Opinion
3:19-cv-01630-CL
12-22-2021
JOHNTE RAY LIEN, and ZAFAR ABDULLAH, fka William Peters-Esmario, Plaintiffs, v. COLETTE PETERS; TIM CAUSEY; KENNETH BALL; GILLIAN SODERSTRUM; DENNIS HOLMES; and ANGIE MURPHY., Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendants Colette Peters, Tim Causey, Kenneth Ball, Gillian Soderstrum, Dennis Holmes, and Angie Murphy's motion for summary judgment (#49). Plaintiffs have conceded their RLUIPA claim is moot because they have been released from custody, but have raised genuine issues of material fact on their First Amendment claim, as discussed below. Therefore, Defendants' motion (#49) should be GRANTED IN PART and DENIED IN PART: the RLUIPA claim and requests for declaratory and injunctive relief should be dismissed, and Plaintiffs' First Amendment claim should proceed to trial.
LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66F.3d 1052, 1056 (9th Cir. 1995). Where disputed facts exist, the “plaintiffs representations of these facts are assumed to be correct for the purposes of deciding the summary judgment motion.” Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 (9th Cir. 2016).
FACTUAL BACKGROUND
Plaintiffs' claims arise out of an alleged lack of accommodations for Friday Jumu'ah prayers during Ramadan 2019 at the Deer Ridge Correctional Institution (DRCI). First Am. Compl., Dkt. #38. Plaintiffs Johnte Lien and Zafar Abdullah (formerly known as William Peters-Esmario) are both former Oregon Department of Corrections (ODOC) adults in custody (AICs). Both men were housed at DRCI during Ramadan 2019, and both men have since been released from custody.
Plaintiffs bring two claims in this case. First, a claim under 42 U.S.C. § 1983, alleging that defendants infringed their right to freely exercise their religion under the First Amendment. Second, a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which the parties agree is moot. Id. ¶¶ 19-33. Plaintiffs seek money damages (id. at pp. 6-7), which they still pursue, and declaratory and injunctive relief, which Plaintiffs agree is moot following their release from incarceration. See Resp. at 7 [ECF No. 56].
I. ODOC Prison Regulations
ODOC's rules governing religious services for AICs are set forth in OAR Chapter 291, Division 143, Religious Services (AIC). Young Decl., Ex. 1. Under OAR 291-143-0070(1), “A chaplain in each Department of Corrections facility is responsible for coordination and facilitation of inmate religious activities.” Id. at Ex. 1, p. 2. OAR 291-143-0070(4) provides:
If a chaplain is not qualified to lead a particular religious activity and an approved volunteer is not available, the chaplain or designee, with the assistance of the Religious Services administrator or assistant administrator or others as needed, will:
(a) Seek out and invite a qualified individual from the community to conduct the religious activity as a religious volunteer; or
(b) Work with a religious representative to provide when possible alternative means for the conduct of the requested activity in a manner that is consistent with department rules and facility procedures. Alternative means may include, when
determined appropriate by the chaplain, use of a script, liturgy, audio, video, or other available media.
(c) The chaplain will determine whether an approved activity will be accommodated in the context of a group activity or limited to individual practice, based on the availability of staff or volunteer resources.Id. at Ex. 1, p. 2.
Within ODOC, the rules governing religious services further prevent AICs from leading religious activities on their own. The rules provide:
Inmates shall not be permitted to direct, lead, or conduct other inmates in religious activities. If a chaplain or a qualified religious volunteer approved by the department is unavailable to direct, lead, or conduct an approved religious activity requested by an inmate, an alternative means for the activity is not acquired, the inmate's request will be denied until such time as a qualified religious volunteer or alternative means of accommodation becomes available.Id. at Ex. 1, p. 2 (citing OAR 291-143-0070(5)). Defendants assert the basis for this rule is institutional security-specifically, that if an AI C were permitted to lead other AICs in religious services, uneven power dynamics and social hierarchies could develop that could put AICs at risk. Id. In addition, Defendants believe there is a risk that AICs could misrepresent faith traditions to other AICs if religious services were conducted outside the presence of chaplains or approved volunteers. Id.
