Opinion
No. C98-0140-MWB.
January 4, 2001.
REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff Benjamin E. Schreiber ("Schreiber") commenced this action under 42 U.S.C. § 1983, by filing a pro se Complaint on November 25, 1998. (Doc. No. 2). After appointment of counsel to represent Schreiber ( see Docs. Nos. 6 7), Schreiber filed an Amended Complaint (Doc. No. 11) on March 22, 1999. The defendants Jerry Connolly ("Connolly"), Paul Loeffelholz ("Loeffelholz"), and Margaret Stoll ("Stoll"), answered the complaint on September 23, 1999 (Doc. No. 19). On February 14, 2000, this case was referred to the undersigned United States Magistrate Judge for the filing of a report and recommended disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 30)
Numerous other defendants were named individually in Schreiber's original complaint. Although the record is not clear regarding disposition as to the other defendants, the parties began listing only these three defendants in their pleadings some time ago. In any event, the court finds all the defendants were acting within the scope of their employment with the State of Iowa at all times relevant to the events complained of in this case. They did not violate a constitutional right "that was clearly established prior to the time of [their] alleged acts," and about which they knew or should have known; Therefore, they are entitled to qualified immunity from individual liability. See Weir v. Nix, 890 F. Supp. 769, 786 (S.D. Iowa 1995) (quoting Brown v. Frey, 889 F.2d 159, 165 (8th Cir. 1989), cert. denied, 493 U.S. 1088, 110 S.Ct. 1156, 107 L.Ed.2d 1059 (1990); and citing Ricker v. Leapley, 25 F.3d 1406, 1409 (8th Cir. 1994)). As the Eighth Circuit noted in Weir, "To be clearly established, `[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Weir, 890 F. Supp. at 787 (citations, internal quotes omitted). As shown in this opinion, the right claimed by Schreiber was not sufficiently clearly established for the defendants to reasonably understand their conduct might violate that right.
Schreiber's Amended Complaint originally sought relief for two alleged violations of his civil rights. In his first claim, examined below in this Report and Recommendation, Schreiber alleges prison officials drew his blood for testing in violation of his religious beliefs.
In his second claim, Schreiber alleged the State was opening and examining his legal mail, including correspondence with his attorney, the court, and others. On August 7, 2000, Schreiber submitted a Report to the Court (Doc. No. 36), in which he reported the parties had stipulated to a resolution of this claim. Schreiber stated "the Defendants admit that they have looked at [Schrieber's] mail in the past and that they will not do so in the future." ( Id.) Pursuant to Schreiber's request, on October 23, 2000, the court entered an Order dismissing Schreiber's second claim (Doc. No. 40).
The parties submitted a Stipulated Record (Doc. No. 33) on June 8, 2000, consisting of the depositions of parties Schreiber and Connolly, and witness Jay Glick. The parties have agreed these three depositions "present all of the evidence necessary to resolve the Plaintiff's religious claim." ( Id.) With the entry of the order dismissing Schreiber's other claim, this matter is now ready for determination on Schreiber's remaining claim. II. ABSTRACT OF THE RECORD
Schreiber also claimed the defendants refused to allow him to attend a religious meeting without providing an alternative. Based on the parties' testimony in the Stipulated Record, this claim appears to be moot and, therefore, should be denied. Schreiber and Glick both testified the meeting in question was a private meeting between a former member of the Jehovah's Witness religion and elders of that religion. Schreiber was notified of the meeting in error, a fact he discovered subsequently. ( See Doc. No. 33, ¶ 2, in which Schreiber waives this claim)
Schreiber claims the defendants violated his right to religious freedom, as guaranteed by the U.S. Constitution, by withdrawing his blood for medical purposes, and then refusing to allow him "to dispose of the blood in accordance with his religious beliefs," thereby "threaten[ing] his eternal soul." (Doc. No. 11, ¶¶ 14-23) Schreiber is a member of the Jehovah's Witnesses, a religion which prohibits its members from accepting or giving blood transfusions. ( Id., ¶¶ 15, 16) Testimony of the three witnesses in this case is summarized as follows. A. Testimony of Benjamin Edward Schreiber, January 18, 2000
Only the testimony relating to Schreiber's remaining active claim is summarized; testimony relating to the dismissed claim is omitted.
At the time of his deposition, Schreiber was 48 years old, and had resided at the Anamosa State Penitentiary ("ASP") for a little over two years. He first entered the prison system on October 15, 1997, at the Iowa Medical Classification Center ("IMCC"), and then he was transferred to ASP. He is serving a life sentence.
