Opinion
Case No. 2:01-CV-926 TC
May 27, 2004
Report Recommendation
Plaintiff, Phillip M. Leishman, an inmate at the Central Utah Correctional Facility, filed a pro se civil rights complaint under 42 U.S.C. § 1983, see 42 U.S.C.A. § 1983 (West Supp. 2003), alleging violations of his Free Exercise and Equal Protection rights. Plaintiff also seeks relief under the Religious Land Use and Institutionalized Persons Act (RLUIPA). See 42 id. § 2000cc (West Supp. 2003). This case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). See 28 id. § 636(b)(1)(B) (2003).
After screening the complaint under 28 U.S.C. § 1915, see id. § 1915(e)(2)(B), Defendants were ordered to file a Martinez report addressing Plaintiff's allegations. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). In conjunction with their Martinez report Defendants moved for summary judgment. Having reviewed Defendants' report and motion, and Plaintiff's responsive materials, the Magistrate Judge submits the following report and recommendation.
Summary Judgment Standard
Summary judgment is appropriate only "when there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment, as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing "that there is an absence of evidence to support the non-moving party's case." Cellotex v. Catrett, 477 U.S. 317, 325 (1986). This burden may be met merely by identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Id.The substantive law will identify which facts are material. "A disputed fact is `material' if it might affect the outcome of the suit under the governing law, and the dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). The facts, and reasonable inferences therefrom, must be construed in the light most favorable to the nonmovant. Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996).
Once the moving party has shown the absence of a genuine issue of material fact the burden shifts to the nonmoving party. Federal Rule of Civil Procedure 56(e) requires a nonmovant "that would bear the burden of persuasion at trial" to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant." Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). The specific facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein."Thomas v. Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice.
Background
Plaintiff is an inmate in the custody of the Utah Department of Corrections (UDOC). Plaintiff is currently housed at the Central Utah Correctional Facility (CUCF), having recently been transferred from the Utah State Prison (USP) at Draper, Utah. Plaintiff's affidavit states that he is "a sincere and faithful adherent of the Odinist religion, which is also know as another branch of Asatru." Asatru is the term used for the indigenous pagan religion of the people of pre-Christian northern Europe.
In connection with his religious practice Plaintiff requested a "rune set," which he describes as "a set of 24 small wooden tablets with ancient mystical symbols carved upon them." Plaintiff states that rune use is fundamental to the practice of his religion. To support this assertion Plaintiff has provided a copy of a publication entitledOdinism/Asatru: A Statement of Facts for Departments of Corrections which states:
The runes are; the most important of all personal ritual tools used in the faith of Asatru . . . [t]hey represent the impersonal patterns that underlie the substance/non-substance of the universe and that constitute its being/non-being. By tapping into the numinous power of the runes, the Asatruar may unlock the ways of the divinities of the Odinnic pantheon. This contact strengthens the individual and bolsters the spiritual needs in Asatru worship.
(Pl.'s Resp. to Defs. Martinez Report Ex. A-2 at 12.)
Defendants refused Plaintiff's request for a rune set concluding that rune use is not fundamental to the practice of Asatru. Defendants also concluded that allowing inmates to use or possess runes would create serious safety and security problems which justifies banning them regardless of their religious importance.
Plaintiff filed this suit challenging the constitutionality of the rune ban under the Free Exercise and Equal Protection clauses of the United States Constitution. Plaintiff also asserts that the ban violates the heightened scrutiny required under RLUIPA. Plaintiff seeks declaratory and injunctive relief as well as compensatory damages for costs incurred pursuing this lawsuit.
Free Exercise Claim
Plaintiff argues that Defendants' prohibition on the possession or use of runes violates his First Amendment right to freely exercise his religion. Plaintiff asserts that rune use is an essential part of his religious observance and therefore Defendants' policy is, in effect, a "total ban" on his religion.
It is well established that "convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison." Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877 (1979). "Inmates clearly retain protections afforded by the First Amendment, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804 (1974), including its directive that, no law shall prohibit the free exercise of religion." Id. However, it is also well established that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Id.
