Summary
concluding no RLUIPA violation and no substantial burden on inmate's religious practice where inmate's housing unit lacked sufficient number of members of his faith group and available volunteers to allow inmate to engage in religious services, and prison declined to transfer inmates to obtain quorum where volunteers were available
Summary of this case from Tillman v. AllenOpinion
No. CV 05-2259-PHX-NVW (JCG).
February 25, 2008
ORDER
Plaintiff Rex Jeffrey Walls brought this civil rights action under 42 U.S.C. § 1983 against various officials from the Arizona Department of Corrections (ADC): ADC Director Schriro; Sr. Chaplains Henderson and Becker; Chaplains Mason and Powers; Deputy Warden Kimble; and Correctional Officers (CO) Curran, Beginski, and Sauceda (Doc. #7). Defendants filed a Motion for Summary Judgment, which was fully briefed by the parties (Doc. ##158, 163, 165-166, 183). Plaintiff's response included a Motion for Dismissal of the summary judgment motion (Doc. #163).
Upon screening, the Court dismissed ten Defendants (Doc. #11). Two other Defendants — Wilber and Smith — were dismissed voluntarily and on summary judgment respectively (Doc. #97). And McVicker, Ireland, and Sabbah were dismissed for failure to serve (Doc. #100).
The Court will grant Defendants' motion in part for the claim in Count III brought under the Religious Land Use and Incarcerated Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and qualified immunity on the RLUIPA damages claims, and will otherwise deny the motion. Plaintiff's Motion for Dismissal Defendants' Motion for Summary Judgment is procedurally improper, as a motion for summary judgment cannot be "dismissed." Plaintiff's Motion for Dismissal will be denied, but it will be treated as a response to the Motion for Summary Judgment. For the reasons set forth below, the denial of the parties' motions will be without prejudice, and a new dispositive motions deadline will be established.
I. Background
Plaintiff's action concerns his right of religious exercise as a member of the Hare Krishna faith. There is no dispute that Plaintiff is a sincere adherent to this religion. In Count I of his First Amended Complaint, Plaintiff alleged that he was denied a proper religious diet (Doc. #7 at 4). He asserted that his meals must be handled only by Hare Krishna devotees (id.). Count II alleged that Defendants denied Plaintiff a religious hairstyle in accordance with the Hare Krishna faith (id. at 5). The Court granted Plaintiff's subsequent request for a preliminary injunction permitting him to wear the religious hairstyle called a sikha — a shaved head except for a lock of hair at the base of the skull (Doc. #97). And in Count III, Plaintiff claimed that Defendants denied him religious services and visitations (Doc. #7 at 6). Plaintiff alleged that Defendants' actions violated (1) his rights under the Free Exercise Clause of the First Amendment, (2) his right to equal protection under the Fourteenth Amendment, and (3) his rights under RLUIPA (see Doc. #11).
The Court dismissed those claims in Count II that concerned the possession of certain religious items because Plaintiff failed to exhaust administrative remedies (Doc. #42). The claim within Count II regarding the religious hairstyle was reinstated by the Court (Doc. #97).
This injunctive relief extends until the conclusion of this case or until the Court orders otherwise (Doc. #125).
Defendants have moved for summary judgment on the grounds that (1) Plaintiff has failed to carry his burden to make a prima facie case for any of his claims under the RLUIPA standard and (2) Defendants are entitled to qualified immunity (Doc. #158). They argued that the lacto-vegetarian meal Plaintiff receives does not impose a significant burden on his religious exercise and, nonetheless, financial and administrative concerns prohibit the customized diet that Plaintiff requests. Defendants contended that enforcing the ADC grooming policy governing hairstyles is necessary to maintain uniformity and good order, to prevent quick inmate identification of group affiliation, and to protect Plaintiff from other inmates who may target him because of his religious hairstyle. And as to Count III, Defendants argued that the ADC Chaplains made every effort to accommodate religious visitors for Plaintiff but the visitors chose not to come to the prison (id.). In support of their motion, Defendants proffered the declarations of various ADC officials, including Henderson (Doc. #159, Exs. A-C); excerpts from Plaintiff's deposition (id., Ex. D); copies of the ADC diet policies (id., Exs. E-VERIFY); copies of Plaintiff's inmate letters (id., Exs. G-H); and religious visitation documents (id., Exs. I-M).
Plaintiff responded with a Motion for Dismissal of Defendants' Motion for Summary Judgment (Doc. #163). He maintained that his claims should not be dismissed for nonexhaustion, which was not an argument raised by Defendants (id. at 2-4). As to Count II, he contended that Defendants already make exceptions to the ADC grooming policy for other inmates and that his own Hare Krishna hairstyle does not fall within the "radical, bizarre or exotic" hairstyles that are prohibited by the ADC policy (id. at 4-5). He relied on the Court's issuance of a preliminary injunction for his hairstyle to demonstrate that his faith is substantially burdened by the grooming policy (id. at 8). Plaintiff disputed the facts as presented by Defendants concerning Count III (id. at 5-6). He claimed that he does not seek to dance and chant in his dorm setting; rather, he seeks to use office rooms, classrooms, or visitation rooms when they are empty for his religious observances (id. at 8). And he suggested that the ADC allow him to conduct services, if necessary, by transferring other Hare Krishna inmates to his unit (id. at 6, 9). Plaintiff also indicated that Defendants' counsel has failed to produce documents in discovery (id. at 4, 6).