For about thirteen years before his incarceration, Schreiber lived in Ottumwa, Iowa, where he worked as a maintenance man for a trailer court. Before moving to Ottumwa, he lived in Texas, where he worked as a plumber and in heavy construction.
When Schreiber was born, his mother was a Jehovah's Witness, and Schreiber was raised in that religion. He attended meetings at the Kingdom Hall "every time the car would run or we'd get a ride." (Page 4, lines 19-20) Schreiber attended meetings until he was 17, when he got married and moved to Houston. Schreiber's wife was Catholic, but he continued to practice his religion as a Jehovah's Witness by "work[ing] on some of the kingdom halls." Although he did not attend meetings, he still considered himself to be a Jehovah's Witness. (Page 5, line 17 through page 6, line 5) He did not celebrate Christmas, and he "carried [his] faith." (Page 7, lines 11-22)
All page and line citations are to the parties' respective depositions submitted as the Stipulated Record in this case.
Schreiber's marriage lasted 20 years. After he was divorced, Schreiber moved to Ottumwa, Iowa, where he made a couple of unsuccessful attempts to contact the Jehovah's Witnesses. Schreiber finally made contact when he was in the Wapello County Jail. He said jail officials would not let him have his personal Bible from his motor home, even though he "needed a Bible." The particular Bible he needed was "a New World Translation of the Holy Scriptures . . . put out by the Watch Tower Association." (Page 8, lines 11-13, 19-23) A "brother" from the local fellowship visited him in the jail, but he did not begin participating in meetings because "[t]hey didn't have it set up to do anything up there." (Page 8, lines 14-18)
The record does not indicate the reason Schreiber was in the county jail.
Schreiber reported an incident when he was involved in a car wreck at the age of 18, when he was living in Houston. He stated that in Texas, at least at that time, a person was considered a minor until the age of 21. Medical personnel called his mother and said Schreiber needed at least three pints of blood. His mother refused to consent to a transfusion, and Schreiber did not receive any blood.
Schreiber testified that when he first entered the IMCC, he told prison officials during his intake interview, when they asked for his religious affiliation, that he was a Jehovah's Witness. He stated, "I did inform the officer that was inducting me that I had a medical alert on for that purpose." (Page 9, lines 13-15) Prior to his incarceration, Schreiber had a tattoo placed on his right forearm because he "kept losing [his] medical alert bracelet in the heavy-duty construction," and he also lost a medical alert necklace. He got the tattoo in case he "got unconscious again," so it would be permanent. (Page 9, lines 20-25) The tattoo says "medical alert . . . no blood, no opi[ates]." (Page 10, lines 3-4) The purpose of the tattoo is to inform medical officials that Schreiber wants no blood, and also no opiates, to which Schreiber is allergic. (Page 10, lines 6-9)
Schreiber said the first time prison officials took his blood at IMCC, they did not tell him the purpose. He objected to having his blood taken "[b]ecause they would not let me have the blood back to dispose of it as I believe is supposed to be proper, and they did not tell me what the blood was going for and how much they were taking." (Page 10, lines 17-21) Officials told Schreiber they had sent his blood "to the university for testing," and he could not have it back. (Page 11, lines 1-2) Schreiber stated his religion requires the blood to be "poured upon the ground and covered with dust." Officials told him they would not dispose of his blood in that manner. (Page 11, lines 5-10)
Schreiber's blood was taken on three occasions at IMCC. The first time was for "a full scan," including testing for HIV/AIDS, hepatitis and blood typing. The second and third tests were for liver function and hepatitis. Schreiber has a history of hepatitis A in 1976, but stated he no longer shows signs of the disease. He said he had paperwork from his physician to that effect when he entered IMCC. (Page 11, line 24 through page 12, line 5)
Schreiber claims he was threatened with segregation if he refused to submit to a blood test: "Quote, unquote, the nurse at Oakdale told me if I did not submit to the blood test, they would throw me in the hole until I change[d] my mind." (Page 12, lines 9-12) Schreiber said that was his first time in the prison system, and he did not know whether the threatened action was "medical segregation or a punitive segregation." (Page 12, lines 13-18)
Schreiber testified the Chaplain at IMCC gave him some literature, but did not have information about Jehovah's Witness contacts. The Chaplain let Schreiber check out some general literature on faith and spirituality, but did not have the Watch Tower or Awake. Schreiber said he was at IMCC for 88 days, and he went to ASP on New Year's Day 1998. (Page 12, line 19, through page 13, line 12)
Schreiber said when he arrived at ASP, "[a]lmost immediately they began taking blood." He testified further:
They instructed me that if I didn't submit, that they would put me in segregation until I decided to consent to it. And then after I consented to it, then they were doing it the fourth day of every month and four days before the end of the month, if I'm not mistaken, for two months before I finally got the Chaplain to stop it.
