Opinion
2:20-cv-01397-CL
08-21-2023
JOSHUA ALLEN SINCLAIR, Plaintiff, v. TYLER BLEWETT, et al., Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Joshua Allen Sinclair is an adult in the custody of Oregon Department of Corrections (ODOC). Plaintiff brings claims against defendants under 42 U.S.C. § 1983, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Person Act, and the Oregon Constitution. Defendants move for summary judgment on all of plaintiffs claims. For the reasons explained below, defendants' motion for summary judgment (ECF 44) should be GRANTED in part and DENIED in part.
BACKGROUND
The following facts are undisputed unless otherwise noted:
Plaintiff is a Native American adult in custody (AIC) who has been held at Two Rivers Correctional Institution (TRCI) since 2015. Sinclair Deci. ¶ 2, ECF 77. During plaintiffs incarceration at TRCI he has been “actively involved in Native American Religious Services (NARS) programs”. Id. at ¶ 3. Plaintiff has held the position of Firestarter, “which is to be considered a position of high repute in the TRCI NARS community.” Id. As a Firestarter, plaintiff has been “directly involved in the preparation of all NARS programs” including, but not limited to, “preparing the designated NARS religious service grounds for any ceremonies and events such as sweat lodge ceremony, spirit run, pow-wows, and other services like pipe ceremony, drumming, and talking circle.” Id. at ¶ 4.
On May 22, 2020, plaintiff received a letter from Chaplain Donald Hodney (Chaplain Hodney) and Chaplain Cardona that stated the following:
I am sorry that, due to the Covid-19 pandemic, all corporate (group) gathering at TRCI are still cancelled per TRCI Executive Management Team. This includes the communal gathering for the annual TRCI Native Circle Pow Wow for 2020. It . is a special time for those who are part of the Circle to celebrate culture, heritage, and relationship to Creator with Tribal Community leaders and family.
... We will communicate with you on the status of re-opening of religious programming for the Circle as news becomes available to us. This pandemic is not something any person could anticipate or desire to experience. However, we will persevere through this pandemic.Resp. Exs. 12, ECF 76-1.
On May 25, 2020, plaintiff filed a grievance against Chaplain Hodney and Chaplain Cardona requesting that they “allow all religious services to take place, which includes the powwow.” Id. at 3. Plaintiff also stated the following:
To me, during this pandemic, religious services are of the utmost importance. I also know that they are a constitutional right that cannot be infringed upon by any state agency or gov't.
I believe that TRCI Religious Services' actions in terminating all Native [American] Religious Services is overbroad and unconstitutional. For example,,Religious Services could be allowing such practices to take place but merely at a diminished capacity. We could be allowed to gather on religious services grounds · to smudge down and send prayers and other activities at a diminished capacity, rather than an outright termination of religious services.Id. On June 1, 2020, plaintiff's grievance was forwarded to TRCI Religious Services. Id. On June 11, 2020,.plaintiff was notified that his grievance was denied for failure to "demonstrate[] misapplication of departmental policies, rules or other directives," and because "an AIC cannot \ grieve ... [ a]ny matter that is outside the jurisdiction of [ODOC. ]" Id. at 10 (citing OAR 291- 109-0210 and OAR 291-109-0210(4)). On June 15, 2020, plaintiff filed a grievance appeal that stated the following:
First ... I do not believe the issues I am raising are outside the jurisdiction of [ODOC] or TRCI. Second, it is my understanding that the intent of the PLRA is to require me to use the administrative/grievance processes and give prison officials notice of an issue and a chance to resolve it before proceeding to court. However, I feel that you have made this process unobtainable to me, thus not allowing me to adhere to the PLRA's requirements and as a result, hindering or blocking my access to the courts.Id. at 8. On July 1, 2020, plaintiff was notified that his grievance appeal was denied because “[t]he grievance rule does not permit a returned grievance ... to be appealed.” Id. at 6.
The PLRA is the Prison Litigation Reform Act, 42 U.S.C § 1997e(a)].
Stuart Young, ODOC Religious Services Manager, filed a declaration in which he states that, "[a]fter the State of Emergency was declared [in March 2020] and related safety measures took effect, ODOC Religious Services held a series of discussions to determine whether ceremonial group meals could move forward in 2020." Young Deel. 1¶18, ECF 45. On June 3, 2020, ODOC Religious Services made the decision to "cancel all religious group ceremonial meals for the rest of the year.” Id. at ¶ 23. ODOC Religious Services “planned to wait for summer of 2021 to offer group religious feast such as pow wow, with the hope that things would improve by then.” Id. at ¶ 25. However, “there were still [ODOC] institutions at Tiers 3 and 4 throughout 2021 [,] and ... no group meetings [were] permitted in institutions at Tiers 3 and 4[.]” Id. at ¶ 27. Therefore, NARS group services and programs did not resume in 2021. In September 2021, TRCI brought a meal consisting of buffalo meat and fry bread to Native American AICs in their cells, and defendants describe the provision of that food as a “modified pow wow.” Id. at ¶ 31. The next year, in July 2022, TRCI provided Native American AICs with a “ceremonial meal ... that they could eat together with other Native American AICs.” Young Deci. 2 ¶ 8, ECF 94. “Later that summer [in 2022], more communal Native American services returned, including drumming, talking circles, and sweat.” Id. at ¶ 9. As of Fall 2022, “all covid-related restrictions were lifted at ODOC[]” and “[r]eligious services resumed normal operations[.]” Id. at ¶ 10. '
Regarding the timeframe for plaintiffs claims, plaintifffiled his Complaint on August 17, 2020, alleging that the deprivation of his rights started on May 22, 2020, when he received the notification from Chaplains Hodney and Cardona that. TRCI was cancelling all "communal gatherings" and "religious programming" for Native American AI Cs. See Compl. 5, ECF 2; see also, Resp. Exs. 12 (letter from Chaplains Hodney and Cardona to plaintiff). Plaintiff alleged that the events that gave rise to his claims were "ongoing" as of August 17, 2020. Campi. 5. On March 6, 2023, plaintiff filed a declaration in support of his response to defendants' motion for summary judgment that states the following:
[ d]uring a time period of approximately 2 years from about or on May 22, 2020 to May 2022, all NARS were cancelled at TRCL During this time, I was not allowed any form of religious services or practices in regards to my Native American beliefs and heritage. Instead I was simply told I could practice my beliefs in my cell.Sinclair Deel. ¶9. Plaintiff acknowledges that TRCI brought special food to Native American AICs in their cells in September 2021, but says that it is a "misnomer" to refer to that event as a "modified pow wow." Resp. 51. Plaintiff submitted declarations from two other Native American AIC at TRCI who also state that Native American religious services were cancelled at TRCI from May 2020 to May 2022. See Peterson Deel. ¶ 8, ECF 78; Watson Deel. ¶ 5, ECF 80.
