United States District Court, D. Colorado
MATTHEW K. MOUNTS, Plaintiff,
v.
RICK RAEMISCH, Executive Director of CDOC, ANGELA MEDINA, Warden of Canon Minimum Centers, and RANDY OLGUIN, Lt., Volunteer Services Coordinator, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendants' Motion
for Summary Judgment [#60][1] (the “Motion”).
Plaintiff, who is proceeding pro se, [2] filed a Response [#63] in
opposition to the Motion, and Defendants filed a Reply [#70].
Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR
72.1(c), the Motion [#60] has been referred to the
undersigned for a recommendation regarding disposition.
See [#61]. The Court has reviewed the pleadings, the
entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the
Motion [#60] be GRANTED in part and DENIED in
part.
I.
Summary of the Case
[3] Plaintiff is an inmate
incarcerated by the Colorado Department of Corrections
(“CDOC”) at Arrowhead Correctional Center
(“Arrowhead” or “ACC”).
Motion [#60] at 2. On January 12, 2017, Plaintiff
filed an Amended Complaint [#12] pursuant to 42 U.S.C. §
1983, asserting that Defendants violated his First and
Fourteenth Amendment rights and the Religious Land Use and
Institutionalized Persons Act
(“RLUIPA”)[4] by refusing to accommodate certain
requests associated with his Jewish faith. In the section of
the Amended Complaint titled “Request for Relief,
” Plaintiff states that he wants:
All religious services to be allowed at the correct times
(except during security emergencies, etc . . .), all
religious practices to be allowed, all religious items to be
allowed (books, clothing, ritual items, etc . . .), all
religious items to be allowed to be worn at all times in all
places within CDOC, on transports, etc . . ., all religious
items to be ordered as needed, not when it is too late, $10,
000 per incident/claim plus punitive damages: $10, 000,
000.00.
Am. Compl. [#12] at 9. Specifically, Plaintiff
requests accommodation from Arrowhead relating to the
lighting of candles for specific religious ceremonies on
Friday and Saturday nights. Motion [#60] at 3;
Response [#63] at 2. Additionally, Plaintiff
requests (1) a gartel belt; (2) a dreidel; (3) access to
challah bread; (4) a black hat or fedora; and (5) access to
Tefillin in his cell.[5] Motion [#60] at 4-5; Am.
Compl. [#12] at 6. Finally, the Court construes
Plaintiff's Amended Complaint as asserting First and
Fourteenth Amendment claims based on the denial of religious
services for two months starting in May 2016. Am.
Compl. [#12] at 7. The Court discusses the evidence
underlying these requests in detail in the Analysis section
below. In the present Motion [#60], Defendants seek summary
judgment in their favor on all claims.
II.
Standard of Review
The
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be
granted if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” An issue is
genuine if the evidence is such that a reasonable jury could
resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
The
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 277 U.S. at 248; Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go
beyond the allegations and denials of his pleadings and
provide admissible evidence, which the Court views in the
light most favorable to him. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)
(citing Celotex, 477 U.S. at 324). Conclusory
statements based merely on conjecture, speculation, or
subjective belief are not competent summary judgment
evidence. Bones v. Honeywell Int'l, Inc., 366
F.3d 869, 875 (10th Cir. 2004). The nonmoving party's
evidence must be more than “mere reargument of [his]
case or a denial of an opponent's allegation” or it
will be disregarded. See 10B Charles Alan Wright et
al., Federal Practice and Procedure § 2738 (4th
ed. 2017).
When
ruling on a motion for summary judgement, a court may
consider only admissible evidence. See Johnson v. Weld
Cty., Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010).
The factual record and reasonable inferences therefrom are
viewed in the light most favorable to the party opposing
summary judgment. Concrete Works, Inc., v. City &
Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). At
the summary judgment stage of litigation, a plaintiff's
version of the facts must find support in the record.
