Crocker v. Durkin
| Decision Date | 11 July 2001 |
| Docket Number | No. CIV. A. 98-3157-CM.,CIV. A. 98-3157-CM. |
| Citation | 159 F.Supp.2d 1258 |
| Parties | David CROCKER, Edward J. Ford, Jr., Kevin Dwight Lewis, and Kenneth Harvey, and all others in Leavenworth United States Penitentiary similarly situated, Plaintiffs, v. T. DURKIN, Associate Warden, Michael Crowell, Chaplain, A. Mendez, Lieutenant, E. Ontiveros, Counselor, and Larry Smith, Disciplinary Hearing Officer, Defendants. |
| Court | U.S. District Court — District of Kansas |
David Crocker, Leavenworth, KS, pro se.
Edward J. Ford, Florence, CO, pro se.
Kevin Dwight Lewis, Florence, CO, pro se.
Kenneth Harvey, White Deer, PA, pro se.
Robert A. Olsen, Office of United States Attorney, Kansas City, MO, for defendants
Plaintiffs, members of the Nation of Islam faith (hereinafter NOI) and inmates incarcerated at the United States Penitentiary in Leavenworth, Kansas (hereinafter USPL), filed this Bivens action on May 18, 1998. Two plaintiffs, Lewis and Ford, have since been transferred to the penitentiary at Florence, Colorado. Plaintiffs allege defendants violated their rights to free exercise of religion, due process, and equal protection pursuant to the First, Fifth and Fourteenth1 Amendments to the United States Constitution. Plaintiffs sought leave to proceed in forma pauperis, and the court denied those requests. Plaintiffs amended the complaint to include allegations against defendant Smith, the court ordered service of summons, and in due course defendants responded with a motion to dismiss or for summary judgment (Doc. 35). Because the court considers matters outside the pleadings, the motion shall be decided as a motion for summary judgment. Fed.R.Civ.P. 12(b). In addition to defendants' motion, presently before the court are plaintiffs' motions: (1) for extension of time to respond (Doc. 39), (2) for appointment of counsel (with supplemental motion) (Docs.25, 40), (3) to change lead plaintiff (Doc. 43), (4) for an extension of time and to correct clerical mistakes (Doc. 45), and (5) to supplement and correct clerical mistakes (Doc. 47). Plaintiffs' motion for an extension of time to respond to the motion to dismiss (Doc. 39) is granted in the interests of justice and because it is unopposed.
In their summary judgment motion, defendants provide numerous facts as to which they contend no genuine issue exists. Plaintiffs, in response, imply numerous issues of fact and provide declarations and attachments, apparently to support the inferences they attempt to raise. In their allegations of facts and arguments, plaintiffs often fail to provide citation to the record to support their allegations of fact as required by D. Kan. Rule 56.1.
Furthermore, plaintiffs assert that their memorandum, "in an effort to less complicate the reading of this [response], ... will address the issues that Plaintiffs are at variance (in disagreement) with defendant by defendant, as not to confuse this Honorable Court." (Pls.' Traverse (hereinafter Response) (Doc. 48) at 16). Plaintiffs then set out by number, and in detail, those statements of fact wherein they disagree with defendants. After reviewing plaintiffs' submissions (including plaintiffs' surreplies (Docs. 58 & 60) and attachments thereto), the court deems admitted defendants' statements of facts not controverted by number in plaintiffs' response.
As required in considering a motion for summary judgment, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Plaintiffs are followers of the Most Honorable Elijah Muhammad, who founded the NOI. Minister Louis Farrakhan is presently the national leader and teacher of the NOI. NOI members believe in the Holy Qur'an, and follow many of the practices of traditional Muslim groups. Plaintiffs' religious exercises include: Friday Jumah services; fasts, during which participants may not eat after sunrise or before sunset, in the months of Ramadan and December; Muslim feasts such as the Eid-Ul-Fitr and the Eid-Adha; celebration of the Most Honorable Elijah Muhammad's birthday on October 7; celebration of an annual Savior's Day event; and observance of Days of Atonement. In observing their religion, plaintiffs use prayer oil, wear religious medallions, and desire to wear fezzes and bow ties during their religious services.
