Boles v. Neet, CIV03CV00557PSFOES.

• Decision Date: 30 November 2005
• Docket Number: No. CIV03CV00557PSFOES.,CIV03CV00557PSFOES.
• Citation: 402 F.Supp.2d 1237
• Parties: Russell M. BOLES, Plaintiff, v. Gary D. NEET, Defendant.
• Court: U.S. District Court — District of Colorado

402 F.Supp.2d 1237

Russell M. BOLES, Plaintiff, v. Gary D. NEET, Defendant.

No. CIV03CV00557PSFOES.

United States District Court, D. Colorado.

November 30, 2005.

Russell Marshall Boles, Canon City, CO, pro se.

James Xavier Quinn, Colorado Attorney General's Office, Denver, CO, for Defendant.

ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE ENTERED ON SEPTEMBER 28, 2005

FIGA, District Judge.

This matter comes before the Court pursuant to the Recommendation of Magistrate Judge Schlatter entered on September 28, 2005 (Dkt.# 160). In his Recommendation, the Magistrate Judge recommends granting in part and denying in part Defendant Neet's Motion for Summary Judgment (Dkt.# 99), filed on February 9, 2005. The Magistrate Judge also recommends denying the Motion to Dismiss (Dkt.# 103) filed by Defendant Neet on February 9, 2005 and plaintiff's Motion to Uphold Plaintiff's Religious Land Use and Institutionalized Persons Act ("RLUIPA") Claim (Dkt.# 126) filed April 13, 2005. The Magistrate Judge also entered an order accepting for filing Plaintiff's Motion to Submit Argument in Support of Damage Award (Dkt.# 125) filed April 13, 2005, but found such claims mooted by a prior order of this Court.

Defendant Neet filed his Objection to the Recommendation of the Magistrate Judge on October 24, 2005 pursuant to an extension of the filing deadline. Plaintiff Boles filed his Objection to the Recommendation of the Magistrate Judge on November 16, 2005 pursuant to an extension of the filing deadline. The matter is now ripe for determination by this Court.

PLAINTIFF'S CLAIMS

The underlying facts that give rise to plaintiff's filing of this case under 42 U.S.C. § 1983 are adequately detailed in the Recommendation of the Magistrate Judge, as well as the undersigned's prior Order of August 20, 2004, which granted in part and denied in part Defendant Neet's Motion to Dismiss, and need not be detailed here. Suffice it to say that plaintiff is an inmate at the Fremont Correctional Facility ("FCF"), which is operated by the Colorado Department of Corrections ("CDOC"). At the time of the events in question, Defendant Neet was the warden of the facility.

The essence of plaintiff's claim relates to occasions, including one that apparently occurred in March 2001, when plaintiff, who alleges he is an Orthodox Jew, was not allowed to wear the religious garments he states are required to be worn by Orthodox Jews while he was being transported outside FCF for medical treatment or eye surgery.¹ As a result of the denial, plaintiff was not transported and the surgery was postponed for 18 months, or until December 2002, according to plaintiff's complaint.

Plaintiff's Amended Complaint, filed November 3, 2003, alleged four causes of action. However, after this Court's Order of August 20, 2004 only plaintiff's second cause of action remained. Plaintiff alleges in that claim that the actions of Defendant Neet deprived him of his rights to free exercise of religion as guaranteed by the First and Fourteenth Amendments to the Constitution and constitute violations of RLUIPA, 42 U.S.C. § 2000cc, et seq.

DEFENDANT'S MOTIONS

Defendant Neet now seeks summary judgment in his favor on the First Amendment claim and the claim under the RLUIPA. Defendant Neet asserts that the First Amendment claim is barred, as a matter of law, by the applicable two-year statute of limitations and by the application to him of the doctrine of qualified immunity. He further contends that plaintiff's claims for damages fail. He also argues that the RLUIPA claim is barred because plaintiff has not alleged that the Fremont Correctional Facility receives federal assistance, and in any event the facility changed its policy regarding transport of prisoners while wearing religious garb, so as to insulate the defendant from liability under 42 U.S.C. § 2000cc-3(e).

Defendant Neet separately moves to dismiss the claims under the RLUIPA on the grounds that the statute is unconstitutional. As a result of this latter motion, the United States was permitted to intervene to argue the constitutionality of the RLUIPA.

