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Chesser v. Director Federal Bureau of Prisons

United States District Court, D. Colorado

August 6, 2018

ZACHARY A. CHESSER, Plaintiff,
v.
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Defendant Director of Federal Bureau of Prisons' (“Defendant” or the “BOP”) Motion for Summary Judgment (or “BOP's Motion”) [#180][1] and Plaintiff Zachary Chesser's (“Plaintiff” or “Mr. Chesser”) Second Motion for Partial Summary Judgment (or “Mr. Chesser's Motion”) [#193]. This civil action was referred to the undersigned Magistrate Judge to fully preside over for all purposes. See [#37]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2(d). The court concludes that oral argument will not materially assist in the resolution of these matters. Having reviewed the Motions and associated briefing, the applicable case law, and the entire docket, the court GRANTS the BOP's Motion and DENIES Mr. Chesser's Motion.

         PROCEDURAL HISTORY

         Plaintiff initiated this civil action on December 22, 2014 in the United States District Court for the District of Columbia. [#1-1]. Plaintiff, a Muslim, alleges that the BOP has substantially burdened his exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1 et seq. See generally [id.; #3; #58]. The District Court for the District of Columbia transferred this matter to this District on September 8, 2015. See [#1]. Upon his transfer to this District, the court directed Mr. Chesser to file an Amended and Second Amended Complaint. See [#4; #20]. Plaintiff's Second Amended Complaint alleged four claims against Defendant. See [#22]. The Honorable Lewis T. Babcock dismissed two of those claims as duplicative of claims in a separate federal lawsuit pending in the United States District Court for the Southern District of Illinois, Chesser v. Walton, 3:12-cv-01198-JPG-PMF (S.D. Ill.) (“Chesser I”), but directed that the two remaining claims be drawn to a presiding judge. See [#24 at 4]. This action was then drawn to the undersigned Magistrate Judge and the Parties consented to the jurisdiction of a magistrate judge. See [#25, #33].

         On March 25, 2016, the court denied Plaintiff's Motion to Reconsider the dismissal of two of his four claims, but granted in part his Motion for Leave to Amend [#46]. See [#53]. Plaintiff filed his Third Amended Complaint (“TAC”), the operative pleading in this matter, on June 9, 2016. [#58]. The TAC asserted two claims against Defendant for violations of RFRA: the BOP's policy of “holding inmates in solitary confinement due to their ties to terrorism” (“Claim III”), and its conditions of confinement at the ADMAX United States Penitentiary in Florence, Colorado (“ADX”) substantially burdens the exercise of Mr. Chesser's sincerely held religious beliefs (“Claim IV”). See [id.].

         Defendant moved to dismiss the TAC on August 3, 2016. See [#67]. In ruling on the Motion to Dismiss the court limited Claim III to its purported challenge to the BOP's consideration of Mr. Chesser's ties to terrorism, including his purported association with Jama'ah Ad-Da'wah As-Sahihah and his participation in religious activities-both allegedly deemed terrorist-related by the BOP-as the primary justification for his transfer to ADX, but allowed Claim IV to remain in its entirety. See [#86]; see also [#159 at 2 & n.1; #163].

         The court then entered a Scheduling Order setting, among others, September 25, 2017 as the deadline for discovery and October 27, 2017 as the deadline for dispositive motions. See [#100]. Following several impasses with discovery the court granted the Parties' request for a 120-day extension of the discovery and dispositive motions deadline, extending those deadlines to January 23 and February 26, 2018, respectively. See [#159]. Each party received an additional extension of time to file their respective dispositive motions. See [#174; #179]. The BOP filed its Motion for Summary Judgment on March 2, 2018 [#180] and Plaintiff his Second Motion for Partial Summary Judgment on April 2, 2018 [#193]. The Motions are now ripe for resolution.

         LEGAL STANDARDS

         I. Summary Judgment

         A party may be entitled to summary judgment prior to trial 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         The burden of showing that no genuine issue of material fact exists is borne by the moving party. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). In reviewing a motion for summary judgment, the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). Where the moving party will bear the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See Celotex Corp., 477 U.S. at 323. Once the moving party meets its initial burden, the non-moving party must go beyond the pleadings and, by his own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-movant “may not rest upon mere allegation or denials of [the] pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The court must resolve all doubts in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).