Plaintiff brings claims under 42 U.S.C. § 1983 alleging that the cancellation of the 2020 pow wow and "all other Native [American] religious services" at TRCI from May 2020 to May 2022 violated his state and federal constitutional rights. Comp 1. 3. Plaintiff alleges that TRCI grievance coordinators "attempt[ ed] to deny or hinder [his] access to the courts" in violation of his rights under the First Amendment. Id. at 5. Plaintiff alleges that the cancellation of Native American religious services violated the Religious Land Use and Institutionalized Person Act (RLUIPA), 42 U.S.C. §§2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A). Id. at 3. Plaintiff seeks injunctive relief and monetary damages. Id.
Plaintiff argues that defendants are also liable under the Religious Freedom Restoration Act (RFRA), a statutory precursor to RLUIPA. However, “[h]is argument is unavailing” because, “in City of Boerne v. Flores, [521 U.S. 507 (1997)] the Supreme Court held that, as applied to the states, RFRA was unconstitutional because it exceeded the scope of Congress's enforcement power under § 5 of the Fourteenth Amendment.” Parkerson v. Young, No. 2:20-CV-00445-AR, 2022 WL 17820153, at *7 n.5 (D. Or. Dec. 20, 2022) (citing City of Boerne, 521 U.S. at 536). In response to City of Boerne, “Congress enacted the RLUIPA in 2000, which remains operative law.” Id. .
Plaintiff names as defendants the "TRCI Executive Management Team" and nine individual defendants are or were employed by TRCI, Oregon Department of Corrections (ODOC), or the State of Oregon. Plaintiff sues each defendant in his or her official and individual capacities. Comp 1. 13. However, the pleadings indicate that several of the named defendants no longer hold their former positions. See Defs.' Mot. 2, ECF 44. Where a former position holder has been replaced· and the new person's name is available, the current position holder will be substituted in place of the former position holder. See Fed.R.Civ.P. 25(d) (providing that, "if a public officer who is a party in an official capacity ... ceases to hold office while the action is pending ... [t]he officer's successor is automatically substituted as a party."). The court will otherwise refer to a given defendant as the "former" person in the position identified by the parties. Accordingly, the ten defendants to this action are as follows: (1) Tyler Blewett, former TRCI Superintendent; (2) Donald Hodney, TRCI Chaplain; (3) Stuart Young, Oregon Department of Correction (ODOC) Religious Services Manager; (4) Dennis Holmes, former ODOC Religious Services Administrator; (5) Theron Rumsey, TRCI Correctional Captain; (6) Heidi Stewart, Acting ODOC Director; (7) Arnell Eynon, TRCI Grievance Coordinator; (8) Harry Rossi, TRCI Office Specialist; (9) Tina Kotek, Governor of Oregon; and (10) TRCI Executive Management Team.
The Complaint identifies defendants and their respective positions as follows (as of the date of filing-August 17, 2020, see ECF 2):
1. Tyler Blewett, Superintendent of TRCI
2. Chaplain Hodney, Religious Services Chaplain
3. Stuart Young, Assistant Administrative of Religious Services
4. Dennis Holmes, Religious Services Administrator
5. Captain Rumsey, Operations Captain at TRCI
6. Colette Peters, ODOC Director
7. A. Enyon, Grievance Coordinator .
8. H. Rossi, Grievance Coordinator
9. Kate Brown, Governor of Oregon
10. TRCI Executive Management TeamId. at 12. .
Defendants argue that they are entitled to summary judgment on all of plaintiff's claims. Defs.' Mot. 3.
STANDARDS
I. Summary Judgment
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is. entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing Fed.R.Civ.P. 56(e)). .
In determining what facts are material, the court considers the underlying, substantive law regarding the claims. Anderson v. Liberty Lobby, Ml U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue fortrial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted), • «
II. Pro Se Pleading Standard
Federal courts hold a pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). “Although ... pro se litigant[s]. .. may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Moreover, on a motion for summary judgment, a pro se party involved in civil litigation "should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). "It is not the district court's job to sift through the record to find admissible evidence in support of a non-moving party's case." Claar v. Burlington N.R.R., 29 F.3d 499,504 (9th Cir. 1994) (quoting Celotex, 477 U.S. at 324). Simply put, in areas "where [a] plaintiff does not identify specific evidence in the record to support his assertions, the Court is not required to search for it." Woodroffe v. Oregon, No. 2: 12- CV-00124-SI, 2015 WL 2125908, at *2 (D. Or. May 6, 2015), aff'd sub nom. Woodroffe v. Kulongoski, 745 Fed.Appx. 728 (9th Cir. 2018).
