFIED IMMUNITY
Defendants assert that even if the court finds that Plaintiff has pleaded facts sufficient to
avoid summary judgment, his claims are nevertheless barred by qualified immunity. “Qualified
immunity is designed to shield public officials from liability and ensure that erroneous suits do
not even go to trial.” Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir. 2000) (quoting Albright v.
Rodriquez, 51 F.3d 1531, 1534 (10th Cir. 1995). To defeat a defense of qualified immunity, a
plaintiff must establish that the defendant’s actions violated a specific statutory or constitutional
right and that the right was clearly established when the alleged violation occurred. Id. Thus,

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even if an issue of fact may exist as to whether the denial of wooden runes violated the Religious
Land Act, Plaintiff must also prove that the “specific right” to have wooden runes was clearly
established. Plaintiff cannot prevail on the second element to defeat the qualified immunity
defense. No prior law has clearly established that the substitution of synthetic runes for wooden
runes violated a statutory or constitutional right of Plaintiff. In fact, prior cases suggest just the
opposite—that Defendants’ policy and practices satisfied Defendants’ statutory and
constitutional obligations. See, e.g., Warner, 2:08-CV-519; Kay, 2:06-CV-23. Plaintiff cites no
facts or authority that would distinguish his claims from the claims rejected in the prior cases.
This court therefore grants Defendants qualified immunity.
V. CONCLUSION
As the nonmovant, Plaintiff has failed to meet his burden on summary judgment. The
Court therefore grants Defendants’ summary-judgment motions as to Plaintiff’s claims that they
violated his rights under Religious Land Act and the Constitution.
VI. ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motions for Summary Judgment are GRANTED (See Dkt. Nos. 49 &
63.) The Plaintiff’s claim for money damages from Defendants in their official capacities under
Religious Land Act is dismissed with prejudice.

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(2) Plaintiff’s Motion for Default Judgment is DENIED. (See Dkt. No. # 44.)
DATED this 20th day of May, 2014.
BY THE COURT

__________________________________
CLARK WADDOUPS
United States District Judge

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