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Orwig v. Chapdelane

United States District Court, D. Colorado

March 17, 2017

WARDEN CHAPDELANE, Sterling Corr. Facility Warden Official & Individual Capacity, CAPTAIN FELICIA BROOKS, Sterling Corr. Facility Kitchen Manager Official & Individual Capacity, LT. STEVEN BADE, Sterling Corr. Facility Hearings Disciplinary Officer Official & Individual Capacity, OFFICER CLARK, Sterling Corr. Facility Correctional Officer Official & Individual Capacity, LT. WAGNER, Sterling Corr. Facility Religous [sic Programs Volunteer Coordinator Official & Individual Capacity, MAJOR JEFFREY REVORD, Sterling Corr. Facility Food Service Official & Individual Capacity, and MAJOR ROBERT KEISEL, Sterling Corr. Facility Custody Control Manager Official & Individual Capacity, Defendants.


          PHILIP A. BRIMMER United States District Judge

         This matter is before the Court on Magistrate Judge Craig B. Shaffer's Recommendation Regarding Defendants' Motion to Dismiss [Docket No. 30] dated February 16, 2017. The magistrate judge recommends that the Court grant defendants' Motion to Dismiss the Amended Complaint, Docket No. 14, filed July 18, 2016. Plaintiff Christopher M. Orwig filed timely objections on February 27, 2017. Docket No. 31. In light of plaintiff's pro se status, the Court will construe plaintiff's objections liberally, but will not advocate for him. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         I. BACKGROUND

         Plaintiff Christopher M. Orwig is an inmate at the Sterling Correctional Facility (“SCF”) of the Colorado Department of Corrections (“CDOC”). On April 4, 2016, he filed a complaint alleging that his right to free exercise of religious beliefs was violated because he is not allowed to carry a pocket-sized King James Version of the Bible wherever he goes at SCF. Docket No. 1 at 5-7. In his amended complaint, Mr. Orwig claims “my beliefs . . . require my [sic] to keep my scriptures on my person.” Docket No. 6 at 4. He alleges that he had been doing so for “well over one year.” Id.

         Mr. Orwig claims that defendants have discriminated and retaliated against him based on his religious practice by not allowing him to carry his Bible with him at all times. Docket No. 6 at 4. Plaintiff states that, on December 1, 2015, plaintiff attempted to bring his Bible with him to his job in the SCF kitchen. Id. Plaintiff alleges that Officer Clark confiscated his Bible, wrote him up, and taunted him. Id. Officer Clark, after acknowledging that other prisoners were allowed to carry religious items, allegedly said, “when you tie a string to your Bible and wear it around my [sic] neck, then you could bring it in.” Id. at 6. Later that morning, Captain Felicia Brooks informed plaintiff that, under Rules 302 and 1401 of SCF's Posted Operational Rules (“PORs”), inmates are forbidden from bringing personal property into the kitchen. Id. at 4, 7. Plaintiff refused to work without his Bible. Id. at 4. On January 8, 2016, plaintiff was charged with a Code of Penal Discipline (“COPD”) violation for “failure to work” by Lt. Wagner. Id. at 5, 8. He was found guilty by Lt. Steven Bade and “assessed a penalty of loss of 10 days good time.” Id. at 8.

         Plaintiff alleges that Major Jeffrey Revord and Major Robert Keisel are “responsible for” SCF PORs 302 and 1401, respectively, and that Warden Chapdelane had the power “to change or make concession” to SCF's policies. Docket No. 6 at 6-7.

         Plaintiff's first claim alleges that defendants violated his rights to freely exercise his religious beliefs and practices under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). Docket No. 6 at 6. Plaintiff's second claim is that the confiscation of his Bible and the COPD conviction for failure to work were in retaliation for his free exercise of religion in violation of the First Amendment. Id. at 8. The legal basis for plaintiff's third claim is unclear. He lists his claim as “Establishment of Religion by Lt. Wagner” and alleges that Lt. Wagner “met with plaintiff and informed him that his doctrine of Religion was unacceptable because it violates a POR concerning the possession of books outside of the PODs or programs building, but that I was welcome to attend the Christian Services provided at SCF.” Id. at 9. Plaintiff alleges that those “services are contrary to my religious doctrine.” Id.


         For dispositive motions, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).

         III. ANALYSIS

         Plaintiff makes four objections to the Recommendation. Docket No. 31. Plaintiff's second and third objections relate to a single issue; therefore, the Court will discuss them together.

         A. Eleventh Amendment Immunity

         First, plaintiff objects to the “Magistrate Judge's finding that the defendants are entitled to qualified immunity in this case.” Docket No. 31 at 1. Plaintiff makes this objection in reference to the Recommendation's analysis on page six, subsection I. Id.

         Plaintiff misreads the Recommendation. While the magistrate judge noted that defendants raised a qualified immunity defense in discussing the Standard of Review, Docket No. 30 at 5-6, the Recommendation's analysis is not premised on qualified immunity. See generally id. at 6-17. Rather, subsection I is entitled “Eleventh Amendment Immunity” and finds that the defendants are immune from suit in their official capacities under the Eleventh Amendment. Id. at 6-7. Accordingly, the Court will ...

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