Opinion
Case No. CIV-17-1265-C
12-28-2018
DAMEA SHANDALE TENISON, Plaintiff, v. RAYMOND BYRD, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff Damea Shandale Tenison, a state inmate appearing pro se and in forma pauperis, brings this action under: (1) 42 U.S.C. § 1983, and (2) the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) alleging violations of his constitutional rights. (ECF No. 13). United States District Judge Robin J. Cauthron has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Both parties have filed Motions for Summary Judgment. See ECF Nos. 36 & 47.
Following a review of the Amended Complaint pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B) and a review of the Defendants' Motion for Summary Judgment, the Court should: (1) dismiss, without prejudice, Plaintiff's First Amendment religious diet and right to pray claims and Equal Protection right to pray claim asserted against Defendants Byrd, McGhee, Fox, and White in their official capacities seeking monetary damages; (2) dismiss, with prejudice, Plaintiff's First Amendment and Equal Protection right to pray claims asserted against Defendants Byrd, McGhee, Fox, and White in their individual capacities seeking injunctive relief; (3) dismiss, with prejudice, Plaintiff's RLUIPA claims asserted against Defendants Byrd, McGhee, Fox, and White in their individual and official capacities seeking monetary relief and in their individual capacities seeking injunctive relief; (4) grant summary judgment to Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages on Plaintiff's First Amendment religious diet claim; (5) grant summary judgment to Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages and their official capacities for injunctive relief on Plaintiff's First Amendment right to pray claim; (6) grant summary judgment to Defendants Byrd, McGhee, White, and Fox in their individual capacities for monetary damages and their official capacities for injunctive relief on Plaintiff's Equal Protection right to pray claim; (7) grant summary judgment to Defendants Byrd, McGhee, White and Fox in their official capacities for injunctive relief on Plaintiff's RLUIPA right to pray claim; and (8) grant summary judgment to Defendants Byrd and Paine in their individual and official capacities for monetary damages and injunctive relief on Plaintiff's Eighth Amendment claim. Based on the recommendation for summary judgment to the Defendants, the Court should also deny Plaintiff's Motion for Summary Judgment as moot.
I. PLAINTIFF'S ALLEGATIONS AND CLAIMS
Plaintiff is a Muslim inmate at Cimarron Correctional Facility (CCF). In the Amended Complaint, Plaintiff names five CCF employee defendants: Raymond Byrd, warden of the facility; Sybil McGhee, a correctional counselor; Michael White and Author Fox, prison chaplains; and Stephen Paine, a prison physician. (ECF No. 13:3-7).
A. Factual Allegations
Plaintiff's Amended Complaint asserts two claims involving three distinct sets of factual allegations—one involving his religious diet, one involving his right to pray, and one involving a denial of medical care.
Plaintiff also states that in May 2017, if correctional officers observed any of the inmates on the "Ramadan list" list eating during the day, they were to send an email to Defendant White, and the inmate "w[ould] be taken off the list, and [given] a misconduct." (ECF No. 13:12). Mr. Tenison, however, states that Chaplain White "state[ed] that he will not write up no one." (ECF No. 13:12). Mr. Tenison also states that if "someone is caught with someone else's lunch tray the [correctional officer] will write up that person for stealing." (ECF No. 13:12). The Court notes these facts alleged by Plaintiff because they were included in the Amended Complaint, but Mr. Tenison does not appear to allege any wrongdoing based on these circumstances—i.e.—that he violated the rule against eating during the day, was punished for doing so, or that he was caught with another inmate's lunch tray.
1. Religious Diet
On February 6, 2017, Plaintiff wrote an email to his unit manager explaining that he had been "threatened about giving away his [halal food] tray." (ECF No. 13:14). The next day, Plaintiff states that Defendant McGhee wrote an email to Defendant Fox stating that she had observed Plaintiff giving away his food tray. (ECF No. 13:14). Subsequent to the email, Plaintiff states he was temporarily removed from the halal diet. (ECF No. 13:13).
2. Right to Pray
On February 2, 2017, Plaintiff states that Defendant McGhee told Plaintiff that "Muslims [were] no longer allowed to pray on the day room floor" because "it [was] against the rules." (ECF No. 13:10). On April 2, 2017, Plaintiff states that Defendants Fox and White told Plaintiff that "there will be no praying on the units." (ECF No. 13:11). Plaintiff then asserts that Chaplain White held Christian communion on "the very same floor that they said Muslims cannot pray[.]" (ECF No. 13:11).
3. Denial of Medical Care
Following hemorrhoid surgery on May 1, 2015, Mr. Tenison could no longer ejaculate. (ECF No. 13:15). Plaintiff was told that it would "take up to a year to get back to normal," but after a year when "[it] did not get back to normal," he sought in-house medical care and was seen by Defendant Paine. (ECF No. 13:15). During that visit, Defendant Paine allegedly told Plaintiff that "he would talk to DOC for approval for [Plaintiff] to see a outside Dr." (ECF No. 13:15). After being told that there would be "no follow up" of medical care, Plaintiff sent a grievance on the issue and then a subsequent request to staff, but was ultimately told that he would not be further evaluated. (ECF No. 13:15). Plaintiff continued to seek medical care but allegedly was denied relief repeatedly. (ECF No. 13:15). According to Mr. Tenison, he "ha[s] been trying over 2 years to be seen by an outside provider on this medical condition" to no avail. (ECF No. 13:16).
B. Claims
In Claim One, Plaintiff alleges violations of the First Amendment and RLUIPA based on the allegations regarding his religious diet and his right to pray and a violation of Equal Protection regarding his right to pray. (ECF No. 13:5, 8-14). In Claim Two, Mr. Tenison alleges that prison officials were deliberately indifferent to his medical needs in violation of the Eighth Amendment. (ECF No. 13:5, 14-16). Mr. Tenison sues all Defendants in their official and individual capacities and seeks monetary damages and injunctive relief. (ECF No. 13:3-7).
II. SCREENING
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court likewise must review each case brought by a prisoner with respect to prison conditions and each case in which a plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c)(1); 28 U.S.C. § 1915(e)(2). Although the Court screened Mr. Tenison's original Complaint, see ECF Nos. 8 & 11, the Court has a continuing duty to screen a complaint in a civil action where a prisoner is proceeding in forma paupers and "shall dismiss the case at any time" if the action is frivolous or malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Lynch v. Balogh, No. CIV-17-671-HE, 2017 WL 7360422, at *6 (W.D. Okla. Dec. 21, 2017), report and recommendation adopted , No. CIV-17-671-HE, 2018 WL 703426 (W.D. Okla. Feb. 2, 2018).