         Cross motions for summary judgment are treated separately, and the denial of one does not require the grant of another. Buell Cabinet v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). Rather, the court may enter summary judgment only if the moving party carries its burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002). And because Mr. Chesser proceeds pro se the court liberally construes his pleadings, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), but does not act as his advocate and applies the same procedural rules and substantive law to Plaintiff as to a represented party, Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).

         II. Summary Judgment Evidence

         At summary judgment, credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. But it is well-settled that a court may consider only admissible evidence at summary judgment. Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995); accord Johnson v. Weld County Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (disregarding hearsay on summary judgment when proper objection to its use was before the court and no exception applied). The evidence need not be in a form that is admissible at trial, e.g., affidavits are often inadmissible at trial on hearsay grounds, but the substance must be admissible at trial. See Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016). The court, however, “is not required to review large quanta of evidence to ferret out inadmissible statements”-the “objecting party [must] make specific objections detailing the specific evidence [he] wishes to have stricken and stating the specific grounds upon which each piece of evidence should be stricken.” Tucker v. SAS Inst., Inc., 462 F.Supp.2d 715, 722 (N.D. Tex. 2006).

         Mr. Chesser levies several challenges to the admissibility of Defendant's summary judgment evidence. See [#191 at 3-4; #191-1 at 1-2, 23-29]. I consider those objections below.

         A. Plaintiff's Deposition Testimony and Discovery Responses

         Mr. Chesser lodges three challenges to the use of his own statements. First, he asserts that his views on perjury and a lie he told the FBI during his underlying criminal conviction are irrelevant. [#191-1 at 24 (citing [#181-1 at 20:23-21:25, [2] 80:8-15, 85:14-21, 87:8-18, 89:2- 24])]. “The standard for relevancy is particularly loose under rule 401, because any more stringent requirement is unworkable and unrealistic.” Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 395 (D.N.M. 2018) (brackets and internal quotation marks omitted). I find this testimony relevant because it concerns Mr. Chesser's beliefs-ones he falsely disclaimed-and resulting behavior, which bear on the issues raised by the BOP's Motion. See Fed. R. Evid. 401 (relevant evidence “(a) has any tendency to make a fact more or less probable than it would be without the evidence;” and “(b) the fact bears on the outcome of the action.”).

         Mr. Chesser next objects to the use of his deposition testimony and his discovery responses concerning his influence on other terrorists as hearsay and impermissible lay opinion. See [#191-1 at 24, 27]. While an out of court statement offered to prove the truth of the matter asserted is inadmissible hearsay, see Fed. R. Evid. 801(c), Rule 32 of the Federal Rules of Civil Procedure specifically allows an adverse party to use a deposition of an opposing party for “any purpose.” Fed.R.Civ.P. 32. In addition, statements made by the declarant who is an opposing party are not hearsay when used against the opposing-party-declarant. See Kansas City Power & Light Co. v. United States, 132 Fed.Cl. 28, 45 (2017) (citing Fed.R.Evid. 801(d)); cf. Fed. R. Civ. P. 33(c) (“An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.”). Thus, the objected-to statements, see [#181-1 at 292:20-293:7, 292:3- 293:20, #180-27 at 32-34], are not hearsay and are admissible.

         With respect to Mr. Chesser's arguments that his opinions regarding his influence are inadmissible lay opinions, the court concludes that the BOP does not offer such testimony to establish scientific, specialized, or technical knowledge. Rule 701 allows lay witnesses to testify in the form of an opinion if the opinion is (1) rationally based on the witness's perception; (2) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (3) is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed.R.Evid. 701. And while this court is not necessarily persuaded by the BOP's argument that Mr. Chesser “has inspired many other terrorists, ”[3] I find that Mr. Chesser's self-perceptions of his personal influence are relevant to the issues at hand because they pertain to Mr. Chesser's motivations and actions and the appropriateness of the BOP's response. Indeed, “an admission of a party opponent needs no indicia of trustworthiness to be admitted.” Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006).