Thomson v. Salt Lake Cty., 584 F.3d 1304,
1312 (10th Cir. 2009). “When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007); Thomson,
584 F.3d at 1312.
Only
documents that meet the evidentiary requirements of
Fed.R.Civ.P. 56 may be considered for purposes of summary
judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.] . .
.
(3) Materials Not Cited. The court need consider only the
cited materials, but it may consider other materials in the
record.
(4) Affidavits or Declarations. An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.
Fed. R. Civ. P. 56(c)(1)-(4).
III.
Analysis A. Preliminary Issues
1.
Plaintiff's Evidence
Plaintiff
notes in his Response (1) that he has not received all of the
discovery he requested, (2) that he was forced to mail out
the CD of evidence that Defendants sent him, so he is unable
to provide all evidence he wanted to present in opposition to
the present Motion [#60], and (3) that he has not received a
ruling on his objection to the format of the discovery he did
receive. See [#63] at 6. The discovery deadline was
July 31, 2018. See [#43]. The present Response [#63]
was filed on November 5, 2018. While Plaintiff does not
directly ask for relief on any of these bases in the Response
[#63], the Court briefly addresses these statements.
At the
outset, the Court notes that none of these issues have
properly been brought to the Court's attention. The Court
has informed Plaintiff three times: “If you want the
Judge to do something in your case, you must file a motion
asking the Judge to do it and explaining why you want it
done. The Judge does not respond to letters or any other form
of request except motions.” See [#41-2] (in
writing as an attachment to Minute Order setting the
Scheduling Conference); [#43] (orally at the Scheduling
Conference); [#43-1] (in writing as an attachment to the
Minutes from the Scheduling Conference). Regardless,
Plaintiff has failed to file motions on any of these issues.
Regarding
Plaintiff's statement that he has not received all of the
discovery he requested, on July 12, 2018, Plaintiff filed a
Response to the Defendants' Objections [#51], which seems
to be connected to a first set of written discovery requests
from Plaintiff. Nothing in the title or on the first page
provides any indication that Plaintiff sought any relief from
the Court. It is not until the last page that Plaintiff
states that he would like the Court to “review the
objections and realize there is no confidentiality in
‘work place emails, phone calls or conversations'
and instruct” Defendants “to comply with the
[d]ocument requests.” Even if Plaintiff had
appropriately brought this issue to the Court's attention
through, for example, a motion to compel, neither the
discovery requests nor Defendant's response/objections to
the discovery requests have been entered on the electronic
docket in this case, and therefore the Court would have been,
and continues to be, unable to adjudicate any issue Plaintiff
may have had with Defendants' discovery responses.
Regarding
Plaintiff's statement that he has not received a ruling
on his objection to the format of the discovery he did
receive, on August 6, 2018, he filed an Objection to
Usability of Discovery Documents [#54], which seems to have
been directed at Defendants' responses to Plaintiff's
Second Request for Discovery [#50]. On August 13, 2018,
Plaintiff filed an Update of Objection as to Format of
Discovery [#55], and on September 12, 2018, he filed an
untitled Letter [#58]. Again, this issue was also not
appropriately brought to the Court's attention through
the procedures discussed above. However, to address the
merits of this issue now, the Court notes that CDOC
Administrative Regulation (“AR”)
750-03(III)(M)(4)(b) requires legal materials of more than
1000 pages sent from an attorney to be transmitted on
electronic media. The CD at issue had approximately 3300
pages of material on it. See [#55] at 1. Plaintiff
states that Defendants could have sent him these materials in
hard copy in four separate batches of approximately 825 pages
each. Id.; see also [#54] at 2. While this
technically may have been possible (a point on which the
Court makes no finding), the Court is aware of no requirement
that Defendants provide discovery in this manner, and further
notes that “[v]oluminous documents which will cause the
offender to exceed his/her legal box maximum may be held by
the facility until the offender brings the legal box into
compliance to enable receipt of the newly received
documents.” AR 750-03(III)(M)(4)(b). Thus, it seems
unlikely that Plaintiff's plan to have full access to all
of the documents provided in discovery at one time would have
been permitted by the facility regulations even had
Defendants provided the documents in hard copy format in
multiple batches.