In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), the Supreme Court established a framework for evaluating the validity of prison regulations that restrict inmates' free exercise rights. Under Turner, such restrictions may be upheld only if they are "reasonably related" to legitimate penological interests. Id. at 89. The Turner court identified four factors relevant to the reasonableness determination. The Tenth Circuit recently summarized the four Turner factors as follows:
First, the court considers whether there is a logical connection between the prison regulation and the asserted penological interest. Second, the court considers whether alternative means of exercising the religious right in question remain open to inmates. Third, the court assesses the impact the accommodation of the right in question would have on guards, other inmates, and on the allocation of prison resources. Fourth, the court considers whether any policy alternatives exist that would accommodate the right in question at de minimis cost to the prison.Hammons v. Saffle, 348 F.3d 1250, 1255 (10th Cir. 2003) (internal citations omitted).
Addressing the first Turner factor, Defendants argue that the rune ban promotes institutional safety and security. Defendants have identified three primary "problems associated with runes." First, Defendants state that runes are a security threat because they can be "used to predict future events and to practice magic." (Def.'s Martinez Report at 10-11.) Second, Defendants assert that runes can be used as the basis for coded communication which inmates could use "to plan escapes, attacks on other inmates and staff and insurrections." (Def.'s Martinez Report at 11-12.) Finally, Defendants assert that runes "pose a security problem because they can be used for gambling." (Def.'s Martinez Report at 12.)
It is undisputed that Defendants have a legitimate penological interest in maintaining the safety and security of correctional facilities. Thus, the first Turner factor is satisfied if Defendants can demonstrate a logical connection between the ban on runes and the maintenance of safety and security. Under Turner, an asserted justification must be accepted unless it is "so remote as to render the regulation arbitrary or irrational."Turner, 482 U.S. at 89.
The Court: first considers Defendants' arguments regarding fortune-telling, magic, and manipulation among inmates. The crux of Defendants' argument, is that if rune use is allowed "some inmates [may] become involved in predicting the future and become agitated and frightened by what they believe is the future destiny of themselves or others." Thus, Defendants argue, the rune ban is necessary to prevent "[a]gitation and fear in the inmate population [which] can lead to volatile confrontations between inmates and between inmates and corrections staff." To illustrate this potential danger Defendants suggest that "[i]f a fortune-teller offends another inmate because of a spell, the offended inmate might react by assaulting or attacking the fortune-teller." (Def.'s Martinez Report at 10-11.)
This argument is unpersuasive because it is overly broad. Surely, Defendants would not presume to ban all activities that might allow inmates to discern the "future destiny of themselves or others." Such a policy would prohibit many commonly accepted forms of religious observance. There is no rational distinction between "fortune-telling" or "magic" and other religious practices widely believed to foster spiritual enlightenment, such as prayer or meditation. Nor is there any reason to believe that an inmate who uses runes to predict or alter the future would be better able to manipulate and prey upon others than an inmate who pursues the same objectives by other religious or even non-religious means. Although an Asatru "fortune-teller" might very well offend another inmate "because of a spell," an evangelical Christian inmate could just as easily offend others with their prophecies and preaching. Defendants decision to ban rune use as a form of "fortune-telling," while allowing other analogous religious practices appears to be based primarily on the stigma associated with the terms "fortune-teller" and "spell," than on the actual behavior at issue. Thus, the Court finds Defendants' first justification for the rune ban, prevention of "fortune-telling" and "magic," to be arbitrary and irrational.
There also appears to be no rational connection between the rune ban and prevention of coded communication among inmates. Defendants admit that inmates are allowed to have books and other materials containing the runic alphabet. There is no evidence that possession or use of runes would in any way enhance inmates ability to use the runic alphabet to communicate in code. Therefore, the Court finds that prevention of coded communication is not a rational basis for prohibiting rune use.
Finally, Defendants assert that runes pose a security problem because they can be used for gambling, which is illegal in the State of Utah. Although Defendants have not explained how runes are used for gambling that matter is peculiarly within the expertise of prison officials. Defendants have provided credible evidence that gambling leads to violence and predatory behavior among inmates. (Nielsen Decl. at 28). Based on this evidence there appears to be a rational connection between the rune ban and prevention of the dangers associated with gambling.
