Derby v. Wiskus

Decision Date03 February 2023
Docket Number4:19-cv-02271-SRC
PartiesADAM DERBY, Plaintiffs, v. RICHARD WISKUS, et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri

ADAM DERBY, Plaintiffs,

RICHARD WISKUS, et al., Defendants.

No. 4:19-cv-02271-SRC

United States District Court, E.D. Missouri, Eastern Division

February 3, 2023



Adam Derby claims Missouri Department of Health employees at the state sex-offender treatment facility in Farmington violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) by denying thirty-two requests for items or accommodations related to his Wiccan religious practice. After the Court denied Defendants' summary-judgment motion and ordered the parties to mediate, the parties resolved all but five of Derby's requests for accommodation. The Court then held a bench trial regarding the remaining requests.

After the close of evidence, the parties engaged in settlement discussions-including an off-the-record in-chambers discussion regarding attorney's fees and enforcement of the settlement-and then notified the Court that they had reached a settlement. When Derby's counsel recited in open court the same settlement terms counsel discussed with the Court in chambers, Defendants' counsel objected, claiming that it was “just now hitting [her]” what the parties' discussion in chambers meant, and that while the parties “did mention judgment,” she “wasn't thinking consent judgment.” Doc. 142-3 at p. 3. Following the trial, Derby filed a motion to enforce settlement, claiming that the parties had reached a settlement during the trial.


Doc. 138. Defendants only dispute whether the parties reached an agreement regarding the issue of enforcement. See Doc. 142. The Court here addresses the motion.

I. Background

Derby is currently an involuntarily detained resident in the custody of the Missouri Department of Mental Health at the “SORTS” facility (which stands for Southeast Missouri Mental Health Center-Sex Offender Rehabilitation Treatment Services) located in Farmington, Missouri. Doc. 72 at p. 3. Derby is a Wicca practitioner and the high priest of the Wiccan coven at the SORTS facility. Id. Defendants are current and former SORTS employees. Doc. 110 at ¶¶ 3-9.

In his Second Amended Complaint, Derby identified thirty-two requests for accommodation relating to his practice of Wicca. Doc. 18. He claims that the Defendants' denial of these requests violated his rights under RLUIPA. Id. Derby requested accommodations for items including: wands, a wooden athame (a ritual dagger), idols/statues, robes, bigger chalices, books, wine for consumption on Sabbats, dream catchers, rugs, bracelets with charms, rings with religious symbols and stones, tea light candles, food for Sabbats, larger altar cloths, altars, pentacle plates, pipes, musical instruments, and Ouija or spirit boards. Doc. 110 at ¶ 18. He also requested accommodations for religious practices, including: religious ceremonies “on the day of our holidays,” nighttime full moon and “Sabot” (also spelled “Sabbat”) ceremonies, what he claims are “non-sexual” nude images, open-flame fires, three hours of time on Sabbats, tattoos, “smudging” personal religious items, access to late-night news programs, foreign languages, religious oils, face painting, time outside daily, and a room for personal religious practice. Doc. 110 at ¶ 19. Defendants do not dispute that they denied these requests. Doc. 110 at ¶ 17.


Following the Court's Memorandum and Order denying Defendants' summary-judgment motion, the Court appointed counsel for Derby and ordered the parties to mediate in person at the SORTS facility. Doc. 73. At the mediation, the parties resolved all but five of Derby's requests. As part of that resolution, the Defendants agreed to provide the following accommodations to Wiccans at SORTS, effective immediately:

