Ahmad v. Furlong
| Decision Date | 18 January 2006 |
| Docket Number | No. 04-1450.,04-1450. |
| Citation | 435 F.3d 1196 |
| Parties | Said AHMAD, also known as Jumaat At-Tariq, Plaintiff-Appellee, v. Robert FURLONG; Mike Ehrmann, Defendants-Appellants. and John Watts; Steve Bergman, Defendants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward T. Farry, Jr., Farry and Rector, L.L.P., Colorado Springs, Colorado, for the Defendants-Appellants.
James P. Rouse, Rouse & Associates, P.C., Greenwood Village, Colorado, for the Plaintiff-Appellee.
Before TACHA, Chief Circuit Judge, HOLLOWAY, Senior Circuit Judge, and HARTZ, Circuit Judge.
Appellants Mike Ehrmann, a corrections officer at Colorado's Sterling Correctional Facility (SCF), and Robert Furlong, a former warden of the facility, appeal the district court's refusal to decide whether they are entitled to qualified immunity on a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. The district court held that it need not address the merits of the defense because their Amended Answer did not raise qualified immunity as a defense to the RLUIPA claim. Even accepting the district court's view that the defense was not raised in Appellants' Amended Answer, we hold that the defense was adequately raised in their motion for summary judgment and the district court should have addressed it. We reverse and remand for it to do so.
Said Ahmad, an inmate at SCF and an "adherent to the Suni branch of Islam," Aplt.App. at 130, filed in the United States District Court for the District of Colorado a pro se civil rights complaint and two amended complaints raising several federal constitutional claims. All claims revolved around the prison's policy of refusing to allow prisoners to congregate for prayer outside their assigned cells without prior approval. The defendants named in the Third Amended Complaint were Appellants, as well as John Watts, a correctional officer at SCF, and Steven Bergman, SCF's hearings officer and case manager.
Mr. Ahmad then obtained counsel, who filed a Fourth Amended Complaint which added a claim under RLUIPA.
RLUIPA forbids a prison from "impos[ing] a substantial burden on the religious exercise" of an inmate "unless [it] demonstrates that imposition of the burden on that person ... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc-1(a). RLUIPA defines religious exercise to "include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).
Appellants contend that they are not personally liable for any alleged RLUIPA violation because they are entitled to qualified immunity. Qualified immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights was not clearly a violation at the time of the official's actions. It Roska v. Peterson, 328 F.3d 1230, 1239 (10th Cir. 2003) (internal quotation marks, citations, and italics omitted). When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff to overcome the asserted immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001). Id. (internal quotation marks and citations omitted).
The issue on appeal is not the merits of Appellants' qualified-immunity claim, but whether they adequately raised the defense below. Their answer to Mr. Ahmad's Third Amended Complaint (which did not include a RLUIPA claim) stated the defense. Then in response to the Fourth Amended Complaint, they and defendant Watts filed an Amended Answer and Jury Demand containing the following paragraphs:
Original Answer and Affirmative Defenses Reaffirmed
3. The Defendants reassert and reaffirm their original ANSWER as well as the affirmative defenses in the ANSWER, to wit: Defendants are immune under the doctrine of Qualified Immunity; and any conduct of the defendants was based on a legitimate penological interest and or authorized by law.
4. The Defendants deny that they have violated any provisions of RLUIPA.
5. RLUIPA is unconstitutional, violates the separation of powers doctrine, and the establishment clause. RLUIPA was not properly enacted pursuant to the Commerce Clause and or the Spending Clause. Finally, RLUIPA violates the Tenth Amendment.