The Court must accept Plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Tenison is proceeding pro se, his complaint must be construed liberally. See id. at 1218. The Court "review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face." Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). "Plausible" in this context does not mean "likely to be true," but rather refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct," then the plaintiff has not "nudged (his) claims across the line from conceivable to plausible." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement "serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them." Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
A complaint fails to state a claim when it lacks factual allegations sufficient "to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555. (footnote and citation omitted). Bare legal conclusions in a complaint are not assumed to be true; legal conclusions "must be supported by factual allegations" to state a claim upon which relief may be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
"[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. As a result, courts "look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." Kay, 500 F.3d at 1218. (quotation marks and citations omitted).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of "judicial experience and common sense." Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010) (discussing Iqbal). The Court's analysis for failure to state a claim upon which relief may be granted is the same regardless of whether it is performed pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or sua sponte pursuant to the Court's screening obligations detailed above. See Kay, 500 F.3d at 1218 (applying Rule 12(b)(6) standard for purpose of § 1915(e)(2)(B)(ii) determination).
A. Claim One—First Amendment and Equal Protection
In Claim One, Plaintiff seeks liability against Defendants Byrd, McGhee, Fox, and White, based on allegations that these Defendants violated Plaintiff's First Amendment and Equal Protection rights. (ECF No. 13:5, 8-14). Specifically, Plaintiff alleges: (1) he was wrongfully removed from his religious diet (the First Amendment religious diet claim); (2) he was told that Muslims were prohibited from praying in certain areas of the prison (the First Amendment right to pray claim); and (3) he was discriminated against as a Muslim because he was prohibited from praying in the housing unit dayroom while Christians were served communion in the same dayroom (the Equal Protection right to pray claim). (ECF No. 13:8-14). The Court should: (1) dismiss, without prejudice, Plaintiff's First Amendment religious diet and right to pray claims and Plaintiff's Equal Protection right to pray claims asserted against Defendants Byrd, McGhee, Fox, and White in their official capacities for monetary damages and (2) dismiss, with prejudice, Plaintiff's First Amendment right to pray claim asserted against Defendants Byrd, McGhee, Fox, and White in their individual capacity claims for injunctive relief.
1. Plaintiff's First Amendment Religious Diet and Right to Pray Claims and Plaintiff's Equal Protection Right to Pray Claim Asserted Against Defendants Byrd, McGhee, Fox, and White in their Official Capacities Seeking Monetary Damages
Mr. Tension has sued Defendants Byrd, McGhee, White, and Fox in their official capacities, seeking monetary relief, alleging these Defendants denied Plaintiff his religious diet and the right to pray in violation of the First Amendment and that these Defendants violated Plaintiff's Equal Protection rights regarding his right to pray. (ECF No. 13:3-5, 7-14). But these Defendants are immune from liability in their official capacities for monetary damages.
Pursuant to the doctrine of sovereign immunity, as adopted in the Eleventh Amendment, a federal court may not hear a claim brought by a private citizen against a U.S. state unless the state consents to suit or Congress unequivocally abrogates the state's immunity. U.S. Const. amend. XI; see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). The State of Oklahoma has not waived Eleventh Amendment immunity against § 1983 claims in federal court. See Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006); Nichols v. Dep't of Corrections, 631 P.2d 746, 750-51 (Okla. Sup. Ct. 1981). Nor has Congress abrogated state immunity in any way pertinent to Plaintiff's § 1983 claims. See, e.g., Quern v. Jordan, 440 U.S. 332, 342, 345 (1979).
Eleventh Amendment immunity extends to the states, state officials, and to those governmental entities that are considered "an arm of the state." See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Ambus v. Granite Board of Education, 995 F.2d 992, 994 (10th Cir. 1993). Accordingly, Defendants Byrd, McGhee, Fox, and White, who are employees of the DOC, are protected by Eleventh Amendment immunity to the extent Plaintiff seeks monetary damages against these individuals in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663 (1974) (recognizing application of Eleventh Amendment immunity to official-capacity claim for money damages against state official). Thus, the Court should dismiss, without prejudice, Plaintiff's official capacity claims seeking monetary relief asserted against Defendants Byrd, McGhee, Fox, and White, for failure to state a claim upon which relief may be granted. See Shue v. Lampert, 580 F. App'x 642, 644 (10th Cir. 2014) (stating that "[b]ecause the Eleventh Amendment involves sovereign immunity, the official-capacity claims should have been dismissed 'without prejudice' rather than 'with prejudice').
2. Plaintiff's First Amendment Right to Pray and Equal Protection Claims Asserted Against Defendants Byrd, McGhee, Fox, and White in Their Individual Capacities Seeking Injunctive Relief
In Claim One, Plaintiff seeks injunctive relief on his First Amendment and Equal Protection claims against Defendants Byrd, McGhee, White, and Fox, by requesting "that Muslims [be] allowed to pray and be treated just as any other Religion." (ECF No. 13:5). This claim for injunctive relief may only be asserted against the Defendants in their official capacities. See Brown v. Montoya, 662 F.3d at 1152, 1161 (10th Cir. 2011). Therefore, the Court should dismiss, with prejudice, any individual capacity claims for injunctive relief against Defendants Byrd, McGhee, White and Fox on the First Amendment and Equal Protection right to pray claims.
Mr. Tenison does not seek injunctive relief on the religious diet claim. See ECF No. 13.
B. Claim One—RLUIPA
In Claim One, Plaintiff seeks liability under RLUIPA against Defendants Byrd, McGhee, White and Fox in their official and individual capacities for damages based on Plaintiff's right to pray and his religious diet. (ECF No. 13:3-5, 7-14). Mr. Tenison also seeks injunctive relief under RLUIPA against these four Defendants in their individual and official capacities based on Plaintiff's right to pray. (ECF No. 13:3-5, 7-12).
Money damages are not available under RLUIPA See Sossamon v. Texas, 563 U.S. 277, 293 (2011) ("States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA. . . ."). Also, "there is no cause of action under RLUIPA for individual-capacity claims." Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012). "The only relief available . . . under RLUIPA is declaratory and injunctive relief against defendants in their official capacities." Warner v. Patterson, 534 F. App'x 785, 788 (10th Cir. 2013); see Reed v. Bryant, 719 F. App'x 771, 777 (10th Cir. 2017) (stating that a RLUIPA claim "may be brought against individual prison officials in their official capacities.") (citing Yellowbear v. Lampert, 741 F.3d 48, 53 n.1 (10th Cir. 2014)).
Accordingly, the Court should: (1) dismiss all RLUIPA claims, with prejudice, for monetary damages against Defendants Byrd, White, Fox and McGhee in their official and individual capacities and (2) dismiss, with prejudice, all RLUIPA claims for injunctive relief against Defendants Byrd, McGhee, White and Fox in their individual capacities.
III. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
With the recommended dismissals, the remaining claims involve: (1) Plaintiff's First Amendment religious diet claim against Defendants Byrd, McGhee, Fox, and White in their individual capacity for monetary damages; (2) Plaintiff's First Amendment right to pray claim against Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages and their official capacities for injunctive relief; (3) Plaintiff's Equal Protection right to pray claim against Defendants Byrd, McGhee, White, and Fox in their individual capacities for monetary damages and their official capacities for injunctive relief; (4) Plaintiff's RLUIPA right to pray claim against Defendants Byrd, McGhee, White and Fox in their official capacities for injunctive relief; and (5) Plaintiff's Eighth Amendment claim against Defendants Byrd and Paine in their individual and official capacities for monetary damages and injunctive relief based on a denial of medical care. Defendants have filed a Motion for Summary Judgment on these claims. (ECF No. 47). For the reasons set forth below, the Court should grant Defendants' Motion for Summary Judgment.
Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, the 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 a judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). Once a moving party shows it is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts that create disputed factual issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must present some evidence, other than its initial pleadings, to show that there is more than just a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (quoting Rule 56(e) ("Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by [other evidence] designate 'specific facts showing that there is a genuine issue for trial.' ")).
To defeat a motion for summary judgment, evidence must be based on more than mere speculation, conjecture, or surmise. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Conclusory allegations will not create a genuine issue of material fact defeating a summary judgment motion. See L&M Enter. Inc. v. BEI Sensors & Systems Co., 231 F.3d 1284, 1287 (10th Cir. 2000). In evaluating a motion for summary judgment, a district court must consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences from those facts in favor of that party. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "However, because at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, as with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts." Id. (quotations, brackets, and citation omitted).
A. Plaintiff's First Amendment Religious Diet Claim—Individual Capacities for Monetary Damages Asserted Against Defendants Byrd, McGhee, Fox, and White
As a Muslim, Mr. Tenison was prescribed a special "halal" diet, based on his religion. On February 6, 2017, Plaintiff alleges that he was threatened to be written up if he gave away his halal food tray. (ECF Nos. 13:14; 48:5, 15). The following day, Plaintiff states: (1) Defendant McGhee observed Plaintiff giving away his halal food tray, (2) Defendant McGhee sent an email to Defendant Fox regarding what she had observed, and (3) Plaintiff was subsequently removed from the halal meal plan for 5-7 days. (ECF Nos. 13:13-14; 48:4). Mr. Tenison contends that his removal from the halal diet violated his First Amendment right to freedom of religion and seeks liability against Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages. The Court should conclude that these Defendants are entitled to summary judgment on this claim.
Department of Corrections (DOC) policy, which was utilized by CCF, contains a form which prisoners can use to request placement on a religious diet. (ECF No. 47-7:4). On May 9, 2016, Plaintiff submitted the form requesting to be placed on a halal diet. (ECF No. 47-7:4). Plaintiff signed the form agreeing to not barter any of his halal meals and acknowledging that a violation of the agreement could result in a suspension of the special diet. (ECF No. 47-7:4). On May 17, 2016, Defendant Fox approved Plaintiff's request and placed him on the halal diet. (ECF No. 47-7:4).
On February 7, 2017, Defendant McGhee sent Defendant Fox an email stating that she had observed Plaintiff giving away his halal food tray at lunchtime, and that she believed he had done so as payment to have his clothes ironed. (ECF No. 47-7:2). On that day, Defendant Fox issued a notice to Mr. Tension, suspending him from the halal diet effective February 13, 2017. (ECF Nos. 47-6; 47-7:3). In an affidavit, Defendant Fox explained that the suspension lasted no more than 7 days and was a direct consequence of the actions that Defendant McGhee had observed—a violation of the agreement which Plaintiff had previously entered into. (ECF No. 47-6). The Court should conclude that Defendant Fox's actions were based on a reasonable belief that Mr. Tenison had violated prison policy—a policy which was rationally related to legitimate security concerns for the prison. As a result, the Court should find that no constitutional violation ocurred and Defendants Byrd, McGhee, Fox, and White are entitled to summary judgment.
"The Free Exercise Clause mandates that prison authorities afford prisoners reasonable opportunities to exercise their sincerely held religious beliefs." Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003) (citing O'Lone v. Shabazz, 482 U.S. 342, 348 (1987)). Moreover, it is clearly established that prisoners have a constitutional right to a diet conforming to their sincerely held religious beliefs, unless denying the diet is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). As Defendants argue, the court must weigh several factors to determine whether a prison regulation is reasonably related to a legitimate penological interest. Id. at 89-90. The relevant factors are: (1) whether there is a rational connection between the prison regulation and the asserted penological interest; (2) whether alternative means of exercising the religious right in question remain open to inmates; (3) the impact of the accommodation of the right in question on guards and other inmates and on the allocation of prison resources; and (4) whether any ready, easy to implement alternatives exist that would accommodate the right in question. Id. Of the four Turner factors, "the first is the most important . . . [because] it is 'not simply a consideration to be weighed but rather an essential requirement.'" Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir. 2007)).
Regarding the first Turner factor, the Defendants offer evidence of the agreement Plaintiff signed, which is part of the prison policy, wherein Mr. Tenison agreed to not barter his halal meals. See ECF Nos. 47:21; 47-7:4. According to Defendants, and as attested to in an affidavit from Assistant Warden Virgil Ensey, discouraging an inmate from using his religious diet to barter with another inmate is consistent with the governmental interest of maintaining order and discipline within the facility; because bartering can lead to inmates being preyed upon or targeted, which may cause violence to ensue. (ECF Nos. 47:21; 47-5:7-8). Plaintiff has failed to "point to evidence creating genuine factual disputes that undermine those views . . . [and][a]bsent such evidence, defendants' affidavit is sufficient to establish, on summary judgment, 'that the regulations do, in fact, serve the function[s] identified' by the prison defendants." Wardell v. Duncan, 470 F.3d 954, 960 (10th Cir. 2006) (quoting Beard v. Banks, 548 U.S. 521, 531, 12 (2006)). Thus, the Court should conclude that Defendants have shown a rational connection between the suspension from a halal diet if grounded in a belief that the diet was being used for bartering and the penological interests of maintaining discipline and order in the facility. See Beerheide v. Suthers, 286 F.3d 1179, 1186 (10th Cir. 2002) ("To satisfy [the first Turner element], the prison administration is required to make a minimal showing that a rational relationship exists between its policy and stated goals.").
Regarding the second Turner factor, Defendants contend that an alternative means of eating a halal meal (and thus exercising Plaintiff's religious beliefs) was available to Mr. Tenison because he could purchase halal meals at the prison commissary. (ECF No. 47:21).
For the commissary alternative to satisfy the second Turner factor it "need not be ideal . . . [it] need only be available." Wardell v. Duncan, 470 F.3d 954, 961 (10th Cir. 2006) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1200 (10th Cir. 2004)). Therefore, "even if not the 'best method' from the inmate's point of view, if another means of exercising the right exists, the second Turner factor does not undercut the challenged restriction." Id. at 961-62. Plaintiff has not stated that he could not afford the commissary alternative, and thus he has failed to demonstrate that this alternative does not offer a viable alternative means to exercise his religious beliefs. Thus, the second Turner factor weighs in favor of Defendant Fox.
As to the third Turner factor, neither party offers an argument regarding the potential impact on prison resources if Plaintiff's religious beliefs were not accommodated by affording him a halal meal despite Mr. Tenison's apparent violation of the rules against "bartering." See ECF No. 47 & 48. Thus, this factor does not weigh in either party's favor. See Malipurathu v. Johnson, No. 13-CV-396-JHP-PJC, 2014 WL 6073672, at *19 (N.D. Okla. Nov. 13, 2014) (in the absence of argument by either party regarding the third Turner factor, "this factor does not weigh in either party's favor.").