The last sentence of Plaintiff response/motion includes a request that the Court "grant Plaintiff a summary judgment and order Defendant[s] to try and sett[le] with Plaintiff" (Doc. #163 at 10). The motion does not comply with the requirements of LRCiv 56.1 for motions for summary judgment. To the extent that Plaintiff seeks summary judgment or an order compelling Defendants to try and settle, the motion is denied without prejudice.
In their reply, Defendants construed Plaintiff's clarification of claims as a request to amend his pleading and argued that amendment would be improper (Doc. #165 at 1). They also argued that Plaintiff failed to rebut Defendants' specific arguments or submit an affidavit or separate statement of facts. (id. at 2). Lastly, they maintained that all discovery requests have been promptly addressed (id. at 3).
Plaintiff then filed a sur-reply in which he argued (1) discovery requests have not been honored by Defendants, (2) the laws of his religion require him to eat only properly prepared Krishna food, and (3) the failure to provide him with a proper vegetarian diet is unconstitutional (Doc. #166 at 1-3). He conceded that it was difficult getting religious people into the prison for services (id. at 3). But he insisted that this fact does not defeat his claim in Count III. Plaintiff denied Defendants' assertions that there is a threat to his safety posed by gang members because of his Hare Krishna hairstyle, and he again asserted that Schriro has granted an exception to the grooming policy for another inmate (id. at 4).
Defendants filed another reply in support of their summary judgment motion; however, this second reply memorandum was a duplicate of the one previously filed (Doc. #176, compare with Doc. #165).
Because Plaintiff did not receive the notice required underRand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998), prior to filing his response memorandum, the Court issued an Order allowing Plaintiff additional time to submit documentary evidence to support his response and sur-reply (Doc. #182). Plaintiff then filed a "Motion to Submit Evidence" that included affidavits and exhibits (Doc. #183). The Court granted this motion and treated the filing as Plaintiff's evidentiary response to the summary judgment motion (Doc. #184). Plaintiff's evidence included affidavits from two other prisoners (Doc. #183, Exs. 2, 4); affidavits from two members of ISKCON Prison Ministry (id., Exs. 1, 3); a copy of the inmate holiday menu for the Fourth of July (id., Ex. 5); and some excerpted material about Hare Krishna meals and principles (id., Exs. 6-7).
ISKCON refers to the International Society for Krishna Consciousness (see Doc. #183, Ex. C).
Defendants did not file a reply.
II. Legal Standard
A. Summary Judgment
A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) ( en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Gibson v. County of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002). B. First Amendment
The First Amendment provides in relevant part that the government shall not prohibit the free exercise of religion. U.S. Const. amend. I. Free exercise rights, however, are "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) ( per curiam). The First Amendment is implicated if a prisoner's belief is "sincerely held" and "rooted in religious belief." Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994). To show a violation under the First Amendment, a plaintiff must demonstrate that a prison regulation that impinges on his religious exercise is not reasonably related to a legitimate penological interest. Id. at 333-34 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
C. Religious Land Use and Institutionalized Persons Act
RLUIPA provides in relevant part that "[n]o 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 establishes that the burden furthers "a compelling governmental interest" and does so by the "least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)(2). The Ninth Circuit has stated that a substantial burden is one that is "`oppressive' to a `significantly great' extent. That is, a `substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise." Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (citation omitted). The burden need not concern a religious practice that is compelled by, or central to, a system of religious belief. 42 U.S.C. § 2000cc-5(7)(A). But the burden must be more than an inconvenience; it must prevent the plaintiff "from engaging in [religious] conduct or having a religious experience." Navajo Nation v. United States Forest Service, 479 F.3d 1024, 1042 (9th Cir. 2007) (internal citations omitted).
Under RLUIPA, the plaintiff bears the initial burden of demonstrating a prima facie claim that the challenged state action constitutes a "substantial burden" on his "religious exercise." Warsoldier, 418 F.3d at 994; see also Navajo Nation, 479 F.3d at 1033. Once the plaintiff establishes a substantial burden, the defendants must prove that the burden both furthers a compelling governmental interest and is the least restrictive means of achieving that interest. Warsoldier, 418 F.3d at 995. RLUIPA is to be construed broadly in favor of the inmate. See 42 U.S.C. § 2000cc-3(g). At the same time, RLUIPA is to be applied with due deference to prison officials and their need to maintain order and security.Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). Any accommodation "must be measured so that it does not override other significant interests." Id. at 722.
D. Fourteenth Amendment
Plaintiff alleged in each of his counts that Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment; however, in their motion Defendants made no mention of equal protection and presented no argument for summary judgment on these claims. As such, the Court need not set forth the legal standard applicable to equal protection claims. Plaintiff's equal protections claims within each count will survive summary judgment.
Because the RLUIPA standard is more favorable to Plaintiff, the Court will begin its analysis for each count under that Act.