DISCUSSION
I. Section 1983 Claims
Plaintiffs § 1983 claims allege as'follows: (1) the denial of plaintiffs grievance and grievance appeal regarding the cancellation of NARS programs violated his right to access the . . courts under the First Amendment; (2) accommodating other religious groups but not Native . Americans violated plaintiffs right to equal protection under the Fourteenth Amendment; and -(3) the cancellation of NARS programs at TRCI violated plaintiffs First Amendment to free exercise of religion. Compl. 3.
A. First Amendment Access to Courts Claim
Plaintiff alleges that the grievance coordinators at TRCI “unlawfully and unconstitutionally misinterpreted] the rules ... of the grievance process” and violated his First Amendment right to access the courts. Compl. 5. However, as demonstrated by the present lawsuit, plaintiff has not been denied access to the courts and has sustained no apparent injury resulting from the denial of his grievance and grievance appeal at TRCI. See Fudge v. Bennett, No. 2:19-CV-01102-SB, 2022 WL 4227423, at *5 (D. Or. Sept. 9, 2022), report and . recommendation adopted, 2022 WL 4216941 (D. Or. Sept. 12, 2022) (on access to courts claim, noting that the plaintiff had “not been denied access to the courts” and that, “the AIC ‘must allege an actual injury'”) (quoting Lewis v. Casey, 518 U.S. 343, 349 (1996)). Even assuming that plaintiff's grievance and grievance appeal were improperly denied, as he contends, any failure properly to process and address grievances, standing alone, does not support a constitutional claim. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (noting that “[AIC]s lack a ... constitutional entitlement to a specific prison grievance procedure”); see also Evans v. Skolnik, 637 Fed.Appx. 285, 288 (9th Cir. 2015) (noting that “the denial of [the plaintiff]'s grievance was not itself a constitutional violation”). For those reasons, plaintiffs right to access the courts claim cannot survive summary judgment. See Fudge, 2022 WL 4227423, at *5 (granting the defendant summary judgment on the plaintiffs access to courts claim that was based on the defendant's denial of the plaintiffs grievance).
B. Fourteenth Amendment Equal Protection Claim
The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Hartmann v. Calif. Dept, of Corrs, and Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013). State prison AICs retain a right . to equal protection of the laws guaranteed by the Fourteenth Amendment. Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (citing Lee v. Washington, 390 U.S. 333, 334 (1968)). An equal protection claim may be established by showing that the defendants intentionally discriminated against a plaintiff based on his membership in a protected class, Hartmann, 707 F.3d at 1123, or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon Dept, of Agriculture, 553 U.S. 591, 601-02 (2008).
Here, the complaint does not explain the basis for plaintiff's equal protection claim, but plaintiff's Response alleges that TRCI imposed a “sweeping ban on any and all Native American religious services ... while other religious services for other groups of faith were still commencing on some level or another.” Resp. 27. Defendants argue that plaintiff's equal protection claim cannot survive summary judgment because “all religious group meals were cancelled after March 13,.2020.” Defs.' Mot. 16 (citing Young Deci. 1 ¶¶ 7, 23). Plaintiff does not cite evidence that TRCI allowed other religious groups to have group meals or intentionally discriminated against Native American AICs on the basis of their religion. Rather, plaintiff alleges that “[defendants] seemed to make accommodations for other faiths here at TRCI, just not [his].” Resp. 44. However, plaintiff's speculation is not enough to create a genuine issue of material fact as to whether TRCI treated Native Americans less favorably than other religious groups. Defendants are therefore entitled to summary judgment on plaintiff's equal protection claim. '
C. Free Exercise of Religion Claim
Plaintiff alleges that the cancellation of NARS group programs from May 2020 to May 2022 violated his right to free exercise of his religion under the First Amendment and the Oregon Constitution. Compl. 5. Plaintiff's state and federal free exercise claims will be analyzed under the U.S. Constitution because, as defendants state, “[t]he Oregon Supreme Court has held that the [free exercise] rights granted under.,. the Oregon Constitution are ‘identical in meaning' with the guarantee of religious freedom contained in the First Amendment[.]” Defs.' Mot 13 (citing City of Portland v. Thornton, 174 Or. 508 (1944)); see also, Kemp v. Workers' Comp. Dep't, 65 Or.App. 659, 664 (1983), opinion adhered to as modified on reconsideration, 67 Or.App. 270 (1984) (noting that the rights to religious freedom under the Oregon Constitution are “‘identical in meaning' with the guarantee of religious freedom contained in the First Amendment to the federal Constitution”)).
Defendants argue that they are entitled to summary judgment on plaintiff's free exercise claims because, (1) plaintiff “has not alleged what any named defendant personally did to violate his rights”, Defs.' Mot. 17; (2) there was ho violation of plaintiff's right to free exercise of religion, Id. at 12-15; (3) plaintiff's claim for injunctive relief is moot, Reply 7-9; (4) plaintiff is not entitled to damages under the Oregon Constitution, Defs.' Mot. 10; and (5) defendants are entitled to qualified immunity. Id. at 18-20. Each argument is addressed in turn below.
1. Defendants' Personal Participation
To state a claim under § 1983, a plaintiff must (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (1989). “A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011).