Finally, the fourth Turner factor states that "the absence of ready alternative is evidence of the reasonableness of the prison regulation." Turner, 482 U.S. at 90. "[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard. Id. at 91. Here, Mr. Tenison has failed to point to any alternative that would fully accommodate his rights at de minimis cost to the valid penological interests asserted by the Defendants. Thus, this factor weighs in favor of Defendants.
Overall, the Court should conclude that the Turner factors weigh in favor of DOC's policy which states that an inmate will be removed from the halal diet if he violates the rules against bartering using his religious meal. Defendant Fox had a valid basis on which to believe that Plaintiff had violated the rules against bartering, which was the basis for Plaintiff's temporary removal from the halal diet. The rules against bartering are enforced to further discipline and order in the prison, which qualifies as a legitimate penological interest. Defendant Fox temporarily removed Plaintiff from the halal diet based on a valid belief that Plaintiff had given away his halal food tray in exchange for having his clothes ironed—a violation of the agreement Mr. Tenison had signed. While suspended from the diet, Mr. Tension had a viable and available alternative which he could have exercised to meet his religious needs—purchasing halal food at the commissary. Plaintiff does not argue that he was unable to afford the commissary alternative, only that the alternative was "not the issue." (ECF No. 48:5). The Court should disagree, as the availability of halal foods at the prison commissary is one of the very issues pertinent to analyzing the First Amendment claim under Turner. Because the DOC policy was reasonably related to Plaintiff's temporary suspension from the halal diet, the Court should conclude that Defendants Byrd, McGhee, Fox, and White are entitled to summary judgment on this claim.
B. Plaintiff's First Amendment Right to Pray Claim—Individual Capacities for Monetary Damages and Official Capacities for Injunctive Relief Asserted Against Defendants Byrd, McGhee, Fox, and White
Mr. Tenison alleges that prison officials violated his First Amendment rights by disallowing him, as a Muslim, to pray on the dayroom floor. (ECF No. 13:5; 9-12; 48:4-5, 8-9, 15-16). Mr. Tenison quotes Defendants' Motion for Summary Judgment as an accurate summary of his claim:
Plaintiff Tenison sought to bring prayer rug out of his cell and into the common area, roll it out, and conduct personal prayer activities several times each day. He was not asked to refrain from bowing his head and engaging in silent prayer or meditation anywhere in the housing unit. Instead, he was asked to conduct his scheduled daily prayers, which require the use of a prayer rug, inside his assigned cell. Mr. Tenison could conduct his daily prayers in his assigned cell.(ECF No. 48:6-7). Mr. Tenison contends that the disallowance of him praying on the dayroom floor violated his First Amendment right to freedom of religion. Plaintiff has asserted this claim against Defendants Byrd, White, Fox and McGhee in their individual capacities for monetary damages. The Court should conclude that these Defendants are entitled to summary judgment on Plaintiff's First Amendment claim.
Plaintiff also asserted this claim against Defendant Byrd, but the undersigned has recommended dismissal of that claim, without prejudice. See supra.
As stated, the Court should evaluate Mr. Tenison's First Amendment claim under Turner v. Safley to determine whether the restriction against Plaintiff praying in the dayroom floor is "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. To determine whether the a prison regulation is reasonably related to a legitimate penological interest, relevant factors are: (1) whether there is a rational connection between the prison regulation and the asserted penological interest; (2) whether alternative means of exercising the religious right in question remain open to inmates; (3) the impact of the accommodation of the right in question on guards and other inmates and on the allocation of prison resources; and (4) whether any ready, easy to implement alternatives exist that would accommodate the right in question. Turner v. Safley, 482 U.S. 78, 89-90, (1987)).
Regarding the first Turner factor, Defendants cite security concerns in maintaining order and discipline in the prison as the "penological interest" involved in disallowing Muslim prayer on the dayroom floor. (ECF Nos. 47:18-20; 47-5). In an affidavit, Assistant Warden Ensey describes the dayroom as a common area containing chairs, a television, game tables, a microwave, ice machines, and exercise equipment, to be utilized by all 120 inmates on the unit. (ECF No. 47-5:3). Noting "institutional security concerns," Assistant Warden Ensey states that "the dayroom is not designed to have people engaging in specific religious activities, either individually or together. . . . Such an approach would be directly contrary to proper security practices and would be inconsistent with maintaining good order and discipline within this prison facility." (ECF No. 47-5). Mr. Ensey cited the following specific security concerns:
• A possibility of other inmates' religious observances and practices in the dayroom which would cause congestion and obstructions and create impediments to the correctional officer being able to circulate around the dayroom to maintain order and discipline, and(ECF No. 47-5).
• Inspection of Mr. Tenison's "rolled up prayer rug" to ensure that it did not contain contraband—both entering and exiting his cell—which would distract the correctional officer from his assigned duties in observing other inmates and their activities.
In response, Plaintiff argues:
• Four other inmates have stated that "Muslims do not bother them when we pray on the pod;"(ECF No. 47:5, 8-12).
• Each time an inmate exits his cell carrying anything, the assigned officer has to inspect the inmate and their belongings and inspecting a prayer rug would be no different;
• Other scenarios might exist which could cause congestion—i.e.—"13 people working out over here and . . . 10 to 15 people walking around" and someone getting up from his seat in the dayroom and another inmate taking his seat; and
• Only Muslim inmates on "Bravo South" are subjected to the rule disallowing prayer on the dayroom floor.
The Court should conclude that Defendants' stated security concerns are legitimate and are not outweighed by Plaintiff's arguments. First, whether other inmates are "bothered" by Plaintiff's praying on the dayroom floor is irrelevant to the prison's concern in maintaining discipline and order. Second, Plaintiff raises a legitimate point regarding the fact that no matter what object an inmate chooses to take out of his cell, it will be inspected—be it a prayer rug or a bag of hygiene products to take to the shower. Third, the Court should conclude that Plaintiff's "other scenarios" for causing congestion are theoretical at best, and do not change Defendants' stated concerns. Finally, in his response brief, Plaintiff repeatedly argues that only Muslim inmates on "Bravo South" are being discriminated against by disallowing Muslim prayer in the dayroom. See ECF No. 48:4, 5, 9, 10. These allegations more aptly allege an Equal Protection claim, but Plaintiff did not raise this argument in his Amended Complaint, see ECF No. 13, and the Court should not consider new arguments raised for the first time in Mr. Tenison's response brief.
The Court should discount Defendants' stated concern about having to inspect Plaintiff's prayer rug each time he entered and exited his cell, in light of Plaintiff's statement that the correctional officer must inspect any item an inmate takes from his cell upon exiting. However, the Court should also conclude that the Defendants' interest in maintaining security and order on the unit is a legitimate penological concern and this factor should weigh in Defendants' favor. See Ahmad v. Ehrmann, 339 F. Supp. 2d 1134, 1138 (D. Colo. 2004) (holding that a prohibition on congregate prayer in open area of prison was rationally related to prison's stated concern of maintaining order in the prison), rev'd and remanded on different grounds, sub nom. Ahmad v. Furlong, 435 F.3d 1196 (10th Cir. 2006).