Under the rules, each prison's functional unit manager is responsible for designating areas of the prison that may be used for religious services. OAR 291-143-0090 provides: “The functional unit manager of each facility shall designate areas of sufficient size and quantity appropriate for the conduct of approved religious activities.” Murphy Decl., Ex. 3. Lien and the other Muslim inmates would have agreed to perform their Jumu'ah prayer in smaller groups if requested or in any appropriate location including the unit, offices, conference rooms, the chapel, or the chapel yard. Lien Decl. ¶ 14. There are numerous rooms and offices at DRCI which could accommodate Plaintiffs' requests for Jumu'ah prayer. Id.
Outside of the general ODOC rules, DRCI has several regulations that-at least on their face-applied to plaintiffs' behavior as well. DRCI's housing unit guidelines provide that “Clothing must be worn in the manner it was intended. Damage to state-issued items may result in [AICs] being charged for replacement or repairs. Failure to follow directives will result in progressive discipline.” Murphy Decl. at Ex. 4, p. 18. The guidelines also prohibit clothing from being “used for other than intended purposes.” Id. at Ex. 4, p. 54.
DRCI's housing unit guidelines also regulate what activities AICs can engage in while in the prison yard, and, in certain locations, limit how many AICs can gather in a particular space. Under the guidelines, AICs in the recreation yard must “either be walking continuously, seated appropriately at the tables, in designated grass areas or engaged in an athletic activity (e.g. basketball, weights, etc.).” Id. at Ex. 4, p. 55. The guidelines prohibit AICs from “more than four (4) to a group” when walking the upper yard. Id.
II. Plaintiffs' Requests to Pray on Fridays During Ramadan 2019
Plaintiff JohnTe Lien and Zafar Abdullah are devout Muslims who observe daily prayer and other rituals required by their faith. Lien Decl. ¶ 3. This includes the Jumu'ah prayers, which are a congregational prayer that require men and women of faith to pray together. Id. Jumu'ah prayers occur on Friday afternoons and involve a ritual ablution (cleaning), and two prayers (rak'as), followed by Khutbah. Id. A Khutbah is a sermon that was written at an earlier time by a Muslim imam. Neither Plaintiff serves as an imam or writes Khutbahs. The Jumu'ah prayer generally takes an hour or less to perform. Id. During Ramadan, the holiest month of the Islamic calendar, Jumu'ah prayers occupy a place of extraordinary significance for Muslims. Id.
DRCI has one chaplain, Chaplain Kenneth Ball, and there are no volunteers at DRCI that serve Muslim AICs. Young Decl., ¶ 10. Chaplain Ball does not participate in Jumu'ah prayer. Lien Decl. ¶ 15. Nor does he supervise the prayer. Id. When available, Chaplain Ball essentially acts as an usher for the chapel; he escorts inmates into the chapel, leaves the chapel for an undetermined amount of time while inmates engage in religious services, and then comes back near the time that the religious service is over to escort the inmates out of the chapel. Id. Chaplain Ball does not sit through the ceremony, supervise, or listen to their reading of the Khutbah. Id.
Different inmates participate in reading the Khutbah during Jumu'ah prayers. Id. ¶ 16. The person doing the reading is not “leading” a service but simply reading a text prepared by an imam. Neither plaintiff leads the Jumu'ah prayers since neither is an imam. Id.
Early in Ramadan 2019, Lien, along with other Muslims, attempted to perform Jumu'ah prayers on their unit but they were told that they were not allowed to do so. Id. ¶ 6. Melvin Williams, another Muslim inmate at DRCI, asked the correctional officer on the unit whether they could perform Jumu'ah prayers in front of a blank wall in an unoccupied and unused area or on their unit. Id. The officer denied Williams' request without explanation. Id
During the first three Fridays of the month of Ramadan 2019, the DRCI chapel was closed, leaving Muslims at DRCI without a place to perform Jumu'ah prayers. Id. ¶ 11. Although it was closed on those three Fridays, the chapel was intermittently opened for non-Muslims to use the chapel for religious services. Id. ¶ 4. Only once during Ramadan 2019 was the chapel or any other space made available to Muslim inmates at DRCI. Id. ¶ 10.
On Friday May 10, 2019, at approximately 2:00 pm, in an effort to honor their religious duties of Jumu'ah prayer during Ramadan, JohnTe Lien, Zafar Abdullah, Melvin Williams, and Basim Floro attempted to use the yard for Jumu'ah prayer. Id. ¶ 7. Since they were not allowed to have their prayer rugs, they substituted their sweatshirts. Id. There were only four inmates gathered together to attempt to conduct their religious duties of Ramadan. Id.