         B. Declaration of David Jones

         Mr. Chesser objects to David Jones's Declaration [#180-2] on several grounds. He insists that Mr. Jones has “no personal knowledge of anything which occurred in my prison” or of his “prison conduct”; nor was Mr. Jones his Counter Terrorism Unit (“CTU”) analyst “until after all the communications [Mr. Jones] mentions in his declaration.” [#191-1 at 1]. Mr. Chesser also objects to the documents Mr. Jones relies on throughout his Declaration, arguing that these documents are not business records maintained by the BOP, constitute inadmissible hearsay or lay opinion on matters requiring an expert, or are irrelevant. See [id. at 24-26].

         To start, Mr. Chesser's statements, even those out of court, are not hearsay as discussed above. See Fed. R. Evid. 801(d)(2). Accordingly, those paragraphs that quote Mr. Chesser's statements from other documents are not objectionable hearsay, and the court will not strike them as such. The same is also true of Mr. Chesser's communications, even if he made those communications prior to Mr. Jones's monitoring of Plaintiff.

         Regarding personal knowledge, declarations submitted in support of summary judgment must be based on the declarant's actual perception or observation of the events testified to, and cannot consist of statements of mere belief. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006). Mr. Jones attests that he has been a BOP employee since 1996, a CTU Analyst since 2015, and assigned to monitor Mr. Chesser's communications since February 2017. [#181-2 at ¶¶ 1-4]. He further states that the basis for his declaration is his personal knowledge and “information made known to be from official records reasonably relied upon by me in the course of my employment.” [#181-1 at 1]. While Mr. Jones may not actually work in any facility that housed Mr. Chesser, Mr. Jones's testimony about Mr. Chesser's prison conduct is based on his review of several BOP documents. He declares, under penalty of perjury, that all documents relied on “are true and correct copies of records maintained by the [BOP] in the ordinary course of business.” [Id. at ¶ 3].

         Though not explicitly stated, it is clear that the BOP offers Mr. Jones's testimony as a representative of the BOP. Courts considering the issue of whether Rule 56(c)(4)'s personal knowledge requirement applies to Rule 30(b)(6) representative[s], however, have found that a sworn affidavit from a corporate representative-and in this case a governmental official-may be considered when relied on in a motion for summary judgment. Seifried v. Portfolio Recovery Assocs., LLC, No. 12-CV-0032-JHP, 2013 WL 6185478, at *2 (E.D. Okla. Nov. 25, 2013) (citations omitted) (considering Rule 30(b)(6) representative's Declaration even if not based on personal knowledge). And as discussed in detail below, Mr. Chesser's contention that not all documents are BOP business records is insufficient in light of Mr. Jones's sworn testimony to the contrary.

         The first document Mr. Chesser takes issue with is a CTU Profile and Assessment of Plaintiff, dated December 11, 2013. He argues it is not a BOP business record and not based on personal knowledge. See [#191-1 at 1, 24]. But Mr. Jones states, under oath, “The Profile and Assessment was prepared by CTU personnel, who conducted an exhaustive analysis of available information about Chesser.” [#181-2 at ¶ 5]. Mr. Jones continues that he has “studied the information and analysis contained in the Profile and Assessment” and relies on its analysis “in monitoring and analyzing Chesser's communications.” [Id. at ¶ 6]. Though Mr. Jones may not have compiled the Profile and Assessment, Mr. Chesser's objections go more to the weight of Mr. Jones's testimony, not its admissibility, because there is no dispute Mr. Jones reviewed the Profile and Assessment and the document appears authentic. See Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1123-24 (10th Cir. 2005) (holding supervisor's declaration was based on her personal knowledge where she reviewed audits maintained by the company that she relied on even if she did not compile the audits or understand the methodology used to compile them). Moreover, the Profile and Assessment, if offered at trial, would be admissible under either Rule 802(d)(2) or Rule 803(6). Thus, Mr. Jones's testimony concerning the Profile and Assessment is based on his personal knowledge, and the court will not strike it.

