Mounts v. Raemisch

          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, ...