That day, Lien was reading a passage from the Koran to Abdullah, Williams, and Floro when defendant Gillian Soderstrum told them to “Stop immediately and go in or you will be punished.” Id. When Abdullah asked why, Soderstrum said that communal religious practices were forbidden on the yard. Id. Soderstrum added that Muslims were forbidden from engaging in Jumu'ah prayer at all. Id. Soderstrum stated that they could look it up in the unit rulebook. Id.
Lien and the other Muslim inmates returned to their unit. Id. ¶ 8. When they arrived, Soderstrum called over to defendant Angie Murphy. Id. Murphy agreed with Soderstrum's conclusion that Jumu'ah prayer was forbidden. Id. Abdullah and others reviewed the rule book and pointed out to Murphy that the rule book did not forbid them from participating in Ramadan. Id. Lien, Abdullah, Williams, and Floro requested grievance forms so they could formally grieve the incident. Id. Abdullah and Williams notified the Lieutenant on duty of the interaction with Soderstrum, his response was, “You can't piss in the day room either.” Id.
Defendants do not dispute Plaintiffs' evidence that DRCI staff allowed Christians to engage in religious practices together with other inmates, including saying prayers prior to meals, reading Bible passages together (known as bible club), and praying together. Id. ¶ 11. The meal prayers are led by one person who generally recites a prayer that they crafted themselves. These groups are sometimes larger than four people. Id. This is allowed both on the unit and in the yard. These Christian inmates lead other inmates in prayer and are not disciplined. Id.
Plaintiffs' uncontested factual assertions also show that while Muslims are prohibited from bringing prayer rugs onto the prison yard, Christians are allowed to bring Bibles, and those observing Native American religious practices are allowed to bring religious objects (such as feathers, beads, and other items). Id. ¶ 5. And in an area outside the chapel, Native American inmates are permitted to conduct sweat lodges. Id.
Plaintiffs further state that inmates use sweatshirts for a variety of purposes apart from wearing them. Id. ¶ 13. This includes tying them around the waist or the shoulder, sitting on them, and doing exercises on them. Inmates are never disciplined for doing so. Id.
DISCUSSION
I. Plaintiffs' First Amendment Claim Should Go To Trial
The United State Supreme Court has held that “a prison inmate retains those First Amendment Rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Alleged infringements of an inmate's free exercise rights are “judged under a ‘reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Jones v. Williams, 791 F.3d 1023,1032 (9th Cir. 2015). The challenged conduct “is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
A prisoner bringing a free exercise claim has the initial burden of establishing that the disputed conduct substantially burdens his sincerely held religious beliefs. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir 2008). The burden then shifts to the defendants to identify legitimate penological interests which justify the restriction of the plaintiffs free exercise rights. Id. at 886. Defendants do not contest the sincerity of Plaintiffs' religious beliefs. See ECF 49 at 8.
Under Turner, there are four factors to consider when evaluating whether a challenged regulation is a substantial burden: (1) whether there is a “‘valid, rational connection' between the prison regulation and the legitimate government interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) the effect that “accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) the presence or absence of ready alternatives that fully accommodate the AIC's rights at de minimis cost to the valid penological interests. Turner, 482 U.S. at 89-90. As Defendants are not challenging the sincerity of Plaintiffs' beliefs, the Court will begin its analysis by considering whether Defendants have satisfied their burden of identifying legitimate penological interests in denying Plaintiffs' requests to participate in Jumu'ah services, and in preventing them from praying in the yard on May 10, 2019.
I. Rational Connection
Turner's first prong requires that there be a rational connection between the restriction and the legitimate governmental interest used to justify it. Id. To satisfy this requirement, the interests invoked need to be “legitimate.” Here, there are a number of restrictions that apply to Plaintiffs' case: (1) the requirement that religious services be overseen by a facility chaplain or approved volunteer only in approved areas within a facility, (2) DRCI's rules prohibiting AICs from gathering in groups of more than four on the recreation yard and (3) the prohibition on using clothing for other than its intended purposes. Because there are disputed questions of fact that, when taken in the light most favorable to the Plaintiffs suggest these regulations are irrational or adrift from a legitimate interest, the Court should find the first Turner factor weighs in Plaintiffs' favor.