III. Count I — Religious Diet
1. Parties' Contentions
A. RLUIPA Claim
Defendants argue that Plaintiff has failed to come forth with evidence to support a prima facie case that the ADC diet he receives constitutes a substantial burden on the exercise of his religious beliefs (Doc. #158 at 8). Defendants submit Plaintiff's deposition testimony in which he states that a kosher vegetarian diet is required to accommodate his religious beliefs (Doc. #159, Ex. D, Pl. Dep. 23:13-17, 30:2-11, Feb. 12, 2007). According to Michael D. Linderman, Administrator of Pastoral Activities at ADC, Plaintiff has received a lacto-vegetarian diet since 1999 and only recently claimed that it was unacceptable because he believed that it was the special diet for those of the Sikh faith (id., Ex. A, Linderman Decl. ¶ 9). Despite Plaintiff's belief that the diet he receives is for Sikhs, Defendants contend that the lacto-vegetarian diet satisfies Plaintiff's religion.
Plaintiff avers that his religious beliefs require that his meals be prepared by a devotee of his faith, specifically in either Tucson or China (Doc. #159, Ex. D, Pl. Dep. 30:7-11, 17-21). He proffers the declaration of Mother Shyama Priya, from ISKCON Prison Ministry, who describes the necessary diet for Hare Krishna followers as one that is vegetarian in substance and where all foods are prepared by an authorized member of the Hare Krishna religion (Doc. #183, Ex. C, Priya Decl. at 1). Plaintiff also relies on an excerpt from "Krsna Consciousness at Home" that advises Hare Krishna members to avoid foods that are cooked by nondevotees because "the cook acts upon the food not only physically but mentally as well" (id., Ex. 7 at 1).
Although Plaintiff failed to provide full documentation and citations for the excerpt from "Krsna Consciousness at Home," Defendants make no objection to this evidence.
Plaintiff further argues that the lacto-vegetarian diet he receives is not a "true" lacto-vegetarian diet for the Hare Krishna faith because it includes garlic, onions, eggs, and caffeinated beverages, which should all be omitted from a Hare Krishna lacto-vegetarian diet (id. at 1-2). He points to Priya's declaration that states that eggs and their by-products, onions, garlic, vinegar, and caffeine are all prohibited substances (id., Ex. C, Priya Decl. at 1). Plaintiff submits the declaration of Daniel Romero, an ADC inmate who works as a cook in the Meadow Unit kitchen (id., Ex. 4). Romero states that the lacto-vegetarian diet Plaintiff is served includes garlic, onions, eggs, and beverages with caffeine (id.).
2. Analysis
a. Substantial Burden
Plaintiff bears the initial burden of producing evidence to demonstrate a prima facie claim that Defendants' refusal to provide him with a lacto-vegetarian diet that is prepared according to the Hare Krishna dietary laws amounts to a substantial burden on his religious exercise. See 42 U.S.C. § 2000cc-2(b).
Plaintiff has demonstrated a sincere belief that eating food prepared by a member of his religion is consistent with his faith. The evidence shows that although Plaintiff receives a lacto-vegetarian diet, the meals include food items that violate Plaintiff's religious dietary laws. Requiring Plaintiff to eat food that is prohibited by his religion's dietary regimen may constitute a substantial burden on his religious practice. See Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993). In light of Congress' intent for courts to construe RLUIPA broadly in favor of prisoners' rights to exercise their religious beliefs, and given Plaintiff's sincere belief that eating meals prepared by Hare Krishna devotees and excluding certain food items is a requirement of his faith, the Court finds that there is a substantial burden on Plaintiff's religious exercise.
b. Compelling Governmental Interest/Least Restrictive Means
The burden shifts to Defendants to show that the current provision of the lacto-vegetarian diet is the least restrictive means of furthering a compelling governmental interest. When applying this compelling governmental interest standard, "context matters." Cutter, 544 U.S. at 723. Here, context includes consideration of (1) the available resources and (2) the regulations and procedures necessary to facilitate feeding large numbers of prisoners while maintaining security and discipline.See id.
Defendants contend that compelling interests exist. Plaintiff submits that to accommodate his religious tenants, he should be able to design his own meals and those meals must be prepared by devotees from a Hare Krishna temple in Tucson or China and picked up by ADC (Doc. #159, DSOF ¶¶ 17-18, Ex. G; Ex. D, Pl. Dep. 36:17-21, 40:3-13, 41:12-15). Linderman states that accommodating Plaintiff's request would significantly upset institutional operations and present a financial difficulty (id., Ex. A, Linderman Decl. ¶¶ 10-12). He avers that the cost of providing the customized diet would be grossly prohibitive (id. ¶ 10). Linderman adds that Plaintiff's customized diet request would be virtually impossible to fulfill given the fixed resources of the ADC (id. ¶¶ 10). He further states that such an accommodation would significantly affect institutional operations (id. ¶¶ 12-13).
As stated, religious accommodations should not override a prison's significant interests in maintaining order and security consistent with the available resources. See Cutter, 544 U.S. at 722. The Supreme Court noted that if an inmate's request for an accommodation is excessive or jeopardizes the effective functioning of the prison, the accommodation need not be met. Id. at 726. Arguably, Plaintiff's request that he receive meals specially prepared by Hare Krishna devotees at Tucson or China temples may appear to be excessive, but Defendants must demonstrate that it is, in fact, excessive. See Warsoldier, 418 F.3d at 1000 ("prison officials must set forth detailed evidence, tailored to the situation, . . . that identifies the failings in the alternatives advanced by the prisoner" (emphasis in original) (citation omitted)). They must set forth specific facts showing that in this case, providing Plaintiff with customized religious meals would actually result in the adverse impact on prison operations or that the lacto-vegetarian diet provided to Plaintiff is the least restrictive means of furthering a compelling interest.