Regarding the second Turner factor, Defendants contends that an alternative means of Mr. Tenison exercising his right to pray was available to him because he could choose to pray in his cell at the assigned times and attend the weekly Muslim prayer service, Ju'mah. (ECF Nos. 47:19; 47-5:6-7). In an affidavit, Assistant Defendant Warden Ensey states that CCF operates on a "lock-in/lock-out schedule" whereby inmates can choose to be in or out of their cells during the day. (ECF No. 47-5:4). For security purposes, cell doors are kept locked, but if an inmate wants to enter or exit their cell, the inmate need only ask the correctional officer on duty and the cell will be locked or unlocked every 30 minutes. (ECF No. 47-5:4). In a grievance regarding his right to pray, Mr. Tenison states that as a Muslim, he prays five times daily at specific times. (ECF No. 30-5:59). Thus, if Plaintiff wanted to enter his cell for a designated prayer time, he needed only to make arrangements with the correctional officer to let him in prior to the designated prayer times.
In response, Mr. Tenison alleges that the alternative forces him to "stay in his cell" which he contends is unfair. Plaintiff provides two examples, neither of which is persuasive. First, Plaintiff contends that once, when he had finished praying, Defendant McGhee did not immediately let Plaintiff out of his cell. (ECF No. 48:5). But Mr. Tenison's own evidence states that Defendant McGhee told Plaintiff that he had to "wait on her next round" to unlock his cell, which is consistent with the stated prison procedures of locking and unlocking cells every 30 minutes. See supra. Defendant McGhee's failure to let Plaintiff out of his cell immediately after he was finished praying did not infringe on Mr. Tenison's ability to pray. And Mr. Tenison does not state that Defendant McGhee did not let him out of his cell on her "next round" or that he was forced to stay in the cell indefinitely.
Second, Plaintiff states that his typical day consists of him working from 1:00 a.m. to 9:30 a.m., which forces him to sleep until 3:30 p.m. some days, when he can exit his cell after "count clear," but then prayer at 4:09 p.m. requires him to go back into his cell, so on most days he does not leave his cell after the 4:09 p.m. prayer. (ECF No. 48:8). Plaintiff argues that he wants his "recreation" and should not have to be forced to choose between staying in his cell to pray and having recreation. (ECF No. 48:8). But Plaintiff does not allege or present any evidence that after the 4:09 p.m. prayer time, he is not allowed out of his cell.
In sum, the Court should conclude that the alternative of allowing Plaintiff to pray in his cell and attend weekly Ju'mah prayer services provide Mr. Tenison with a viable alternative of exercising his religious beliefs. See Ahmad, 339 F. Supp. 2d at 1138 (finding the second Turner factor in favor of defendant prison officials, stating that allowing every Muslim inmate to pray the mandatory group prayer, Jumah every Friday "is a reasonable avenue available to allow [plaintiff] to exercise his First Amendment rights while, at the same time, uphold the legitimate interest of maintaining prison security"), rev'd and remanded on different grounds, sub nom. Ahmad v. Furlong, 435 F.3d 1196 (10th Cir. 2006).
The third Turner factor discusses the impact of the accommodation of the right in question on guards and other inmates and on the allocation of prison resources. See supra, Turner at 89-90. Again, Defendant cites security concerns, stating:
accommodating Mr. Tenison's request to use his prayer rug in the commons area several times per day for prayers at appointed times would impact security operation, as other inmates would want to similarly use the Dayroom. The Dayroom would become congested with various and specific religious activities being conducted by inmates and the security Officer's ability to maintain good order and discipline would be diminished.(ECF No. 47:19). Plaintiff has not presented any evidence that there exists sufficient prison resources to closely supervise Muslims during prayer time in the common room to ensure other individuals' safety and security while still attending to normal prison operations. Thus, the Court should conclude that the third Turner factor weighs in favor of Defendants.
Finally, the fourth Turner factor asks whether there are alternative means which fully "accommodate[] the prisoner's rights at de minimis cost to valid penological interests." Turner at 90-91. Defendants contend that no such alternative exists because there is only one dayroom per housing unit and there is no other space for Plaintiff to use. (ECF No. 47:19). Plaintiff argues that there are four "offices" on each pod and because only three of them are being used, the fourth office could be opened up for Muslim prayer. (ECF No. 48:10-11). Mr. Tenison states that "Defendant's [sic] can have our prayer times sheets, and let us in at the time of prayer and 10 to 15 minutes come let us out." (ECF No. 48:11). The Court should conclude that this alternative does not weigh in favor of Mr. Tenison, as it would require extra prison staff to monitor the office and allow prisoners in and out for prayer all day. This would certainly not be at a de minimus cost to Defendants.
Because the four Turner factors weigh in favor of Defendants, the Court should conclude that Defendants Byrd, McGhee, Fox, and White are entitled to summary judgment in their individual capacities for monetary damages on Plaintiff's First Amendment right to pray claim.
C. Plaintiff's Equal Protection Right to Pray Claims—Individual Capacities for Monetary Damages and Official Capacities for Injunctive Relief Asserted Against Defendants Byrd, McGhee, Fox, and White
Mr. Tenison alleges a violation of Equal Protection based on the prohibition of Muslim prayer in the dayroom, while allowing Christian communion in the same area. (ECF No. 13:10-12). Specifically, Mr. Tenison alleges that Defendants White and Fox told him that "there would be no praying on the units" and that Defendants McGhee and White told him that Muslims were prohibited from praying on the day room/unit floor. (ECF No. 13:10-12). But according to Plaintiff, the prohibition against Muslim prayer on the dayroom floor was discriminatory, because Christian communion was held "on the very same floor that [Defendants McGhee, White, and Fox] said Muslims cannot pray on[.]" (ECF No. 13:11). Regarding Defendant Byrd, Plaintiff claims that the warden knew that Plaintiff was being denied the right to pray, but Defendant Byrd told Plaintiff "it [was] against [prison] policy." (ECF No. 13:14).
Mr. Tension seeks monetary damages against Defendants Byrd, McGhee, White, and Fox in their individual capacities and injunctive relief against these four Defendants in their official capacities, asking that "Muslims [be] allowed to pray[.]" (ECF No. 13:5). Official-capacity suits require "the entity's 'policy or custom' [to] have played a part in the violation of federal law." Kentucky v. Graham, 473 U.S. 159, 166, (1985). Here, Mr. Tenison invokes a violation of a prison policy which states "offenders will not be discriminated against because of religious belief and practices or a lack of religious strength." (ECF No. 13:13). The Court should conclude that Defendants Byrd, McGhee, Fox, and White are entitled to summary judgment on this claim.