The Bureau of Prisons (hereinafter BOP) has provided several accommodations for inmates to exercise their religion while incarcerated. The BOP at USPL provides a Chapel, Activities Room, classrooms, and a Sweat Lodge Area for inmates to conduct religious activities. The BOP has a computer-based information management system, called SENTRY, into which certain information concerning inmates is entered and tracked. Information concerning the religious preference of each inmate is entered into SENTRY. The BOP provides an annual budget to the Religious Services Department of USPL to be used in the religious programs at that institution. Expenditures from the budget in support of each religion are made based upon the number of inmates entered into SENTRY in each religious group.
Toward the end of February 1997, prison authorities believed they became aware of a work stoppage planned by some inmates to occur in early March 1997. During the NOI Jumah on Friday, February 28, 1997, prison officials interrupted the service, removed a number of NOI members believed to be involved in the work stoppage, and placed those inmates in the special housing unit (hereinafter SHU). ).
In the summer of 1997, NOI inmates requested to be allowed to wear bow ties at their religious services as is their religious practice. For security reasons, and based upon defendant Chaplain Crowell's recommendation, the warden denied the request. Plaintiffs appealed the denial, and at some point the warden reconsidered and ties were ordered. Ties are to be worn only during NOI religious services, and only by persons with a SENTRY religious preference of NOI. The prison requires that each participant provide his commissary card to the Chaplain before the service, the Chaplain verifies the SENTRY religious preference of the participant issues the tie if appropriate, and returns the commissary card to the participant when the participant returns the tie to the Chaplain. Defendants imply that the bow ties are available for both Friday Jumah services and Sunday services. (Defs.' Reply, Crowell Supp. Decl., ¶ 28). However, viewed in the light most favorable to plaintiffs, the evidence would establish that they are allowed to wear the bow ties only at Sunday services. (.
NOI celebrated Savior's Day on October 7, 1997. Defendant Chaplain Crowell provided access to the Activities Room in the morning and the Chapel in the afternoon for authorized participants. For NOI Day of Atonement activities on October 16, 1997, the Chapel was open for prayer from noon to 12:30 p.m. for those who had registered and from 6:00 to 8:00 p.m. for Atonement Services for all interested inmates.2
On Friday, November 21, 1997, prison officials interrupted NOI's Friday Jumah and confiscated fezzes from several members of the NOI including plaintiff Ford. The confiscated fezzes bore the initials "F. O. I.," which stands for Fruit of Islam (hereinafter FOI). The BOP considers FOI to be a para-military organization, and fezzes bearing those initials are, therefore, contraband in the prison.
The wife of an NOI inmate runs a bookstore named "The Nubian Exchange" out of her residence in Akron, Ohio. In December 1997, this individual attempted to donate prayer oil to the NOI inmates by sending a package of prayer oil addressed to Chaplain Thuston at the prison. The return address on the package was "Nubian Exchange Bookstore" at the Akron, Ohio address. Mailroom personnel were aware the address was that of an inmate's wife.
At some point prior to receipt of the package at issue, BOP personnel had investigated the "Nubian Exchange Bookstore" and discovered that: the state of Ohio had no record of a bookstore named "Nubian Exchange Bookstore" at the address in Akron, there were no business licenses or tax numbers existing for this business, and the Akron Better Business Bureau and Chamber of Commerce had no records concerning this business. In a follow-up after the incident at issue, on January 14, 1998, mailroom personnel were unable to obtain a telephone listing in Akron, Ohio for "Nubian Bookstore." . Plaintiffs present a copy of a Vendor's License dated August 2, 1996 issued by the State of Ohio, Department of Taxation to "The Nubian Exchange." Just below the caption of the license, however, is the statement, "This License must be Renewed Annually at a fee of $10.00." Plaintiffs do not assert, nor do they provide evidence that anyone renewed the license before the attempt to donate prayer oil in December 1997.
When the package was received at the prison, mailroom personnel contacted the supervisory chaplain, defendant Crowell, and informed him about the package. Chaplain Crowell told the mailroom personnel that the Chaplain's Office would accept no packages from the Nubian Bookstore, and the package should be returned to sender. Based upon that information, the package was rejected. ( . When the package was...
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