Linderman's declarations of the potential consequences of the requested accommodation are too general to make the requisite showing of a compelling interest. Defendants fail to provide specific information on the costs and effects on the administration of the prison. For example, Linderman does not state how the requested accommodation would upset institutional operations or why providing the customized diet would be virtually impossible or to what extent the meals would be cost prohibitive. Although the Court would not expect an itemized statement detailing the exact dollar amount of procuring a customized religious diet, Defendants' burden to prove the existence of a compelling interest — which is not insurmountable — requires more than Linderman's general statements going to the potential costs and effects.
Finally, in failing to address Plaintiff's claims that his diet includes prohibited food items, Defendants cannot demonstrate that the lacto-vegetarian diet served to Plaintiff is the least restrictive means of furthering a compelling interest. On this limited record, summary judgment will be denied on Plaintiff's RLUIPA claim in Count I. B. First Amendment Claim
Defendants do not develop their argument for summary judgment on the First Amendment free exercise claim in Count I, brought under § 1983, except for their assertion that if Plaintiff fails in his RLUIPA claims, his First Amendment challenges automatically fail because of the less stringent test on the constitutional claim (Doc. #158 at 8). In his response, Plaintiff likewise fails to address his First Amendment claim except to generally allege that the ADC diet violates his free exercise rights (Doc. #163 at 2; Doc. #183 at 1).
The Court has determined that Plaintiff's RLUIPA claim in Count I does not fail at this stage. In their motion, Defendants do not present any argument as to whether they are entitled to summary judgment on Plaintiff's First Amendment claim in the event that his RLUIPA claim fails. This scenario mirrors the facts inGreene, where the defendant stated in her motion that she was entitled to summary judgment as a matter of law on the prisoner's § 1983 claim, but she proceeded to argue only the issues of "compelling interest"/"least restrictive means" under RLUIPA.Greene v. Solano County Jail, ___ F.3d ___, 2008 WL 170313, at *6 (9th Cir., Jan. 22, 2008). The Ninth Circuit reversed the district court's grant of summary judgment on the First Amendment claim in light of this failure to "`either produce evidence negating an essential element' of Greene's § 1983 claim . . . or show that Greene did `not have enough evidence of an essential element to carry [his] ultimate burden of persuasion at trial.'"Id. (internal citation omitted). The Court also held that because the defendant did not set out any grounds for summary judgment on the § 1983 claims in her motion, the pro se plaintiff was not put on notice that those claims were in issue and summary judgment was therefore inappropriate. Id. at *7.
Plaintiff is a pro se litigant who was not put on notice as to the First Amendment claims. He "cannot be expected to anticipate and prospectively oppose arguments that an opposing defendant does not make." Id. (citing Rand, 154 F.3d at 957). As in Greene, Defendants have not demonstrated the absence of a material fact that the ADC diet provided to Plaintiff violates his First Amendment rights. For this reason, summary judgment for Defendants on the First Amendment claim in Count I will be denied.
IV. Count II — Religious Hair Style
1. Substantial Burden
A. RLUIPA Claim
The ADC grooming policy, set forth in Department Order (DO) 704.01, provides that:
1.1 Hair shall not cover the eyes or ears, and shall be kept clean at all times.
1.2 Radical bizarre, carved, double-parted or other types of exotic hairstyles are prohibited.
1.3 Hair that is long enough to touch the top of the shoulders shall be worn tied back in a ponytail or bun seven days a week. Inmates may untie ponytails . . .
1.4 Inmates may wear their hair braided.
. . .
1.7.2 State issued ball caps shall be worn with the bill facing forwards at all times . . .
1.7.2.1 Native Americans may wear Native American Headbands.
1.7.2.2 Inmates may wear religious head gear as authorized by the Pastoral Activities Administrator (Doc. #159, DSOF ¶ 33).
Defendants submit that Plaintiff's religious hairstyle violates § 1.2, which prohibits "radical bizarre, . . . or . . . exotic hairstyles" (id.; Doc. #158 at 3). They contend that Plaintiff fails to make a prima facie case that this ADC grooming policy substantially burdens his religious beliefs (Doc. #158 at 10). But Defendants do not present any argument or evidence to support this contention. Further, they do not contest that Plaintiff holds a sincere belief that as a Hare Krishna follower he should wear his sikha religious hairstyle (Doc. #158 at 10). Any exercise of religion — whether or not compelled by that faith — is covered by RLUIPA. 42 U.S.C. § 2000cc-5(7)(A). And a grooming policy that either requires a prisoner to abandon his religious beliefs by cutting his hair or puts significant pressure on him to do so, imposes a substantial burden on religious practice. See Warsoldier, 418 F.3d at 994, 996.
Plaintiff has therefore met his burden of showing that Defendants' grooming policy prohibiting his religious hairstyle is a substantial burden on his religious exercise. The burden shifts to Defendants to prove that the imposition of the substantial burden furthers a compelling interest by the least restrictive means. 42 U.S.C. § 2000cc-2(b).