Plaintiffs' attempt to perform Jumu'ah ran afoul of several of Defendants' regulations, the first of which is that group prayer must be overseen by a chaplain or an approved volunteer. Defendants justify this rule because it supports “institutional security.” Mot. for Summ. J. at 4; Young Decl, ¶ 8. So Defendants' argument goes, “if an AIC were permitted to lead other AICs in religious services, uneven power dynamics and social hierarchies could develop that could put AICs at risk.” Id. This may be true, but on the summary judgment record this regulation does not even apply to these Plaintiffs' attempts to pray. The only evidence before the Court is that Jumu'ah prayers are not “led” by inmates at all, and that therefore, the rationale that supports the rule-preventing AICs from “leading” other AICs in prayer-is not present. Further undermining Defendants' rationale is the uncontested declaration from Plaintiff Lien that DRCI allows Christian inmates to lead other inmates in religious activities in the yard and elsewhere without sanction. Lien Decl, ¶ 11. Assuming this is true, as the Court must at this juncture, the security risk underlying group prayer is not so “legitimate” as Defendants say, and the rule does not appear rationally connected to furthering the security of DRCI. Simply put, if one group is allowed to violate the rule, but another is not, it is hard for the Court to believe the rule is as important to DRCI security as Defendants assert. Taking the facts in the light most favorable to the Plaintiffs, the Court should find the first Turner factor weighs in Plaintiffs' favor concerning this first challenged regulation.
Likewise, Defendants fail to show how the restriction on groups of “more than four” meeting on the yard is rationally related to a legitimate penological goal, or even applies to these facts. First, and most glaringly, Defendants do not explain what legitimate government interest the more-than-four policy furthers. See generally Mot. for Summ. J. And furthermore, on the summary judgment record before the Court, the more-than-four rule does not even appear to apply to Plaintiffs' May 10,2019 gathering. The limitation only applies to those who are “walking the upper yard.” Mot. for Summ. J. at 5 (citing Murphy Decl. Ex. 4, p. 55), which these Plaintiffs were not. Lien Decl. ¶ 7. And there were not even “more than four” individuals gathering--just Plaintiffs Lien, Burgess, and two others. Id. Inmates at tables, exercising, playing basketball or just sitting on the ground can congregate in larger groups, and Defendants do not explain how walking in large groups has anything to do with contraband or institutional security. Therefore, because the “more-than-four” rule does not apply to the facts of this case, and because Defendants have not carried their burden of substantiating the rule, the Court should find the first Turner factor weighs in Plaintiffs' favor concerning this challenged regulation as well.
Defendants' final challenged restriction-the ban on misusing prison clothing-bears more of a rational connection to its stated justification. Defendants argue violating this rule “would pose security risks to DRCI, such as contraband.” Mot. for Summ. J. at 5 (citing Murphy Decl. ¶ 10). This justification passes the smell test, but Plaintiffs have presented more uncontested evidence that DRCI applies this rule selectively, which undermines Defendants' justification. For example, other inmates sit on their sweatshirts, or do exercises on them, and are not punished. See Lien Decl. ¶ 13. Although there is no factual dispute over whether Plaintiffs were violating this rule (they undoubtedly were), Defendants' legitimate justification is undermined somewhat by their selective enforcement, which calls into question the rational connection to an important penological interest like preventing AICs from exchanging contraband. The Court should therefore find this Turner factor is neutral, or weighs slightly in Defendants' favor concerning this challenged regulation.
On balance, because Defendants have failed to show the bulk of their regulations that applied to Plaintiffs' group prayer were rationally connected to a legitimate penological interest, the Court should find the first Turner factor weighs in Plaintiffs' favor.
2. Alternative Means
Turner's second prong looks to whether alternative avenues of exercising the right remained open to the AICs. Turner, 482 U.S. at 90. The relevant inquiry under Turner's second prong is “not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, [it is] whether the inmates have been denied all means of religious expression.” Ward v. Walsh, 1 F.3d 873, 878 (9th Cir 1993) (quoting O'Lone, 482 U.S. at 352). Defendants argue that “Plaintiffs had access to the written Khutba and could pray in their cells with their prayer rugs and oud oil,” so were not fully denied the ability to exercise their right to free exercise. Mot. for Summ. J. at 10. Plaintiffs counter that Defendants' accommodation reduces to a “right to pray alone in one's cell,” which is not really an alternative avenue of religious expression at all. Resp. at 13. Because Ninth Circuit precedent requires more from the government than allowing prisoners to pray alone in their cells to satisfy this “alternative means” inquiry, the Court should find this Turner factor weighs in Plaintiffs' favor as well.
