Rust v. Clarke

• Decision Date: 26 April 1995
• Docket Number: No. 4:CV92-3107.,4:CV92-3107.
• Citation: 883 F. Supp. 1293
• Parties: John RUST, Otha Hart, Jerry Bussard, James Wichman, Leslie Bussard, William Durand, Robert Sams, Colin Allen, James Harlow, Terrance Yager, Robert Costello, and Roy Lyman, Plaintiffs, v. Harold W. CLARKE, Individually, and as Director of Nebraska Department of Correctional Services; Gary Grammer, Individually, and as Assistant Director of Adult Institutions for the Nebraska Department of Correctional Services; Frank X. Hopkins, Individually, and as Warden of the Nebraska State Penitentiary; Robert Houston, Individually, and as Deputy Warden of the Nebraska State Penitentiary; Mark Rosenau, Individually, and as the Protestant Chaplain and the Head of the Religion Department for the Nebraska State Penitentiary; Dean Naylor, Individually, and as the Major for the Custody Force for the Nebraska State Penitentiary; Mario Peart, Individually, and as Associate Warden/External Operations for the Nebraska State Penitentiary; Kathleen Taylor, Individually, and as Food Service Director for the Nebraska State Penitentiary; and Mike Kenney, Individually, and as Deputy Warden of the Nebraska State Penitentiary, Defendants.
• Court: U.S. District Court — District of Nebraska

883 F. Supp. 1293

John RUST, Otha Hart, Jerry Bussard, James Wichman, Leslie Bussard, William Durand, Robert Sams, Colin Allen, James Harlow, Terrance Yager, Robert Costello, and Roy Lyman, Plaintiffs, v. Harold W. CLARKE, Individually, and as Director of Nebraska Department of Correctional Services; Gary Grammer, Individually, and as Assistant Director of Adult Institutions for the Nebraska Department of Correctional Services; Frank X. Hopkins, Individually, and as Warden of the Nebraska State Penitentiary; Robert Houston, Individually, and as Deputy Warden of the Nebraska State Penitentiary; Mark Rosenau, Individually, and as the Protestant Chaplain and the Head of the Religion Department for the Nebraska State Penitentiary; Dean Naylor, Individually, and as the Major for the Custody Force for the Nebraska State Penitentiary; Mario Peart, Individually, and as Associate Warden/External Operations for the Nebraska State Penitentiary; Kathleen Taylor, Individually, and as Food Service Director for the Nebraska State Penitentiary; and Mike Kenney, Individually, and as Deputy Warden of the Nebraska State Penitentiary, Defendants.

No. 4:CV92-3107.

United States District Court, D. Nebraska.

April 26, 1995.

David L. Buelt & Daniel L. Rock, Ellick, Jones, Buelt, Blazek and Longo, Omaha, NE, for plaintiffs.

Don Stenberg, Atty. Gen., Terri M. Weeks, Asst. Atty. Gen., Lincoln, NE, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KOPF, District Judge.

The bench trial of this matter having been concluded, I now issue my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). In this action brought under 42 U.S.C. § 1983, Plaintiffs allege that Defendants denied them their right to freely exercise their religion in violation of the First Amendment and the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb to 2000bb-4. I find and conclude that judgment should be entered for Defendants.

I. PROCEDURAL HISTORY

In this § 1983 action, Plaintiffs, who are inmates at the Nebraska State Penitentiary, have alleged that Defendants, who are employees of the Nebraska Department of Correctional Services, violated their right to freely exercise their religious beliefs in several ways. (Filing 46, Second Am.Compl. at 2-8.) Plaintiffs allege that their religious preference is Asatru, which is an Icelandic term for the ancient religion of the Teutonic people of Northern Europe. (Id. ¶ 17.) Asatru is also known as "Odinism" or "Troth." (Id.)

Although Plaintiffs' second amended complaint alleged that Defendants' actions violated Plaintiffs' rights under the Free Exercise and Freedom of Speech Clauses of the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the parties in this case have since agreed that this lawsuit shall be decided on the standards set out in RFRA, which are described in section III of this memorandum. (Order on Final Pretrial Conference, Filing 95 at 22.) Fed.R.Civ.P. 16(e) (final pretrial conference order controls subsequent course of the action unless modified by subsequent order).

Plaintiffs have requested declaratory and injunctive relief, as well as compensatory damages. (Filing 46, Second Am.Compl. at 9.) This court granted Defendants' motion for summary judgment (filing 65) as to money damages, finding that Defendants have immunity from damages under the Eleventh Amendment and the doctrine of qualified immunity, and that the suit should proceed upon Plaintiffs' requests for declaratory and injunctive relief only. Rust v. Clarke, 851 F.Supp. 377, 381 (D.Neb.1994).

The parties later filed cross-motions for summary judgment with supporting evidence (filings 86-90) which were denied at the beginning of the bench trial in this matter. (Tr. 4:4-6.) At that time the court also granted Defendants' motion to dismiss those plaintiffs who have been transferred from the Nebraska State Penitentiary — Jerry Bussard, Robert Sams, Terrance Yager, James Wichman, and Robert Costello — and Defendants' oral motion to dismiss those defendants who are no longer employees at the Nebraska State Penitentiary — Gary Grammer, Robert Houston, and Dean Naylor. (Filing 98; Tr. 3:19-4:3, 5:10-6:21.) The court had also previously dismissed without prejudice plaintiffs Otha Hart, William Durand, and Colin Allen for failure to pay the required filing fee. (Filing 39; see also Filing 30 (granting plaintiff Durand's motion to dismiss self from case without prejudice).)

