United States District Court, D. Colorado
CHRISTOPHER M. ORWIG, Plaintiff,
DEAN WILLIAMS,  in his official capacity, FELICIA BROOKS, in her individual capacity, STEVEN BADE, in his individual capacity, and EARLLEENA CLARK, in her individual capacity, Defendants.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Dean Williams’
(“Williams”) Motion for Summary Judgment [Docket
No. 93], the Individual Defendants’ 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.
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.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.
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, ” and can carry the medicine bag
“anywhere they go.” Docket No. 113 at 8, ¶
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
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.
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.
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.
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. 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.
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.,
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.
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,
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].
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.
Rule 12(c) Motion for Judgment on the
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.
Motion for Summary Judgment
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).
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).
Individual Defendants’ Motion for Judgment on 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.”). Thus, the Court will grant the individual
defendants’ motion for judgment on the pleadings and
dismiss plaintiff’s RLUIPA claim against the individual
Motions for Summary Judgment
Religious Land Use and Institutionalized Persons
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.
“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