(Page 13, lines 15-23) Officials said the blood was taken for hepatitis and liver function testing. Schreiber said the threatened segregation was not for medical purposes, but was for "disobeying a direct order." (Page 13, lines 5-9) The direct order involved was submitting to the orders of the physician.
Since that initial two-month period, Schreiber has only had blood taken one other time at ASP, by Nurse Van Amerongen. She took a small sample, and she told Schreiber she would dispose of the blood per his instructions, although he is not aware whether she complied. When he had his two-year complete physical, the nurse started to draw blood, but Schreiber stopped her and showed her documentation stating he could refuse to comply.
Schreiber described his religious beliefs with regard to blood as follows:
Basically my Bible tells me that the blood from any living creature belongs to God and has the sole [sic] of man in it. The sole [sic] belongs to God, and that any time that blood is taken from a living creature, it must be poured upon the ground and covered with dust. Without pouring out the blood, there is no forgiveness.
(Page 15, lines 8-15) He believes blood testing violates his religion because officials would not allow him to dispose of the blood as dictated by his Bible. He can submit to blood testing, as long as the excess blood is disposed of properly. Schreiber stated he had no objection to blood being used for testing, but at times they took as much as three vials for liver testing. He said whether to submit to blood testing is a matter of each person's conscience, using their Bible as their guide. (Page 16, lines 2-16)
Schreiber testified he attends regular meetings and Bible study, and he talks regularly with other members of the Jehovah's Witness congregation at ASP. He stated there are six or seven inmates who "claim to be" Jehovah's Witnesses, but some of them do not practice the faith by attending meetings or reading the Bible. He said there are five members who actually participate, including himself.
Schreiber stated he attends Bible study every Tuesday, and has done so since spring of 1998, after arriving at ASP. The inmates are allowed one hour for each meeting, during which they study the Bible. The meetings are led by "Brother Jay Glick," who is a volunteer from the local Jehovah's Witness fellowship. Schreiber also reads his Bible and a daily scripture book. He does not celebrate holidays such as Christmas or Easter.
Schreiber testified he is studying and preparing to be baptized. He explained baptism in the Jehovah's Witness faith is unlike other religions, in that one is only baptized when one is "ready to take on the responsibilities of following Christ completely." (Page 19, lines 16-19) A person is considered a participating or study member until baptism. There is no set time frame to complete the process leading up to baptism; it is subject to each person's beliefs, and must be approved by an elder of the faith. Once a person is baptized, he or she can actually conduct meetings. None of the participants at ASP are able to conduct meetings themselves. (Pages 20-21)
Schreiber stated that since he filed his initial grievance, he has not had further problems with ASP officials. He said that on September 13, 1998, an administrative law judge informed him she had contacted Jerry Connolly, and Schreiber had been given permission to refuse to give blood specimens by filling out a treatment refusal form at the time blood is requested. (Page 22, lines 1-23) Before the issue was resolved, he stated his blood was tested four or five times at ASP and three times at IMCC.
Schreiber later corrected this date to be March 19, 1998. That was also the time when he started to attend Jehovah's Witness meetings at ASP. (Page 35, line 19 through page 36, line 19)
Schreiber was asked to describe the actions of each individual defendant whom he claims violated his civil rights. As to Connolly, Schreiber claims when the issue of the blood samples was brought to his attention, Connolly "delayed in stopping the procedure of taking the blood." (Page 33, lines 5-11) As to Loeffelholz, Schreiber stated he "is the one who initiated it at Oakdale, and I was told point blank he was the one that did it, and that's what the documents state that he did that I received." (Page 33, lines 18-21) Schreiber said Stoll is a nurse who told him, "if I didn't submit to the blood testing, she would write me up a major report and put me up on third floor." (Page 33, line 25 through page 34, line 3)
B. Testimony of Gerard Connolly, January 18, 2000
Connolly testified he is nursing services director at ASP. In that capacity, he oversees the running and functioning of the ASP Health Service Department. Connolly has been a registered nurse with the Iowa Department of Corrections since 1986, when he "started out as line staff and then became the nursing services director at [ASP] in 1993." (Page 2, lines 1-4) Connolly is licensed with the Iowa Board of Nursing.
