Orwig v. Williams

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Dean Williams’ (“Williams”) Motion for Summary Judgment [Docket No. 93], the Individual Defendants’^[2] Motion for Summary Judgment [Docket No. 94], and the Individual Defendants’ Unopposed Motion for Judgment on the Pleadings on the Individual-Capacity RLUIPA Claims [Docket No. 107]. The Court has jurisdiction pursuant to 28 U.S.C. §1331.

         I. BACKGROUND^[3]

         Plaintiff Christopher M. Orwig is currently incarcerated in the Colorado Department of Corrections (“CDOC”). Docket No. 93 at 1, ¶ 1. At the time of the underlying incident, plaintiff was housed at the Sterling Correctional Facility (“SCF”). Id. at 2, ¶ 2. Plaintiff identifies himself as a Messianic Jew. Id., ¶ 5. It is his religious belief that he must carry the Bible “on his person or in his immediate vicinity at all times, ” even while working. Id., 2, ¶¶ 6-7; Docket No. 114 at 2, ¶¶ 6-7; Docket No. 119 at 2, ¶¶ 6-7.^[4]To comply with his religious beliefs, plaintiff always carries a copy of the Bible with him, except during showers and cell “shakedowns.” Docket No. 93 at 3, ¶ 13. The Bible that plaintiff carries has a soft cover and is approximately three inches long, two inches wide, and one inch thick. Docket No. 114 at 8, ¶ 88.

         A. Prison Rules

         Posted Operational Rules (“POR”) are facility- and unit-specific restrictions on the items that inmates may bring into a specific unit or area within a CDOC facility. Docket No. 93-3 at 17-18, 63:1-65:15. SCF POR 302 governs the conduct of inmate food service workers and prohibits kitchen workers from bringing personal items into the kitchen. See Docket No. 94 at 4, ¶ 19; see also Docket No. 93-2 at 7. POR 302 does not serve as a complete ban on all personal items, as kitchen workers may wear religious medallions and carry rosaries in their pockets while working in the kitchens. Docket No. 94 at 7, ¶ 46. Further, Muslim kitchen workers may bring their prayer rugs and Qurans into the kitchen during Ramadan. Docket No. 94 at 7, ¶ 47. These items must be stored in the Sergeant’s office, except during their prayers, and are not allowed on the inmate’s person. Id. Additionally, inmates may carry on their person a “medicine bag, ”^[5] and can carry the medicine bag “anywhere they go.” Docket No. 113 at 8, ¶ 84.

         AR 800-01 is a CDOC-wide policy governing the practice of religion. Docket No. 93 at 3, ¶ 16. AR 800-01 “acknowledges the right of inmates to engage in religious activities and establishes guidelines and consistent standards for the practice of religion.” Id. AR 800-01 requires CDOC facilities like SCF to “[e]nsure that offenders have the opportunity to participate in practices deemed essential” to a specific faith group. Docket No. 93-4 at 7. This is limited in several ways. For instance, AR 800-01 does not allow religious practices that are considered a threat to the safety of CDOC staff, volunteers, or offenders or practices that “disrupt[] the security or good order of the facility.” Id.

         AR 800-01 lists a number of personal, faith-based items that may be worn, carried in a pocket, or used outside of a cell. Docket No. 93 at 3, ¶ 17; Docket No. 93-4 at 11. Such items include medicine bags, medallions, prayer beads, and rosaries. Docket No. 93-4 at 10. However, personal faith items may not be “displayed or used in general population.” Id. at 11 (listing certain excepted items). Upon a CDOC employee’s request, inmates must open and present faith property for a visual and physical inspection. Id. at 9. An inmate’s refusal “shall result in confiscation and subsequent inspection” of the property in question. Id.