         A similar conclusion is warranted as to the Disciplinary Hearing Officer Reports, Warden Walton's ADX referral memorandum, BOP incident reports, and BOP documentation concerning BOP procedures. Though Mr. Chesser is correct to assert that these documents contain hearsay, his conclusory assertion that these documents were not maintained in the ordinary course of business by the BOP is unfounded. There appears no dispute as to their authenticity as each contains official BOP markings, is signed by BOP personnel, and were disclosed in discovery. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1423 (10th Cir. 1991) (holding that documents prepared on company letterhead and disclosed during discovery support authenticity of such documents). Accordingly, these documents appear admissible pursuant to Rule 803(6), and there is no reason to discredit Mr. Jones's affirmation under oath that he is familiar with these documents given his employment with the CTU.

         It is less clear that the Senate Committee on Homeland Security and Governmental Affairs Report relied on by Mr. Jones is properly a BOP business record for hearsay exception purposes. See [#180-7; #180-8]. Indeed, the BOP did not compile the Report. However, Mr. Jones's use of this Report largely contains verbatim quotes made by Mr. Chesser. See, e.g., [#181-2 at ¶¶ 12, 13, 16, 23]. And it appears that the Report is appropriately considered under the public records exception of the hearsay rule, given the fact that Mr. Chesser has not persuasively challenged the reliability of the statements contained therein. Fed.R.Evid. 803(8).

         Finally, nothing in Mr. Jones's Declaration constitutes improper opinion testimony. See Bryant, 432 F.3d at 1124. Rather, his testimony regarding Mr. Chesser's Jihadist beliefs and communications, his underlying criminal conviction, and the events leading to his transfer from CMU Marion to ADX reflect Mr. Jones's perception and knowledge of national security concerns gleaned from the nature of his position with the BOP. See Fed. R. Evid. 701 advisory committee's note to 2000 amendments (noting that testimony based on the particularized knowledge of the witness by virtue of his position does not constitute expert testimony based on experience, training, or specialized knowledge within the realm of an expert); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (deferring to the Executive in matters of “sensitive and weighty interests of national security”); Rezaq v. Nalley, 677 F.3d 1001, 1014 (10th Cir. 2012) (holding that segregation of inmates with ties to terrorist organizations “stem[s] from a uniquely federal penological interest in addressing national security risks”). The court will not strike Mr. Jones's opinions regarding Mr. Chesser's threat to national security.

         C. Declaration of David Christensen

         Mr. Chesser lodges three main challenges to Associate Warden David Christensen's (“Associate Warden”) Declaration [#180-31]: it contains (1) conclusory assertions, (2) hearsay, and (3) impermissible lay opinions on national security. See [#191 at 4, 5; #191-1 at 27-28].

         First, declarations provided in support of a motion for summary judgment “must set forth facts, not conclusory statements.” BancOklahoma Mortg. Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1101 (10th Cir. 1999). Conclusory statements provide no probative value on summary judgment. See Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990); see also Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (explaining that conclusory statements are those based on speculation, conjecture, or surmise). The bulk of Plaintiff's objections assert that the Associate Warden's declarations are conclusory, and appear to target the Associate Warden's statements regarding institutional and national security concerns. See [#191-1 at 27-28]. The BOP does not address these objections. Having reviewed the objected-to paragraphs, the court finds that Mr. Chesser's concerns go to the weight of the evidence, not its admissibility.

         Regarding hearsay, several of Mr. Chesser's objections do not expound on why the Associate Warden's statements contain inadmissible hearsay. He appears to insinuate that the statements about him are out-of-court statements from others. But this does not appear to be so. Moreover, his argument also appears to place form over substance; even if the Associate Warden's Declaration itself would be inadmissible at trial, his statements based on personal knowledge of Mr. Chesser would be admissible were he to testify. See Brown, 835 F.3d at 1232.

         Lastly, the court will not strike the Associate Warden's statements concerning national security as improper lay opinion testimony. I conclude that the testimony is not based on any scientific, technical, or specialized knowledge but, rather, on the Associate Warden's particularized knowledge by virtue of his position within the BOP. See Fed. R. Evid. 701 advisory committee's note to 2000 amendments. See also Holder, 561 U.S. at 33-34; Rezaq, 677 F.3d at 1014.