42 U.S.C. § 1983 provides: .
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]
Here, plaintiff alleges that TRCI's and ODOC's decision to cancel NARS group programs starting in May 2022 violated his right to free exercise of religion, see Compl. 5, but the Complaint does not allege specific actions taken by any of the named defendants. However, plaintiffs Response and exhibits show that Chaplain Hodney informed plaintiff of the cancellation of NARS programs in a letter dated May 22, 2020, and explained that the decision was “per TRCI Executive Management Team”. Resp. Exs. 12, ECF 76-1. The record does not reveal the names of the team members; however, looking at the evidence in the light most favorable to plaintiff, it is reasonable to infer that high level managers such as former TRCI Superintendent Tyler Blewett (Blewett) and TRCI Correctional Captain Theron Rumsey (Rumsey) were part of the TRCI Executive Management Team that decided to cancel NARS programs in May 2020-and there is no evidence that indicates otherwise.
Additionally, Stuart Young (Young), ODOC Religious Services Manager, explains in his declaration that, sometime after March 2020, “ODOC Religious Services held a series of discussions to determine whether ceremonial group meals could move forward in 2020.” Young Deci. 1 ¶ 18. Young explains that, “[d]ue to the unpredictability of COVID-19 restrictions in 2020 and their impact on operations,” ODOC Religious Services made “the difficult decision ... to cancel all religious group ceremonial meals for the rest of the year.” Id. at ¶ 23. Young does not identify the members of the ODOC Religious Services team; again, however, looking at the evidence in the light most favorable to plaintiff, it is reasonable to infer that Young, as Manager of ODOC Religious Services, and Dennis Holmes (Holmes), as the former Religious Services administrator, were both involved in the decision to cancel religious programs at TRCI-or, at a minimum, the cancellation of the “religious group ceremonial meals” that Young refers to in his declaration. See id.
Defendants also make multiple references to “ODOC's decision to cancel group-based religious services” in 2020 due to COVID-19. Reply 4, 7, ECF 93. Assuming that is true and ODOC made the policy decision in 2020 to cancel group religious services at its multiple facilities, including TRCI, it is reasonable to infer that ODOC's Director “participated in or directed” the alleged civil rights violations or “knew of the violations and failed to act to prevent them.” Taylor, 880 F.2d at 1045.
In contrast, there is no evidence that the Governor of Oregon participated in or was aware of the decision to cancel NARS programs at TRCI. Plaintiff, in fact, states that the Governor “only mandated that such religious services be limited in capacity,” and did not order “an outright ban on such [services].” Resp. 8, ECF 76. Plaintiff also cites evidence submitted by defendants that indicates that, as of June 2, 2020 “the Governor only limited group gatherings to 25 individuals” and did not order “a complete ban[.]” Id. at 52. There is also no evidence that' Harry Rossi, a TRCI office specialist, or Amell Eynon, a TRCI grievance coordinator, had any involvement in the decisions to cancel or change NARS programs at TRCI. Plaintiff has therefore failed to state a claim under § 1983 against the governor of Oregon, Harry Rossi, and Amell Eynon regarding the alleged violation of his right to free exercise of his religion.
In sum, there is no dispute that NARS programs were cancelled at TRCI starting in May 2020. Although the Complaint does not describe specific actions taken by each defendant, the evidence indicates that the following defendants participated in discussions and decisions regarding the discontinuation of religious programs at TRCI: Hodney (TRCI Chaplain), Blewett (former TRCI Superintendent), Rumsey (TRCI Correctional Captain), Young (ODOC Religious Services Manager), Holmes (former ODOC Religious Services administrator), and Heidi Stewart (acting Director of ODOC). Thus, plaintiffs free exercise claim should proceed against those defendants. However, plaintiff has not alleged and the evidence does not show that the Governor of Oregon, Harry Rossi, or Amell Eynon were personally involved in the decision to cancel NARS programs at TRCI. The Governor of Oregon, Harry Rossi, and Amell Eynon are therefore entitled to summary judgment on plaintiffs free exercise claim.
2. Free Exercise Claim Analysis
It is well settled that “convicted [AIC]s do not forfeit all constitutional protections by. reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545; see also, Turner v. Safley, 482 U.S. 78, 84 (1987). “[AIC]s clearly retain protections afforded by the First Amendment... including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). However, “limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives-including deterrence of crime, rehabilitation of prisoners, and institutional security.” Id. (citing Pell v. Procunier, 417 U.S., 817, 822-823 (1974); Procunier v. Martinez, 416 U.S. 396,412 (1974)). '
An AIC bringing a free exercise claim must show that the defendant has substantially burdened a sincerely held religious belief. Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (citing Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987), aff'd sub nom. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989)). If the state action at issue imposes a substantial burden on an AIC's religious exercise, the court determines whether that state action “is reasonably related to legitimate penological interests,” using a four-factor test under Turner, 482 U.S. at 89-90. Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008). In making this determination, the court considers the following factors:
(1) Whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;
(2) Whether there are alternative means of exercising the right that remain open to prison inmates; . .
(3) Whether accommodation of the asserted constitutional right will impact... guards and other inmates, and on the allocation of prison resources generally; and
(4) Whether there is an absence of ready alternatives versus the existence of obvious, easy alternatives.Id. (quoting Turner, 482 U.S. at 89-90) (simplified). If, under the Turner factors, the state's action is found to be reasonably related to a legitimate penological objective, no First Amendment violation will be found.