On September 5, 2003, Appellants moved for summary judgment. In their Motion for Summary Judgment they state: "The State Defendants move for Summary Judgment, Fed.R.Civ.P. 56, and dismissal of the § 1983 and RLUIPA claims against them for the reasons iterated below." Id. at 182. Five reasons are listed: (1) "No violation of § 1983"; (2) "There is No Violation of RLUIPA"; (3) "No Personal Participation"; (4) "Qualified Immunity"; and (5) "No Evidence to Support Punitive Damages." Id. at 182-83. Under the qualified-immunity heading Appellants state:
[Appellants] were/are Colorado State Officials at CDOC's SCF and are presumptively entitled to Qualified Immunity. All conduct engaged in by [Appellants] was pursuant to and consistent with a valid regulation: CDOC Administrative Regulation 800-01 dated 10-1-99. Therefore, these two defendants are entitled to Qualified Immunity for this reason.
In their memorandum in support they further contend, "[Appellants] are here sued in their individual capacity and are therefore presumed to be immune from suit and liability." Id. at 195. They then set forth their description of qualified-immunity doctrine and conclude, "Therefore the claims must be dismissed against the State Defendants in their individual capacity." Id. at 197. The section does not address any specific claim, mentioning neither RLUIPA nor any specific constitutional provisions, nor does it specifically exempt any claim from their assertion of qualified immunity. Mr. Ahmad's responsive brief, however, specifically argues that Appellants are not entitled to qualified immunity on the RLUIPA claim. In the section headed, "Summary Judgment is inappropriate with respect to Defendant's [sic] Affirmative Defense of Qualified Immunity," id. at 236, it states:
Furthermore, even if the Court were to find that Plaintiff's right to exercise his religion in this context was not "clearly established" under pre-RLUIPA analysis, RLUIPA's heightened standard requires that once Plaintiff has asserted that his religious freedom has been violated, Defendants must (1) have a compelling state interest in prohibiting the practice and (2) must be employing the least restrictive means of reaching that interest. 42 U.S.C. § 2000cc-1. Defendants have made no efforts to ensure that their policy of prohibiting group prayer outside the cells, nor their policy of prohibiting individual Muslim prayer outside the cell, is the least restrictive means available to them. Defendants were aware of RLUIPA.... As argued above, the fact that Plaintiff was allowed to pray in the multi-purpose room prior to January of 2000 tends to show that there is a least [sic] restrictive means of allowing corporate prayer in that room.
Id. at 238-39. In the Final Pretrial Order, filed before Appellants' motion for summary judgment was decided, Appellants again assert in general terms the defense of qualified immunity.
On August 5, 2004, the magistrate judge issued a recommendation on Appellants' motion for summary judgment. The recommendation addresses qualified immunity with respect to each of Mr. Ahmad's constitutional claims and concludes that Appellants (and defendant Watts) should be granted qualified immunity with respect to these claims. Because Mr. Ahmad failed to show that Mr. Watts personally participated in any of the alleged wrongs, the recommendation also says that he should be granted summary judgment on a separate retaliation claim (filed only against him) and on the RLUIPA claims. Finally, the recommendation concludes that the prison's prohibition against congregate prayer in the living units does not violate RLUIPA, but that Mr. Ahmad should be allowed to go forward against Appellants on his claim that RLUIPA was violated by the prison's refusal to allow him to engage in individual demonstrative prayer outside his cell. The RLUIPA discussion twice states that Appellants had not raised a qualified-immunity defense to the RLUIPA claim. One footnote states:
[Appellants], in their individual capacities, do not assert qualified immunity as a defense to plaintiff's request for monetary relief on his RLUIPA claims. See Amended Answer, filed March 21, 2003, ¶¶ 4-5; State Defendants' Brief in Support of MSJ, at 11-13 ().
Id. at 328 n. 16. And a later footnote
note[s] again that [Appellants] did not assert qualified immunity as a defense to plaintiff's RLUIPA claim in their Amended Answer, filed March 21, 2003.... Further, [Appellants] argued in their motion for summary judgment that they were entitled to qualified immunity... on plaintiff's constitutional claims only.... Qualified immunity is an affirmative defense which must be asserted in an answer or...
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