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Nance v. Miser

United States District Court, D. Arizona

June 16, 2015

Keith P. Nance, Plaintiff,
v.
Allen Miser, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Keith P. Nance, who is currently confined in Arizona State Prison Complex-Florence, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 9, First Am. Compl.). On June 21, 2013, Defendants filed a Motion for Summary Judgment (Doc. 54) that the Court denied in its Order of October 7, 2013. (Doc. 69). Defendants filed a Motion for Reconsideration (Doc. 71) that the Court also denied. (Doc. 75).

On June 11, 2014, Defendants filed a "Motion for Leave to File Renewed Motion for Summary Judgment and Oversized Brief" (Doc. 123) and submitted a Proposed Renewed Motion for Summary Judgment and a Proposed Supplemental Statement of Facts. (Lodged as Docs. 125, 126). On January 13, 2015, the Court granted Defendants' Motion for Leave to File, and the Clerk of Court filed Defendants' Renewed Motion for Summary Judgment ("RMSJ") and Supplemental Statement of Facts ("DSSOF"). (Docs. 134, 135). The RMSJ has been fully briefed. (Docs. 137, 140).[1]

The Court will grant the RMSJ in part and deny it in part as set forth below.

I. Background

In his First Amended Complaint, Plaintiff alleges that Miser, Vicklund, Linderman, and Patton denied him a halal diet and shaving waiver in violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the First Amendment. Plaintiff alleges the absence of a compelling governmental reason for denying him a halal diet and that such denial substantially burdened the free exercise of his religious beliefs. He further alleges that Defendants violated his equal protection rights because, as a Muslim adherent, Plaintiff is not provided a halal diet, while adherents of other faiths are provided diets consistent with their religious beliefs. On screening under 28 U.S.C. § 1915A, the Court directed Miser, Vicklund, Linderman, and Patton to respond to Plaintiff's free exercise and equal protection claims. (Doc. 14).

In its October 7, 2013 Order denying Defendants' Motion for Summary Judgment, the Court dismissed Plaintiff's RLUIPA claim for damages, but denied summary judgment to Defendants on Plaintiff's RLUIPA claim for injunctive relief, finding that material questions of fact existed regarding (1) whether Plaintiff's asserted beliefs were sincerely held, (2) whether the denial of a halal diet with meat substantially burdened Plaintiff's religious exercise, and (3) whether the prison's existing diet plan was the least restrictive means of furthering a compelling governmental interest. The Court also denied summary judgment to Defendants on Plaintiff's First Amendment claim, finding that Defendants were not entitled to qualified immunity on this claim, and that, absent any facts about the costs of accommodating Plaintiff's dietary requests, there was insufficient evidence to rule, as a matter of law, that Defendants' denial of Plaintiff's request was reasonably related to legitimate governmental interests. Finally, the Court denied summary judgment to Defendants on Plaintiff's equal protection claim because the record was too incomplete to show that Defendants had a legitimate penological justification for providing a kosher diet with meat to Jewish inmates but not a halal diet with meat to Muslim inmates.

In addition to Plaintiff's diet-based claims, the Court denied summary judgment to Defendants on Plaintiff's First Amendment claim for damages based on Defendants' refusal to grant him a shaving waiver. This was because, even though Plaintiff received a shaving waiver in May 2011, precluding a claim for injunctive relief, Defendants did not dispute that Plaintiff had been denied a waiver for the first seven months after his re-incarceration.

As put forth in the Court's October 7, 2013 Order, Plaintiff's remaining claims are (a) his RLUIPA and First Amendment claims for injunctive relief regarding the denial of a halal diet with meat, (b) his First Amendment claim for damages regarding the denial of a halal diet with meat, (c) his equal protection claim for injunctive relief and damages regarding the denial of a halal diet with meat, and (d) his First Amendment claim for damages regarding the seven-month delay before he received a shaving waiver.