Finally,
the Court addresses Plaintiff's statement that he had to
mail out the CD that was provided to him by Defendants, and
that he therefore “is unable to provide all of what he
wanted to present” in his Response [#63]. CDOC AR
750-03(III)(M)(3) provides that legal materials on electronic
media shall be “available for review in the facility
law library for a period of 50 days from the date of notice
that the materials are available.” After that time has
expired, the inmate has ten days to notify the facility legal
assistant of where the CD can be sent outside of the
facility, or else it is destroyed. AR 750-03(III)(M)(8)(a).
Given the amount of time most civil lawsuits take to reach
completion, the Court notes that the fifty-day period for
review and use of discovery located on electronic media may
be inadequate. However, importantly, “[e]xceptions
and/or extensions of the viewing period may be made on a case
by case basis and must be in writing.” AR
750-03(III)(M)(3). There is no indication that Plaintiff
attempted to take advantage of this provision by seeking an
extension of time for the viewing period, although he was
directly informed of the process when he first received
access to the CD on August 8, 2018. See [#55] at 3
(“Law Library Memo to Offender re: Legal CD Materials
for Review”).
The
Court notes that Plaintiff is not without any evidence to
rebut Defendants' Motion [#60]. First, Plaintiff attached
three exhibits to his Response to the Motion. See
[#63] at 9-17. Second, pursuant to 28 U.S.C. § 1746,
Plaintiff swore to his Amended Complaint [#12] under penalty
of perjury, and thus this document may be treated as an
affidavit and used as evidence on a motion for summary
judgment.[6] See Pacheco v. Timme, No.
11-cv-02530-RM-KLM, 2014 WL 2442111, at *4 n.2 (D. Colo. May
30, 2014). Third, Plaintiff previously submitted to the Court
sworn responses to Defendants' interrogatory requests.
See [#49]. The Court notes that there is no stated
reason why Plaintiff could not have submitted his own
declaration or affidavit in opposition to the present Motion
[#60].
However,
the evidence that Plaintiff offers in opposition to summary
judgment must provide more than conclusory or vague
statements in order to create a genuine issue of material
fact with respect to Defendants' otherwise undisputed
facts. See Ford v. West, 222 F.3d 767, 777 (10th
Cir. 2000) (“Vague, conclusory statements do not
suffice to create a genuine issue of material fact.”);
Branson v. Price River Coal Co., 853 F.2d 768, 772
(10th Cir. 1988) (stating that “mere conjecture”
is an insufficient basis for denial of summary judgment). The
Court therefore does not make reference to such statements,
even if Plaintiff “disagrees” with
Defendants' facts, unless Plaintiff directs the
Court's attention to evidence in the record which
otherwise supports his “disagreements.” Finally,
the Court also notes that it disregards all statements
consisting of legal conclusions. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
2.
Fourteenth Amendment
Although
not explicit, it appears that Plaintiff is also asserting a
Fourteenth Amendment due process claim in connection with the
decision to ban him for two months from religious services.
See Am. Compl. [#12] at 7. Plaintiff mentions the
Fourteenth Amendment under the jurisdictional section of his
Amended Complaint. Id. at 2. He then states under
his fourth claim: “In May 2016 Lt. Olguin denied the
plaintiff [any] services for two months in violation of CDOC
Administrative Regulation (AR 150-01) as well as in violation
of the plaintiffs [sic] rights.” Id. at 7. AR
150-01 provides CDOC's Code of Penal Discipline for
inmates.
In the
present Motion, Defendants appear to recognize this claim in
a heading: “The CDOC's denial of remaining
provisions do not constitute violations of the First
Amendment, RLUIPA, or the Fourteenth Amendment.” [#60]
at 10. However, this appears to be the only mention of, or
even allusion to, the Fourteenth Amendment or due process
anywhere in the Motion. Instead, Defendants treat
Plaintiff's claim here as only being asserted under the
First Amendment and/or RLUIPA. See Id. at 13-14,
16-17.