         Bibles are not listed as allowable personal faith property. Docket No. 93-4 at 10. Inmates do have, however, the ability to seek to amend the recognized faith group practices or property item allowances by submitting Form 800-01J, “Amending Faith Group Practices.” Docket No. 93 at 3, ¶¶ 17-18; Docket No. 93-4 at 3; see also Docket No. 93-4 at 3, ¶ IV.B.

         B. The Incident

         Plaintiff was a cook in the prison’s Kosher Kitchen (“kitchen”). Docket No. 93 at 5, ¶ 24. Plaintiff alleges that, in September 2014, he began bringing his pocket Bible to his work assignment, in adherence with his sincerely-held religious belief. Docket No. 79 at 4, ¶ 19. Plaintiff maintains that each time he went through security screening, he openly presented his Bible for inspection. Docket No. 79 at 5, ¶¶ 27. According to plaintiff, while the corrections officer would “occasionally” inspect the Bible, he was always permitted to enter the kitchen with the Bible in his possession. Id., ¶ 28. It is undisputed that, one week before the incident, plaintiff was allowed to work in the kitchen with his Bible on his person. Docket No. 114 at 7, ¶ 79.

         In late November 2015, a corrections officer conducted plaintiff’s security screening as plaintiff entered the kitchen and noticed plaintiff’s pocket Bible. Docket No. 94 at 8, ¶ 51. He and defendant Earlleena Clark gave plaintiff a warning on the basis that POR 302 prohibited him from carrying his Bible in the kitchen.^[6] Id., ¶¶ 51-53. Plaintiff informed Clark that his religious doctrine commands him to carry his Bible at all times, ignored the warning, and continued to bring his Bible to the kitchen. Id., ¶ 54.

         On December 1, 2015, plaintiff reported to his work assignment with his pocket Bible, which Clark confiscated. Id., ¶ 55. Plaintiff worked without his Bible for approximately an hour and a half until defendant Felicia Brooks came to work. Id., ¶ 56. Brooks confirmed to plaintiff that the policy prohibited him from having his Bible in the kitchen. Id., ¶ 57. Plaintiff then informed Brooks that he felt nauseous and that he could no longer work. Id., ¶ 58. Brooks told plaintiff to return to work, and plaintiff refused. Id. at 9, ¶ 59. Brooks called security to have plaintiff returned to his housing unit. Id., ¶¶ 59-60.

         Plaintiff was issued an incident report for failure to work. Id., ¶ 60. A disciplinary officer, defendant Steven Bade, reviewed the incident report and conducted an investigation to determine whether disciplinary charges should be filed. Id. Bade determined that the preponderance of evidence supported charging plaintiff with failure to work and issued a notice of charge. Id., ¶ 64. A hearing officer determined that plaintiff was guilty of failure to work under the Code of Penal Discipline (“COPD”). Id. at 9, ¶ 66. As a result of this charge (the “COPD conviction”), plaintiff lost 10 days of good time credit that he had earned toward his sentence and was removed from his job in the kitchen. Id., ¶¶ 69-70. He was reassigned to a program assignment in the “academic loop, ” which is a paid opportunity to participate in certain educational classes. Id. at 10, ¶¶ 70-71.

         Plaintiff filed this lawsuit on April 4, 2016. Docket No. 1. After being granted leave to amend his complaint on two occasions, he filed the operative complaint, his Second Amended Complaint [Docket No. 79], raising claims of (1) a violation of his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et seq., against all defendants – Williams in his official capacity and the individual defendants in their individual capacities; and (2) a violation of his First Amendment free exercise of religion rights under 42 U.S.C. § 1983 against all defendants. Docket No. 79 at 9-10. Defendant Williams was sued in his official capacity while defendants Brooks, Bade, and Clark were sued in their individual capacities. See Id . Plaintiff argues that his rights under RLUIPA and the First Amendment were violated when he was forced to work without his Bible and was then punished when he refused to do so. Id. at 10, ¶¶ 68-69; id. at 11, ¶ 78. Plaintiff seeks an injunction expunging his COPD conviction as well as money damages. Id. at 11-12, ¶ 80.