ANALYSIS OF RECOMMENDATION OF MAGISTRATE JUDGE

A. Defendant's Motion for Summary Judgment (Dkt.# 99).

1. The RLUIPA Claim

The Magistrate Judge recommends granting defendant's motion for summary judgment on the RLUIPA claim on the ground that the CDOC changed its policy to allow Jewish inmates to wear their yarmulkes and talit katan during transport, citing to Exhibit G to Defendant's Motion, a CDOC administrative regulation adopted November 15, 2001 (Recommendation at 6). That regulation, as amended, expressly provides that Jewish offenders may wear the yarmulke and talit katan while being transported. The Court agrees with the recommendation of the Magistrate Judge that plaintiff's claim under the RLUIPA should be dismissed, but finds that some further elaboration is necessary.

As the Magistrate Judge correctly describes this statute, it contains a "substantial burden provision" requiring land use regulations that substantially burden religious exercise to be the least restrictive means of advancing any compelling government interest. 42 U.S.C. § 2000cc(a)(1). The substantial burden restriction is imposed on any program or activity that receives federal financial assistance, even if the burden results from a rule of general applicability. 42 U.S.C. § 2000cc(a)(2)(A). The statute also contains a nondiscrimination provision, which prohibits imposition or implementation of land use regulations in a manner that discriminates against any assembly or institution on the basis of religion or religious denomination. 42 U.S.C. § 2000cc(b)(2). A separate provision of the RLUIPA expressly extends these same protections to persons residing or confined in an institution. 42 U.S.C. § 2000cc-1(a).

Plaintiff's Amended Complaint does not expressly state which provision of RLUIPA has allegedly been violated. However, these statutory provisions have been found applicable to preclude summary judgment on claims of discriminatory religious treatment by inmates in state prisons. See e.g. Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir.2002), cert. denied, 540 U.S. 815, 124 S.Ct. 66, 157 L.Ed.2d 30 (2003); Murphy v. Missouri Dept. of Corrections, 372 F.3d 979, 987-88 (8th Cir.), cert. denied 543 U.S. 991, 125 S.Ct. 501, 160 L.Ed.2d 378 (2004).

The statute also provides that a person may assert a violation of the statute "in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). The Court understands this provision to permit cases against a governmental entity, but not against an individual officer, except perhaps in his or her official capacity. Cf. Hale O Kaula Church v. Maui Planning Com'n., 229 F.Supp.2d 1056, 1067 (D.Haw.2002) ("RLUIPA provides a cause of action against `governments' and does not appear to allow causes of action against individuals."); Guru Nanak Sikh Society of Yuba City v. Sutter, 326 F.Supp.2d 1128, 1136 (E.D.Cal.2003) (finding that the term "government" includes an official of the entity, and therefore permits suit against the official at least in his or her official capacity); Rowe v. Davis, 373 F.Supp.2d 822, 828 (N.D.Ind.2005) (RLUIPA claim may proceed against correctional officer or his successor on an official capacity basis). Here, it is not at all clear from plaintiff's complaint that Defendant Neet is being sued in his "official capacity" with respect to the RLUIPA claims.²

Moreover, while the statute permits "appropriate relief against a government" it does not appear that the statute permits a claim for damages. See e.g. Farrow v. Stanley, 2005 WL 2671541 at *11 n. 13 (D.N.H., October 20, 2005) ("RLUIPA authorizes `appropriate relief against a government.' ... There is substantial uncertainty, however, as to whether this language even provides a right to money damages.").³ It would appear, therefore, that the "appropriate relief" permitted under the statute must be limited to injunctive or declaratory relief, or both, against a state governmental entity or an official sued in his official capacity. Thus, to the extent plaintiff here seeks compensatory damages under RLUIPA, his claims are barred.

Finally, because the statute appears to allow only injunctive or declaratory relief, it contains the provision, cited by the Magistrate Judge, which may alleviate the need for such equitable relief if the government entity takes corrective action. 42 U.S.C. § 2000cc-3(e) provides that:

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

42 U.S.C. § 2000cc-3(e). This provision has been interpreted to provide discretion in the government agency to take corrective action to eliminate any violation of the statutory provisions, whether or not the alleged violation was the result of a substantial burden on religious exercise, and thereby preempt liability under RLUIPA. See Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir.2003), cert. denied 541 U.S. 1096, 124 S.Ct. 2816, 159 L.Ed.2d 262 (2004).

Here, there can be no serious factual dispute that the CDOC took action to change any prison policy or practice that may have infringed plaintiff's asserted rights of religious practice at times of transport outside the prison. Although the taking of the action may have been delayed, as plaintiff argues in his Objection to the Court, that action nonetheless moots plaintiff's claims under RLUIPA. The fact that plaintiff may have alleged that he suffered damages during the period while the practice...