In his
Response, Plaintiff provides argument regarding this issue
and the First Amendment, but he also clearly notes his due
process concerns:
[T]here was no due process hearing he was in any way aware of
for the punishment that was handed down to restrict him from
services. The CDOC has specific rules laid out in AR 150-01
that state what punishments may be handed out for various
behaviors, and there are no sanctions that include
restricting someone from services for two months. Lt.
Olguin's actions violated CDOC ARs and the plaintiff
feels that he also violated his rights.
[#63] at 3. Thus, Plaintiff makes clear that his Fourteenth
Amendment claim is asserted against Defendant Randy Olguin
(“Olguin”) and that the primary basis for the
claim is an alleged denial of due process. However, in the
Reply, Defendants again still interpret this claim as being
asserted only under the First Amendment and/or RLUIPA. [#70]
at 5-6.
Based
on this background, the Court finds that Defendant Olguin has
failed to provide adequate argument regarding the dismissal
of Plaintiff's Fourteenth Amendment claim regarding the
denial of religious services for two months. See United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))
(“Judges are not like pigs, hunting for truffles buried
in briefs.”). In the absence of any argument to this
effect, the Court finds that consideration of summary
judgment on this issue to the extent asserted under the
Fourteenth Amendment is inappropriate, except to the
extent impacted by subject matter jurisdiction, which the
Court may raise at any time, as discussed below.
B.
Subject Matter Jurisdiction
Defendants
raise Eleventh Amendment immunity and mootness arguments in
the context of their summary judgment discussion, thus
essentially seeking rulings on whether the Court has subject
matter jurisdiction over portions of this action.
Motion [#60] at 8-10. The Court therefore discusses
these arguments first. See Herrara v. Alliant Specialty
Ins. Servs., Inc., No. 11-cv-00050-REB-CBS, 2012 WL
959405, at *3 (D. Colo. Mar. 21, 2012) (stating that issues
of subject matter jurisdiction “must be resolved before
the court may address other issues presented in the
motion”).
1.
Eleventh Amendment Immunity
The
Eleventh Amendment provides that “[t]he Judicial Power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State or Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI.
Courts interpret the Eleventh Amendment to prohibit a citizen
from filing suit against a state in federal court. Ruiz
v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). A
claim against a public official acting in his official
capacity is treated like a claim against the state and is
barred by the Eleventh Amendment. Kentucky v.
Graham, 473 U.S. 159, 169 (1985). To the extent
Plaintiff seeks money damages against Defendants in their
official capacities under the First and Fourteenth Amendments
and RLUIPA, they are immune from such damages claims under
the Eleventh Amendment. Id. See, e.g., Wauford
v. Richardson, 450 Fed.Appx. 698, 699 (10th Cir. 2011);
Sossamon v. Texas, 563 U.S. 277, 293 (2011) (holding
that the Eleventh Amendment applies to RLUIPA claims).
Accordingly,
the Court recommends that Plaintiff's
First and Fourteenth Amendments and RLUIPA claims against
Defendants in their official capacities be dismissed
without prejudice to the extent Plaintiff seeks
money damages. See Wauford, 450 Fed.Appx. at 699
(stating that claims barred by the Eleventh Amendment should
be dismissed without prejudice); Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1317-18 (10th Cir. 2005)
(holding that the district court should have ordered
dismissal, rather than summary judgment, when jurisdiction
was lacking).
2.
Mootness
Defendants
argue that several of Plaintiff's requests for injunctive
relief are moot because Arrowhead has determined that the
facility will accommodate them. Motion [#60] at 10.
Specifically, Defendants assert that Arrowhead will
accommodate Plaintiff's request to light candles at
appropriate times and will allow him possession of a gartel
and access to a dreidel during program time. Id.
