Kikumura v. Hurley & Gallegos

• Decision Date: 09 March 2001
• Docket Number: No. 99-1284,99-1284
• Citation: 242 F.3d 950
• Parties: (10th Cir. 2001) YU KIKUMURA, Plaintiff-Appellant, v. JOHN M. HURLEY, E. J. GALLEGOS, Defendants-Appellees, UNITED STATES OF AMERICA, Intervenor
• Court: U.S. Court of Appeals — Tenth Circuit

Page 950

242 F.3d 950 (10th Cir. 2001)

YU KIKUMURA, Plaintiff-Appellant, v. JOHN M. HURLEY, E. J. GALLEGOS, Defendants-Appellees, UNITED STATES OF AMERICA, Intervenor.

No. 99-1284

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 09, 2001

Appeal from the United States District Court for the District of Colorado. (D.C. No. 98-B-1442) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Philip J. Weiser, University of Colorado School of Law, Boulder, Colorado, for Appellant.

Melanie Bailey Lewis, of Hall & Evans, (Josh A. Marks with her on the briefs), Denver, Colorado, for Appellees.

Matthew M. Collette, Appellate Staff Attorney, (Michael Jay Singer, Appellate Staff Attorney, with him on the briefs), Civil Division, Department of Justice, Washington, D.C., for the Intervenor and for Appellant.

Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff, a federal prisoner, brought suit against Defendants, prison wardens, for their denial of his requests for certain pastoral visits, alleging violations of his First and Fifth Amendment rights and statutory rights under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. 2000bb-1. Plaintiff moved for a temporary restraining order and a preliminary injunction preventing Defendants from denying the requested pastoral visits. The district court denied Plaintiff's motion, reasoning that Plaintiff had not demonstrated a substantial likelihood of success on the merits or that he would suffer irreparable harm absent an injunction. This court has jurisdiction pursuant to 28 U.S.C. 1292(a)(1) to consider Plaintiff's appeal of the district court's denial of his motion for a preliminary injunction. Because the district court committed legal error in holding Plaintiff did not have a substantial likelihood of success on his RFRA claim and would not be irreparably harmed absent an injunction, this court affirms in part, reverses in part, and remands to the district court for further proceedings consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant Yu Kikumura is an inmate in the United States Penitentiary, Administrative Maximum, at Florence, Colorado (the "Penitentiary"). Defendant John Hurley is Warden at the Penitentiary, and Defendant E.J. Gallegos is an Associate Warden at the Penitentiary. In early September 1997, the Reverend C. Harold Rickard, a retired United Methodist minister, sent a letter to Plaintiff. Rickard explained in the letter that he had heard about Plaintiff through the Reverend S. Michael Yasutake, a mutual friend of Plaintiff and Rickard, and that he had served as a missionary in Japan for numerous years. Rickard asked Plaintiff, who is originally from Japan, if Plaintiff would accept a pastoral visit from him. Plaintiff replied to Rickard, indicating that he would welcome the visit and encouraging Rickard to contact prison officials to request the visit. Rickard's request to visit Plaintiff was denied by prison officials.

During the next several months Plaintiff, Rickard, and Yasutake repeatedly contacted prison officials, hoping to persuade them to allow pastoral visits from Rickard.¹ On December 23, 1997, Defendant Gallegos denied the requests. Defendant Hurley then sent letters to Plaintiff and Yasutake explaining that the requests were denied because they did not meet the criteria for pastoral visits established by Bureau of Prisons ("BOP") regulations. See 28 C.F.R. 548.19. Defendant Hurley interprets the regulations to allow pastoral visits if (1) the inmate initiates the request and (2) the clergy person or representative is from the inmate's faith group. According to BOP regulations, inmates are also allowed non-pastoral visits from representatives of civic and religious organizations if there is an established relationship prior to confinement, although wardens are given the power to waive the requirement of an established pre-confinement relationship. See id. 540.47.