In sum, it appears that only one of Defendants' asserted justifications; for the rune ban bears a rational relationship to a legitimate penological objective. Nevertheless, the Court finds, based solely on Defendants' concerns about gambling, that Defendants have satisfied the first Turner factor.
Regarding the second Turner factor, Defendants argue that Plaintiff is allowed several alternative means of practicing his religion in lieu of rune use. For instance, Plaintiff is allowed to have religious publications and texts which he can study in private, and he is allowed to receive visitors who practice Asatru. Defendants also assert that the UDC has allowed Asatru religious feasts to be held at the prison on occasion. Defendants argue that these alternatives provide adequate means of practicing Asatru despite the ban on runes.
The sufficiency of the alternatives available to Plaintiff cannot be evaluated without considering the importance of rune use in the practice of Asatru. Defendants have concluded that rune use is not an essential tenant of the Asatru religion. Defendants base this conclusion on information gathered from handbooks on religious practices compiled by various correctional organizations, and from contacts with unnamed Asatru practitioners who are allegedly considered leaders of the Asatru faith.
Plaintiff states in his declaration that various Asatru practitioners who visited him at the prison told him that they have requested permission to bring runes into the prison but prison officials denied their requests and intimidated them into dropping the issue. Defendants have filed a motion to strike this evidence. (Doc. no. 71) The Court refuses to consider this evidence on the ground that it is hearsay.
Plaintiff adamantly rejects Defendants' conclusion that rune use is non-essential to the practice of Asatru. According to Plaintiff, rune use is one of the two central tenants of the Asatru religion. Plaintiff has submitted various documents to support this position, including a copy of an affidavit by Michael J. Murray, President of the Arizona Kindred of Asatru Inc.. The Murray affidavit states that "study and use of the Sacred Runes are mandated by the tenets of the Asatru religion." Plaintiff has also submitted a copy of a Federal Bureau of Prisons technical reference manual entitled "Inmate Religious Beliefs and Practices." This manual recognizes rune use as a common practice among Asatru practitioners, stating that "[m]any Asatruar will . . . carry their runes with them at all times, and use them regularly." The manual also lists "rune cards" as personal religious items, but states that "rune stones . . . are not authorized personal property."
Plaintiff has not provided a certified copy of this document which appears to have been filed in a similar case brought in the United States Court for the District of Arizona. Milleson v. Stewart, No. 97-1401, (D. Ariz. sum. jgmt. order filed Sep. 15, 2000). In accordance with the policy of liberally construing pro se litigants pleadings, and in light of the constraints upon Plaintiff due to his incarceration, the Court has taken this evidence into consideration without reaching any opinion about its admissibility at trial.
Plaintiff's evidence appears sufficient to call into question Defendants' determination that rune use is not a central tenet of the Asatru religion. If, as Plaintiff asserts, rune use is an essential means of receiving personal spiritual enlightenment in Asatru then the alternatives provided by Defendants would appear inadequate. The alternatives cited by Defendants, including study of religious text, visits from Asatru practitioners, and participation in occasional religious feasts, do not fill a similar role in Asatru as rune use. Accordingly, it appears that the second Turner factor could favor Plaintiff in this case.
Turning to the third Turner factor, the Court must consider the impact that accommodation of rune use would have on guards, other inmates, and on the allocation of prison resources. "When accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Turner, at 91.
Defendants assert that any attempt to accommodate rune use "would be a significant security threat to staff and inmates and a drain on limited prison resources." Defendants again point out the possibility that runes could be misused to manipulate and victimize others. Defendants assert that this is particularly relevant in Plaintiff's case, given his alleged predatory tendencies and history of violence. (Def.'s Martinez Report Ex. A-C and attachments) Finally, Defendants state that allowing inmates to use runes on a supervised "check-out" basis would place a significant strain on prison facilities, staff and resources.