In the RMSJ, Defendants argue that new dietary cost and grievance information now shows that there are no remaining issues of material fact and Defendants are entitled to judgment as a matter of law on all claims. (Doc. 134 at 1). With respect to Plaintiff's dietary claims, Defendants argue that providing a halal diet with meat would be cost-prohibitive, and ADC has provided reasonable alternatives or good faith accommodations that satisfy both RLUIPA and constitutional requirements. ( Id. at 6-17). With respect to Plaintiff's shaving-waiver claim, Defendants argue that they are not liable for the seven-month delay in providing the waiver because the delay was not excessive, and it resulted from Plaintiff's own failure to articulate his religious reasons for needing the waiver and his subsequent mishandling of the grievance and appeal process. ( Id. at 17-19). Defendants reassert a claim that all Defendants are entitled to qualified immunity. ( Id. at 19-24). They further assert that Defendants Patton and Vicklund are not liable for any alleged violations because they were not directly involved in the alleged denials of Plaintiff's rights, and Miser is not liable because he did not violate Plaintiff's rights by finding that he had to reapply for his requested religious accommodations, and he was entitled to inquire about the sincerity of Plaintiff's beliefs. ( Id. at 25-27).[2]

In his Response, Plaintiff reiterates his claim that he is a practicing Muslim for whom eating halal meat is a religious requirement. (Doc. 137 at 3, 5). Plaintiff argues that ADC's existing religious diets, which do not include halal meat, substantially burden the free exercise of his religious beliefs, and Defendants erred by concluding that he could practice his religious beliefs in other ways. ( Id. at 8-10). Plaintiff further argues that the new evidence Defendants put forth regarding costs is unreliable, and Defendants have failed to show why ADC cannot provide a halal diet with meat when other states and the Federal Bureau of Prisons ("FBOP") are able to do so. ( Id. at 10-11). Plaintiff also argues that the delay in getting his shaving waiver was due to the actions of Defendants and not to Plaintiff's own failures to comply with ADC policies as Defendants assert.

II. Legal Standards

A. Summary Judgment

A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits or declarations, if any. See Fed.R.Civ.P. 56(c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But, if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 248-49. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment").

B. Free Exercise of Religion

"Inmates retain the protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.'" Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). To implicate the Free Exercise Clause, a prisoner must show that the belief at issue is both "sincerely held" and "rooted in religious belief." Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see Shakur, 514 F.3d 884-85 (noting the Supreme Court's disapproval of the centrality test and finding that the sincerity test in Malik determines whether the Free Exercise Clause applies).

If the inmate makes his initial showing, he must establish that prison officials substantially burden the practice of his religion by preventing him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 884-85.

A regulation that burdens the First Amendment right to free exercise may be upheld only if it is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). This determination requires analysis of four prongs: (1) there must be a valid, rational connection between the regulation and the legitimate governmental interest; (2) whether there are alternative means of exercising the right that remain open to inmates; (3) the impact accommodation of the right will have on guards and other inmates, and on the allocation of prison resources; and (4) the absence of ready alternatives. Id. at 90.

Under RLUIPA, a government may not impose a substantial burden on the religious exercise of a confined person unless the government establishes that the burden furthers a "compelling governmental interest" and does so by "the least restrictive means." 42 U.S.C. § 2000cc-1(a)(1)-(2). This "compelling government interest" and "least restrictive means" test replaced Turner 's "legitimate penological interest" test. Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (citing 42 U.S.C. § 2000cc-1(a)). Under its own terms, RLUIPA must be "construed broadly in favor of protecting an inmate's right to exercise his religious beliefs." Id. at 995 (citing 42 U.S.C. § 2000cc-3(g)).

The inmate bears the burden of establishing prima facie that RLUIPA has been violated and that his religious exercise has been substantially burdened. Warsoldier, 418 F.3d at 994 (citing 42 U.S.C. § 2000cc-2(b)). The government then bears the burden of proving that the substantial burden on the inmate's religious practice both furthers a compelling governmental interest and is the least restrictive means of doing so. Id. at 995 (citing 42 U.S.C. §§ 2000cc-1(a), 2000cc-2(b)).

C. Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Shakur, 514 F.3d at 891. An equal protection claim may be established by showing that prison officials intentionally discriminated against a plaintiff based on his membership in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently without a rational relationship to a legitimate state purpose, Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601B02 (2008); Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008).

In addition, an inmate "must set forth specific facts showing that there is a genuine issue' as to whether he was afforded a reasonable opportunity to pursue his faith as compared to prisoners of other faiths" and that "officials intentionally acted in a discriminatory manner." Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), abrogated on other grounds by Shakur, 514 F.3d at 884-85. Taking from Turner, the Court must consider whether "the difference between the defendants' treatment of [Plaintiff] and their treatment of [other] inmates is reasonably related to legitimate penological interests.'" Shakur, 514 F.3d at 891 (citing DeHart v. ...


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