Both parties cite Ward v. Walsh as the preeminent Ninth Circuit authority on how to apply the Turner factors. In Ward, the Ninth Circuit made clear that “the relevant inquiry under this factor is not whether the inmate has an alternative means of engaging in the particular religious practice that he or she claims is being affected; rather, we are to determine whether the inmates have been denied all means of religious expression.” 1 F.3d 878 (citing O'Lone, 482 U.S. at 351-52). Crucially, however, the Ninth Circuit also found that “the opportunity to engage in private prayer” was not enough to satisfy the second Turner factor because if it were, “the factor would have no meaning at all.” Id., The Court relied heavily on O'Lone, where plaintiffs were denied the opportunity to attend Jumu'ah, but had the virtually unlimited right to congregate for prayer and discussion outside of working hours, free access to a state-provided imam, and special meals catered to Ramadan. Id. (citing O'Lone, 482 U.S, at 351-52). Ultimately, then, Ward and O'Lone stand for the principle that solitary, in-cell prayer is not a sufficient alternative means of religious expression, and that (as applied to Jumu'ah), inmates who get many other out-of-cell opportunities to exercise their faith have a sufficient accommodation.
Because Defendants point to no admissible evidence of out-of-cell or otherwise sufficient alternative means of practice available to these Plaintiffs, the Court should find the second Turner factor weighs in Plaintiffs' favor. First, Defendants suggest Plaintiffs' access to written materials and ability to pray alone in their cell is a sufficient alternative to group prayer, exactly what Ward rejects. See 1 F.3d at 878. And second, the alternative means Defendants suggest do not come close to what the Supreme Court found sufficient for Plaintiffs who were denied the right to participate in Jumu'ah in O'Lone. 482 U.S. at 351-52. In O 'Lone the plaintiff-AICs had unlimited right to congregate for prayer and free access to an imam, as well as special meals. Id. This summary judgment record contains no such outlet for Plaintiffs. Instead, Defendants suggest the ability to pray alone in cells and read a Khutbah is enough. These alternatives are far less than what the Supreme Court found sufficient in O 'Lone, and the Court should therefore find Defendants have failed to carry their burden to show Plaintiffs had alternative means to exercise their religious rights.
Defendants do not meaningfully dispute that a third party imam's testimony that Plaintiffs had sufficient alternative avenues of practice is hearsay for the truth of the matter asserted, and only rely on it for effect on the listener relevant to the Court's qualified immunity analysis. See infra § II. Since subjective evidence of what these Defendants knew or didn't know is irrelevant to qualified immunity's objective reasonableness inquiry, the Court disregards this evidence entirely. Bothke v. Fluor Eng'rs & Constructors, 834 F.2d 804, 816 (9th Cir. 1987) (noting “the Supreme Court has adopted a purely objective test for the availability of qualified immunity”).
Defendants' citations to Rhoden v. Dep't of State Hosp's, 2020 WL 5737019 (E.D. Cal. Mar 3, 2020) and Austin v. Brown, 2020 WL 5294490 (S.D. Cal. Sept 3, 2020) do them no favors either. In Rhoden and Austin, courts granted defendants summary judgment where plaintiffs could participate in religious rituals and ceremonies outside their cells with other AICs, or were on a security-related lockdown. See Rhoden 2020 WL 5737019 at *16', Austin 2020 WL 5294490 at *11. If anything, Rhoden and Austin further persuade this Court that a correctional institution must offer something more than solitary prayer to have shown an “alternative means” under Turner, outside extreme lockdown scenarios. Because Defendants have not presented any evidence of similar alternative means here-and indeed, because Plaintiffs have introduced evidence that they were otherwise prevented from participating in group prayer altogether-the Court should find the second Turner factor weighs in Plaintiffs' favor.
3. Impact of Accommodation
The third Turner factor is whether accommodation of the right will have an adverse impact on guards, other AICs and prison resources generally. Turner, 482 U.S. at 90. “When accommodation of an asserted right will have a significant ‘ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id.