In rebuttal, Plaintiff argues that his disciplinary record, gang affiliations and prisoner classification are irrelevant. Plaintiff also points out that several other prison systems throughout the nation, including the Federal Bureau of Prisons, have accommodated limited rune use with apparently little difficulty. Finally, Plaintiff argues that the UDC already has resources and policies for administering religious programs and monitoring use of religious materials, therefore, any additional resources needed to accommodate rune use would be de minimis.
As previously discussed, Defendants have not made a convincing argument that the rune ban promotes safety and security by preventing "fortune-telling," manipulation and coded communication. Therefore, Defendants' claim that these dangers are magnified by Plaintiff's history of violence and gang affiliations, is not sufficient to demonstrate that rune use would have a significant "ripple effect" on the safety of staff or other inmates.
It is likely, however, that accommodating rune use would significantly affect the allocation of prison resources. Although it appears that close monitoring of limited rune use could prevent any real danger associated with runes, it is likely that such monitoring would have a significant "ripple effect" by straining prison resources. Although the prison already has a system for monitoring religious activities, accommodating rune use would undoubtedly place additional demands upon that system. Thus, the Court accords particular deference to prison officials on this issue and concludes that Defendants have satisfied the third Turner factor.
The fourth Turner factor requires the Court to consider whether the regulation represents an "exaggerated response" to prison concerns. If a ready alternative to the challenged regulation exists that would fully accommodate rune use at de minimis cost to the prison, then the Court may find the regulation unreasonable. Defendants argue that no such alternative exists because "the security threats created by runes are . . . predicated on their possession" and "even temporary possession of runes with strict monitoring would not alleviate the security threat."
Although it appears that strict monitoring could alleviate the only legitimate security threat posed by temporary possession of runes, namely gambling, it is likely that the cost of such monitoring would be more than de minimis. Therefore, the Court concludes that the regulation banning runes is not so exaggerated as to be unreasonable.
Based on. the foregoing analysis it appears that Plaintiff has not demonstrated the existence of a genuine issue of material fact under theTurner standard. Although there may be a genuine factual dispute regarding whether rune use is fundamental to the practice of Asatru, this issue is rendered immaterial by the extreme deference accorded to prison officials under Turner. Even assuming that rune use is fundamental to Asatru the Court could not conclude that the rune ban is "unreasonable" in light of other considerations as discussed above. Accordingly, Defendants are entitled to summary judgment on Plaintiff's free exercise claim under the standard of review set out in Turner.
Equal Protection Claim
Plaintiff asserts that the UDC's ban on runes violates his right to equal protection of the laws under the Fourteenth Amendment. Plaintiff argues that the rune ban amounts to purposeful discrimination against Asatru practitioners because inmates of other faiths are given "much more latitude and ability to practice their religions in accordance with their beliefs." More specifically, Plaintiff states that inmates of other faiths are often allowed "special clearances" for non-essential religious materials whereas Asatru practitioners are denied allegedly "essential" items like runes.
The Constitution's, equal protection clause prohibits prison officials from discriminating against particular religions. See Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 1081-82 (1972). In Washington v. Harper, 494 U.S. 210, 223-24, 110 S.Ct. 1028, 1037-38 (199C), the Supreme Court reiterated that the reasonableness standard adopted in Turner "applies to all circumstances in which the needs of prison administration implicate constitutional rights." Thus, prisons must afford an inmate of a minority religion "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts." Id. at 322, 92 S.Ct. at 1081. While different religious groups may be treated differently based on legitimate security concerns or other practical considerations, see Cruz v. Beto, 405 U.S. at 322 n. 2, disparate treatment is deemed unreasonable if it is the result of intentional discrimination. Harris v. McRae, 448 U.S. 297, 323 n. 26 (1980).
Plaintiff has not shown that the rune ban is the result of intentional discrimination against the Asatru religion. Plaintiff admits that corrections officials have made substantial accommodations for Asatru practitioners. Like inmates of other faiths, Asatru practitioners are allowed to possess written materials, wear a religious medallion and participate in group religious ceremonies. Although Plaintiff asserts that "special clearances" for some religious items have been granted to inmates of other religions, he does not allege that other inmates are allowed to possess runes or other comparable items.