1. Equal Protection—Standard of Review
Equal protection "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439; Fogle v. Pierson, 435 F.3d 1252, 1260 (10th Cir. 2006). To state a valid claim for Equal Protection, a plaintiff must first allege that he had been intentionally treated differently than similarly situated individuals. See City of Cleburne, 473 U.S. at 439; see also SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012) ("plaintiff must [first] show he . . . was 'intentionally treated differently from others similarly situated'" (citation omitted)). According to the Tenth Circuit, "It is hornbook constitutional law that mere negligence or mistake resulting in uneven application of the law is not an equal protection violation." Roe v. Keady, 329 F.3d 1188, 1191-92 (10th Cir. 2003). Rather, in order to establish an equal protection violation, Plaintiff must show a "discriminatory purpose" leading to disparate treatment. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). "'Discriminatory purpose' implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects on an identifiable group." Id. at 279 (citations omitted). "Isolated events adversely affecting an individual are not presumed to be violations of the equal protection clause." Roberts v. Champion, 255 F. Supp. 2d 1272, 1290 (N.D. Okla. 2003), aff'd, 91 F. App'x 108 (10th Cir. 2004).
2. Summary Judgment on the Equal Protection Claims
Defendants acknowledge that Chaplain White offered communion in the dayroom, but argue that they are entitled to summary judgment by offering evidence that Defendant White's actions were isolated and amounted to only negligence, without discriminatory intent. (ECF Nos. 47:20; 47-5). According to Assistant Warden Ensey, once he became aware that Defendant White had served communion in the housing dayroom, the Assistant Warden informed Defendant White that the dayroom was supposed to be a "neutral site[]" for religion, whereupon Defendant White ceased further offering communion. (ECF No. 47-5:7). Defendant White confirmed this fact, stating in an affidavit that in his first two months as a chaplain at CCF, he did serve communion in the dayroom, but that it was an honest mistake, not having known that such activity was prohibited, and that he immediately ceased the activity following a direct order from Assistant Warden Ensey to do so. (ECF No. 30-2).
A factual dispute exists regarding the number of times that Defendant White allegedly served communion. Defendant White alleges that it occurred once, but Plaintiff alleges that it occurred three times. See ECF Nos. 30-2:2 & 48:14. But the number of times is immaterial, as the parties do not dispute that the act of communion occurred no more than three times and the evidence shows that Defendant White had acted without discriminatory intent, and immediately stopped the activity upon being informed that it was against the rules. See ECF Nos. 30-2:2-3; 47-5:7. Plaintiff fails to submit any evidence that Defendants had acted with a discriminatory purpose in allowing Christian communion in the dayroom while disallowing Muslim prayer in the same space. As stated, "negligence or mistake resulting in uneven application of the law is not an equal protection violation." Roe, 329 F.3d at 1191-92. Here, the undisputed material facts demonstrate that Defendants Byrd, McGhee, Fox, and White did not act with discriminatory intent to violate Mr. Tenison's right to Equal Protection. Accordingly, the Court should conclude that these Defendants are entitled to summary judgment on Plaintiff's Equal Protection claim.
D. Plaintiff's RLUIPA Right to Pray Claim—Official Capacities for Injunctive Relief Asserted Against Defendants Byrd, McGhee, Fox, and White
Plaintiff has brought a RLUIPA claim against Defendants Byrd, McGhee, Fox, and White in their official capacities for injunctive relief based on Mr. Tenison's right to pray. Defendants contend they are entitled to summary judgment, arguing that Mr. Tenison has failed to meet his burden of proof that prison officials had "substantially burdened" Plaintiff's religious exercise. (ECF No. 47:23-25).
1. RLUIPA—Standard of Review
In relevant part, RLUIPA provides:
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. § 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.
In evaluating a RLUIPA claim, the initial burden is on the plaintiff to prove he is engaging in a religious exercise and to demonstrate the government has imposed a "substantial burden" on that exercise. Yellowbear v. Lampert, 741 F.3d 48, 54-55 (10th Cir. 2014). If Plaintiff makes this showing, the burden of persuasion shifts to the government to show that the burden it has imposed serves a "compelling governmental interest" and is the "least restrictive means" of furthering that interest. Id. at 56.
2. Defendants are Entitled to Summary Judgment on the RLUIPA Claim
Congress has defined "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Holt v. Hobbs, 135 S.Ct. 853, 860 (2015) (quoting § 2000cc-5(7)(A)). Indeed, the Supreme Court has admonished that "RLUIPA bars inquiry into whether a particular belief or practice is 'central' to a prisoner's religion." Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13 (2005). Further, Congress has instructed that RLUIPA must "be construed in favor of a broad protection of religious exercise." 42 U.S.C. § 2000cc-3(g). The Court should conclude that Plaintiff's act of prayer, as a Muslim, satisfies Mr. Tenison's initial burden of proof that he had engaged in a "religious exercise." See Hammons v. Jones, No. 00-CV-0143-CVE-SAJ, 2006 WL 353448, at *2 (N.D. Okla. Feb. 14, 2006) (finding that a plaintiff's request for prayer oils for use during his daily prayers qualified as a religious exercise within the meaning of RLUIPA).
In determining whether the government has imposed a "substantial burden" on Mr. Tenison's rights, the inquiry focuses on the coercive impact of the government's actions. Holt, 135 S. Ct. at 55. A burden on a religious exercise rises to the level of being "substantial" when the government: (1) requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief; (2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief; or (3) places considerable pressure on the plaintiff to violate a sincerely held religious belief—for example, by presenting an illusory or Hobson's choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise. Id.
Mr. Tension argues that prison officials have "substantially burdened" his right to practice his religion in violation of RLUIPA in all three ways outlined in Yellowbear. (ECF Nos. 13:10-11; 48:5, 8, 9, 15, 16). The Court should disagree and conclude that Defendants have presented evidence which entitle them to summary judgment.
First, Mr. Tenison argues that prison officials are requiring him to participate in an activity prohibited by a sincerely held religious belief. In their Motion for Summary Judgment, Defendants state that "Mr. Tenison was not asked to refrain from bowing his head and engaging in silent prayer while in the Dayroom." (ECF No. 47:23). From this statement, Mr. Tenison contends that Defendants have substantially burdened his exercise of religion by "tell[ing] [him] he has to pray as a Christian," which is contrary to his Muslim beliefs. (ECF No. 48:16). In support, Plaintiff states: "Muslims do not bow our head" and "A Muslim prostrates, we don't just bow our heads" (ECF No. 48: 5, 7). But Defendants have not required Mr. Tenison to bow his head and "pray as a Christian," rather Defendants only provided that as an option for Mr. Tenison, in addition to allowing him to pray in his cell as a Muslim.
Second, Plaintiff argues that Defendants have prevented him from participating in an activity motivated by a sincerely held religious belief by disallowing prayer on the dayroom floor. (ECF No. 13:10, 11, 48:16). But the Court should reject that theory because Defendants have provided Mr. Tenison access to enter and exit his cell in 30- minute intervals, so that he may pray inside his cell. See supra. To be clear, the United States Supreme Court has disavowed an "availability of alternative means" approach while engaging in a RLUIPA analysis. See Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (noting that the district court "misunderstood the analysis that RLUIPA demands" and reversing findings which concluded that petitioner's religious exercise was not substantially burdened because he was provided with alternative means to practice his religion). However, in this case, prison officials are not offering Mr. Tenison "alternative means" to practice his religion, rather they are allowing him to engage in the precise activity of his choice—prayer as a Muslim, with his prayer rug, prostrate on the floor. The Court should conclude that an alternative space to engage in this activity (Plaintiff's cell vs. the dayroom) does not qualify as preventing Plaintiff from engaging in his chosen religious activity.
