Opinion
NO. 2019-CA-001326-MR
05-01-2020
BRYAN HAMM APPELLANT v. KATHY LITTERAL APPELLEE
BRIEFS FOR APPELLANT: Bryan Hamm, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Kristin Wehking Kentucky Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 19-CI-00460 OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, DIXON AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Bryan Hamm appeals from orders of the Franklin Circuit Court which dismissed his complaint alleging religious discrimination and which also requested an injunction against the appellee. We hold that the trial court inappropriately dismissed this case at this juncture; therefore, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Appellant is an inmate at the Eastern Kentucky Correctional Complex in West Liberty, Kentucky. On April 20, 2018, a Friday, Appellant and several other inmates were called into the office of the Kentucky Correctional Industries (KCI) Operations Manager, Mark Noble. Appellant alleges that Mr. Noble said, "I need five Muslims to stay and work in order to meet the needed production number." Appellant is a practicing Muslim inmate. One of the inmates informed Mr. Noble that Muslim inmates usually leave work after half a day on Fridays in order to attend a religious service called Jumu'ah. The Jumu'ah service takes place every Friday and lasts one hour.
Appellant alleges that Mr. Noble went on to say that he had spoken to the chaplain at the facility who informed him that Mr. Noble could force Muslim inmates to stay at work pursuant to Corrections Policy and Procedure (CPP) 23.1(II)(G)(9)(c), which states: "The inmate shall seek a job or program assignment that does not conflict with his beliefs and practices." It was Mr. Noble's interpretation that working on Fridays would conflict with the Muslim religion and if he did not get enough volunteers to stay, then those Muslim inmates who attended Jumu'ah would no longer be employed. Five Muslim inmates, including Appellant, stayed to work Friday and missed the Jumu'ah service.
Six days later, Appellant filed a grievance against this action. The Grievance Committee found that Mr. Noble acted appropriately. Appellant then appealed to the Warden, Kathy Litteral, who also upheld the decision. Appellant then appealed to the Commissioner, James Erwin, who also upheld the decision.
On May 24, 2019, Appellant filed the underlying civil complaint. He alleged that requiring him to work and miss the Jumu'ah service violated his Constitutional First Amendment right to freedom of religion and his Fourteenth Amendment right to equal protection. He also brought a claim based on a federal statute called the Religious Land Use and Institutionalized Persons Act (RLUIPA), which can be found at 42 U.S.C.A. § 2000cc-1. The relevant portion of RLUIPA states:
United States Code Annotated. --------
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—42 U.S.C.A. § 2000cc-1(a).
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Appellant sought injunctive relief and requested that the court declare that he was denied the opportunity to attend Jumu'ah services and order that Muslim inmates be allowed to attend Islamic services and be excused from work if need be. He also requested that the CPP policy at issue be changed so as to not restrict Muslim inmates from obtaining jobs.
On June 11, 2019, Appellee moved to dismiss the case pursuant to Kentucky Rule of Civil Procedure (CR) 12.02(f) which allows a court to dismiss a cause of action for failure to state a claim upon which relief may be granted.
On July 9, 2019, the trial court entered an order dismissing Appellant's case. The court treated Appellant's complaint as a request for declaratory judgment. The trial court dismissed Appellant's First Amendment and Fourteenth Amendment claims by holding that Appellant failed to plead an actual controversy between him and Appellee. "An actual controversy for purposes of the declaratory judgment statute, requires a controversy over present rights, duties, and liabilities; it does not involve a question which is merely hypothetical or an answer which is no more than an advisory opinion." Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010) (citation and internal quotation marks omitted). The court held that Appellant was not injured by the named Appellee, only Mr. Noble. The court further held that there was no evidence that Appellee even had notice of this incident. Finally, the court held that an injunction against Appellee would amount to an advisory opinion.
As for Appellant's RLUIPA claim, the court held that even if Appellant's claim was an actual controversy, Appellee's actions did not amount to a substantial interference with Appellant's religious practices. The court found that Appellant only feared he would lose his job, that there was no evidence that Appellee had notice of the incident, and that this was a one-time incident. Appellant then moved for the court to vacate its order. That motion was denied, and this appeal followed.
ANALYSIS
When a motion is made pursuant to CR 12.02(f) for dismissal for failure to state a claim upon which relief could be granted, "the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987) (citation omitted). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012) (citation and internal quotation marks omitted).
On appeal, Appellant argues that the trial court made erroneous holdings and findings that preclude an order dismissing pursuant to CR 12.02(f). We agree. The trial court found that there was no evidence showing Appellee knew of the incident in question. This is incorrect. The record contains the grievance and two grievance appeals filed by Appellant. Ms. Litteral and Mr. Erwin, the Warden and Commissioner at the time, were both made aware of the incident through this grievance procedure and they both found no wrongdoing on the part of Mr. Noble.
The court also found that the fear of losing one's job was not sufficient to maintain a declaratory action nor an action under RLUIPA. Again, this is not accurate as the record stands now. Appellant alleged that Mr. Noble told him and others that if enough Muslim inmates would not stay and work, they would lose their jobs. Pursuant to our standard of review for CR 12.02, we must assume all allegations made by Appellant are correct. Appellant alleged he would lose his job, not just that he was afraid he would lose his job.
Additionally, as to whether there is an actual controversy here, we believe that the threat of losing one's job and the use of the CPP rule at issue does make an actual controversy. According to Appellant's allegations, which we must accept as true, he was told he would lose his job if enough Muslim inmates did not stay and work and that this was authorized by the CPP. The Jumu'ah service takes place every Friday, and we can assume that most, if not all, inmate jobs at the prison require an inmate to work on Fridays. The interpretation of the CPP rule as it applies to Muslims and the Jumu'ah service would suggest that no Muslim would be able to hold a job at the prison because all jobs would conflict with their attending the Jumu'ah service. Again, we say this based on the very limited record before us and based on our standard of review for CR 12.02(f) dismissals.
Finally, as to whether Appellant showed a substantial interference with his religious practices to support a RLUIPA cause of action, we believe, based on the limited record, that he did. A government action is a substantial burden on religious practice when it "either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and, on the other hand, following his religious beliefs." Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (citations omitted). Here, Appellant seemingly has to choose between a job and attending the Jumu'ah service every Friday. Based on the limited record and Appellant's allegations, this would seem to be a substantial burden.
CONCLUSION
Based on the foregoing, we reverse and remand for further proceedings. We believe that the trial court was premature in dismissing this case. We wish to clearly state that we make no judgment as to the merits of Appellant's claims; we merely conclude that his allegations were enough to withstand a motion brought pursuant to CR 12.02(f).
ALL CONCUR. BRIEFS FOR APPELLANT: Bryan Hamm, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Kristin Wehking
Kentucky Justice and Public Safety
Cabinet
Frankfort, Kentucky