Plaintiff responds that he is not being allowed to light his
wax candles at appropriate service times. Response
[#63] at 3-4. Plaintiff also objects to Defendants'
gartel accommodation, stating that he has only been
“given an approximately 15 foot long piece of
[p]aracord.” Id. at 2. Plaintiff does not
contest that Defendants have accommodated his request for
access to a dreidel. Id. at 2.
Mootness
is an issue of subject matter jurisdiction, which can be
raised at any stage of the proceedings. Kennedy v.
Lubar, 273 F.3d 1293, 1301-02 (10th Cir. 2001).
“Article III's requirement that federal courts
adjudicate only cases and controversies necessitates that
courts decline to exercise jurisdiction where the award of
any requested relief would be moot-i.e. where the controversy
is no longer live and ongoing.” Front Range Equine
Rescue v. Vilsack, 782 F.3d 565, 568 (10th Cir. 2015)
(internal quotation marks omitted). “A case is moot . .
. where the relief sought can no longer be given or is no
longer needed.” Id. (internal quotation marks
omitted).
“But
even if a case is not constitutionally moot, it may be
prudentially moot.” Robertson v. Biby, 719
Fed.Appx. 802, 804 (10th Cir. Dec. 15, 2017). In Winzler
v. Toyota Motor Sales U.S.A., Inc., 681 F.3d
1208, 1210-11 (10th Cir. 2012), the Tenth Circuit Court of
Appeals laid out in detail the circumstances under which a
case may be deemed prudentially moot:
[C]laims for equitable relief, like the injunction [the
plaintiff] seeks in this lawsuit, appeal to the remedial
discretion of the courts. This remedial discretion
necessarily includes the power to mould each decree to the
necessities of the particular case. And inhering in that
power is the concomitant power to deny relief altogether
unless the moving party [can] satisfy the court that relief
is needed. After all, if events so overtake a lawsuit that
the anticipated benefits of a remedial decree no longer
justify the trouble of deciding the case on the merits,
equity may demand not decision but dismissal. When it does,
we will hold the case “prudentially moot.” Even
though a flicker of life may be left in it, even though it
may still qualify as an Article III “case or
controversy, ” a case can reach the point where
prolonging the litigation any longer would itself be
inequitable.
Prudential mootness doctrine often makes its appearance in
cases where a plaintiff starts off with a vital complaint but
then a coordinate branch of government steps in to promise
the relief [ ]he seeks. Sometimes the plaintiff will seek an
injunction against the enforcement of a regulation the
relevant agency later offers to withdraw on its own.
Sometimes the plaintiff will seek an order forcing a
department to take an action that it eventually agrees to
take voluntarily. However it comes about though, once the
plaintiff has a remedial promise from a coordinate branch in
hand, we will generally decline to add the promise of a
judicial remedy to the heap. While deciding the lawsuit might
once have had practical importance, given the assurances of
relief from some other department of government it
doesn't any longer.
To be sure, promises of reform or remedy aren't often
sufficient to render a case moot as a constitutional matter.
That's because the risk always exists that, as soon the
court turns its back, the defendant might renounce his
promise and “return to his old ways.” But even
when the risk of recalcitrance is injury enough to keep the
case alive as an Article III matter, it isn't necessarily
enough to avoid the application of [the] prudential mootness
doctrine. That's because any party invoking the equitable
remedial powers of the federal courts must still satisfy the
court that requested relief is needed, and when it comes to
assessing that question, a remedial promise always qualifies
as one of the factors to be considered. Though a remedial
promise may not be enough to kill a case constitutionally, it
can be enough to bring it to an end all the same as a matter
of equity.
The weight a remedial promise plays in the equitable calculus
depends, of course, on who is making the promise and the
reliability of that party's past promises. . . . [W]e
take governmental promises seriously . . . because they are
generally trustworthy. We also take them seriously because
affording a judicial remedy on top of one already promised by
a coordinate branch risks needless inter-branch disputes over
the execution of the remedial process and the duplicative
expenditure of finite public resources. It risks, too, the
entirely unwanted consequence of discouraging other branches
from seeking to resolve disputes pending in court.