Connolly also serves on the Pharmacy and Therapeutics Committee, which "sits down and reviews and writes policies and procedures for the Department of Corrections ("DOC") in the medical field." (Page 3, lines 14-17)
Connolly testified he is familiar with the DOC's general policies regarding inmate physicals and blood testing. When an inmate enters IMCC, psychological and medical screenings are completed. Routine laboratory tests are done including "a complete blood count, a urinalysis, an HIV test, and a syphilis test[,] [i]n addition to, depending on age factor, . . . a liver function test." (Page 3, line 24, through page 4, line 4) The tests are performed to "get an overview of the general health and to investigate for sexually-transmitted disease . . . [and] infectious diseases overall." (Page 4, lines 6-11) The tests are offered to everyone who enters IMCC, but "[a]nybody can refuse to take testing, and at that time the decision will be made whether for the good of the institution our responsibility is to have them medically segregated to prevent possible spread of infectious disease." (Page 4, lines 12-21) The main infectious diseases subject to spreading among the general population are hepatitis, HIV, syphilis, and tuberculosis.
Connolly stated that depending on the tests to be run, anywhere from five to fifteen cc's of blood may be drawn. He described how blood is drawn and tested as follows:
Thirty cc's equal one ounce.
The majority of the blood that is drawn — I can't speak for all the institutions. I can speak for myself and IMCC because I have worked at both facilities. But at IMCC it is drawn and some tests are run on-site. At this facility [ i.e., ASP], if it is not what is called an autolet, which is a blood sugar check, the blood is drawn by my staff, my nursing staff, and is sent to a reference laboratory which we have a contract with, and they pick up their blood every day at the front of this building and take the blood. And we get a report back approximately 24 hours later.
(Page 5, lines 6-18)
Explaining the quantity of blood drawn, Connolly testified:
You could actually draw a little bit more than that. At times we'll draw — four tubes would be a pretty big draw for us. But blood when it goes to the reference lab is sent to different areas of the lab. So if they're doing a complete blood count, that would go to one area. If they were doing a hepatitis screen, that would go to another area. If they were doing a liver profile, another area.
In addition, certain blood tests require certain additives be in the tube when the blood is drawn. An example is if you're doing a test for PT, which is a prothrombin type, it has to have an anticoagulant in the blood so the blood does not clot. A CBC, which is a complete blood count, has preservative in it. Some tubes like a therapeutic drug level has to be a clear tube with nothing in it. Others have a gel barrier, which is used for spinning, so the blood goes to the bottom and the serum remains at the top and the serum is tested.
(Page 6, lines 1-23)
Connolly stated it would not be unusual for blood to be left over after testing. He stated if an inmate refused to allow blood to be drawn for testing, the inmate could be placed in medical segregation to meet the facility's commitment to keep itself "as free as possible of infectious diseases." (Page 7, lines 15-25)
Connolly testified he reviewed Schreiber's medical and blood testing records. He testified at length regarding Schreiber's testing, as follows:
Q [By Mr. Hill] What was your understanding, was [Schreiber] blood tested at the [IMCC]?
A [By Mr. Connolly] Yes, he was. He received a routine screening at the [IMCC]. One of those tests came back slightly elevated, a liver function test. He was sent to our facility with an order for them to repeat the liver function test in so many months, which was done at this facility.
Q What do you mean by liver function test? What were you looking for?
A Indications at that time I believe was for a possibility of hepatitis versus a possibility of overuse of alcohol, which can cause the same elevations in the liver functions. They did not actually order at that time a hepatitis screen that I found, which would actually test for the presence of hepatitis. The tests were minimally elevated.
Q Would you still have to test if there was some history of hepatitis?
A That would be the individual practitioner's decision to make, and they can make that decision based on when they spoke with the individual, or they could use previous lab tests with a current lab test to see if there has been any change, so that would be up [to] the independent practitioner responsible for the inmate at that time.
Q And so the reason that you were retesting him here at [ASP] was because of the slightly elevated liver functions?
A The first test, yeah. If my memory serves me, he was — he had blood drawn at IMCC on approximately two occasions and came into this facility with a pending order for a third one, which triggered further blood testing in this facility. And I think on four occasions we have drawn blood from Mr. Schreiber.
Q Could Mr. Schreiber have refused any of those four blood tests?
A Yes, he can. There is no policy in this place to hold anybody down and take blood. That does not happen. All individuals have a right to refuse medical care and treatment. That is also in their guide, which they receive at IMCC that we cannot force medical treatment on you, but we will offer it and to also take appropriate steps to protect the other individuals in the institution, and that would be where the segregation comes in.
Q And so what would happen if Mr. Schreiber refused to take the blood tests?
A He would have completed a treatment refusal form, and it would have been put back up for decision.