Third, Plaintiff alleges that prayer inside his cell places considerable pressure on the plaintiff to violate a sincerely held religious belief by presenting an illusory or Hobson's choice where the only realistically possible course of action available to the plaintiff trenches on sincere religious exercise. Id. In support, Mr. Tenison argues that he is forced to choose between going outside of his cell and not being able to "be who [he] [is] as a Muslim" "or be a Muslim and stay inside [his] cell all day." (ECF No. 48:8). As an example, Plaintiff states that his job and sleep pattern do not allow him access to his cell until after 3:30 pm "count clear," but that due to the 4:09 pm Muslim prayer, he would need to stay inside his cell until after that prayer is completed. Presumably, Plaintiff could be let out of his cell after his 15-minute prayer, at the 4:30 "round" and thus would not be forced to "stay inside [his] cell all day." Plaintiff states that once, after he had finished praying, Defendant McGhee did not immediately let Plaintiff out of his cell. (ECF No. 48:5; 45-46). But Mr. Tenison also stated that Defendant McGhee told Plaintiff that he had to "wait on her next round" to let him out, which is consistent with the stated prison procedures of locking and unlocking cells every 30 minutes. See supra. Defendant McGhee's failure to let Plaintiff out of his cell immediately after he was finished praying did not infringe on Mr. Tenison's ability to pray. And Mr. Tenison does not state that Defendant McGhee did not let him out of his cell on her "next round" or that he was forced to stay in the cell indefinitely.
In his response, Mr. Tenison states that "a Muslim prayer takes up to 15 minutes." (ECF No. 48:9).
Based on the forgoing, the Court should conclude that Mr. Tenison has failed to meet his initial burden to prove that prison officials have "substantially burdened" his right to practice his religion. Accordingly, the Court should conclude that Defendants are entitled to summary judgment on Plaintiff's RLUIPA claim.
E. Plaintiff's Eighth Amendment Claim—Individual and Official Capacities for Monetary Damages and Injunctive Relief Asserted Against Defendants Byrd and Paine
Mr. Tenison alleges that prison officials violated the Eighth Amendment by not allowing him access to an outside medical provider. (ECF No. 13:14-16). For this claim, Plaintiff seeks liability against Defendants Byrd and Paine. The Court should conclude that both Defendants are entitled to summary judgment.
1. Eighth Amendment Standard
The Constitution, through its Eighth Amendment, imposes on state governments an "obligation to provide medical care for those whom [they are] punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if they fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103 (1976). However, "[b]ecause society does not expect that prisoners will have unqualified access to health care," Hudson v. McMillian, 503 U.S. 1, 9 (1992), an inmate cannot hold a prison official liable unless the inmate shows that he or she suffered "acts or omissions sufficiently harmful to evidence deliberate indifference to [the inmate's] serious medical needs," Gamble, 429 U.S. at 106. "It is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." Id.
The test for constitutional liability under the Eighth Amendment involves both an objective and a subjective component. Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). Objectively, the plaintiff must demonstrate that the harm he complains of is sufficiently "serious" to merit constitutional protection. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). A medical need is considered sufficiently serious to satisfy the objective prong if the condition "has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Al-Turki, 762 F.3d 1192-93. Where a prisoner claims that harm was caused by a delay in medical treatment, he must "show that the delay resulted in substantial harm" in order to satisfy the objective prong. Id. at 1193.
The subjective prong of the Eighth Amendment test examines the state of mind of the defendant, asking whether "the official kn[e]w of and disregard[ed] an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The subjective element is satisfied if the official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
2. Relevant Facts and Evidence
On or around May 1, 2015, Plaintiff states that he had a hemorrhoid surgery, after which he was unable to ejaculate. (ECF No. 13:15). Plaintiff was told it would "take up to a year to get back to normal[.]" (ECF No. 13:15). A year passed and Plaintiff could still not ejaculate, so he submitted a sick call request and was seen by Dr. Paine on May 18, 2016. (ECF No. 13:15; 35:8). At that appointment, the physician: (1) confirmed with Mr. Tenison that his current activities of daily living were not impaired by the inability to ejaculate and (2) found that because Plaintiff's life sentence rendered fertility considerations a non-issue, no further work up would be done at that time. (ECF No. 35:8). Dr. Paine explained to Plaintiff that if he were to be released, and fertility concerns became an issue, a further evaluation could be undertaken at that time. (ECF No. 35:8). At that appointment, Dr. Paine noted that OU Medical Center had "made appt. with urologist but then cancelled appt." (ECF No. 35:8).
On June 26, 2016, Mr. Tenison submitted a request to staff to Dr. Paine, seeking to be seen by an outside specialist. (ECF No. 30-5:32). A nurse answered the request to staff, stating that Mr. Tenison had been told there would be no further evaluation for his issue. (ECF No. 30-5:32). This response correlates with what Dr. Paine had told Plaintiff because fertility concerns were not an issue for Mr. Tenison and his daily activities had not been impaired. See supra. Mr. Tenison filed a grievance on July 11, 2016, seeking a consultation with an outside specialist, but the grievance was returned unanswered because he had failed to comply with the grievance policy. (ECF No. 30-5:29-31).
On November 10 and 21, 2016, Plaintiff submitted a request to staff and a grievance requesting to be seen by an outside urologist. (ECF No. 30-5:43-46). Warden Byrd answered Plaintiff's grievance, granting relief, stating that Plaintiff was scheduled to be seen by an outside provider on November 30, 2016. (ECF No. 30-5:37). The scheduled appointment date passed without Mr. Tenison being seen and Plaintiff sought relief on December 7, 2016. (ECF No. 30-5:39-40). Dr. Paine saw Plaintiff on December 12, 2016 and put in a referral for a urologist consultation. (ECF No. 35:10).
On May 8 and June 27, 2017, Dr. Paine saw Plaintiff, noted his requests to be seen by an outside specialist, and noted that a urologic consult had been "sought and approved." (ECF No. 35:11, 14). On October 16, 2017, Plaintiff was seen by an outside provider at Utica Park Clinic who stated that he would refer Plaintiff to OU Physicians urology department for further evaluation and treatment. (ECF No. 35:21). Plaintiff confirms the appointment occurred, stating: "I saw a specialist on or around 10/16/2017." (ECF No. 48:17). On October 23, 2017, Dr. Paine noted the Utica Park physician's request regarding a second opinion and requested an appointment with an OU Medical Urologist. (ECF No. 35:22). According to DOC records, the OU Urology appointment was originally scheduled for February 23, 2018, but was rescheduled three times by OU Medical Center for various reasons. See ECF Nos. 35:24-27. The last scheduled appointment was June 15, 2018. (ECF No. 35:26).