(citations and some internal quotation marks and brackets
omitted).
Based
on the following, the Court finds that the candle-lighting
service times issue is prudentially moot, that the
electric-versus-wax candles issue is not moot, and that the
dreidel and gartel issues are constitutionally moot.
a.
Candles
The
issues surrounding candle-lighting are more nuanced than are
the other issues raised by Plaintiff. Defendants assert that
“[i]n response to Plaintiff's complaints the
officials in charge of faith-based programs and Arrowhead
determined that they would accommodate Plaintiff's
requests to light candles at different times throughout the
year, despite the facility's regular practice of closing
programs at 7:30 p.m.” Motion [#60] at 10.
In the
Amended Complaint, dated January 9, 2017, Plaintiff stated
that “[t]he Friday night candle lighting times range
from 4:18pm in December through 8:10pm in June.”
See [#12] at 4. He further stated that “[t]his
means through this facilities [sic] scheduling, (which is
[that] Jewish services are only held from 5:30pm to 7:30pm
Friday and Saturday year round) most of the time I am denied
correct service times.” Id. Over a year later,
on June 1, 2018, Plaintiff stated that “[s]wing shift
was allowing me to light at the correct times last year until
daylight savings made the after 8 pm time unnecessary. Now
that we are back into normal time (as of March) I haven't
been able to get that set back up.” Pl.'s
Interrogatory Response [#49] at 5. However, he noted
that he “spoke with Lt. Olguin about this at the
Warden's Meeting 5/8/2018 and he said he would speak with
Lt. Green, but it may take time.” Id.
Importantly, the Court observes Plaintiff's statement
that he “has not ever requested the candle lightings
he's asking for during a [c]ount. He specifically has
tried to either light early on Fridays where the correct time
is during count (and the correct times are from 4:15pm thru
5:25pm from Nov thru February) or later on Saturday which
does raise the issue during the majority of the year because
programs close at 7:30pm and the candle lightings from April
through September are after that time.”
Response [#63] at 2. Thus, the Court emphasizes that
Plaintiff is not seeking to have candle-lighting service
times during count, i.e., when every inmate is expected to be
in his cell to be counted in order to make sure that no one
is missing.
In
support of their mootness argument, Defendants point to the
October 15, 2018 Declaration of Olguin [#60-3]. Id.
Defendant Olguin is a Facility Volunteer Coordinator for
CDOC, whose job entails working with CDOC “headquarters
to ensure volunteer programs are conducted safely and
consistently with policy, ” including “acting as
a point of contact for offenders who have specific requests
relating to faith-based practices.” Decl. of
Olguin [#60-3] ¶¶ 1, 3. Defendant Olguin
states, in relevant part:
With respect to Mr. Mounts' requests for specific
candle-lighting accommodations, the facility has been
accommodating Mr. Mounts. However, he is responsible for
alerting staff to the changing schedule of his ceremonies.
Because Mr. Mounts[ ] is requesting to light candles at
various times based on sunset, he does not need accommodation
year-round. At some point in 2017 Mr. Mounts stopped asking
for accommodations because he could light candles within the
facility's normal schedule. Mr. Mounts claimed he was
denied accommodations in 2018. I spoke with staff, including
Lieutenant Green, who explained Mr. Mounts stopped asking for
accommodations in 2017. He did not speak with Lieutenant
Green to resume accommodations in 2018. I speak with Mr.
Mounts regularly and he never mentioned anything to me about
not being accommodated to ensure proper lighting times.
Arrowhead conducts a count time at 8:00 p.m. This count
requires all offenders to be in their living unit. To ensure
offender movement completes in time for count, the facility
closes programs at 7:30 p.m. For a portion of the year, Mr.
Mounts requests to light a candle after 7:30 p.m.
Mr. Mounts must communicate with staff to ensure the facility
is aware of when Mr. Mounts needs accommodations to light
candles outside of normal program times. Accommodating Mr.
Mounts requires a staff member to accompany him to the
programs area after all programs are closed.