Here, Defendants argue that “permitting AICs to gather together for group religious services in unapproved areas and to use their clothing for other than its intended purposes would jeopardize institutional security and the rights of other AICs in the vicinity of such impromptu services.” Defendants' conclusory statement does not point to any evidence of these risks, however, and the summary judgment record suggests they may be more fictional than real because Defendants do not apply the rules to Christian AICs. See Lien Decl. ¶¶ 5,11. Taking the evidence in the light most favorable to the Plaintiffs, as it must at this stage, the Court should find Defendants failed to carry their burden to show an adverse effect on other AICs, guards, or prison resources, and that the third Turner factor weighs in Plaintiffs' favor as well.
The Court notes that Defendants bear only the slightest of burdens on this question, but simply have not done anything to support the conclusory statement with evidence that a factfinder could consider at trial. The Court therefore should credit Plaintiffs' evidence that these alternatives would not in fact disrupt prison life, and find the Turner factor weighs in Plaintiffs' favor.
4. Readily Available Alternatives
The final Turner factor in assessing the reasonableness of a prison regulation is the absence of ready alternatives. In evaluating whether ready alternatives exist, “prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint.” Turner, 482 U.S. at 90-91. Prison officials do not bear the burden of disproving the availability of all alternatives to the alleged infringement because such an approach “fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators.” O'Lone, 482 U.S. at 350.
Defendants argue that “there are no ready alternatives to ODOC's rules requiring that religious services be conducted only by chaplains or approved volunteers only in approved spaces.” But Defendants do not meaningfully engage with the facts of this case or any of Plaintiffs' alternatives, despite the fact they have only the slightest of burdens under this factor. And, based on Plaintiffs' evidence, there is at the least a question of fact as to whether these proposals would disrupt prison life because the proposals are a de minimis burden, or because similar accommodations are made for other religious groups. Defendants do not refute these suggestions with any admissible evidence, so the Court should find there is at least a disputed issue of fact concerning the availability of Plaintiffs' alternatives.
Defendants' failure to meaningfully engage with any of Plaintiffs' proffered alternatives exposes the weakness of their position. They do not, for example, seriously dispute how allowing the inmates to pray in a conference room, an office, unoccupied area of the unit or yard, or in the chapel would “jeopardize institutional security.” Moreover, the Muslim inmates, for example, could have been provided with a video or audio recording of a Khutbah and a guard or other employee could let the inmates into the chapel or observe the four Muslim inmates pray. See OAR 291-143-0070(4)(b)(“ Alternative means may include, when determined appropriate by the chaplain, use of a script, liturgy, audio, video, or other available media.”). Nothing in defendants' brief explains how doing so for about an hour, one day a week, for one month out of the year, would jeopardize institutional security. Taking the evidence in the light most favorable to Plaintiffs, the Court should conclude that it wouldn't.
Also, the Superintendent could have simply designated portions of the yard to allow its Muslim population to observe Friday prayers together in the yard, or anywhere else in the prison. Under the rules, each prison's functional unit manager is responsible for designating areas of the prison that may be used for religious services. OAR 291-143-0090 provides: “The functional unit manager of each facility shall designate areas of sufficient size and quantity appropriate for the conduct of approved religious activities.” Defendant Causey, then-DRCI Superintendent, admitted that he could have done so. Burgess Decl., Ex. A, Deposition of Timothy Causey, 42:20-25. Indeed, there are offices, conference rooms, and other areas in the prison that are unused and that could be used to perform Jumu'ah prayer and that could have been designated by Causey. At the very least, Plaintiffs have raised an issue of fact whether the proposed accommodations would have any effect on other inmates or staff, and Defendants have not negated plaintiffs' evidence, or provided any evidence of their own to the contrary.
Because Defendants fail to carry their admittedly light burden to show Plaintiffs' meaningful alternatives would be unworkable, the Court should find this Turner factor weighs in Plaintiffs' favor as well.
II. Defendants Are Not Entitled To Qualified Immunity
Alternatively, Defendants argue the Court should award them judgment as a matter of law because they are entitled to qualified immunity. The doctrine of qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Burns v. Reed, 500 U.S. 478,495 (1991); see also Jones v. Williams, 791 F.3d 1023, 1033 (9th Cir. 2015). Government officials are entitled to qualified immunity unless “(1) the facts taken in the light most favorable to the party asserting the injury show that the defendants' conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.” Sandoval v. Las Vegas Metro. Police Dep't, 756 F.3d 1154, 1160 (9th Cir. 2014) (internal alterations, quotations, and citations omitted). A right is clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Lacey, 693 F.3d at 915 (9th Cir. 2012) (quotation omitted); see also Jones, 791 F.3d at 1033. The Court has already determined that, for the purposes of summary judgment, a constitutional rights violation may have occurred, so the Court now considers whether the violated right was clearly established.