Here, defendants do not question the sincerity of plaintiffs beliefs and they do not dispute that TRCI cancelled NARS group programs for two years starting in May 2020 or that the cancellation of NARS programs substantially burdened plaintiffs religious beliefs. Instead, defendants apply the Turner factors and argue that the decision to cancel NARS group programs at TRCI from May 2020 to May 2022 was reasonably related to legitimate penological interests. Defs.' Mot. 13-15.
a. Rational Connection
Defendants argue that “[t]here is a valid, rational connection between ODOC's decision to cancel the 2020 pow wow to contain COVID-19's spread within its facilities and the legitimate government interest used to justify it-the health and safety of AICs and prison staff.” Id. at 14. However, “[p]rison authorities cannot rely on general or conclusory assertions to support their policies.” Walker v. Summer, 917 F.2d 382, 386 (9th Cir. 1990). Prison officials “must provide evidence that the interest proffered is the reason why the regulation was adopted or enforced.” Id. at 385 (emphasis in original) (citation omitted). Defendants explain that ODOC had a “tiered prevention plan and protocol” in 2020-2021 that designated a “tier” level for each ODOC facility based on the number of COVID-19 cases and where they originated. Defs.' Mot. 5-7; Young Deci. 1 Ex. 2. Under ODOC pandemic rules, group meetings were not allowed in institutions at Tier 3 or Tier 4 institutions, but groups could gather in Tier 1 and Tier 2 institutions. Id. at Ex. 5. Defendants cite evidence that TRCI was at Tier 4 in July 2020, Tier 4 in September 2021, and Tier 3 in October 2021. Young Deci. 1 ¶¶ 20, 32, 33.
Plaintiff takes issue with defendants' “fail[ure] to acknowledge” the periods of time when “TRCI was not on ‘Tier 4' or ‘Tier 3' status[.]” Resp. 16. Plaintiff argues that defendants cannot show a rational connection between the two-year ban on NARS group programs and the spread of COVID based on evidence that TRCI was at Tier 3 or Tier 4 for only three months between May 2020 and May 2022. Id. For example, defendants state that TRCI was at Tier 4 “as of July 9, 2020,” but that does not explain why the TRCI Executive Management Team decided on May 22, 2020, to cancel the 2020 pow wow and other NARS programs, or why ODOC Religious Services decided on June 3, 2020, to “cancel all religious group ceremonial meals for the rest of the year.” Young Deci. 1 ¶ 23. Furthermore, defendants do not argue that TRCI continued to ban NARS programs in 2021 due to high levels of COVID-19 at TRCI. Rather, defendants say that ODOC Religious Services decided not to offer “group religious feasts such as pow wow” in 2021 because “there were still institutions at Tiers 3 and 4 at various points throughout 2021 and because no group meetings [were] permitted in institutions at Tier 3 and 4.” Id. at ¶ 27. Assuming that other ODOC institutions were at Tier 3 or 4 at some point during 2021, that fails to show a rational connection between the bar on NARS programs at TRCI and preventing the spread of COVID-19.
Additionally, plaintiff argues that TRCTs “own actions and failures” in failing to enforce social distancing rules “completely undermine” any claim that NARS programs had to be cancelled for health and safety reasons. Resp. 31; cf. Lien v. Peters, No. 3:19-CV-01630-CL, 2021 WL 9349042, at *5 (D. Or. Dec. 22, 2021), report and recommendation adopted, No. 3:19-CV-O163O-CL,.2O22 WL 3683728 (D. Or. Aug. 25, 2022) (noting that a prison rule against AICs . leading group prayers “does not appear to be rationally connected to furthering the security of [the prison]” where “one group is allowed to violate the rule, but another is not”). Plaintiff argues that TRCI allowed “hundreds of AICs from all over the institution to congregate together in very restricted areas without the enforcement of [its] ‘professed' rules[,]” and cites a declaration from AIC James Arthur Ross (AIC Ross). See Resp. 14 (citing Ross Deci. ¶ 17, ECF 79). In his declaration, AIC Ross describes eating and conversing during the pandemic with “hundreds of other AICs from several different housing units from all over TRCI with the defendants giving no regards to social distancing, mask wearing, testing or anything.” Id. Ross states that “[h]undreds of us literally sit in confined rooms eating and conversing with each other less than 18” apart for approximately 30 minutes at a time.” Id. Where a prison allows AICs to interact in a manner that indicates a low risk of COVID transmission, such circumstances can “undercut . any asserted rational connection between ... barring in-person visitation ... and minimizing COVID-19 outbreaksf.]” United States v. Moi, No. 319CR00112TMBDMS, 2021 WL 4048596, at *10-11 (D. Alaska June 7, 2021) (noting the “tenuous” connection between the prison's policy of barring in-person visits and the “asserted goal”-of preventing CO VID-19 outbreaks where the prison allowed unvaccinated AICs to visit with counsel in a manner that indicated “little risk of COVID transmission”).
Thus, defendants have not shown a valid, rational connection between their stated goal of . preventing the spread of COVID-19 and the complete ban on group religious activities for Native American AICs from May 2020 to May 2022.
(b) Alternative Avenues
Defendants argue that ODOC “worked to create alternatives” for Native American AICs. Defs.' Mot. 14. For example, TRCI offered a “modified pow wow” in September 2021 by bringing Native American AICs buffalo meat and fry bread to eat in their cells. Id. However, AIC William Watson describes the “modified pow wow” as lacking “any identifying markers that would normally be attributed to a pow wow”-especially because TRCI “compelled participants to eat isolated in their cells”. Watson Deci. ¶ 9, ECF 80. AIC Watson explains that Native Americans “hail from a society of peoples right in history that facilitates, promotes, and thrives amid social interactions with their peers” id.-, thus, “[s]ocial interaction among peers [is] arguably the cornerstone to any pow wow whatsoever anywhere in any tribe[.]” Id. However, no social interaction was “provided in ANY capacity by TRCI” as part of the “modified” pow wow. Id. (emphasis in original).
