Sisney v. Reisch, No. CIV 03-4260.

Decision Date06 February 2008
Docket NumberNo. CIV 03-4260.
Citation533 F.Supp.2d 952
PartiesCharles E. SISNEY, Plaintiff, v. Tim REISCH, Secretary of Corrections for South Dakota; Douglas L. Weber, Chief Warden for the Department of Corrections of South Dakota; Dennis Block, Associate Warden for the South Dakota State Penitentiary; Jennifer Wagner a/k/a Jennifer Lane, Cultural Activities Coordinator for the South Dakota State Penitentiary; Doug Loen, Policy Analyst for the South Dakota State Penitentiary; Daryl Slykhuis, Interim Warden of the South Dakota State Penitentiary; John/Jane Doe Staff Members, Agents, Employees and/or Officers of the South Dakota State Penitentiary and/or South Dakota Department of Corrections; all Defendants sued in both their individual and official capacities, Defendants.
CourtU.S. District Court — District of South Dakota

Richard Leroy Johnson, Sioux Falls, SD, for Plaintiff.

Jeffrey L. Bratkiewicz, William G. Beck, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, for Defendants.

MEMORANDUM OPINION AND ORDER

LAWRENCE L. PIERSOL, District Judge.

Pending before the Court are Defendants' Motion to Strike, Doc. 272, and Defendants' Motion for Summary Judgment, Doe. 214, on the grounds of qualified immunity and the merits. In a separate brief, Defendants also seek summary judgment on any claims asserted under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc-2000cc-5, on the grounds that RLUIPA is unconstitutional. The Court allowed the United States to intervene for presentation of evidence and for argument on the question of the constitutionality of RLUIPA. The United States filed a brief in opposition to the Defendants' constitutional challenge to RLUIPA. After repeated continuances, Plaintiff Charles Sisney, who was represented by counsel, filed a brief regarding the constitutionality of RLUIPA and a separate brief addressing qualified immunity and the merits. Defendants filed reply briefs. For the reasons set forth below, the Court will grant in part and deny in part Defendants' summary judgment motion based on qualified immunity and the merits and will deny Defendants' summary judgment motion challenging the constitutionality of RLUIPA. The Motion to Strike will be denied.

I. BACKGROUND

The facts will be stated in the, light most favorable to Sisney, as the non-moving party in these summary judgment proceedings. Sisney is serving a life sentence at the South Dakota State Penitentiary ("SDSP"). He has been incarcerated at the SDSP since April 11, 1997. He was convicted of first-degree murder, but he has no history of violence or assaultive behavior while incarcerated in the SDSP. His security classification is high/medium risk. He now practices the Jewish faith and he brought this action alleging various violations of his religious freedom rights, right to equal protection of the laws, retaliation and denial of access to the courts. He began learning and studying about Judaism before he was incarcerated, but does not claim he was practicing the Jewish faith before his incarceration.

Defendant Tim Reisch is the Secretary of the South Dakota Department of Corrections ("DOC"). Reisch is the final policy maker regarding DOC policies, rules and regulations. Defendant Douglas Weber is the. Warden of the SDSP. Weber is the final policy maker regarding Operational Memoranda, which are the policies and operational guidelines in place at the SDSP. Defendant Daryl Slykhuis served as the Interim Warden of the SDSP at the time of the event alleged in Sisney's Amended Supplemental Complaint (Doc. 63). Defendant Dennis Block is an .Associate Warden at the SDSP, and he is the official who approves or disapproves inmates' requests regarding religious and cultural activities. Defendant Jennifer Wagner, a/k/a Jennifer Lane, is the Cultural Activities Coordinator for the SDSP. She is the SDSP official that first reviews inmates' requests regarding religious and cultural activities, which are submitted on a form entitled "Project Application". If Wagner believes the Project Application involves security issues, she brings the application to the attention of Block for his review. These Project Applications may also be discussed at weekly meetings, which Block, Weber and other senior SDSP officials attend. Defendant Doug Loen is Legal Counsel for the DOC. His office is located at the SDSP. He is responsible for drafting policies and procedures under the direction, supervision and control of the Secretary of Corrections and the Wardens. Loen is not the final policymaker on either DOC policies or Operational Memoranda and he does not possess supervisory authority over SDSP correctional officers.

Sisney asserts various claims against each of the Defendants. Several claims have been dismissed from this action and the Court ruled on Defendants' Motion for Summary Judgment on the grounds of failure to exhaust administrative remedies. Two claims were dismissed for failure to exhaust administrative remedies, which were Sisney's claims that Defendants lied in internal state investigations and that Defendants conspired to conceal unlawful discrimination against Sisney. (Doc. 212.) The claims remaining in this action are set forth in Sisney's Amended Complaint (Doc. 60), excluding paragraphs 111-121, 126, 129 and 130, and in paragraphs 6, 13-20, and 54-55 of the Amended Supplemental Complaint II (Doc. 63). Sisney contends the Defendants have violated the First Amendment and RLUIPA by: (1) their refusal to allow Sisney to erect and use a succah or Sukkot Booth during the Festival of Sukkot; (2) their refusal to establish a permanent Jewish chapel; (3) their denial of additional service time for group Torah, Kabalistic and language studies; (4) their refusal to use the Benevolence Fund to assist the Jewish group in obtaining a Rabbi to visit the inmates; (5) their interference with a visit by rabbinical students; (6) their refusal to allow Sisney to possess certain personal property for the exercise of his religion; and (7) refusal of Sisney's request to review what he refers to as the "Jewish curriculum" maintained by the Cultural Activities Coordinator. The property claims involve the following items: succah, charity box, tape player, religious calendar, herbs and oils, lightbulb diffuser, incense in chapel, and tzit-tzit string. Retaliation claims are asserted by Sisney against Wagner and Slykhuis. Equal Protection claims are asserted by Sisney for the refusal to allow Sisney to erect a succah, for denial of kosher coffee, and the denial of tzit-tzit string to repair Sisney's tzit-tzit shirt. Sisney also claims Defendants Slykhuis, and Loen denied him access to the courts.