Q And where would he then be held?
A Depending on what the test was, he could have possibly went right back to general population. By mere refusing a blood test, does not necessarily mean that you're going to be segregated.
Q What type of blood tests could get you segregated versus not segregated?
A A possibility could come up with hepatitis and I would think syphilis. I would think even — not a blood test, a regular test for gonorrhea. HIV if we thought there was a spread going on, some activity. If we were seeing a lot of, you know like a little epidemic in here of syphilis, we'd know something was going on, and we may want to do testing. That decision is not automatic either. When that happens, it's going to somewhere come across my desk, and I'll be calling my director down at [IMCC] with what my intent is and explain everything to him with either a recommendation that we segregate or we don't.
Q Is there any [DOC] policy on what happens to blood once it is tested?
A No. In fact, like I say, all the testing at this site goes off site except for little reagent strips, which are for testing your blood sugar. It's a little finger poke you put in a machine and dispose of.
We do have protocols to dispose of blood and biohazards in this facility, and these are followed. We have a contract with an outside company that comes up and picks up all of our properly stored biohazards, removes them from the site, and does the disposal.
I called IMCC and spoke with their lab tech whether they had specific procedures for destroying blood that has been used for testing, and theirs is the same as ours. It goes to an outside resource and taken care of.
Q Is it your understanding that when it goes to the outside service that any blood would be poured on the ground?
A No. It's my understanding that the blood is decontaminated, and from that point I don't know where it goes.
Q By decontaminated you mean sent through like an incinerator?
A I don't know if it's an incinerator or chemical or what. I really have no idea.
(Page 8, line 13 through page 12, line 20)
Connolly said he had not talked with Schreiber personally about his objection to blood testing. Connolly responded to the March 1998 grievance by stating Schreiber could refuse to have a blood test done. He confirmed Schreiber's blood had been tested since March 1998, for a CBC in August 1999. Connolly stated October 1999 was the first documentation indicating Schreiber was no longer consenting to have his blood tested.
Connolly said that when Schreiber's blood was drawn in August 1999, with Schreiber's permission, nothing in the records indicated any special arrangements were made with regard to pouring excess blood on the ground. Connolly said that particular request had never been made by an inmate before, to his knowledge, and if it were made, he would not make the decision whether to allow the procedure or not. Connolly stated:
As far as I'm concerned, that would be a breach of everything I believe in as far as universal precautions in protecting myself and the rest of the staff and the general public. You just cannot do that in this day and age.
(Page 14, line 22 through page 15, line 2)
On cross-examination by Schreiber's attorney, Connolly denied having told Schreiber that if he refused to have his blood tested, he would have to refuse all medical treatment. He said if Schreiber had refused the blood work at issue in March 1998, which was either a liver function test or hepatitis screen, there likely would not have been any consequence. To Connolly's knowledge from reviewing Schreiber's chart, they were not concerned with Schreiber passing a disease to anyone else; they were just concerned with following up as directed. Connolly said he would have called his department director if Schreiber had refused the blood test at that time, before recommending any type of segregation. He would have consulted with Dr. Loeffelholz, if he was available, or alternatively with Marilyn Sales.
Connolly clarified his belief that pouring excess blood on the ground was dangerous, stating:
Hepatitis can live in drawn blood for several days. It's possible dogs could pick it up and drag it into the neighbor's house. Birds could stop, fly around, and pick it up. This is — this is a potentially dangerous source, and I don't know of any procedure that's approved by OSHA that says you can do this.
(Page 19, line 19 through page 20, line 1) He testified his concerns were still present if the blood was buried or covered with dirt, stating:
It's still — you're exposing people to the procedure of doing it, taking this blood, taking it out of sealed containers, out of puncture-resistant containers, and dumping it out. You've got a splash problem. You've still got blood on the receptacle. What do you do with that? These tubes do not come clean. What do you do with that? You know, there's just — I don't even know if it would be legal to do it. It would be a hazard. And it talked about like covering it with dirt, covering it with dust. Are we talking about a foot? Is it six foot? Is it just dusting over? I've never heard of such a thing.
(Page 20, lines 6-19)
Connolly testified he discussed the matter with Chaplain Potter but did not document the discussion. He said there was no requirement that Schreiber talk with him or others on the medical staff about the problem before filing a formal grievance. There is no person designated as an informal resolution contact person in the medical area.
