Reed v. Bryant, 121317 FED10, 17-6082

Docket Nº:17-6082
Opinion Judge:Timothy M. Tymkovich Chief Judge.
Party Name:CHAD WILLIAM REED, Plaintiff-Appellant, v. JASON BRYANT; KELLY CURRY; LAWRENCE BELL, MD-Doctor of Medicine; ROWENNA BELL; JAY DRAWBRIDGE, Defendants-Appellees.
Judge Panel:Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
Case Date:December 13, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

CHAD WILLIAM REED, Plaintiff-Appellant,



No. 17-6082

United States Court of Appeals, Tenth Circuit

December 13, 2017

D.C. No. 5:16-CV-00461-C (W.D. Okla.)

Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.


Timothy M. Tymkovich Chief Judge.

This case arises from a decision by Oklahoma prison authorities to suspend state prisoner Chad William Reed from the kosher diet program in which he had participated for several years. He was suspended pursuant to an Oklahoma Department of Corrections (ODOC) policy that requires suspension if an inmate participating in a religious diet program consumes or possesses food not included in the religious diet. This type of policy is sometimes referred to as a "zero-tolerance rule." Mr. Reed, acting pro se, brought this action under 42 U.S.C. § 1983, alleging the defendant prison officials violated numerous constitutional provisions and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1 to -5, by enforcing the ODOC policy against him, falsely accusing him of violating the policy, and in taking other, related actions. The district court granted Defendants' motion to dismiss Mr. Reed's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and denied his motions for discovery and for leave to amend. Mr. Reed appeals the denial of his motions and the judgment entered against certain of his claims.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand this action to the district court. We conclude: • The district court should have addressed Mr. Reed's claim that ODOC's zero-tolerance rule violates his procedural due process rights. We remand this claim to the district court for further proceedings under the appropriate legal standards.

• The district court should not have granted summary judgment against Mr. Reed's RLUIPA challenge to the zero-tolerance rule. A zero-tolerance rule that requires suspension of inmates who are falsely or mistakenly accused of violating the zero tolerance rule can impose a substantial burden on an inmate's sincerely held religious beliefs. And the government bears the burden of demonstrating the regulation satisfies strict scrutiny. We remand this claim for further proceedings against the relevant defendants in their official capacities.


Unless otherwise noted, the facts recited in this decision are drawn from Mr. Reed's complaint and are assumed to be true for purposes of our de novo review of the district court's rulings on the claims at issue. See, e.g., SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). We also limit this discussion to the facts relevant to the issues before us.

Mr. Reed is an Oklahoma state inmate confined at the James Crabtree Correctional Center (JCCC), an ODOC facility. Mr. Reed is Jewish, and had been enrolled in the kosher diet program at JCCC for approximately five years before the events giving rise to this action. The JCCC operates this program pursuant to the ODOC's Religious Diet Policy, which states that the ODOC will provide a kosher or halal diet to an inmate who requests it if, among other things, he signs an agreement that he "will not consume or possess any food that is not consistent with the diet requested."1 R. Vol. I, at 113; see also id. at 102-03. Under the policy, an inmate who violates this requirement is automatically suspended from the religious diet program for 30 days for the first violation, 120 days for the second violation and for one year for every subsequent violation. This type of provision in a prison's religious diet program is sometimes referred to as a "zero-tolerance rule." The ODOC's Religious Diet Policy, including the zero-tolerance rule, is administered and enforced by the prison chaplain.

On December 17, 2015, JCCC kitchen manager Rowena Bell accused Mr. Reed of using another inmate's meal card to obtain a non-kosher breakfast tray, and refused to provide him with a kosher breakfast tray on this basis. Mr. Reed adamantly denied that he had taken a non-kosher tray and requested that the captain on shift save and review the "chow hall video, " which Mr. Reed claimed would disprove Ms. Bell's accusation. Mr. Reed also asked JCCC chaplain Jay Drawbridge to review the chow hall video to assess whether Ms. Bell's accusation was true. In spite of his protestations and requests, the prison did not investigate Mr. Reed's complaints or provide him with an opportunity to dispute Ms. Bell's account. Instead, shortly after the incident, pursuant to ODOC's zero-tolerance rule, chaplain Drawbridge suspended Mr. Reed from his kosher diet for 120 days based on an Incident Report submitted by Ms. Bell's supervisor, Kelly Curry, that recounted Ms. Bell's report that Mr. Reed had taken a non-kosher meal tray.2 JCCC officials also rejected on procedural grounds the many emergency and standard grievances and grievance appeals Mr. Reed submitted after his suspension regarding the incident and related matters, and then placed him on grievance restriction.3

Mr. Reed asserts Ms. Bell falsely accused him of violating the zero-tolerance rule as a result of a heated conversation he had with Ms. Curry a few days before the incident. In that conversation, Mr. Reed threatened to sue Ms. Curry for discrimination if she did not provide him and other religious diet participants with a special meal on the upcoming holiday as she did for other inmates. Ms. Curry responded, "Well [we] will just see about that." Id. at 10 (internal quotation marks omitted). Mr. Reed alleges Ms. Curry then retaliated against him by conspiring with Ms. Bell to get him suspended from his religious diet before the holiday, thereby heading off the threatened suit, and that this was the impetus for Ms. Bell falsely accusing him of taking a non-kosher breakfast tray.

Mr. Reed, acting pro se, filed suit against JCCC chaplain Drawbridge, Ms. Curry and Ms. Bell, JCCC Warden Jason Bryant and the captain on shift when Ms. Bell made her accusation based on these and some related events. As relevant to this appeal, Mr. Reed asserted claims challenging the ODOC's zero-tolerance rule on the ground that it violated his constitutional right to due process and his rights under RLUIPA, as well as First Amendment claims against Defendants Bell and Curry, in their individual capacities, for conspiring to retaliate against him and causing him to be suspended without justification from the prison's religious diet program. Mr. Reed sought damages, a declaratory judgment that his rights had been violated, and prospective injunctive relief.

The district judge referred the matter to a magistrate judge, who issued an order barring discovery and directing Defendants to prepare a Special Report in compliance with the guidelines set out in Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (per curiam). Defendants filed the Special Report and the next day filed a motion to dismiss under Rule 12(b)(6) that did not reference or attach the Report or any other external material. After Mr. Reed filed his response, the magistrate judge issued a Report and Recommendation in which he construed Defendants' motion to dismiss in part as a motion for summary judgment and recommended that all of Mr. Reed's claims be disposed of either by dismissal or entry of summary judgment.

Shortly after Mr. Reed received the magistrate's report and recommendation, he filed a Rule 56(f) motion for a continuance to allow discovery (to obtain the chow hall video and other evidence relevant to his false accusation allegations) and a motion for leave to amend his complaint. Subsequently he timely filed objections to the magistrate judge's report and recommendation.

The district court adopted the magistrate judge's report and recommendation. In the order adopting the magistrate judge's recommendation, the district court also struck Mr. Reed's motion for continuance and discovery as moot, on the ground that "[t]he proper time for discovery requests has passed, " and denied his motion for leave to amend on the ground that the proposed amendment failed to cure the deficient claims identified in the magistrate judge's report. R. Vol. II, at 99-100. This appeal followed.


Because Mr. Reed is proceeding pro se, we must construe his pleadings and arguments liberally, notwithstanding any "failure to cite proper legal authority, his confusion of various legal theories" or the like. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). We do not, however, serve as his advocate. Hall, 935 F.2d at 1110.

Reading Mr. Reed's pro se brief liberally, he raises three issues on appeal: (1) whether the district court erred in entering summary judgment against his claim that ODOC's zero-tolerance rule violates his procedural due process rights and right to practice his religion under RLUIPA; (2) whether the district court erred in denying his motions for a continuance and discovery; and (3) whether the district court abused its discretion in denying his motion for leave to amend his complaint.4 We examine each issue in turn.

A. Claim challenging ODOC's zero-tolerance rule

In his complaint, Mr. Reed sought prospective injunctive relief against ODOC's zero-tolerance rule on the ground that it violated the First Amendment's Establishment Clause, the Due Process Clauses of the Fifth and Fourteenth Amendments, and RLUIPA. In support of his RLUIPA challenge, he referenced several cases, including United States v. Secretary, Florida Department of Corrections, No. 12-22958-CIV, 2015 WL...

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