United States District Court, D. Colorado
CHRISTOPHER M. ORWIG, Plaintiff,
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.
A. BRIMMER United States District Judge
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).
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.
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.
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.
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
STANDARD OF REVIEW
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
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
Eleventh Amendment Immunity
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.
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