Plaintiff appealed the denial of the visits through the appropriate administrative appeals, but the original decision denying the visitation requests was upheld. Defendant Hurley, who reviewed one of the administrative appeals by Plaintiff, explained that Plaintiff did not meet the criteria for a pastoral visit because Plaintiff had not initiated the request and because "Reverend Rickard is of the Methodist faith, and you are of the Buddhist faith." Plaintiff had registered as a Buddhist for purposes of receiving a special diet at the Penitentiary, but claims that he practices a mixture of both the Buddhist and Christian religions. Although prison policy requires inmates to register under a certain religion for purposes of receiving a special diet, there is no similar registration requirement for inmates seeking pastoral visits. Defendant Hurley further explained that although he could have waived the requirement of a prior relationship so as to permit the visit as one from a community group, he decided not to do so because of unspecified security concerns. Plaintiff's final administrative appeals were also denied, with the Regional Director of the Federal Bureau of Prisons noting that "[w]hile the requested visits in question may have been generally supportive to you, there is no indication from the documents submitted by you or from our staff interviews that these visits should have been considered primarily pastoral in nature."

Having exhausted all administrative appeals, Plaintiff filed suit in the United States District Court for the District of Colorado. Plaintiff claimed that his religious liberties under the First Amendment and RFRA were violated and that his right to equal protection of the laws under the Fifth Amendment Due Process Clause was also violated. In addition to money damages and a permanent injunction, Plaintiff also requested a temporary restraining order and a preliminary injunction requiring Defendants to allow the pastoral visits.

Plaintiff's request for a preliminary injunction and temporary restraining order was referred to Magistrate Judge O. Edward Schlatter. In his recommendation, Judge Schlatter indicated that Plaintiff had not met the requirements for granting a preliminary injunction or a temporary restraining order. With respect to the First Amendment claim, Judge Schlatter concluded that Plaintiff had not demonstrated a substantial likelihood of success on the merits. Judge Schlatter noted the difficult constitutional standard for free exercise claims by inmates and concluded that it was unlikely Plaintiff could meet this burden. In addition, Judge Schlatter reasoned that Plaintiff would not suffer irreparable injury absent a preliminary injunction or restraining order because "[Plaintiff's] contact with the religious advisors at issue appears to be at least somewhat tangential to his ability to practice his faith and, again, he is permitted to correspond with these individuals." With respect to Plaintiff's other claims, Judge Schlatter explained that RFRA had been declared unconstitutional by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), and that Plaintiff had not adequately supported his equal protection claim. Thus, Judge Schlatter recommended that Plaintiff's request for a preliminary injunction and temporary restraining order be denied. Plaintiff filed objections to the magistrate's recommendation but the district court adopted Schlatter's recommendation and denied Plaintiff's motion.

III. DISCUSSION

A district court's denial of a motion for a preliminary injunction is reviewed for an abuse of discretion, legal error, or clearly erroneous factual findings.² See Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283 (10th Cir. 1996). A movant is entitled to a preliminary injunction if he can establish the following: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest. See id. Because "a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) (citation omitted).

For some requested preliminary injunctions a movant has an "even heavier burden of showing that the four factors listed above weigh heavily and compellingly in movant's favor before such an injunction may be issued." Id. The heightened burden applies to preliminary injunctions that (1) disturb the status quo, (2) are mandatory as opposed to prohibitory, or (3) provide the movant substantially all the relief he may recover after a full trial on the merits. See id. at 1098-99. Because Plaintiff's requested relief would disturb the status quo, the heightened burden requirement applies. Thus, Plaintiff must demonstrate not only that the four requirements for a preliminary injunction are met but also that they weigh heavily and compellingly in his favor.

Plaintiff, however, would have this court apply neither the heightened standard nor the general standard. Instead, Plaintiff argues a relaxed standard should apply to the requirement that he demonstrate a substantial likelihood of success on the merits if he is first able to satisfy the other three requirements for a preliminary injunction. This court has stated that "[w]hen the other three requirements for a preliminary injunction are satisfied, it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation." Otero Sav. & Loan Ass'n v. Fed. Reserve Bank of Kansas City, Mo., 665 F.2d 275, 278 (10th Cir. 1981) (quotation omitted). This court, however, has previously addressed the interplay between the...