Id. ¶¶ 18-20. Defendants also point to the
October 12, 2018 Declaration of Kirk Machin
(“Machin”) [#60-5]. Motion [#60] at 10.
Mr. Machin is the Faith and Citizen Programs Coordinator for
CDOC and is the consultant for regional and local Facility
Volunteer Coordinators such as Defendant Olguin. Decl. of
Machin [#60-5] ¶¶ 1, 3. His primary duties
include overseeing “all volunteers for the DOC [and]
all offender faith-based policies and practices, ”
working “as a liaison with Facility Volunteer
Coordinators to receive and process religious requests,
” providing “consistency across DOC facilities
with regard to policy and practice, ” and submitting
“recommendations to the executive staff regarding
policy changes affecting faith-based programs.”
Id. ¶ 4. As relevant here, Mr. Machin states:
Mr. Mounts' request to light a candle could be
accommodated to an extent. It is not always possible to allow
Mr. Mounts to leave the living unit, when the rest of the
facility is required to be in their living units. Generally,
he is being allowed to light a candle in the programs
building, after the standing count at 8:00 p.m., when the
facility has sufficient staffing to cover Mr. Mounts'
movement throughout the facility without jeopardizing
security. The facility cannot always allow Mr. Mounts to burn
a real candle at the necessary time, for example if a
lockdown occurs after a violent or dangerous incident, but he
also has tea lights which are commonly used in lieu of wax
candles.
Decl. of Machin [#60-5] ¶ 13.
Finally,
Defendants direct the Court's attention to the October
12, 2018 Declaration of Kenneth Green (“Green”)
[#60-6]. Motion [#60] at 10. Mr. Green is a
Lieutenant at Arrowhead, where he has worked since 1997.
Decl. of Green [#60-6] ¶ 2. He states:
I [r]eceived direction from Major Hector Huertas and Captain
Lance Johnson to make a specific accommodation for offender
Matthew Mounts (IM# 66276). I was told to arrange for a
security officer to accompany Mr. Mounts to the program area,
as needed, to allow Mr. Mounts to light a candle for
religious services after programs shut down, which is at 7:30
p.m. in all facilities at the Cañon Minimum Center.
I was directed to allow this to happen unless a security need
prevented a security officer from accompanying Mr. Mounts. A
security officer had to retrieve a lighter, give it to Mr.
Mounts, and monitor his candle-lighting to ensure the
facility was safe. Mr. Mounts could not be allowed to do this
alone because of the security risk of allowing an offender to
light an open flame without supervision.
To my knowledge, the candle-lighting was occurring without
incident.
In June or July of 2018 Mr. Olguin spoke with me about the
candle-lighting, and stated Mr. Mounts was claiming he was
not allowed to light his candles at the appropriate times.
This was news to me, because Mr. Mounts had not notified me
of any problems with the candle-lighting process.
I spoke with staff members in the facility to determine what
was going on. Mr. Mounts had not told any staff member that
he needed accommodation to light his candles at the proper
times. Because the Jewish calendar is based on the sun, the
time for lighting candles varies throughout the year.
At some point after the facility started accommodating Mr.
Mounts' need to light candles after programs closed, he
no longer need accommodation. He was able to light his
candles at the appropriate time because the sun was setting
earlier in the day. For several months he did not need to be
accommodated. At some point in the spring the 7:30 p.m.
closing of programs started to conflict with Mr. Mounts'
candle-lighting.
I spoke with Mr. Mounts and asked him why he did not notify
staff or me about the need for accommodation. I explained
that he was required to work with staff to ensure the
facility was aware of his need to light candles after 7:30
p.m. Mr. Mounts claimed to have submitted kites asking to
speak with me. I explained to him that all he needed to do
was talk with staff, and if there was any issue he should
come speak with me.
I explained to Mr. Mounts that I could not help him unless he
communicated with me or my staff. If Mr. Mounts ever missed
appropriate candle-lighting times, after we began working
with him, ...