II. ISSUES

The remaining issues for decision¹ are as follows:

1. Whether Plaintiffs sincerely believe that the following items and allowances are needed to practice the Asatru religion:

a. Daily access to that portion of the NSP courtyard that has been designated for Asatru worship.

b. The following items:

1. An evergreen tree.

2. A charm necklace depicting the Asatru religious symbol of Thor's Hammer.

3. A small stone altar for each member to use in his individual cell.

4. A small wooden bowl for each member to use in his individual cell.

5. A cauldron.

6. A drinking horn for each member.

7. An evergreen branch for each ceremony.

8. An ash spear with a rubber head.

9. Viking-type swords made of soft wood.

10. A sauna.

c. A group hobby card in order to make religious items.

d. Ability to purchase and sacrifice goods into the fire, or to sacrifice goods purchased by the state.

e. Meats for ritual, including goat, horse, ram, goose, pork, rabbit, fish, oxen or cattle, and stag or venison. Foods for ritual, including baked goods, apples, nuts, potatoes, cabbage, carrots, mushrooms, onions, eggs, and milk.

f. Allowance to celebrate 23 holidays, 19 of which contain feast meals, including Yule (lasting 12 or 13 days); ThorraBlot; Disting; Feast of Vali; Ostara; SigrBlot; Walburg Night; May Day; Midsummer; Loaf-Fest; WinterFinding; WinterNights; Feast of Einherjar; and Feast of Ullr.

g. Allowance to form a culture club similar to that of the Native Americans.

h. Allowance to leap over the sacred fire during worship services.

2. Whether the NSP's decision to deny the Asatru group permission to possess the items or perform the activities listed in (1) above conforms to the standards set forth in RFRA.

3. Whether the NSP policy — as set forth in the November 7, 1994, memorandum issued by defendant Harold W. Clarke — of allowing all inmate faith groups one worship service a week, conforms to the standards set forth in RFRA.

4. Whether Plaintiffs are entitled to declaratory and injunctive relief and attorney fees.²

III. FACTS

The facts are essentially these:

1. Plaintiffs John Rust, Leslie Bussard, and Roy Lyman³ are inmates committed to the Nebraska Department of Correctional Services (DCS) and housed at the Nebraska State Penitentiary (NSP). (Filing 95 at 3.) Plaintiff Rust was committed to DCS in 1975. (Tr. 87:3-4.)

2. Defendant Harold W. Clarke is employed by the State of Nebraska as Director of the DCS and has been employed by the DCS since 1974. (Filing 95 at 4; Tr. 185:22-25.) As Director of the DCS, Clarke is responsible for setting policy for the agency. The DCS adopts administrative regulations governing activities within the DCS, and such regulations are sent to various institutions where the policies are tailored to the particular institutions in the form of operational memoranda. (Tr. 190:10-191:2; 370:7-15.)

3. Defendant Frank X. Hopkins has been an employee of the DCS since 1974 and is currently the warden at the NSP. As warden, Hopkins oversees the security and programming of the NSP, a maximum custody level correctional facility, and is responsible for overall operation of the NSP, including inmate classification, budgetary matters, and personnel issues. (Filing 95 at 4; Tr. 368:19-22.)

4. Defendant Mark Rosenau has been an employee of the DCS since 1978 and is currently employed as the religious coordinator at the NSP. (Id; Tr. 260:23-25.) Rosenau's duties include overseeing the entire religious program for the NSP, evaluating inmate religious requests, and assisting in drafting and implementing operational memorandum regarding religious programming. (Tr. 233:3-5; 261:12-17; 262:2-5.)

5. Defendant Mario Peart is an employee of the DCS and is currently employed as an associate warden at the NSP. (Filing 95 at 5.)

6. Defendant Kathleen Taylor is an employee of the DCS and is currently employed as the food service director at the NSP. Id.)

7. Defendant Mike Kenney is an employee of the DCS and at times relevant to this lawsuit was employed as deputy warden at the NSP. (Id. at 4.)

8. The NSP is a maximum custody correctional institution where adult male offenders are assigned. Offenders assigned to the NSP are considered by the DCS to be sophisticated and have criminal records and histories that will not allow the offenders to be placed in lesser custody institutions. (Tr. 188:14-25; 369:7-11.)

9. Plaintiff Rust has been a believer of the Asatru religion⁴ for approximately 15 years (Tr. 16:10-12) and has learned about Asatru from books he has purchased or acquired through interlibrary loan (Tr. 17:19-18:14). The Asatru religion has an "umbrella organization," but the organization does not dictate dogma because "there is no set way. It's various to the gods who are worshipped by the Asatru." (Tr. 55:7-14.) Accordingly, Rust's deeply-held religious beliefs are based upon his interpretation of information he has read. (Tr. 100:8-11.)

10. Asatru was recognized as a religion at the NSP in 1989. (Tr. 204:3-14; 283:20-22.) There has been an Asatru "kindred" — that is, "a group of like individuals that have come together to worship the gods" — at the NSP since at least 1990. (Tr. 18:18-19:12.) Plaintiff Rust has been an active member of that kindred since March 31, 1994, when he got off death row at the NSP. (Tr. 19:8-12.) Each Asatru kindred is autonomous "as far as governing themselves." (Tr. 138:17-18.)

11. At the time of trial, there were...