2. Compelling Governmental Interest/Least Restrictive Means
a. Parties' Contentions
Defendants maintain that there exist serious, compelling interests for denying Plaintiff's request to wear his religious hairstyle, including (1) maintaining uniformity among inmates, (2) maintaining good order and discipline, and (3) enforcing security interests that prevent quick inmate identification as a member of a certain group or gang (Doc. #158 at 10). Defendants insist that because these "compelling security interests are specific and well grounded in experience," the Court must apply due deference to the expertise of the prison officials when analyzing Plaintiff's claim (id. at 11).
Defendants rely on the Supreme Court's decision in Cutter, which expressed that any accommodation of religious observances should not override other significant interests and RLUIPA should be applied with due deference to prison officials' experience and expertise. 544 U.S. at 717. The only Ninth Circuit case applying RLUIPA to a prisoner's religious hairstyle request is Warsoldier, which held that the California Department of Corrections' hair grooming policy imposed a substantial burden on the plaintiff's religious practice and was not the least restrictive alternative to achieve a security interest; thus, the policy violated RLUIPA. 418 F.3d at 989. Defendants maintain that Warsoldier failed to analyze and apply the key holdings set forth in Cutter; namely, that a religious accommodation should not be elevated over a prison's need to maintain order and safety and the courts should accord due deference to the expertise of prison officials (Doc. #158 at 11). According to Defendants, had the Ninth Circuit properly considered these requirements when deciding Warsoldier, "the result likely would have been different" (id.). Thus, Defendants suggest that Cutter and the Sixth Circuit decision inHoevenaar v. Lazarus, 422 F.3d 366 (6th Cir. 2005), should be controlling (id. at 11-12). The plaintiff in Hoevenaar sought a religious hairstyle similar the one Plaintiff requests. There, the Court reversed the issuance of a preliminary injunction that prevented prison officials from cutting the plaintiff's religious hairstyle and held that the district court failed to give proper deference to the expertise and experience of prison officials concerning whether there was a less restrictive means of furthering a compelling security interest. Hoevenaar, 422 F.3d at 369-72.
Defendants submit the declaration of Robert C. Patton, an ADC Administrator V Security Officer, an ADC employee for 22 years (Doc. #159, Ex. B, Patton Decl. ¶¶ 2-3). Patton avers that, based on the totality of his experience, allowing Plaintiff to keep his religious hairstyle would lead to confusion among staff and inmates as to who has an exception to the grooming policy (id. ¶ 12). He further states that if there was an exception to the policy for Plaintiff, there would be non-uniformity among the inmates that would result in a case-by-case analysis and an increase in the number of requests and lawsuits for hairstyle exceptions. And this, he states, would disrupt the good order and discipline among inmates at ADC (id. ¶ 13). Patton explains that there would be "massive requests" for other identifiable hairstyles under the guise of religion, but in reality, for the sole purpose of displaying and identifying gang affiliation (id. ¶¶ 14, 19, 21). And because some inmates and gangs target other inmates based on religious affiliation, Plaintiff could be in grave risk of attack if he has a unique religious hairstyle (id. ¶¶ 17-18).
Plaintiff asserts that gang activity it not an issue because he is confined in the Meadows Unit, which does not house gang members (Doc. #163 at 5; Doc. #166 at 4). He states that inmates with gang affiliations are housed in Special Management Unit I or II (id.). Plaintiff suggests that if there was truly a threat to Plaintiff's safety due to his religious hairstyle, Defendants would have segregated Plaintiff rather that keep in him the general prison population where, as he claims, there has been no danger or problems with gang members (Doc. #166 at 4). Plaintiff also alleges that prison officials have already granted an exception to the grooming policy to an Orthodox Jewish inmate, identified by name and ADC inmate number, who is allowed to wear payots (Doc. #163 at 4; Doc. #166 at 4).
Payots or "sidelocks" are long, curled ringlets that fall just in front of the ears.
b. Analysis
Prison security and safety are compelling governmental interests. Warsoldier, 418 F.3d at 998. Thus, the analysis turns on whether a uniform hairstyle policy for all ADC inmates is the least restrictive means available to maintain the security of the prison.
Contrary to Defendants' assertion, the Court in Warsoldier did comply with Cutter's directive to consider the evidence and opinions proffered by prison officials. The Ninth Circuit found that the defendant officials wholly failed to establish that the grooming policy at issue was the least restrictive means of achieving the compelling security interest. Id. at 998-99, 1001. The Court noted that prison officials presented only conclusory statements and they failed to demonstrate that they ever considered and rejected other less restrictive measures. Id. at 998-99.
The burden of proof under RLUIPA requires more than mere assertions by prison officials that there is no less restrictive means available. Id. at 1001. Speculation regarding the possible adverse effects of allowing a religious exception is insufficient to prove that accommodation would compromise the governmental interest at issue; the defendants must present evidence of administrative harm. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434-36 (2006) (holding that under the compelling interest test of the Restoration of Freedom of Religion Act (RLUIPA's predecessor statute), the government's interest in enforcing the Controlled Substances Act uniformly was insufficient to justify the substantial burden on religious exercise imposed on a small religious group). Indeed, in Cutter the Supreme Court stated that there was no reason to anticipate that accommodations under RLUIPA would cause abusive prisoner litigation that would overburden the prison operations. Cutter, 544 U.S. at 726.