Schreiber's attorney asked if Connolly would have a problem with the blood being incinerated, and then the ashes being placed on the ground. He responded that there was "no way to get that done[,]" and the facility has "a contract with the company that comes in and takes care of it. . . ." (Page 22, line 24, through page 23, line 1) The company is out of Cedar Rapids, Iowa, and takes care of all the facility's biohazardous waste. His responsibility is to transport the waste "to the control center where it's taken out to the powerhouse to be appropriately stored until they pick it up." (Page 23, lines 4-7)
C. Testimony of Jay Allen Glick, January 18, 2000
Glick is an Anamosa, Iowa, resident who serves as a minister in the Jehovah's Witness religion. He testified he has been a Witness for about forty years. He is "a servant in the local congregation . . . in Anamosa," and does ministerial work in the Jones County area. (Page 3, lines 5-9) He described operation of the Jehovah's Witness congregation as follows:
We have a body of elders which oversee the spiritual condition of the congregation and are in charge of our meetings and give bible discourses at our meetings, and we have a body of ministerial servants which assist the elders in the duties involved in the local congregation.
(Page 3, lines 12-18) The church is not led by "one main chaplain," but by a body of elders. (Page 3, lines 19-22) The qualifications for an elder are taken from the Bible. When the qualifications are met, a person is "put up for appointment, but they're recommended, first of all, and the recommendations go into the parent congregation and world headquarters in Brooklyn. And they review them, and they are the ones that make the appointments." (Page 3, line 25 through page 4, line 7) Glick stated there are four elders currently in Anamosa.
Glick explained the origin of the name "Watch Tower," which comes from the corporation "Watch Tower Bible and Tract Society," the legal entity under which the Jehovah's Witnesses publish their materials. Jehovah's Witnesses do not have a church; rather, they have a Kingdom Hall which is used for Bible instruction. Glick described the basic beliefs of the faith as follows:
[B]asically we're an evangelistic group. We — Jesus said that the good news is to be preached to all the earth before the end would come. And as Jehovah's Witnesses we feel that we are the only ones that are preaching the good news of God's kingdom. That's the kingdom that Jesus mentioned in the Lord's Prayer. And so we advocate God's kingdom and his government in the hands of Jesus Christ. So that's what we propagate to the people is what the bible has to say about that kingdom.
(Page 6, line 18 through page 6, line 3)
Glick said Jehovah's Witnesses will use any Bible, although they prefer the New World Translation. He explained "in order to qualify to be one of Jehovah's Witnesses, you have to be living up to the bible's teachings on morals and basically, as the bible said, be a footstep follower of Jesus Christ." (Page 7, lines 2-6) Appropriate behavior includes taking care of one's body by, for example, not using drugs or smoking; refraining from "any type of immorality, fornication, . . . adultery, homosexuality, all kinds of loose conduct." (Page 7, lines 14-25) Members may drink in moderation.
Glick described the road to becoming a Jehovah's Witness in some detail. ( See page 8, line 9 through page 9, line 17) He explained Jehovah's Witnesses do not celebrate holidays with pagan origins, such as Christmas and Easter. He stated churches adopted the pagan holidays as a compromise, in an attempt to bring pagan people into the Christian faith. Jehovah's Witnesses also do not have statuary or idols in their Kingdom Halls, believing they are "a direct violation of the commandments." (Page 10, lines 18-25)
Glick said Jehovah's Witnesses have regularly-scheduled meetings at which they study the Bible and Watch Tower publications, plus smaller groups that meet for additional Bible study. They have a "theocratic minister school," led by a qualified instructor, for the purpose of assisting members in becoming better public speakers. And they have a "service meeting," which focuses on dealing with people in their ministry. (Page 11, line 1, through page 12, line 14) One of the things the Anamosa congregation does is help provide meetings at ASP.
Glick estimated he has helped out at ASP for about fifteen years. He leads study of Watch Tower publications. At the time of his deposition, the ASP group was studying the "knowledge book, which puts forth in some detail the release of the bible and how Jehovah Witnesses feel about those." (Page 12, line 24 through page 13, line 7) Glick explained inmates have the same criteria for membership as persons outside the prison, with the same opportunity for baptism and service, recognizing their service would have to take place inside the prison. Glick stated he usually goes to ASP once a week, with occasional lapses due to other commitments.
On the subject of Jehovah's Witnesses' beliefs about blood, Glick testified as follows:
Q [By Mr. Hill] One of the beliefs that is in question for us is with regard to the Jehovah's Witness faith and blood testing. What's the position of the church with regard to blood testing?
A [By Mr. Glick] As far as —
Q Or blood transfusion?
A As far as blood testing, first of all, as a group, we have no objection to testing of blood because we recognize that's how doctors find out what's wrong with you. But as far as blood transfusions, the bible throughout from the time of Noah right on down to the nation of Israel to the original Christian congregation has said that blood is sacred to God.