Defendants argue that “Native American AICs could further their practice independently in their cells, could request individual callouts with facility chaplains, and could order religious property.” Defs.' Mot. 9. However, plaintiff contends that he was not able to exercise his religious beliefs in his cell because Native Americans services are supposed to be held outdoors, there is not enough room to dance in his cell, and TRCI rules do not allow him to purchase or possess or use items that are important.to Native American religious services such as colored headbands, drums, ceremonial pipes, tobacco, and flutes. Resp. 36-39. Plaintiff also argues that facility chaplains could not help him “practice independently” in his cell because the chaplains “are all of the white man's god” and “do not understand [his] ways” as a Native American. Id. at 41.
In another free exercise prison case, Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993), the . plaintiff also had no access to religious services, group prayer, or clergy who shared his faith. Id. at 878. The AIC plaintiff was able to pray privately in his cell, but the Ninth Circuit found that “the opportunity to engage in private prayer” was not enough to satisfy the second Turner factor because, “[i]f it were, the factor would have no meaning at all because an [AIC] would always be able to pray privately.” Id. The court found that, “because [the plaintiff]'s religious practice has . been so dramatically curtailed in prison, the second Turner factor weighs in his favor.” Id. Here, plaintiffs religious practices were also “dramatically curtailed” between May 2020 and May 2022. See id. Defendants argue that they provided alternatives to plaintiff during the suspension of NARS group programs, but they do not explain how plaintiffs apparent ability to purchase “religious property”, contact non-Native American chaplains, and receive a single meal in his cell without any social gathering enabled him to practice his religious beliefs in a meaningful way. Thus, this factor weighs against defendants. See Ward, 1 F.3d at 878; see also, Lien, 2021 WL 9349042, at *6-7 (finding that the defendants failed to show that Muslim AICs “had alternative means to exercise their religious rights” where they were “prevented from participating in group prayer altogether” and only had “access to written materials and [the] ability to pray alone in their cell” with no “out-of-cell or otherwise sufficient alternative means of practice available”).
(c) Impacts on Others
. Defendants also fail to show that allowing plaintiff and other Native American AICs to gather for in-person religious services would have negatively impacted other AICs, TRCI staff, or prison resources in general. Defendants broadly assert that “the health and safety of AICs and staff would be at risk if group religious meals . . . were held in 2020” before “vaccines were available” and “where social distancing [was] notpossible[.]” Defs.' Mot. 15. Where an AIC's religious rights “can be exercised only at the cost of significantly less '... safety for everyone else” the Ninth Circuit has noted that “[courts] should defer to the informed discretion of corrections officials.” Mauro v. Arpaio, 188 F.3d 1054, 1062 (9th Cir. 1999). Here, however, plaintiff explains that, pre-pandemic, Native American religious services were “held outside of the prison walls in a very large, designated area.” Resp. 45. Plaintiff explains that the outside area is a “secured and controlled environment” that TRCI corrections officers monitor through video and where “social distancing could have easily been accommodated.” Id. Thus, it is not clear how other AICs or TRCI staff would have been at risk or negatively impacted if TRCI had allowed plaintiff to exercise his religious beliefs through an outdoor gathering that included social distancing. This factor also weighs in -favor of plaintiff.
(d) Exaggerated Response
Last, the existence of easy, low-impact alternatives suggests that defendants' decision to cancel NARS group gatherings in 2020 and 2021 may have been an exaggerated response to its concerns about COVID-19. The Ninth Circuit has emphasized that, “[i]t is incumbent upon the [AIC]s to point to an alternative that accommodates their rights at de minimis cost to security interests,” Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir. 1993)-and plaintiff has done so. For example, plaintiff asked in his grievance of May 2020 whether Native American AICs could “gather on religious services grounds to smudge down and send prayers and other activities at a diminished capacity, rather than an outright termination of religious services.” Pl. Exs. 3-4, ECF 76-1. Although the “religious'services yard” that is used for Native American religious services is outdoors, separate from other housing unit yards, and apparently large enough to accommodate social distancing, plaintiff's request was denied. Id. at 49. AIC Arthur Ross says that he sought to arrange a limited pipe ceremony with another Native American AIC, Joseph Dexter, but was also denied. AIC Ross states the following:
[We] tried multiple times for just the two of us to be allowed at the religious services grounds for NARS participants, which is an outside and not inside area, to perform such pipe ceremonies for the passing of my father and' other loved ones, even if in a symbolic manner only, to no avail. .Ross Deci, ¶l 6, ECF 79. AIC Watson confirms in his declaration that TRCI officials did not allow even “a small gathering of Native American individuals . .. while social distancing.” Watson Deci. ¶ 9.
Defendants do not dispute that, pre-pandemic, Native American religious services at TRCI were mostly held outdoors in a “very large designated area”, Resp. 49, or that the area is big enough to accommodate social distancing. Thus, a reasonable jury might agree with plaintiff that, “despite the availability of alternatives and less restrictive means, [defendants] just simply refused to even consider anything less than a complete ban” on all Native American religious services. Resp. 44. Because the “existence of obvious, easy alternatives to a prison policy restricting constitutional rights may be evidence that the policy is not reasonable,” Casey, 4 F.3d at 1523, this factor weighs in favor of plaintiff.
In sum, defendants are not entitled to summary judgment on plaintiffs free exercise claim. There is no dispute that TRCI cancelled NARS group programs for two years or that the cancellation substantially impacted plaintiffs religious beliefs. Defendants argue that cancelling group religious activities was reasonably related to legitimate penological interests under the Turner factors, but a reasonable jury could find that there were easy and obvious alternatives to the outright ban that did not involve negative impacts or undue risk to others. Defendants are therefore not entitled to summary judgment on plaintiffs free exercise claim.
