251 F.3d 869 (10th Cir. 2001), 99-3076, Searles v. Van Bebber

Docket Nº:99-3076 & 99-3279
Citation:251 F.3d 869
Party Name:JIMMY SEARLES, Plaintiff - Appellee, v. DURWARD A. VAN BEBBER, Administrative Chaplain, Hutchinson Correctional Facility, Defendant - Appellant. UNITED STATES OF AMERICA, Intervenor - Amicus Curiae.
Case Date:May 14, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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251 F.3d 869 (10th Cir. 2001)

JIMMY SEARLES, Plaintiff - Appellee,


DURWARD A. VAN BEBBER, Administrative Chaplain, Hutchinson Correctional Facility, Defendant - Appellant.

UNITED STATES OF AMERICA, Intervenor - Amicus Curiae.

Nos. 99-3076 & 99-3279

United States Court of Appeals, Tenth Circuit

May 14, 2001


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Scott C. Nehrbass (Gregory T. Wolf and Jason E. Pepe, with him on the briefs), Shook, Hardy & Bacon L.L.P., Overland Park, Kansas, for Plaintiff - Appellee.

John M. Cassidy, Assistant Attorney General, (Carla J. Stovall, Attorney General and Hsingkan Chiang, Assistant Attorney General, with him on the briefs), Topeka, Kansas, for Defendant - Appellant.

John C. Hoyle, Attorney, Appellate Staff, Department of Justice, Washington, D.C., (David W. Ogden, Acting Assistant Attorney General, Jackie N. Williams, United States Attorney and Barbara L. Herwig, Attorney, Appellate Staff, with him on the brief) for Intervenor - Amicus Curiae.

Before BRORBY, HOLLOWAY and BRISCOE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellee Searles, an inmate at the Hutchinson Correctional Facility of the State of Kansas (HCF), sued several prison officials alleging the defendants had violated his First Amendment right to free exercise of religion by denying him approval for a kosher diet. Defendant VanBebber, the chaplain at HCF, appeals from a jury verdict against him. The jury found no liability on the part of the other two defendants, who were the warden and the deputy warden at HCF.



Plaintiff Searles had been in the Kansas prison system since 1989 and had originally listed his religious preference as Baptist. In August 1995, plaintiff was transferred from HCF to the facility in El Dorado. Within two weeks after his arrival at El Dorado, plaintiff filed a change of religion form, declaring that he had converted to Judaism. Plaintiff requested at that time that he be placed on the "Jewish call out"1 and also requested a kosher diet. Plaintiff's requests were immediately granted by the El Dorado chaplain, even though under the applicable regulations of the Kansas Department of Corrections, an inmate wishing to join a religious group other than that which was his original preference may be required to participate in the "new" group for a period of three months to demonstrate the sincerity of his request before being permitted "to perform the practices deemed essential by the chosen religious affiliation," such as adherence to a particular diet. II Aplt. App. 466, 468.

In March 1996, plaintiff was transferred from El Dorado to the facility at Lansing. As he had done at El Dorado, he promptly requested placement on the Jewish call out and a kosher diet. As with El Dorado, the requests were promptly granted at Lansing.

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On June 12, 1996, plaintiff was transferred back to HCF and, on arrival, requested a kosher diet. He did not request placement on the Jewish call out. He testified at trial that this was because he believed there was no Jewish group at HCF. Plaintiff's request was denied by defendant's predecessor because plaintiff was not on the "Jewish call-out." II Aplt. App. 446. Defendant's predecessor did send plaintiff a Request for Accommodation of Religious Practice form; apparently this form was the recognized vehicle for making a request like the one plaintiff had made. Plaintiff partially filled out the form and submitted it with a request for a supplemental diet, explaining that there were few kosher items available in the prison store. This form also stated that he had been on a kosher diet since September 1995. Id. at 447-49.