More recently, the Ninth Circuit emphasized that when analyzing a prisoner's RLUIPA claim, prison officials are to be accorded deference with regard to prison security but that the defendants still must show that they have "actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Greene, 2008 WL 170313, at *6 (citingWarsoldier, 418 F.3d at 999). The Court explained that "in light of RLUIPA, no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. RLUIPA requires more." Greene, 2008 WL 170313, at *6. Further, unlike the traditional summary judgment burden application, here, Defendants bear the burden of persuasion at trial to prove that the imposition of a burden is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-2(b). When the party moving for summary judgment will also have the burden of proof at trial, "to prevail on summary judgment it must show that `the evidence is so powerful that no reasonable jury would be free to disbelieve it.'" Shakur, 2008 WL 185496, at *8 (citing 11-56 Moore's Federal Practice-Civil § 56.13); see Oshilaja v. Watterson, CV 05-3429-PHX-RCB, 2007 WL 2903029, at *9 (D. Ariz., Sept. 30, 2007) ("when the moving party will have the burden of proof at trial, . . . their showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party") (internal citation omitted); compare Celotex, 477 U.S. at 323 (directing summary judgment for the moving party when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial).
Defendants have failed to meet this burden. Their concerns over the consequences of Plaintiff's religious hairstyle are conclusory, speculative, and unsupported. Despite Plaintiff having worn his religious hairstyle for over a year (see Doc. #97, Order granting Motion for Preliminary Injunction, Oct. 5, 2006), Defendants present no evidence that there has been a single other request — much less "massive requests" — for a religious hairstyle. Nor is there proof of any lawsuits filed concerning religious hairstyles. Also, there is nothing to demonstrate that Plaintiff has been in danger or even threatened since he began wearing the sikha.
Although Defendants claim that maintaining uniformity among inmates concerning hairstyles is a serious compelling interest, the ADC grooming policy allows inmates to wear short hair or long hair, braided hair, ball caps and authorized religious head gear, and Native Americans may wear headbands (Doc. #159, DSOF ¶ 33, DO § 704.01). As suggested in Plaintiff's response, this variety of hairstyle and head gear options undermines the argument that uniform hairstyles are a security imperative (see Doc. #163 at 4-5).
More importantly, Defendants do not refute Plaintiff's contention that gang activity is not a factor in his housing unit nor do they challenge Plaintiff's assertion that prison officials have already granted a grooming policy exception to an Orthodox Jewish inmate. Thus, Plaintiff disputes Defendants' claims that his safety is at risk and that the grooming policy requires uniform enforcement. These disputed issues distinguish this case from Hoevenaar, where the plaintiff did not rebut the defendant prison official's expert testimony. See Hoenenaar, 422 F.3d at 372.
On this record, there is a genuine issue of material fact whether there is no less restrictive means of maintaining security other than the current uniform grooming policy. Defendants are not entitled to summary judgment on the RLUIPA claim in Count II.
The Court notes that Warsoldier — which is precedent here despite other contrary circuit court opinions — applied to the facts in Count II, may provide a basis on which Plaintiff may be entitled to summary judgment. Therefore, a new dispositive motions deadline will be set allowing for both Plaintiff and Defendants to refile summary judgment motions.
B. First Amendment Claim
The Court will deny summary judgment to Defendants on the First Amendment claim in Count II for the same reasons as set forth above in the First Amendment analysis for Count I.
IV. Count III — Religious Visits/Services
1. Parties' Contentions
A. RLUIPA Claim
Defendants contend that Plaintiff cannot demonstrate a prima facie case that his religious exercise was substantially burdened by Defendants' failure to provide a Hare Krishna visitor (Doc. #158 at 13). They argue that their extended efforts to set up a religious visit and the limited resources at the prison prohibit any finding of a substantial burden on Plaintiff's religious exercise.
The ADC Senior Chaplain, Henderson, states that inmates may request religious visitation by submitting the proper paperwork, including forms to be completed by the requested visitor (Doc. #159, Ex. C, Henderson Decl. ¶ 9). Henderson confirms that in April 2006, Plaintiff and his requested visitor, Mr. Larson from the ISKCON Prison Ministry, completed the requisite paperwork and visitation was approved (id. ¶ 10). According to Henderson, Larson failed to respond to the ADC letter notifying him of the approval and instructing him how to set up a religious visit at the prison (id. ¶ 11; Ex. J). Henderson states that after Plaintiff inquired about Larson's pending visit, Henderson left three phone messages for Larson in early August but Larson did not return his calls (id. ¶¶ 11-15; Ex. H). Plaintiff subsequently completed paperwork to request another religious visitor, Heather Honey. Honey's paperwork has not yet been returned to the ADC for approval (id. ¶ 17; Ex. M).
As to religious services for prisoners, Linderman explained that the ADC organizes services for particular religions only when a sufficient number of practitioners within a unit request a service and when a volunteer sponsorship is available (Doc. #159, Ex. A, Linderman Decl. ¶ 17). The ADC policy governing group worship provides that:
Regular worship/study opportunities shall be provided for faith groups according to inmate requests, space/time considerations of the monthly religious services calendar; safety and security requirements of the institution; and the availability of a qualified religious leadership (Doc. #159, Ex. A, Linderman Decl. ¶ 23).