3. Relief Available to Plaintiff
Plaintiff brings his free exercise claim against defendants in their individual and official capacities and seeks monetary damages as well as injunctive relief. Compl. 5. Defendants argue that plaintiff is not entitled to the relief he seeks. Defs.' Mot. 3; Defs.' Reply 7-9, ECF 93.
a. Monetary Damages
Defendants are entitled to Eleventh Amendment immunity and summary judgment on plaintiffs official capacity claims for monetary damages. See Ljubich v. Oregon Dep't of Corr., No. 2:21-CV-00330-JR, 2023 WL 3166469, at *3 (D. Or. Apr. 27, 2023) (holding that an ODOC employee was entitled to “Eleventh Amendment immunity and summary judgment to the extent that [the] plaintiff sues him in his official capacity for damages”). As the Ninth Circuit explained in Aholelei v. Depl. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007), the Eleventh Amendment “bars suits for money damages in federal court against... state officials acting in their official capacities”); see also, Brown v. Oregon Dep't Corr., 751 F.3d 983, 989 (9th Cir. 2014) (noting that Eleventh Amendment immunity extends to lawsuits filed against state officers in their official capacities “‘because such actions are, in essence, actions against the governmental entity'”) (citation omitted). However, plaintiffs claims for monetary damages are not dismissed to the extent that plaintiff sues defendants in their individual capacities. See Olman v, Hanselmann, No. CIV. 06-6070rHO, 2006 WL 3524387, at *1 (D. Or. Dec. 4, 2006) (noting that “the Eleventh Amendment does not bar Section 1983 individual capacity claims for damages against state officials” (citing Will, 491 U.S. at 71)). / . .
Regarding plaintiffs Oregon Constitution claim, “Oregon provides plaintiff with no express statutory right to sue for money damages under the Oregon Constitution.” Defs.' Mot. 10 (citing Hunter v. City of Eugene, 309 Or. 298, 302 (1990)). Plaintiffs claims seeking monetary damages for violations of his rights under the Oregon Constitution should therefore be dismissed. See Real Est. Exch., Inc. v. Brown, No. 3:20-CV-02075-HZ, 2021 WL 5855660, at *8 (D. Or. Dec. 9, 2021) (dismissing state constitutional claims for monetary damages because “Oregon law provides no mechanism to recover damages under the Oregon Constitution”).
b. Claims for Injunctive Relief
Plaintiff asks the court to order defendants to resume religious services at TRCI, but defendant's evidence shows that “[r]eligious services have resumed normal operations” at TRCI since Fall 2022. See Young Deci. 2 ¶ 10. Plaintiff does not dispute that evidence. Plaintiffs request for injunctive relief to reinstitute religious activities at TRCI is therefore moot. See Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148, 149 (1985) (noting that an appeal challenging the issuance of a preliminary injunctive is moot where the movants already received the injunctive relief they sought); see also, Carley v. Gentry, No. 217CV02670MMDVCF, 2021 WL 2276458, at *3 (D. Nev. June 3, 2021) (noting the plaintiffs request for an order allowing her access to the prison law library and finding the request for injunctive relief hmoot because the lockdown conditions at the prison had been lifted and the plaintiff was able to access the law library). •
Plaintiff also seeks an order that protects him from retaliation for filing this lawsuit and an order appointing “someone, who ... has a view of upholding the religious rights of the AIC population.” Compl. 5. It is not clear whether plaintiff has a legal foundation regarding either request for injunctive relief, but the court declines to address them because they are not discussed • in defendants' motion for summary judgment.
4. Qualified Immunity
Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Whether an official is entitled to qualified immunity “generally turns on the objective legal reasonableness of the action assessed . in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S.-635, 639 (1987) (simplified).
Here, defendants argue that they are entitled to qualified immunity on plaintiffs free exercise claim because “[a] reasonable prison official would have believed that the procedures employed in this case ... were lawful.” Defs.' Mot. 19. Defendants also argue that ODOC Religious Services could not have known it was infringing on plaintiffs religious rights when it “cancel[led] religious group meals in 2020” because the “cancellation was for the health and safety of ODOC's AICs and staff to prevent the spread of COVID-19.” Id. However, as discussed above, there is a genuine issue of material fact as to whether the cancellation of NARS group programs was reasonably related to legitimate penological interests. Furthermore, “[t]he Ninth Circuit has clearly established that denying [AIC]s the means to follow sincerely held beliefs, absent a legitimate penological interest, violates the Free Exercise Clause.” Royzman v. Lopez, No. 21-CV-1429-BAS-AHG, 2023 WL 2026537, at *12 (S.D. Cal. Feb. 15, 2023) (citing Shakur, 514 F.3d at 885 (“Given his sincere belief that he is personally required to consume kosher meat to maintain his spirituality, we are satisfied, as a threshold matter, that the prison's refusal to provide a kosher meat diet implicates the Free Exercise Clause.”); Williams, 791 F.3d at 1034 (holding that forcing a Muslim AIC to handle pork meat in violation of his sincerely held, religious beliefs violated free exercise); McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987) (“Certainly, the defendants cannot erect a barrier to an [AIC]'s access to religious reading material absent a security or penological interest”)). Thus, defendants are not entitled to qualified immunity on plaintiff's free exercise claim.
II. RLUIPA Claim '
Plaintiff argues that the cancellation of all Native American services at TRCI starting on May 22, 2020, violated the RLUIPA. To state a claim under the RLUIPA, an “[AIC] must show that: (1) he takes part in a ‘religious exercise,' and (2) the State's actions have substantially burdened that exercise.” Walker v. Beard, 789 F.3d 1125, 1134 (citing Shakur v. Schriro, 514, F.3d 878, 888-89 (9th Cir. 2008). If an AIC satisfies those elements, “the State must prove its actions were the least restrictive means of furthering a compelling government interest.” Id. (citing Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). The State “cannot meet its burden to prove least restrictive means Unless it demonstrates that it has actually considered and . rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier, 418 F.3d at 999.
