581 F.3d 639 (8th Cir. 2009), 08-1409, Van Wyhe v. Reisch

Docket Nº:08-1409, 08-1413.
Citation:581 F.3d 639
Opinion Judge:HANSEN, Circuit Judge.
Party Name:James Dean VAN WYHE, Appellee, v. Tim REISCH; Douglas Weber; Jennifer Wagner, Appellants. Charles E. Sisney, Appellee, v. Tim Reisch, in both his individual and official capacities as Secretary of Corrections for South Dakota; Douglas L. Weber, in both his individual and official capacities as Chief Warden for the Department of Corrections of South
Attorney:Jeffrey L. Bratkiewicz, argued, James Ellis Moore, Sioux Falls, SD, for appellants Wagner, Weber, Reisch, Slykhuis and Block. Melissa N. Patterson, USDOJ, argued, Washington, D.C., Michael S. Raab, USDOJ, on the brief, Washington, D.C., for the Government. Richard L. Johnson, argued, Sioux Falls,...
Judge Panel:Before MURPHY, HANSEN, and RILEY, Circuit Judges.
Case Date:September 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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581 F.3d 639 (8th Cir. 2009)

James Dean VAN WYHE, Appellee,

v.

Tim REISCH; Douglas Weber; Jennifer Wagner, Appellants.

Charles E. Sisney, Appellee,

v.

Tim Reisch, in both his individual and official capacities as Secretary of Corrections for South Dakota; Douglas L. Weber, in both his individual and official capacities as Chief Warden for the Department of Corrections of South Dakota; Dennis Block, in both his individual and official capacities as Associate Warden for the South Dakota State Penitentiary; Jennifer Wagner, in both her individual and official capacities as Cultural Activities Coordinator for the South Dakota State Penitentiary, also known as Jennifer Lane; Daryl Slykhuis, Interim Warden of the South Dakota State Penitentiary, in his individual and official capacity, Appellants.

United States of America, Intervenor below-Appellee.

Nos. 08-1409, 08-1413.

United States Court of Appeals, Eighth Circuit.

September 10, 2009

Submitted: Nov. 13, 2008.

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Jeffrey L. Bratkiewicz, argued, James Ellis Moore, Sioux Falls, SD, for appellants Wagner, Weber, Reisch, Slykhuis and Block.

Melissa N. Patterson, USDOJ, argued, Washington, D.C., Michael S. Raab, USDOJ, on the brief, Washington, D.C., for the Government.

Richard L. Johnson, argued, Sioux Falls, SD, for appellee Sisney.

Before MURPHY, HANSEN, and RILEY, Circuit Judges.

HANSEN, Circuit Judge.

James Dean Van Wyhe and Charles E. Sisney, prisoners at the South Dakota State Penitentiary (" SDSP" ), each brought a suit against South Dakota prison officials, asserting various claims of interference with their free exercise of religion under the First Amendment and Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 804, 42 U.S.C. § 2000cc-1(a)(1)-(2). Sisney added two claims of retaliation. The prison officials bring this interlocutory 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 sovereign immunity from suit for monetary damages, the denial of summary judgment on the RLUIPA and First Amendment claims, and the denial of qualified immunity and summary judgment on the retaliation claims. The United States intervenes in this appeal for the purpose of arguing that RLUIPA is constitutional. We affirm in part, reverse in part, and dismiss some claims for lack of interlocutory jurisdiction.

I.

A. Sisney's Claims

Sisney, a SDSP inmate who practices the Jewish faith, brought suit pursuant to 42 U.S.C. § 1983 and RLUIPA for the violation of his free exercise of religion rights, naming as defendants Tim Reisch, Secretary of the South Dakota Department of Corrections (" DOC" ); Douglas Weber, Chief Warden for the DOC; Dennis Block, Associate Warden for the SDSP; Jennifer Wagner, Cultural Activities Coordinator for the SDSP; Doug Loen, Policy Analyst for the SDSP; Daryl Slykhuis, Interim Warden of the SDSP; and others (collectively, " the prison officials" ). Sisney claimed that the prison officials violated his right to the free exercise of religion under RLUIPA and the First Amendment by denying (among other things not relevant to this appeal) his request to possess and use a succah, his request to have a tape player in his cell to study the Hebrew language, and his request for additional group religious and language study time.