Linderman states that because Plaintiff is the only Hare Krishna in his unit, no services are scheduled (id. ¶ 24). He avers that limited resources at the ADC prevent services in units that have only one practitioner for a particular faith (id.). The ADC records show that there are only three other inmates within ADC with the religious designation of Hare Krishna and none of those three are housed in the Meadows Unit with Plaintiff (id. ¶ 18).
Plaintiff argues that he simply wants to attend religious services "just like all the other religious faith" and he requests to use an empty visitation room or class room for his religious services (Doc. #163 at 5). He concedes that he has had difficulty setting up a religious visit, but reasserts that the prison should nonetheless provide religious services just as they do for inmates of the Jewish tradition (Doc. #166 at 3-4).
2. Analysis
Plaintiff has failed to establish that Defendants have substantially burdened his religious exercise. Under RLUIPA, "[n]o government shall impose a substantial burden on the religious exercise of a person . . . even if the burden results from a rule of general applicability . . ." 42 U.S.C. 2000cc-1(a). "`[A] substantial burden' on `religious exercise' must impose a significantly great restriction or onus upon such exercise." Warsoldier, 418 F.3d at 995 (citation omitted). An inmate's religious exercise is substantially burdened "`where the state . . . denies [an important benefit] because of conduct mandated by religious belief . . .'" Id.
The undisputed facts demonstrate that Defendants have worked with Plaintiff to set up religious visits with members from ISKCON Prison Ministry. There is no evidence of a policy or an action or omission on the part of Defendants that prevented Mr. Larson or Ms. Honey from visiting Plaintiff. See Murphy v. Mo. Dep't of Corrs., 372 F.3d 979, 988 (8th Cir. 2004) (defining "substantial burden" as a government policy or action that "significantly inhibit[s]" religious conduct or expression). With respect to religious visitation, Plaintiff does not demonstrate a substantial burden on his religious activity.
Nor does he demonstrate a substantial burden concerning religious services. The Ninth Circuit has held that a policy that prohibits a prisoner from attending group religious services constitutes a substantial burden on religious exercise. Greene, 2008 WL 170313, at *5. In Greene, the plaintiff alleged that the jail's policy banning religious services for all maximum security prisoners violated RLUIPA. Id. But Greene is not analogous to the present action because Plaintiff does not dispute that he is the only Hare Krishna in his unit and that any worship with another member of his religious sect would require a transfer of prisoners to his unit (Doc. #163 at 6). Thus, it is not a policy of the Defendants that is a substantial burden on Plaintiff's ability to worship with others. The Defendants' policy allows group worship. Rather, it is the absence of any other Hare Krishna in his unit or who is willing to visit him. Plaintiff cites no authority that RLUIPA requires transport of prisoners from other institutions in the state to create a religious community where none exists. There is no evidence that Defendants are imposing a restriction or that they are denying a benefit. Absent a community of at least two, there is no group worship that the Defendants could substantially burden within the meaning of RLUIPA.
Because Plaintiff has failed to meet his burden to establish a prima facie claim that Defendants' policies or actions constituted a substantial burden, Defendants' request for summary judgment on the RLUIPA claim in Count III will be granted.
B. First Amendment Claim
Although the Court finds that Defendants are entitled to judgment as a matter of law on the RLUIPA claim in Count III, summary judgment cannot be extended to the First Amendment claim in Count III. Again, Defendants did not present any argument or evidence suggesting that Plaintiff did not carry his burden on this particular claim, and Plaintiff was not put on notice that the sufficiency of his constitutional claim was in issue. See Greene, 2008 WL 170313, at *6-7.
V. Qualified Immunity
Defendants' final argument is that they are entitled to qualified immunity for all three counts. Plaintiff did not respond to Defendants' qualified immunity argument. A defendant in a § 1983 action is entitled to qualified immunity from damages for civil liability if his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Claims for declaratory or injunctive relief are unaffected by qualified immunity. Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993). In his First Amended Complaint, Plaintiff requested declaratory and injunctive relief, court costs and "anything that the Court find[s] for pain and suff[er]ing to the Plaintiff" (Doc. #7 at 7). Defendants' qualified immunity argument applies only to the extent that Plaintiff seeks damages for pain and suffering for violations of his remaining RLUIPA claims in Counts I and II (see Doc. #158 at 14-15, limiting qualified immunity argument to Plaintiff's RLUIPA claims).
If a defendant claims qualified immunity, the court must make two distinct inquires, the "constitutional inquiry" and the "qualified immunity inquiry." See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002). The "constitutional inquiry" asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show that the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, a court turns to the "qualified immunity inquiry" and asks if the right was clearly established at the relevant time. Id. at 201-02. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. at 201.
As discussed supra, the Court has determined that disputed facts, viewed in the light most favorable to Plaintiff, create a triable issue of fact regarding whether Defendants violated Plaintiff's rights under RLUIPA in Counts I and II. The second step of the Saucier analysis looks at whether the rights to a Hare Krishna diet and a sikha religious hairstyle were clearly established statutory law.