Plaintiff submitted a third request two months later, by which time the former chaplain had retired and defendant VanBebber had become the HCF chaplain. In this form, plaintiff noted that he had been on a kosher diet at both El Dorado and Lansing. In preparing to respond, defendant VanBebber called the El Dorado facility where plaintiff had proclaimed his Jewish faith a year earlier. The defendant did not, however, ask if plaintiff had been given a kosher diet at El Dorado; the defendant testified that had he been told that plaintiff had been getting a kosher diet for nine months before his arrival in Hutchinson, he would have approved the request. The defendant also looked in plaintiff's file, which indicated that plaintiff was Protestant. Apparently the defendant failed to look for the change of religious preference form which plaintiff had filed at El Dorado and which was in his file at HCF, nor did the defendant notice the two previous requests for a kosher diet. The defendant informed plaintiff that he would be placed on the Jewish call out and sent plaintiff another form to request religious accommodation, with this note: "Please explain your reasons for requesting a Jewish Kosher Diet at this time as you have been at HCF since June 12, 1996." Id. at 450.

Again plaintiff partially filled out the form and noted his history of having the kosher diet. Plaintiff also noted that he had requested the kosher diet promptly on his arrival at HCF in June but this had been denied. Defendant chaplain rejected the request and required plaintiff to be "active in the Jewish Group" for 90 days to be eligible for the kosher diet. Id. at 453.

Plaintiff filed an administrative grievance, which was assigned to the defendant. The defendant filed a report with the warden which did not mention plaintiff's statements that he had been on a kosher diet for nine months before coming to HCF. The warden denied the grievance, and plaintiff appealed to the state corrections department. The DOC investigated, found that plaintiff had been on a kosher diet at the two previous facilities, and recommended that his request be granted. On receiving that report, the deputy warden looked at plaintiff's file; apparently this was the first time that anyone at HCF found the change of religion form that plaintiff had completed at El Dorado and which had been in his file all along. Plaintiff's request was then granted. That decision was made on October 18, 1996, but not communicated immediately. Plaintiff began receiving a kosher diet on October 28, 1996, but four days before that he had mailed his pro se complaint to the district court, which was filed on October 30, 1996. I(A) Aplt. App. 92-93.


Plaintiff named as defendants Warden Robert Hannigan and Deputy Warden Steven

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Dechant, as well as appellant VanBebber, in his pro se complaint. The defendants' answer was filed in April 1997, along with a Martinez report.2 Defendants promptly moved for summary judgment on several grounds. In a published order, the district judge determined that: plaintiff had shown the existence of a genuine issue of fact as to the sincerity of his religious beliefs, and defendants were not entitled to summary judgment on that basis; plaintiff had failed to show any facts to support his equal protection claim, and defendants were entitled to partial summary judgment on that claim; the complaint would be construed as a suit against the defendants in their individual capacities, and thus Eleventh Amendment immunity would not shield the defendants; and defendants had not shown they were entitled to qualified immunity. Searles v. VanBebber, 993 F.Supp. 1350 (D. Kan. 1998).

Counsel was appointed to represent plaintiff in June 1998, after the court's ruling on the summary judgment motion. The case went to trial in February 1999. The jury found in favor of the warden and the deputy warden, but found defendant liable and assessed compensatory damages of $3,650, as well as $42,500 in punitive damages against him. The court later awarded attorney's fees, Searles v. VanBebber, 64 F.Supp.2d 1033 (D. Kan. 1999), which is the subject of the second of the instant related appeals. Of particular importance to the appeal of the underlying damages awards, the district judge instructed the jury that they could consider damages for mental and emotional injuries and struck from the instruction language proposed by the defense that would have made such damages contingent on a finding of physical injury. We turn to that ruling which is appealed.



Defendant contends that the jury award of compensatory damages must be vacated because the jurors found no physical injury, only "mental and emotional injuries" in the words of the verdict form, and such recovery in the absence of physical injury is said to be barred by the Prison Litigation Reform Act of 1996 (PLRA), specifically 42 U.S.C. § 1997e(e).

Plaintiff argues that defendant has waived this PLRA issue because such a limitation on the available remedy constitutes an affirmative defense which must be pleaded in the answer; the defense was not pleaded in the answer, nor asserted in the pretrial order issues nor in defendant's motion for summary judgment. Defendant replies that the omission from the answer and the pretrial order occurred because plaintiff had not specifically requested such damages in the complaint or in the pretrial order.

Under the circumstances of this case we conclude that there was no waiver of the section 1997e(e) defense; we therefore need not decide whether this is an affirmative defense subject to waiver. Our review of the record reveals that defendant is correct in saying that plaintiff did not specifically plead, nor include in the pretrial order, a claim for mental and emotional damages. Thus, defendant can hardly have been expected to have raised defenses to this claim in the pleadings or the pretrial order. When defendant...

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