• The SORTS facility will provide Wiccans three hours exclusive of travel time, to celebrate Samhain (a Wiccan Sabbat)
• The SORTS facility will allow Wiccans to choose three other Sabbats each year, for which they will be given one and a half hours to observe each of the Sabbats, exclusive of travel time. Once a year, the Wiccans may request to celebrate a Sabbat inside between 7:30 p.m. and 9:00 p.m. That request will be granted unless Defendants determine in good faith that staffing prohibits granting of the request.
• Wiccans will receive a full hour per week on the other 48 weeks of the year to practice their faith as a group, exclusive of travel time.
• Wiccans may have a personal wand that is up to 8” long, up to 1” in diameter, that is not made of crystal or metal, that will be kept in the personal sharps count and which can be checked out for personal religious use by the owner of the wand.
• Wiccans may have a total of up to 3 idols or statues in their “corporate” cabinet (a separate cabinet for Wiccans to store their items) that are no taller than 8” and weigh no more than 1 pound. The idols or statues will not be made of plastic or metal.
• In addition to a bathrobe, Wiccans may have a personal robe of any color other than camouflage to be worn only during group religious exercise. These robes may not have any string or belt and must be worn over clothing. Those wearing a personal robe will be subject to a pat-down search at the discretion of SORTS staff.
• Wiccans may have a personal chalice that is no taller than 8” and weighs no more than 1 pound. It may not include components made of metal.
• Wiccans may order additional books for the corporate religious locker. Wiccans will follow the SORTS facility's procedures for ordering corporate religious property, including the requirement that the cost of orders may not exceed the group's budget. SORTS will not require the Wiccans to go through the library to order these additional books.
• The SORTS facility will purchase a paper replica of a bonfire for use by Wiccans during religious services and to be kept in the corporate locker.
• The SORTS facility will provide grape juice and a cracker for each participant in group religious practice on the Sabbats.
• Wiccans may each have a personal rug that is not larger than 28” by 40,” that may only be used during personal religious practice, and must be rolled away
and stored at all other times. There is no restriction on the color of the rug except it may not be camouflage.
• Wiccans may bring up to two personal religious items at a time to group religious exercise for smudging. These items will be subject to search at the discretion of SORTS staff.
• Wiccans may have up to five tea light LED candles at a time for personal use.
• Wiccans may have altar cloths for corporate religious practice (up to 36” by 40”). There is no restriction on the color of the altar cloth except it may not be camouflage.
• Wiccans may have up to 4 bottles (of no more than 8 oz. each) of religious oils in the corporate religious locker. All such types of religious oils will have to be approved by SORTS.
• Wiccans may have a pentacle plate for personal use that is no more than 4” in diameter, weighs less than 1/2 pound, and is not made of metal, wood, stone, glass, or plastic.
• Wiccans may have a 9” pipe to be kept in the corporate locker and each Wiccan may have a pipe for personal use of no more than 9”. Pipes may not be used to smoke tobacco.

Doc. 110 at ¶ 21 (the Court quotes the parties' list verbatim, with the exception of parentheticals the Court added). Five of Derby's requests for accommodation remained at issue following mediation:

• Access to materials related to his Wiccan faith, such as tarot cards and Gerald Gardner's The Witches' Bible, that contain what Derby asserts are non-sexual nude images;
• The ability to paint his face in part during religious ceremonies;
• The ability to possess materials containing, and the ability to learn, non-English languages;
• Personal use of religious oils; and
• Time outside every day irrespective of temperature extremes.

Doc. 110 at ¶ 24. Although the parties continued to engage in settlement discussions before trial, they failed to resolve these five issues, or the issue of attorney's fees. Doc. 138-1 at ¶ 16.

The Court held a two-day bench trial on September 26 and 27, 2022. Docs. 126, 127. After the close of evidence, the Court encouraged the parties to meet and confer again and attempt to settle the remaining issues. Doc. 138-1 at ¶ 17; Doc. 142 at p. 2. Counsel for the parties met and conferred on September 26, 2022, and again on the morning of September 27,


2022. Doc. 138-1 at ¶¶ 18-20. The Court requested that counsel for the parties meet in chambers around noon on September 27 to discuss the progress of the parties' settlement discussions. In chambers, counsel reported that they were close to reaching a settlement, and an off-the-record discussion regarding attorney's fees and enforcement of the settlement occurred.

The Court and the parties discussed that, as part of the judgment, the Court (1) would retain jurisdiction to enforce the settlement and address enforcement disputes that might arise, (2) would require counsel to meet and confer before filing any enforcement motions, and (3) would appoint LeMoine to continue on as counsel for Derby regarding any enforcement issues.

After the discussion in chambers, counsel for the parties continued to work to resolve the remaining issues. Doc. 138-1 at ¶¶ 33-39. The parties do not dispute that they agreed to the following terms:

• Defendants would cause SORTS to revert back to its prior policy related to Mr. Derby's ability to go outside using his yard pass, which was that he was allowed to go outside unsupervised in accordance with his yard pass requirements subject to the nurse's discretion to prevent him from going outside due to severe weather or

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