Defendants contend that the law was not clearly established concerning the RLUIPA claims set forth by Plaintiff (Doc. #158 at 14). A right is clearly established if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). It is not necessary that there be a prior case with the identical facts showing that a right is clearly established, it is enough that there is preexisting law that provides a defendant "fair warning" that his conduct was unlawful. Kennedy, 439 F.3d at 1065.
RLUIPA became effective in September 2000. 42 U.S.C. § 2000cc. The two recent 2008 Ninth Circuit cases discussed above, Greene and Shakur, establish that Defendants' alleged conduct in Counts I and II may violate RLUIPA. And arguably, Warsoldier provided sufficient notice to Defendants that their actions may be unlawful. See Warsoldier, 418 F.3d 989 (filed July 29, 2005). These cases, however, postdate the accrual of Plaintiff's claims (see Doc. #1, Complaint filed July 28, 2005).
Plaintiff implied in his response memorandum that his claims arose in 2003 (Doc. #163 at 2, "on or about 2003 . . . Plaintiff formally grieved the blatant and continuous violations of his protected religious right[s] by Defendants . . ."). Because his allegations go to continuing violations, the Court will refer to the filing date for the qualified immunity analysis.
In two unpublished opinions, the Ninth Circuit determined that in 2001 and 2002 it was not yet clearly established that prison grooming regulations — one requiring short hair and the other prohibiting beards — with no religious exceptions, violated RLUIPA. Haley v. Donovan, 2007 WL 2827478 (9th Cir. Sept. 27, 2007); Von Staich v. Hamlet, 2007 WL 3001726, at *2 (9th Cir. Oct. 16, 2007). In both cases, the Court affirmed grants of summary judgment for the defendants on qualified immunity grounds. Id.
See Fed.R.App.P. 32.1, which allows for citation of federal cases that have been designated as "unpublished" and issued on or after January 1, 2007.
Prior to Warsoldier, there appears to be no Ninth Circuit case law directly addressing religious meals and hairstyles under RLUIPA. Indeed, the Court acknowledged in that opinion that "[t]here exists little Ninth Circuit authority construing RLUIPA." Warsoldier, 418 F.3d at 997 n. 7. "If the occasion has not risen for our circuit to reach a question, we may draw clearly established law from other circuits." Hydrick v. Hunter, 500 F.3d 978, 989 (9th Cir. 2007). The Court is hard-pressed to find any circuit cases prior to 2005 on the application of RLUIPA to claims about religious meals to prisoners.
Among district courts, there is a 2004 case out of the Eastern District of California that held prison grooming regulations violated RLUIPA because they imposed penalties on prisoners who refused to shave their beards for religious reasons. Mayweathers v. Terhune, 328 F.Supp.2d 1086 (E.D. Cal. 2004).
The Court finds that there is limited pre-2005 case law establishing when prison officials' actions and policies regarding religious hairstyles violated federal law. The district court case is insufficient on its own to have put Defendants on notice that their actions may have been unlawful. And there is virtually no prior case law addressing religious diet claims under RLUIPA. Thus, at the time Plaintiff's claims arose, there was no agreement among various courts that certain conduct "not distinguishable in a fair way from the facts presented in the case at hand," violated statutory law. See Saucier, 533 U.S. at 202. Defendants are therefore entitled to qualified immunity on the RLUIPA claims for damages set forth in Counts I and II.
Defendants present no argument regarding qualified immunity for any of the First Amendment free exercise claims or the Fourteenth Amendment equal protections claims.
VI. Conclusion
At the summary judgment stage, the determination of whether a factual dispute exists is "guided by the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 255. The recent Greene and Shakur decisions, discussed in this Order, interpret the applicable evidentiary standards in prisoner RLUIPA claims. Unfortunately, the parties did not have the benefit of this case law during summary judgment briefing. Therefore, except for the RLUIPA claim in Count III and the qualified immunity claims addressed above, Defendants' motion will be denied without prejudice. A new dispositive motions deadline will be set allowing for both parties to refile summary judgment motions.
In sum, Defendants' motion will be granted only as to their request for summary judgment on the RLUIPA claim in Count III and for qualified immunity on the RLUIPA damages claims in Counts I and II. The motion will be denied as to the RLUIPA claims for declaratory and injunctive relief in Counts I and II. And, because the motion did not address any claims brought under the First or Fourteenth Amendments, the motion is denied as to those claims within each count.
IT IS THEREFORE ORDERED:
(1) Defendants' Motion for Summary Judgment (Doc. #158) is granted in part and denied in part as follows:
(a) the motion is granted on the RLUIPA claim in Count III;
(b) the motion is granted on qualified immunity grounds for Defendants as to the RLUIPA claims for damages in Counts I and II;
(c) the motion is otherwise denied without prejudice.
(2) Plaintiff's Motion for Dismissal (Doc. #163) is denied as procedurally improper.
(3) In light of this Order, a new dispositive motions deadline will be set for April 11, 2008.
(4) If no dispositive motions are pending, the parties shall submit a joint proposed pretrial order by April 18, 2008. If dispositive motions are pending, the deadline for filing the joint proposed pretrial order shall be 30 days following resolution of the dispositive motions.
(5) In light of the age of this case, the Court does not contemplate extending the deadlines set in this order.