Sisney asserted that his religion requires him to celebrate the week-long Jewish festival of Sukkot by eating meals outside in a succah and reciting a special benediction before sundown. A succah is a three-sided booth or tent constructed of a tarp and metal poles. The succah is not a permanent structure, and it is large enough to accommodate only one person at a time. Sisney's project application suggested that if he is not allowed to eat meals in the succah, he could alternatively eat meals as normal, as long as he is provided extra time for the recitation of

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the special benediction, but he asserted that he included this suggested accommodation only because he had been told that his request for a succah would be denied. The group of Jewish prisoners at SDSP did not possess a succah, but Jewish inmates at South Dakota's low- to medium-security prison tried to donate one to the SDSP Jewish inmates. The prison officials denied Sisney's request for a succah on the grounds that prison policy prohibits inmate-to-inmate transfer of property and that the succah presents a safety and security concern. Instead, they permitted Sisney the extra time each evening during the festival to recite the benediction.

The prison officials denied Sisney's request for additional group meeting time to study the Torah, Kabbalah, and the Hebrew language. The Jewish group is permitted three hours of group meeting and service time per week in addition to group worship on special religious holidays. Prior to 2000, the group met for 90 minutes per week, but in response to Sisney's request for additional group time for Torah study and prayer, the time was increased to three hours. The prison officials stated that Sisney's new application did not explain why the group now needed yet more time for the same activities. Sisney is allowed to study on his own in his free time.

Additionally, the prison officials denied Sisney's request to have a tape player in his cell to aid in his study of the Hebrew language. Sisney does not currently have access to any Hebrew language tapes but claims that he needs the tape player because the group meeting times provided are insufficient to facilitate his language studies. The prison does not allow any inmate to have a tape player in a cell because it is a safety and security concern. Sisney has access to a tape player during the weekly group meeting times, and he may practice Hebrew in his cell without the tape player.

Sisney also claimed that, in retaliation for filing this suit, Interim Warden Slykhuis denied immediate delivery to Sisney of The Jailhouse Lawyer's Handbook, a publication that arrived as unsolicited mail from the Center for Constitutional Rights. Sisney claimed that Warden Slykhuis knew of this lawsuit and refused to immediately deliver the handbook without asking Sisney if he had ordered it. Sisney asserted that the same handbook was immediately delivered to other inmates, that prison policy did not require the immediate rejection of the entire correspondence, and that he later received the handbook. Warden Slykhuis asserted that he acted reasonably pursuant to a prison operational memorandum.

Sisney claimed that Cultural Activities Coordinator Wagner retaliated against him by engaging in a pattern of religious discrimination and harassment and by interfering with his relationship with the Aleph Institute, an organization that was providing him materials helpful to the practice of his religion. According to Sisney, Wagner had inquired as to why the Aleph Institute was assisting Sisney, who was not born of a Jewish mother, and that this inquiry caused the Aleph Institute to stop sending him materials. Wagner said she repeatedly contacted the Aleph Institute asking for free educational materials, food, and other items for Sisney and the other members of the Jewish group, but Aleph has refused to aid Sisney because it does not deem him to be Jewish under Jewish law.

In a lengthy opinion, the district court concluded that RLUIPA is constitutional under the Spending Clause and permits only official-capacity suits. The district court concluded that the state had waived its Eleventh Amendment sovereign immunity from suit for monetary damages by

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accepting federal funds under the terms of RLUIPA and the Civil Rights Remedies Equalization Act of 1986 (CRREA), 42 U.S.C. § 2000d-7, and therefore, the court denied sovereign immunity from monetary damages on the official-capacity RLUIPA claims. But, the district court noted that any monetary relief necessarily would be limited to nominal damages as required by the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(e). Injunctive relief was also held to be available on the RLUIPA and the First Amendment official-capacity claims. On the merits of those claims, the district court granted summary judgment on some claims and denied summary judgment on others. Specifically, the court held that Sisney had demonstrated a substantial burden on his free exercise rights regarding the denial of a succah, the denial of additional group religious study time, and the denial of a tape player, but the court concluded that material questions of fact remained on whether Sisney's beliefs were sincere and whether the denial of these requests was the least restrictive means of furthering the state's compelling interests.

As to the § 1983 First Amendment claims against prison officials in their individual capacities, the district court granted qualified immunity. On the retaliation claims, the district court denied summary judgment, finding material questions of fact existing on the issue of the intent to retaliate.

B. Van Wyhe's Claims

Van Wyhe is also an inmate at the SDSP. In relevant part, he brought suit against several South Dakota prison officials claiming that they violated his free exercise of religion rights under RLUIPA and the First Amendment by implementing a prison policy, SDDOC Policy 1.5.F.2, which was in effect when...

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