         D. Declaration of John Oliver

         The BOP retained John Oliver as an expert under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure in the field of correctional security and correctional management, given his specialized knowledge in these fields. See [#180-37 at ¶ 1]. Mr. Chesser objects to four paragraphs in Mr. Oliver's Declaration.

         Rule 702 of the Federal Rules of Evidence permits:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Though not framed as a Rule 702 challenge, I find it appropriate to consider Mr. Chesser's objections with that Rule and the court's gatekeeper functions in mind. It is well established that trial courts are charged with the gatekeeper responsibility of ensuring expert testimony or evidence is admitted only if such is relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-152 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-89 (1993). To fulfill that gatekeeper function, courts within this Circuit conduct a two-part inquiry. The court first considers whether the expert's proffered testimony has a reliable basis in the knowledge and experience of his or her discipline by conducting a preliminary inquiry into the expert's qualifications and the admissibility of the proffered evidence. In other words, the court asks whether the reasoning or methodology underlying the testimony is valid. Cook v. Rockwell Int'l Corp., 580 F.Supp.2d 1071, 1082 (D. Colo. 2006) (citing Butler v. A.O. Smith Corp., 400 F.3d 1227, 1232-33 (10th Cir. 2004)). The court then considers whether the proposed testimony is sufficiently relevant to the issues presented to the factfinder. See id. The party offering the expert opinion bears the burden of establishing its admissibility, including the foundational requirements, by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F.Supp.2d 1217, 1220 (D. Colo. 2008).

         First, Plaintiff objects to the conclusions drawn by Mr. Oliver in paragraph 13, but his disagreement goes to the weight, not admissibility, of Mr. Oliver's opinion and is not a sufficient basis for striking this paragraph. See Jaffrey v. PorterCare Adventist Health Sys., No. 15-CV-02297-NYW, 2017 WL 5624572, at *5 (D. Colo. Nov. 22, 2017). Second, Mr. Chesser contends that paragraph 15 is conclusory and unsubstantiated by evidence; however, Mr. Oliver supports paragraph 15 with his “27 years of experience in the field of correctional management, including 23 years of experience in facilities operated by the BOP[]” with positions as Complex Warden of ADX and USP Florence. See Heineman v. Am. Home Prod. Corp., No. 13-CV-02070-MSK-CBS, 2015 WL 1186777, at *3 (D. Colo. Mar. 12, 2015). Third, Mr. Chesser asserts that paragraph 19 is speculative, but a review of this paragraph again reveals that Mr. Oliver relies on past experiences to support his assertion that the appearance of a preference towards certain inmates can create hostility. Finally, Plaintiff objects to paragraph 23 because it is a legal conclusion and its assertions that Plaintiff is safest in his range are unsubstantiated. But again, Mr. Oliver's opinions are that of a specially-retained expert, and the court's analysis must focus upon his methodology, rather than the conclusions it generates. Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). Mr. Chesser raises no legitimate challenge to Mr. Oliver's background, expertise, or qualifications as an expert witness; rather, he simply takes issue with the opinions Mr. Oliver renders. [#191-1 at 28].

         E. Declaration of Jason Henderson

         Mr. Chesser objects to several paragraphs in the Declaration of Jason Henderson, Supervisory Chaplain at FCC Florence. See [#180-38]. First, Mr. Chesser asserts that paragraphs 20 and 24 are conclusory. Each concerns Mr. Chesser's administrative grievances regarding religious studies. The court will not strike these paragraphs as conclusory as each appears supported by factual assertions.

         Next, Mr. Chesser argues that paragraphs 27 and 28 contain “fragrant lie[s]” about his religious privileges in the B/B Unit. [#191-1 at 28]. He bases this contention on his assertion that Chaplain Henderson cancelled all religious classes and sermons after reading Mr. Chesser's deposition testimony wherein Mr. Chesser admits to conducting these activities without specific authorization. See [#193-20; #186-1]. Indeed, Chaplain Henderson confirms that he ordered Mr. Chesser to cease “preaching to or teaching other inmates, ” not that he wholly forbade Mr. Chesser from ever doing so. See [#198-3 at ¶¶ 4, 7]. But the court's role on summary judgment is not to determine the credibility of the witnesses; it is to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. Thus, merely because ...


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