         On January 21, 2019, the individual defendants filed a Stipulation to Dismiss Individual-Capacity RLUIPA Claims [Docket No. 92] pursuant to Rule 41 of the Federal Rules of Civil Procedure on the basis that RLUIPA provides no cause of action for individual-capacity claims. The Court denied the parties’ request to dismiss the individual claims on the basis that Rule 41 “is not an appropriate mechanism for dismissing less than all claims against a particular defendant in an action.” Docket No. 96 at 1. Thereafter, the individual defendants filed their unopposed Motion for Judgment on the Pleadings on the Individual-Capacity RLUIPA Claims pursuant to Federal Rule of Civil Procedure 12(c) [Docket No. 107].

         On January 22, 2019, defendant Williams filed a motion for summary judgment, Docket No. 93, as did the individual defendants. Docket No. 94. Plaintiff responded to both motions, see Docket Nos. 113 and 114, to which defendant Williams [Docket No. 119] and the individual defendants [Docket No. 120] replied.

         II. LEGAL STANDARD

         A. Rule 12(c) Motion for Judgment on the Pleadings

         “After the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). Therefore, under Rule 12(c), the court examines whether the complaint’s allegations are “enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1224 (10th Cir. 2009); see Id . at 1223.

         B. Motion for Summary Judgment

         The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is proper when 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). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp., 477 U.S. at 325. “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp., 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson, 477 U.S. at 248).

         A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works, 36 F.3d at 1517. Once the motion has been properly supported, the burden shifts to the nonmovant to demonstrate that summary judgment is not proper. Id. at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999); Nutting v. RAM Sw., Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000).

         III. ANALYSIS

         A. Individual Defendants’ Motion for Judgment on the Pleadings

         The individual defendants argue that they are entitled to judgment on the pleadings on plaintiff’s RLUIPA claim on the basis that RLUIPA does not provide a cause of action for individual-capacity claims. Docket No. 107 at 3. The Tenth Circuit has determined that “there is no cause of action under RLUIPA for individual-capacity claims.” Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012). “The only relief available . . . under RLUIPA is declaratory and injunctive relief against defendants in their official capacities.” Warner v. Patterson, 534 Fed.App’x 785, 788 (10th Cir. 2013) (unpublished) (emphasis added) (citing Sossamon v. Texas, 563 U.S. 277, 293 (2011) and Stewart, 701 F.3d at 1335). Plaintiff’s RLUIPA claim is brought against Williams in his official capacity and the individual defendants in their individual capacities. See generally Docket No. 79. Under Stewart, plaintiff’s individual-capacity claims may not proceed. See, e.g., Weinstein v. Woitte, No. 17-cv-02506-CMA-NYW, 2018 WL 3899079, at *3 (D. Colo. Aug. 14, 2018) (citing Stewart, 701 F.3d at 1334) (“To the extent Plaintiff sued [defendant] in his individual capacity, such claim cannot proceed under RLUIPA.”).^[7] Thus, the Court will grant the individual defendants’ motion for judgment on the pleadings and dismiss plaintiff’s RLUIPA claim against the individual defendants.

         B. Motions for Summary Judgment

         1. Religious Land Use and Institutionalized Persons Act

         While plaintiff’s RLUIPA claim against the individual defendants has been dismissed, his claim against Williams in his official capacity remains. Williams argues that he is entitled to summary judgment on plaintiff’s RLUIPA claim because plaintiff cannot show that the restriction at issue – POR 302 – constitutes a “substantial burden” on plaintiff’s religious exercise. Docket No. 93 at 17. In the alternative, Williams argues that, even if plaintiff can show that POR 302 substantially burdens plaintiff’s religious practice, the rule is the least restrictive means of furthering a compelling governmental interest. Id. at 18-20.

         RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). In pertinent part, RLUIPA provides that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that ...