Defendants Reisch and Weber seek summary judgment on the grounds that the record does not show sufficient personal involvement regarding Sisney's claims, and, in the alternative, their actions were constitutional. All Defendants seek summary judgment on the merits of Sisney's claims, or, in the alternative, they seek the protection of qualified immunity. As to Sisney's state-law claims, Defendants contend the Court should decline to consider them, but if the Court does consider these claims Defendants urge the Court to deny relief on all of the claims.

Sisney counters that Reisch and Weber were personally aware of the claimed violations of his rights and did nothing to correct the other Defendants' unconstitutional actions. He wrote two letters to Reisch explaining his complaints and he filed several grievances with Weber addressing the claims in this action. Sisney further contends Defendants are not entitled to summary judgment on the merits of his "claims and that they are not entitled to qualified immunity. Sisney points out that his state-law claims were dismissed by the Court. The Court agrees there are no longer any state-law claims in this action because all such claims, stated in Sisney's Amended Complaint, Doc. 60, were dismissed for failure for exhaust administrative remedies. See Memorandum Opinion and Order, Doc. 212.

II. DISCUSSION

In considering a motion for summary judgment, the Court asks the question whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). "Once the motion for summary judgment is made and supported, it places an affirmative burden on the non-moving party to go beyond the pleadings and `by affidavit or otherwise' designate `specific facts showing that there is a genuine issue for trial.'" Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir.1992) (quoting FED.R.CIV.P. 56(e)). Simply creating a factual dispute cannot defeat a motion for summary judgment; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit. See, e.g., Ghane v. West, 148 F.3d 979, 981 (8th Cir.1998). "A plaintiff's verified . Complaint is the equivalent of an affidavit for purposes of summary judgment, and a complaint signed and dated as true under penalty of perjury satisfies the requirements of a verified complaint." Roberson v. Hayti Police Dep't, 241 F.3d 992, 994-95 (8th Cir.2001) (citations omitted). If the allegations in the verified complaint consist of nothing more than conclusory allegations, however, they are insufficient to overcome a summary judgment motion. See Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir.1999).

Sisney brings claims under both 42 U.S.C. § 1983 and RLUIPA. RLUIPA was enacted in 2000 after the Supreme Court declared the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb et seq.,...

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8 cases
  • El Badrawi v. Department of Homeland Sec.
    • United States
    • U.S. District Court — District of Connecticut
    • 22 Septiembre 2008
    ...Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C.Cir.2006). District courts are split as well. See Sisney v. Reisch, 533 F.Supp.2d 952, 966-71 (D.S.D.2008) (collecting cases). The Second Circuit has yet to address the issue. Lee urges this court to follow the reasoning of th......
  • Pugh v. Goord
    • United States
    • U.S. District Court — Southern District of New York
    • 31 Julio 2008
    ...the other district courts, some in recent months, that have recently held such damages to be unavailable. See, e.g., Sisney v. Reisch, 533 F.Supp.2d 952, 968-73 (D.S.D.2008) (citing Smith and holding that RLUIPA does not permit a private action for monetary damages against individual defend......
  • Van Wyhe v. Reisch
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 10 Septiembre 2009
    ...appeal of the district court's summary judgment rulings. See Van Wyhe v. Reisch, 536 F.Supp.2d 1110 (D.S.D.2008); Sisney v. Reisch, 533 F.Supp.2d 952 (D.S.D.2008). They challenge the constitutionality of RLUIPA, the district court's conclusion that the state waived its Eleventh Amendment so......
  • Van Wyhe v. Reisch
    • United States
    • U.S. District Court — District of South Dakota
    • 13 Febrero 2008
    ...monetary damages are allowed under RLUIPA. The Court addressed these issues in a recently issued opinion in the case of Sisney v. Reisch, 533 F.Supp.2d 952 (D.S.D.2008) (Memorandum Opinion and Order, Doc. 283). The Court's holdings in Sisney, supra, that are relevant to this lawsuit are as ......
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2 books & journal articles
  • Religious expression and the penal institution: the role of damages in RLUIPA enforcement.
    • United States
    • Missouri Law Review Vol. 74 No. 1, January 2009
    • 1 Enero 2009
    ...court must apportion damages to some actor, the state, rather than the individual, is in the best position to bear that burden. (1.) 533 F. Supp. 2d 952 (D.S.D. (2.) An institutionalized person is, inter alia, a person who resides in a state operated jail, prison, or other correctional faci......
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    • United States
    • Detention and Corrections Caselaw Quarterly No. 48, September 2009
    • 1 Septiembre 2009
    ...Land Use & Institutionalized Persons Act. SAFETY AND SECURITY: Religious Articles, Religious Services Sisney v. Reisch, 533 F.Supp.2d 952 (D.S.D. 2008). A state inmate brought an action under [section] 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleging ......

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