And as far as it being poured out, in the Old Testament, of course, that's the way things were done. of course, now we feel that when a sample is taken, it's their's [sic]. And it's a good deal like taxes. We pay a lot of taxes that go for war and stuff which we don't agree with, but it[']s nothing we can do anything about, and so the government takes it and does what they want to with it. As long as we pay our taxes, why, we've fulfilled our obligation. And it's the same way with blood. Once they take it, it's up to them what they do with it.
Q So one of the — I know that you were here during Mr. Schreiber's deposition. He felt it was that the church — or excuse me — the Jehovah's Witnesses believed that excess blood from testing had to be dumped out and poured on the ground. Is that consistent with your beliefs or of Jehovah's Witnesses as you understand it?
A Well, no. It would be nice if they would just dispose of it whatever way, pour it down the drain or whatever. But again, as long as they've used it for what they want to use it, to find out maybe what's wrong with us or whatever, it's on their shoulders what they do with it. So whatever they choose to do with it is fine with us.
Q Is there — with regard to the Jehovah's Witness faith, is there any interpretation with regard to that or —
A No. In fact, I talked with Mr. Schreiber previous to this when he had mentioned what was happening, and I told him that I would really appreciate it if he would make it known to whoever that this was his personal thought on it and that it didn't agree with Jehovah's Witnesses, per se.
Q Is there room in the Jehovah's Witness faith to have beliefs of your own in addition —
A Yeah. As far as — if it's biblical. If it's nonbiblical, of course, we would talk with the individual to see why. And then, of course, if it was nonbiblical, they wouldn't be one of Jehovah's Witnesses.
Q But to your knowledge is it biblical in the bible that even blood testing must be disposed in a certain way?
A No. As I mentioned, in the Old Testament with the nation of Israel, that was God's law that it be poured out and covered over, but things are different today. Times change and methods change, medical treatments change, and so on.
(Page 14, line 17 through page 17, line 10)
Glick testified Schreiber started attending Jehovah's Witness meetings at ASP shortly after he arrived there, and is "one of our most regular," attending almost every scheduled meeting. (Page 18, lines 6-8)
Glick discussed his experience with Schreiber. He stated he believes Schreiber is sincere in "having the restrictions as far as his sampling of blood and so on. I think he's probably sincere in that even though it doesn't really go along with our beliefs." (Page 26, lines 21-25) Although Glick would not say Schreiber's wishes were contrary to Jehovah's Witnesses' beliefs, he did state "most, if not all, would not require that samples once they're used for what they're intended for would have to be poured out onto the ground and covered up." (Page 27, lines 2-6) Glick explained Schreiber's position with regard to his blood was not something that would cause him to be in conflict with Jehovah's Witnesses' beliefs, and it was a matter of Schreiber's personal decision. Glick noted Schreiber appeared to be acting as a matter of his religious conscience with regard to his position.
Glick explained that when a Jehovah's Witness dies, some are cremated and some are embalmed, as dictated by personal decision. If the person is embalmed, there are no requirements for disposing of the person's blood. Also, if a Jehovah's Witness has, for example, a BandAid with blood on it, they act "like anybody would," disposing of it properly so as not to contaminate anyone else. Glick stated the Jehovah's Witness beliefs would preclude Schreiber from donating blood at a blood drive. He agreed it could be of concern to Schreiber if blood were taken from him and he did not know what was going to happen to all of it.
III. FINDINGS OF FACT
For purposes of this case, the court finds Schreiber's blood was taken over his objection at both IMCC and ASP; he believed he would be subjected to punitive segregation if he did not comply with officials' requests to draw his blood; and his wishes regarding disposal and use of his blood are genuine, based on his own religious beliefs, although they go beyond what is taught and practiced within the Jehovah's Witness faith.
On the latter point, the court has considered Glick Deposition Exhibit 1, a copy of the Watch Tower publication, "How Can Blood Save Your Life?" The Appendix to this opinion contains several pertinent quotations from this publication from which Schreiber reasonably could have derived his position regarding his blood, as well as quotations submitted by Schreiber from a recent issue of " The Watchtower."