3. Summary Judgment on the Eighth Amendment Claim
Mr. Tenison alleges that Defendants Paine and Byrd have exhibited deliberate indifference in violation of the Eighth Amendment. (ECF Nos. 13:14-16; 48:5, 16-18, 20). In the Amended Complaint, Mr. Tenison contends:
I have been trying over 2 years to be seen by an outside provider on this medical condition, but I was denied this constitutional right. . . . it took 2 years for Dr. Paine to get me seen by a outside provider.(ECF No. 13:16). Plaintiff also contends that he has yet to be seen by a specialist, indicating that he believes further evaluation is warranted and Defendants Paine and Byrd are further delaying such treatment. (ECF No. 48:18). The Court should disagree and grant summary judgment to both Defendants.
Although Mr. Tenison states that it took "two years" to be seen by a specialist, he admits that he was seen by a specialist on October 16, 2017, which was approximately 17 months after he began seeking treatment from an outside source. Regardless, however, of the length of time which had passed before Mr. Tension saw a specialist, Plaintiff must demonstrate that the delay: (1) had resulted in "substantial harm" (objective element) and (2) was attributable to the deliberate indifference of Defendants Byrd and Paine (subjective element). Defendants have presented evidence that neither component has been met, and Mr. Tenison has failed to submit any contrary evidence which would create a dispute of material facts on the issues. Accordingly, the Court should grant summary judgment to Defendants Byrd and Paine.
(ECF No. 13:16). --------
As stated, "[w]here a prisoner claims that harm was caused by a delay in medical treatment, he must "show that the delay resulted in substantial harm" in order to satisfy the objective prong of the deliberate indifference test. Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014). Mr. Tenison presents no evidence that he suffered "substantial harm" from his inability to ejaculate. On May 18, 2016, Plaintiff reported that the condition did not impair his daily activities. (ECF No. 35:8). On October 11, 2016, Plaintiff told a nurse that his inability to ejaculate did not impair his ability to urinate, nor did he have any other problems. (ECF No. 35:9). On December 16, 2016, Dr. Paine reported Plaintiff had frequent bowel movements, no blood from his rectum or fecal incontinence, and no lower urinary tract symptoms. (ECF No. 35:10). On May 8, 2017, Dr. Paine reported Plaintiff with "no changes" in his report of symptoms, including normal bowel movements and no lower urinary tract symptoms. (ECF No. 35:11). On June 14, 2017, Plaintiff reported "dry ejaculation" with "no clinical changes." (ECF No. 35:12). On October 16, 2017, the outside specialist at Utica Park Clinic noted that Plaintiff reported no difficulty in attaining or maintaining an erection and denied any associated depression. (ECF No. 35:19). On October 23, 2017, Dr. Paine noted that Plaintiff had no change in his complaint. (ECF No. 35:22). Finally, on April 5, 2018, Dr. Paine noted Plaintiff's self-testicular exam was "without concern." (ECF No. 35:27). The medical evidence demonstrates that Plaintiff did not suffer "substantial harm" as a result of his inability to ejaculate, nor does Plaintiff argue the same in either his Amended Complaint or response to Defendants' Motion for Summary Judgment. See ECF Nos. 13 & 48. Accordingly, the Court should conclude that Plaintiff has failed to satisfy the "objective" component required under the Eighth Amendment.
In light of these findings, the Court need not consider whether Mr. Tenison has satisfied the subjective prong of the Eighth Amendment test. See Fairbanks v. Lampert, 645 F. App'x 626, 627 (10th Cir. 2016) ("Because we conclude infra that Fairbanks has failed to satisfy the subjective prong, we do not consider whether he has satisfied the objective prong). However, in an abundance of caution, the Court should also conclude that Mr. Tenison has failed to demonstrate that either Defendant Byrd or Paine was deliberately indifferent in violation of Plaintiff's Eighth Amendment rights.
As stated, the subjective prong of the Eighth Amendment test examines the state of mind of the defendant, asking whether "the official kn[e]w of and disregard[ed] an excessive risk to inmate health or safety." See supra, Farmer. Here, the evidence shows that initially, Defendant Paine had believed that no outside specialist consult was necessary because fertility issues were not a concern for Mr. Tenison and his activities of daily living had not been affected. (ECF No. 35:8). Plaintiff may have disagreed, believing that an outside specialist consult was necessary, but a "[d]isagreement with a doctor's particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation." Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010). And later, when Defendant Byrd granted relief in November 2016, stating that an appointment was scheduled for Plaintiff to see a specialist on November 30, 2016, the evidence shows that although the appointment was not kept, Dr. Paine continued making efforts in getting Plaintiff seen by an outside specialist, by seeking a referral for an outside specialist and obtaining surgical reports which had apparently been requested by the outside provider. (ECF No. 30-5:37; 35-10, 11, 14). Ultimately Mr. Tenison was seen by an outside provider, who referred him to another specialist at OU Medical. (ECF No. 35:15-21). Mr. Tenison states that he has still not seen that specialist, and indeed the evidence indicates that the appointment with OU Medical was rescheduled three times, but that was done so at the behest of OU Medical, not Defendants Paine or Byrd. See ECF Nos. 35:24-27.
Because the evidence supports a finding that Mr. Tenison's condition was not objectively serious and that neither Defendant Paine nor Defendant Byrd exhibited deliberate indifference in either delaying or denying Plaintiff medical care, the Court should grant summary judgment to these Defendants on Plaintiff's Eighth Amendment claim.
IV. RECOMMENDATION
Based upon the forgoing analysis, the Court should: (1) dismiss, without prejudice, Plaintiff's First Amendment religious diet and right to pray claims and Equal Protection right to pray claims asserted against Defendants Byrd, McGhee, Fox, and White in their official capacities seeking monetary damages; (2) dismiss, with prejudice, Plaintiff's First Amendment and Equal Protection right to pray claims asserted against Defendants Byrd, McGhee, Fox, and White in their individual capacities seeking injunctive relief; (3) dismiss, with prejudice, Plaintiff's RLUIPA claims asserted against Defendants Byrd, McGhee, Fox, and White in their individual and official capacities seeking monetary relief and in their individual capacities seeking injunctive relief; (4) grant summary judgment to Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages on Plaintiff's First Amendment religious diet claim; (5) grant summary judgment to Defendants Byrd, McGhee, Fox, and White in their individual capacities for monetary damages and their official capacities for injunctive relief on Plaintiff's First Amendment right to pray claim; (6) grant summary judgment to Defendants Byrd, McGhee, White, and Fox in their individual capacities for monetary damages and their official capacities for injunctive relief on Plaintiff's Equal Protection right to pray claim; (7) grant summary judgment to Defendants Byrd, McGhee, White and Fox in their official capacities for injunctive relief on Plaintiff's RLUIPA right to pray claim; and (8) grant summary judgment to Defendants Byrd and Paine in their individual and official capacities for monetary damages and injunctive relief on Plaintiff's Eighth Amendment claim. Based on the recommendation for summary judgment to the Defendants, the Court should also deny Plaintiff's Motion for Summary Judgment as moot.
V. NOTICE OF RIGHT TO OBJECT
Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by January 14, 2019. See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation disposes of all issues currently referred to the undersigned magistrate judge in the captioned matter.
ENTERED on December 28, 2018.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE