Jones v. Williams, No. 12–35131.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: DAVIS, Circuit Judge
• Citation: 791 F.3d 1023
• Parties: Clarence Eugene JONES, Plaintiff–Appellant, v. Max WILLIAMS, in his official and individual capacity as Corrections Director for the Oregon Department of Corrections; Collette Peters, in her official capacity and individual capacity as Inspector General of Oregon Department of Corrections; Tim O'Connors, in his official capacity and individual capacity as Administrator of Religious Services; Chaplain Holbrook, in his official and individual capacity as Chaplain of the Oregon State Penitentiary ; Keith Davis, in his official and individual capacity as Food Service Manager of the Oregon State Penitentiary ; D. Gillies, in his official and individual capacity as Assistant Food Manager of the Oregon State Penitentiary ; R. Ridderbusch, in his official and individual capacity as Assistant Food Manager of the Oregon State Penitentiary ; Larry Kutnar, in his official and individual capacity as Lieutenant and Food Service Coordinator; G. McBride, in his official and individual capacity as Food Service Coordinator of the Oregon State Penitentiary ; R. Nopp, in his official and individual capacity as Food Service Coordinator at the Oregon State Penitentiary; Aaron Bales, in his official and individual capacity as Grievance Coordinator of the Oregon State Penitentiary ; Michael Dodson, in his official and individual capacity as Discrimination Complaint Officer at the Oregon State Penitentiary ; Brian Belleque, in his official and individual capacity as Superintendent of the Oregon State Penitentiary ; Laurie Mincher, in her official and individual capacity as Food Service Coordinator at the Oregon State Penitentiary; Keith Baller, in his individual capacity as an inmate assigned as a cook at the Oregon State Penitentiary; M. Whitney Dodson, in his official and individual capacity as supervisor of Grievance Coordinator at the Oregon State Penitentiary, Defendants–Appellees.
• Docket Number: No. 12–35131.
• Decision Date: 26 June 2015

791 F.3d 1023

Clarence Eugene JONES, Plaintiff–Appellant
v.
Max WILLIAMS, in his official and individual capacity as Corrections Director for the Oregon Department of Corrections; Collette Peters, in her official capacity and individual capacity as Inspector General of Oregon Department of Corrections; Tim O'Connors, in his official capacity and individual capacity as Administrator of Religious Services; Chaplain Holbrook, in his official and individual capacity as Chaplain of the Oregon State Penitentiary ; Keith Davis, in his official and individual capacity as Food Service Manager of the Oregon State Penitentiary ; D. Gillies, in his official and individual capacity as Assistant Food Manager of the Oregon State Penitentiary ; R. Ridderbusch, in his official and individual capacity as Assistant Food Manager of the Oregon State Penitentiary ; Larry Kutnar, in his official and individual capacity as Lieutenant and Food Service Coordinator; G. McBride, in his official and individual capacity as Food Service Coordinator of the Oregon State Penitentiary ; R. Nopp, in his official and individual capacity as Food Service Coordinator at the Oregon State Penitentiary; Aaron Bales, in his official and individual capacity as Grievance Coordinator of the Oregon State Penitentiary ; Michael Dodson, in his official and individual capacity as Discrimination Complaint Officer at the Oregon State Penitentiary ; Brian Belleque, in his official and individual capacity as Superintendent of the Oregon State Penitentiary ; Laurie Mincher, in her official and individual capacity as Food Service Coordinator at the Oregon State Penitentiary; Keith Baller, in his individual capacity as an inmate assigned as a cook at the Oregon State Penitentiary; M. Whitney Dodson, in his official and individual capacity as supervisor of Grievance Coordinator at the Oregon State Penitentiary, Defendants–Appellees.

No. 12–35131.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 6, 2014.^*
Filed June 26, 2015.

791 F.3d 1028

Clarence Eugene Jones, Portland, OR, pro se.

Denise Gale Fjordbeck, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for Defendants–Appellees.

Appeal from the United States District Court for the District of Oregon, Ann Aiken, Chief District Judge, Presiding. D.C. No. 6:09–cv–00029–TC.

Before: ALEX KOZINSKI, FERDINAND F. FERNANDEZ, and ANDRE M. DAVIS,^** Circuit Judges.

OPINION

DAVIS, Circuit Judge:

Clarence Jones, a former inmate of the Oregon State Penitentiary (“the Penitentiary”), appeals from the district court's grant of summary judgment in favor of Appellees, fifteen employees of the Oregon Department of Corrections (“the Department”),¹ on several civil rights claims brought under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc –2000cc–5. We affirm in part, vacate in part, and remand to the district court for further proceedings.

I.

A.

Jones is a Muslim and a member of the Nation of Islam, a religious organization. His religious beliefs forbid him from consuming or handling pork.

Jones's claims arise from the following events, which we recount in chronological order. From October 2006 to October 2008, while in custody of the Department, Jones was assigned to work in the kitchen at the Penitentiary, initially as a server on the food service line. Shortly after his assignment to the food service line, Jones complained to his supervisors about being required to serve pork food items and requested to be reassigned from the serving line to a kitchen-entry position, which would allow him to avoid handling pork. According to Jones, he and other black inmates were required to work at least thirty days on the line before they could work in a kitchen-entry position, whereas certain white inmates were not subject to a thirty-day waiting period. Jones alleges that in November 2006, Appellee Keith Davis, Food Services Manager at the Penitentiary, told Jones that the prison would take disciplinary action against him if he refused orders to serve or handle pork. On January 7, 2007, Jones filed an administrative discrimination complaint describing Davis's threats of disciplinary action

791 F.3d 1029

and citing case law in support of his asserted right to abstain from handling pork.

On January 8, 2007, Jones approached Appellee Richard Ridderbusch, an Assistant Food Services Manager, to discuss his requests for reassignment. Jones told Ridderbusch that he would file a lawsuit in federal court against Ridderbusch for discrimination. The parties dispute the circumstances of the interaction between Jones and Ridderbusch. Jones declares that there were between 30 and 40 inmates working in the kitchen at the time but that none were in the immediate area or could hear the conversation. Ridderbusch declares that 40 to 50 inmates were working in the immediate area. Ridderbusch also declares that Jones accused him of being a racist and acted in a threatening and inflammatory manner, which resulted in “a serious risk that other inmates would become riled creating a security concern.” Ridderbusch subsequently issued a daily performance failure report.² The report stated as reasons for the assessment “attitude” and that Jones “accused [Ridderbusch] of discriminating in hiring, threatened to sue in fed[eral] court, [and] was not reciptive [sic ] to earning his way.” The daily performance failure resulted in Jones not receiving points for that day toward awards of program incentives.

Jones was taken off the food service line and reassigned as a cook on February 7, 2007.

On March 9, 2007, Appellee Brian Belleque, Superintendent of the Penitentiary, responded in writing to Jones's January 7, 2007 administrative discrimination complaint. In the response memorandum, Belleque stated that there was “no current policy” governing the issue raised by Jones but that “there is no need to require Muslim inmates to handle pork.” The memorandum continued: “As a Muslim, you should notify your supervisor of your religion and that you are not allowed to handle pork. Every effort will be made to provide a work program that does not require you to handle pork.”

When serving food items containing pork, the prison had a practice of displaying a sign to indicate the items' pork contents. On May 31, 2007, Jones obtained a tamale pie for lunch. There was no sign displayed indicating that the item contained pork. Jones ate a few bites of the tamale pie before Raymond Mayes, another inmate, told Jones that the item contained pork. Mayes states in his affidavit that he told Jones “that the tamale pie contained pork because [Appellee Richard Nopp, a Food Service Coordinator working in the kitchen that day,] had pork mixed in with the beef for the making of the tamale pie for lunch....” Jones declares that, on June 2, 2007, Tom Peacock, a cook, told Jones that Nopp had ordered Peacock to add pork to the meat in the tamale pie and that Peacock added pork as directed while Nopp watched. Nopp denies ordering cooks to add pork to the meat in the tamale pie and declares that no pork was added to the tamale pie.

On July 8, 2007, Appellee G. McBride, a Food Service Coordinator, ordered Jones to fry pork loins. Jones alleges that he told McBride that he was a Muslim and that cooking pork was against his religious beliefs, but that McBride threatened to issue a daily performance failure or possibly a misconduct report if Jones refused the order. Jones declares that he complained

791 F.3d 1030

to Appellee Larry Kutnar, McBride's supervisor, and, after speaking with McBride and Ridderbusch, Kutnar told Jones that “those up high” had ordered that Jones prepare the pork loins. Jones prepared the pork loins as ordered, which required him to dip the loins into a flour mixture, cook them on grills, and then place them in pans.

On July 10, 2007, with Davis present, Ridderbusch told Jones that he had been ordered to prepare pork loins because the last memorandum Ridderbusch received said it was permissible for Jones to prepare pork. Ridderbusch stated, however, that he discovered a new memorandum issued in January 2007 stating that Muslim inmates should not be ordered to serve or prepare pork.³ Ridderbusch claims that he was not aware of the new memorandum until after Jones was ordered to cook pork on July 8, 2007. The same day, Jones complained to Davis and Ridderbusch that the grills in the kitchen were contaminated with pork grease by Islamic standards, and, according to Jones, Davis acknowledged the contamination.

On October 29, 2008, Jones and Glen Leonard, a white inmate, got into an argument in the presence of Appellee Laurie Mincher, a Food Service Coordinator. At some point, Leonard walked up close to Jones, and Jones placed his hand on Leonard's chest and pushed him backward. Mincher intervened, took Jones to disciplinary segregation, and issued a misconduct report describing the incident and charging Jones with “Assault 3,” a violation of prison rules. Colleen Clemente, a Hearings Officer at the Penitentiary, subsequently convened disciplinary hearings on November 5, and December 1, 2008. Witness testimony and an investigation report were presented at the hearings....