IV. LEGAL ANALYSIS
Schreiber requests three types of relief in connection with the taking of his blood. First, he seeks a declaratory judgment that the defendants' actions violated his rights under the First and Fourteenth Amendments to the United States Constitution. Second, he seeks an injunction that orders the defendants to either stop taking his blood, or allow him to dispose of excess blood pursuant to his religious beliefs. Third, he seeks actual and exemplary damages, attorney fees, and costs. ( See Doc. No. 11)
The defendants respond that they "at all times acted with good faith toward [Schreiber] and did not violate any of [Schreiber's] clearly established constitutional rights of which a reasonable person would or should have known and are therefore immune from damages in this matter." (Doc. No. 19, ¶ 33) The defendants deny Schreiber is entitled to any relief, injunctive or otherwise. ( Id., ¶ 1)
Schreiber's beliefs relating to disposal of his blood are unique, and go beyond what is required by the Jehovah's Witness religion. Nevertheless, his beliefs are sincere, and arise from his own interpretation of the Bible and Jehovah's Witness publications. As a result, Schreiber's beliefs "constitute a sincerely held religious belief protected by the First Amendment." Love v. Reed, 216 F.3d 682, 687 (8th Cir. 2000). As the Love court explained:
First Amendment protection only attaches to beliefs rooted in religion, as opposed to purely secular beliefs or personal preferences. . . . "The determination of what is a `religious' belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."Id. (citations omitted; quoting Thomas v. Review Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)). Although courts are instructed to "be more cautious in ascribing religious significance to requests or preferences which involve purely secular aspects of life," Love, 216 F.3d at 689 (citing Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996)), "`a belief can be both secular and religious. The categories are not mutually exclusive. The first amendment presumably protects the area where the two overlap.'" Love, 216 F.3d at 689 (quoting Wiggins v. Sargent, 753 F.2d 663, 666-67 (8th Cir. 1985)).
Nevertheless,
Although the right to exercise one s religious practices and beliefs does not terminate at the prison door, the right of free exercise is necessarily limited by the fact of incarceration and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security. McElyea v. Babbitt, 833 F.2d 196, 196, 197 (9th Cir. 1987).McLaflin v. Pearce, 743 F. Supp. 1381, 1384 (D. Or. 1990). To balance these competing interests,
A prisoner's free exercise claim is currently "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,] 349, 107 S.Ct. [2400,] 2404, [ 96 L.Ed.2d 282 (1987)]. The specific standard of review for such a claim was set out by the Court in Turner [v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)]: "when prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89, 107 S.Ct. at 2261. These penological objectives include rehabilitation, deterrence, and security. O'Lone, 482 U.S. at 348, 107 S.Ct. at 2404. In Turner, the Court discussed several factors for determining the reasonableness of the regulation at issue: (1) whether there is a valid, rational connection between the prison regulation and the legitimate, neutral governmental interest used to justify it; (2) whether there exist alternative means for prisoners to exercise the constitutional right at issue; (3) the impact that would be caused by accommodation of the right on prison staff, inmates, and allocation of prison resources; and (4) whether any alternative exists that would fully accommodate the prisoner's rights at de minimus cost to valid penological interests. Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63.Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990). Accord Love, 216 F.3d at 690. While the parties did not brief their respective positions in this case, instead submitting the case for decision on a record comprised of the three depositions discussed above, it is clear from Connolly's testimony that the penological interest at issue is health and sanitation. In today's world, where HIV, hepatitis, and numerous other serious illnesses are transmitted through contact with blood, the State's procedure that delivers excess blood from testing to a third-party contractor for disposal is reasonable, and is rationally connected to the legitimate, neutral government interest of protecting the health and safety of prison inmates and employees.
From the testimony, it does not appear any alternative means exist that would either allow Schreiber to dispose of his own blood, or safely permit prison staff to dispose of Schreiber's blood in the manner he desires. It also appears granting Schreiber's request for disposal of his blood in the manner he describes would have a significant impact on the allocation of prison resources, and potentially on the health and safety of other prisoners and prison staff. Alternatively, making arrangements with the disposal service to dispose of Schreiber's blood separately and in a different manner from all the other blood collected is likely to entail significant additional cost that is not reasonable in light of its impact on Schreiber's ability to practice his religion. Indeed, the court doubts that even if Schreiber were a private citizen, rather than an inmate, he could make arrangements to dispose of excess blood in this manner.
Consequently, while the court finds the prison's blood disposal policy infringes upon Schreiber's sincerely held religious beliefs, the court also finds the policy is reasonably related to valid penological interests. The court finds Schreiber's request that the excess blood be returned to him for religious purposes was sufficiently unique that prison officials should not reasonably have understood they were violating Schreiber's constitutional rights when they refused to comply. Even if they had known, however, their refusal to comply was similarly related to valid penological interests.
V. CONCLUSION
For the reasons discussed above, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that judgment be entered in favor of the defendants and against Schreiber.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).