Analysis of the rune ban under the Turner factors showed that the ban is reasonably related to a legitimate penological objective. Furthermore, Plaintiff has not shown that any disparate treatment of Asatru practitioners is the result of purposeful discrimination. Accordingly, the Court grants Defendants' motion for summary judgment on Plaintiff's equal protection claim.
Religious Land Use and Institutionalized Persons Act
Plaintiff alleges that Defendants' policy banning runes violates RLUIPA. RLUIPA requires heightened scrutiny of prison regulations that substantially burden inmates' free exercise rights. 42 U.S.C. § 2003cc-1(a) states:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C.A. § 2000cc-1(a) (West Supp. 2003).
Defendants have filed a Notification of Claim of Unconstitutionality under D.U.Civ.R. 24-1 stating their intention to challenge RLUIPA under the Establishment Clause. Defendants have forgone this argument for purposes of this motion, arguing instead that the rune ban satisfies RLUIPA's heightened scrutiny standard. Defendants may wish to pursue their claim of Unconstitutionality if the present motion is denied.
Under RLUIPA's heightened scrutiny analysis the initial burden rests on the plaintiff to show that the challenged prison regulation imposes a "substantial burden" on his right of free exercise. The Tenth Circuit has explained this initial burden as follows:
To exceed the "substantial burden" threshold, government regulation must significantly inhibit or constrain conduct or expression that manifests some central tenet of a prisoner's individual beliefs, must meaningfully curtail a prisoner's ability to express adherence to his or her faith; or must deny a prisoner reasonable opportunities to engage in those activities that are fundamental to a prisoner's religion.Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995).
Once the plaintiff has satisfied its initial burden, the burden then shifts to the government to show that the regulation is the least restrictive means of furthering a compelling governmental interest. When determining whether the government has met its burden the Court must give "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Werner, 49 F.3d at 1480.
Plaintiff alleges that the UDC rune ban imposes a substantial burden on the free exercise of his religion because rune use is "one of the two main pillars" of Asatru religious practice. To support this assertion Plaintiff has submitted copies of several publications about Asatru, including a Federal Bureau of Prisons technical reference manual, describing the significance of rune use. Plaintiff has also proffered the affidavit of an elected Asatru leader, Michael J. Murray, stating that rune use is mandated by the tenets of Asatru. To contradict Plaintiff's evidence, Defendants have submitted handbooks created by the Washington Department of Corrections and the Oregon Department of Corrections which state that rune use is not a central tenant of Asatru. Defendants also rely upon affidavits from corrections officials stating that based upon their research and experience they have no reason to believe that rune use is mandated by Asatru.
Plaintiff's evidence appears sufficient to create a genuine issue of material fact regarding whether the rune ban substantially burdens his exercise of religion. Although Defendants have proffered some evidence suggesting that rune use is not mandatory to the practice of Asatru, Plaintiff's evidence to the contrary precludes summary judgment for Defendants on this issue. Thus, for purposes of this motion, the Court finds that Plaintiff has satisfied his initial burden under RLUIPA, thereby placing the burden on Defendants to show that the rune ban is the least restrictive means of accomplishing a compelling governmental interest.
As previously pointed out, the rune ban is rationally related to the prevention of gambling. Given the dangers associated with gambling, the rune ban does further the goal of maintaining the security and institutional safety of correctional facilities. As Defendants have correctly pointed out, this goal is unquestionably a compelling governmental interest. Thus, under RLUIPA the only issue remaining is whether the rune ban is the least restrictive means of furthering that interest.
To survive the heightened scrutiny required under RLUIPA Defendants must show that the total ban on rune possession is the least restrictive means of preventing runes from being used for gambling. Defendants only argument in this respect is that "the basis of the safety and security threats associated with runes is the mere possession of them" and therefore "banning rune possession is necessarily the least restrictive way to accomplish the penological objective." (Def.'s Martinez Report at 20-21.) Contrary to their assertion, Defendants have not shown that any safety or security threat arises from mere possession of runes. The only legitimate reason Defendants have put forth to justify the rune ban is the possibility that runes could be misused for gambling. Defendants have not shown that a total ban on runes is the least restrictive means of preventing such misuse. The same methods used to prevent inmates from gambling with other commonly available materials could presumably be used to prevent gambling with runes. Although it is likely that the cost of monitoring rune use to prevent gambling would be more than de minimis, Defendants have not shown that the cost would be high enough to justify a total ban under RLUIPA. Thus, the argument that "there is no way to monitor rune use to ensure only proper religious use of the runes and to preclude improper use of them" appears to be based primarily on Defendants' unfounded concerns about fortune-telling, and coded communication, not on the compelling interest of preventing gambling.