A constitutional right can be clearly established by relevant Supreme Court and appellate case law. See Jones, 791 F.3d at 1033-34. But as the Supreme Court has repeatedly admonished, a “clearly established” rights violation cannot be defined at a “high level of generality.” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019); Sampson v. Cnty. of L.A., 974 F.3d 1012, 1024 (9th Cir. 2020). This is because generalizing “avoids the crucial question [of] whether the official acted reasonably in the particular circumstances that [they] faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). Put another way, to clearly establish a constitutional violation, prior case law must concern “sufficiently similar facts” to the case at hand. Sampson, 974 F.3d at 1024.
Because the right at issue here was clearly established at the time Defendants allegedly deprived Plaintiffs' constitutional rights, the Court should find Defendants are not entitled to qualified immunity. Plaintiffs define the right as “denial of access to Jumu'ah services,” a group prayer ritual during Ramadan that requires Muslims to pray together. See Resp. at 17; Lien Decl. ¶ 3. Supreme Court and appellate precedent support the principle that inmates have a right to congregate prayer like Jumu'ah, unless a lockdown or other compelling safety-related reason prevents inmates from praying together. O'Lone, 482 U.S. at 346-47 (prison policy changes resulted in Muslim inmates who worked outside during the day being unable to return to the prison building to attend services); Alston v. DeBruyn, 13 F.3d 1036, 1040 (7th Cir. 1994) (inmates in an administrative segregation were not provided any religious services); Salahuddin v. Coughlin, 993 F.2d 306, 307 (2d Cir. 1993) (newly built prison did not permit any congregate religious services); Beck v. Lynaugh, 842 F.2d 759, 760 (5th Cir. 1988) (inmates housed in . administrative segregation unit were prohibited from attending weekly religious services); LaReau v. MacDougall, 473 F.2d 974, 979 (2d Cir. 1972) (inmates in any segregation unit were not allowed to visit the prison chapel where all group services were held). Taken together, O 'Lone and related circuit-level precedent made it clear to a reasonable officer that by failing to accommodate Plaintiffs' requests to attend Jumu'ah or allow for another out-of-cell prayer option, they were violating Plaintiffs' right to freely practice their religion. The Court should therefore find Defendants are not entitled to qualified immunity because the right at issue was clearly established.
Defendants rely almost exclusively on Austin and Rhoden, which do not support their qualified immunity claim. To begin with, both Austin and Rhoden were decided in 2020, which could not have given Defendants-or any “reasonable officer” in 2019-notice of whether Plaintiffs' right to participate in Jumu'ah collective prayer was clearly established. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (noting that the “clearly established” inquiry focuses on “the time of the challenged conduct”). And as discussed in more detail above, neither case is really on point. In Austin, plaintiff was still allowed to pray with other inmates, and Rhoden involved a prison lockdown where no group prayer alternative would have been feasible. See Rhoden 2020 WL 5737019 at *16', Austin 2020 WL 5294490 at *11. Here, because the right to congregational Jumu'ah worship or a reasonable group-prayer alternative was evident in O'Lone and related circuit precedent, and Defendants have not shown otherwise, the Court should find Plaintiffs' rights were clearly established at the time of the challenged conduct, Ramadan, 2019.
Ultimately, Defendants have failed to meet their burden to establish an absence of genuine issues of material facts as to Defendants' alleged violation of Plaintiffs free exercise rights, or their claim for qualified immunity. Defendants' Motion for Summary Judgment should therefore be denied on both these issues.
RECOMMENDATION
For the reasons set forth above, Defendants' Motion for Summary Judgment (#49) should be GRANTED IN PART and DENIED IN PART. The Court should GRANT Defendants' motion concerning Plaintiffs' RLUIPA claim and requests for declaratory and injunctive relief, but should DENY Defendants' motion concerning Plaintiffs' free exercise claim and Defendants' qualified immunity defense.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Report and Recommendation will be referred to a district judge. Objections to this Report and Recommendation, if any, are due fourteen (14) days from today's date. If objections are filed, any response to the objections is due fourteen (14) days from the date of the objections. See FED. R. CIV. P. 72, 6.