RLUIPA provides in relevant part as follows: .
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 the imposition of the burden on that purpose
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling government interest. 42 U.S.C. § 2000cc-l(a).
Here, defendants do not dispute that plaintiff participates in Native American religious practice and programs or that the cancellation of all Native American religious services at TRCI substantially burdened plaintiffs exercise of his religion. Defendants argue that cancelling Native American religious services “furthered a compelling government interest[,] namely, containing the spread of COVID-19, a disease that can debilitate and kill those who contract it.” Defs,' Mot. 12. In Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020), the Supreme Court held that, “[s]temming the spread of COVID-19 is unquestionably a compelling interest.” Id. at 67; see also, Uhuru v. Bonnifield, No. 219CV10449JVSKES, 2020 WL 6534087, at *10 (C.D. Cal. Oct. 27, 2020), report and recommendation adopted, 2020 WL 6395478 (C.D. Cal. Nov. 2, 2020) (noting that the prison's COVID-19 policies eliminating access to the prison law library were “supported by a compelling interest in protecting [AIC]s from contracting a possibly deadly virus”).
However, defendants fail to argue, let alone demonstrate, that the cancellation all Native American religious services at TRCI starting on May 22,.2020, was "the least restrictive means" of furthering the interest it had in containing the spread of COVID-19, See Walker, 789 F.3d at 1134 (noting that "the government bears the burden of proof to show its practice is the least restrictive means"). Moreover, plaintiff contends that "there is nothing 'least restrictive' about an overall and sweeping ban on any and all Native American religious services," Resp. 27- including “talking circle, singing, dancing, drumming, or even pipe ceremony [,] whether or not these things are performed in a limited capacity, individually or simply in a symbolical manner . .. without any compromise whatsoever[.]” Id. at 26. Because defendants fail to address their burden to show that cancelling all Native American services was the least restrictive means to achieve their interest in preventing the spread of COVID-19, and there is no evidence that defendants “actually considered and rejected the efficacy of less restrictive measuresf,]” Warsoldier, 418 F.3d at 999, they are not entitled to summary judgment on plaintiffs RLUIPA claim. See id. at 1002 (holding that the California Department of Corrections “utterly failed to demonstrate [under RLUIPA] that the disputed grooming policy is the least restrictive means necessary to ensure prison safety and security” and reversing the district court's denial of the . Native American plaintiff s rnotion for a preliminary injunction).
However, RLUIPA bars official capacity claims for monetary damages. Sossamon v. Texas, 563 U.S. 277, 284 (2011) (holding that states did “not consent to waive their sovereign immunity to private suits for money damages under RLUIPA”). Additionally, “RLUIPA does not authorize suits for damages against state officials in their individual capacities because ... nothing in the statute suggests any congressional intent to hold them individually liable.” Williams, 791 F.3d at 1031 (citing Wood v. Yordy, 753 F.3d 899, 903-04 (9th Cir. 2014)). Thus, plaintiff is not entitled to monetary damages for violations of RLUIPA. See id. (affirming the district court's entry of summary judgment for the defendants on the plaintiffs RLUIPA claim for monetary damages).
CONCLUSION
In sum, plaintiffs free exercise claim and RLUIPA claim survive summary judgment. The court acknowledges that the “operation of a correctional institution is at best an - extraordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974). This undertaking is “particularly difficult where ... prison officials are grappling with a global pandemic.” Singleton v. Cal. Dep't of Corr. & Rehab., 2020 WL 6587657 at *2 (C.D. Cal. 2020); see also Plata v. Newsom, 445 F.Supp.3d 557, 559 (N.D. Cal. 2020) (“[t]he COVID-19 pandemic [was] ‘unprecedented,' and no one questions that it pose[d] a substantial risk of serious harm to [AICs]”). The court further acknowledges other cases in which a prison's restrictions on AIC religious practices were found to be reasonably related to containing the spread of COVID. See e.g, MacDonald v. Harold, No. 6:20-CV-00931-AA, 2022 WL 205671, at *4 (D. Or. Jan. 24, 2022) (finding the county jail's “suspension of in-person religious services was rationally related to the legitimate goal of preventing the spread of CO VID-19”); see also, Boughton v. Geo Grp. Inc., No. 1:20CV938 (TSE/JFA), 2023 WL 4394103, at *9 (E.D. Va. July 6, 2023) (finding a “rational connection between the religious services being cancelled” and the prison's goal “to protect the health of [AIC]s and staff at the beginning of the COVID-19”). Here, however, defendants do not explain or show the extent of COVID-19 infections at TRCI between May 2020 and May 2022, or the risk that group activities presented to other AICs or staff during that period of time. Defendants also fail to explain why they could not accommodate requests from plaintiff and other Native American AICs for modified NARS programs to take place outdoors and with social distancing. Defendants are therefore not entitled to summary judgment on either plaintiffs free exercise claim or his RLUIPA claim.
RECOMMENDATION
For the reasons stated above, defendants' motion for summary judgment (ECF 44) should be GRANTED regarding, (1) plaintiffs access to courts claim, (2) plaintiffs equal protection claim, and (3) plaintiffs free exercise claim against the Governor of Oregon, Harry Rossi, and Arnell Eynon. Defendants' motion for summary judgment (ECF 44) should be DENIED . regarding plaintiff's free exercise claim against the remaining defendants to the extent that plaintiff seeks monetary relief from defendants in their individual capacities and only regarding injunctive relief that is not moot. Defendants' motion for summary judgment (ECF 44) is DENIED regarding plaintiffs RLUIPA claim, but plaintiff is not entitled to monetary damages and may only seek injunctive relief that is not moot.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).