In sum, Defendants have not met their burden under the heightened scrutiny required by RLUIPA. Therefore, the Court finds that a genuine issue of material fact remains precluding summary judgment for Defendants on the RLUIPA claim.
Qualified Immunity
Defendants assert that they are entitled to qualified immunity from Plaintiff's suit for damages against them in their individual capacities. The doctrine of qualified immunity shields government officials from individual 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."Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). "When a § 1983 defendant raises the defense of qualified immunity on summary judgment, the burden shifts to the plaintiff to show that 1) the official violated a constitutional or statutory right; and 2) the constitutional or statutory right was clearly established when the alleged violation occurred." Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). "The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts show that the right must be as plaintiff maintains." Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). If the plaintiff does not satisfy either portion of the two-pronged test, the Court must grant the defendant qualified immunity.Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
Applying these standards to the present case it appears that Plaintiff has satisfied the first prong of the qualified immunity analysis. Although Plaintiff has not shown a constitutional violation under theTurner standard, there is sufficient evidence to support a finding that the rune ban violates Plaintiff's rights under RLUIPA.
Turning to the second prong of the qualified immunity analysis the Court must decide whether the statutory right at issue was clearly established at the time of the alleged violation. Although RLUIPA has been in effect since 2000 the constitutionality of the statute remains in doubt to this day. RLUIPA's predecessor statute, the Religious Freedom Restoration Act (RFRA), was found unconstitutional by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 2186 (1997). In an effort to address the concerns raised by the Supreme Court in City of Boerne while preserving RFRA's heightened scrutiny framework, Congress passed the much narrower RLUIPA, "aimed specifically at alleviating burdens on religious liberty in the context of land use regulations and in institutional settings such as prisons." Charles v. Verhagen, 220 F. Supp.2d 937, 945 (W.D. Wis 2002). While neither the Supreme Court nor the Tenth Circuit have addressed the issue, other courts have reached opposite conclusions about RLUIPA's constitutionality. Compare Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) (finding RLUIPA constitutional), with Ghashigan v. Dep't of Corr., 250 F. Supp.2d 1016, 1021 (E.D. Wis. 2003) (RLUIPA violates Establishment Clause). This clearly suggests that an inmates' rights under RLUIPA are not "clearly established."
Additional evidence that the statutory right at issue in this case is not clearly established arises from the fact that application of RLUIPA's strict scrutiny standard requires complicated legal analyses on which reasonable minds could differ. Even if the Court ultimately decides otherwise, a reasonable person could have concluded that the rune ban in this case satisfied the heightened scrutiny standard mandated by RLUIPA.
Given the ongoing debate over RLUIPA's constitutionality and the uncertainty inherent in applying the statute to a particular set of facts, it appears that Plaintiff cannot satisfy the second prong of the qualified immunity analysis. Thus, the Court finds that Defendants are entitled to qualified immunity and dismisses Plaintiff's claim for damages against Defendants in their individual capacities.
Based on the conclusions reached thus far, Defendants' only remaining argument, that Defendant Holland should be dismissed from the case because she is not affirmatively linked to any constitutional deprivation, becomes moot. The only relief that would remain available to Plaintiff if this recommendation is adopted would be equitable in nature.
Recommendation
Based on the foregoing analysis it is hereby recommended that:(1) Defendants' motion for summary judgment be granted as to Plaintiff's Free Exercise and Equal Protection claims;
(2) Defendants' motion for summary judgment under RLUIPA be denied; and
(3) Defendants be granted qualified immunity against any individual capacity claim for damages based on violation of RLUIPA.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.