Wares v. Simmons
| Decision Date | 31 October 2007 |
| Docket Number | Case No. 00-3393-SAC. |
| Parties | Mark A. WARES, Plaintiff, v. Charles SIMMONS and Steven Dechant, Defendants. |
| Court | U.S. District Court — District of Kansas |
Mark A. Wares, Canon City, CO, pro se.
Matthew J. Wiltanger, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for Plaintiff.
Brian R. Johnson, Knox, Johnson, Rockwell & Babbit, Chartered Lawrence, KS, Trevin E. Wray, Office of Attorney General, Topeka, KS, for Defendants.
Plaintiff is a prisoner who has brought suit pursuant to 42 U.S.C. § 1983, claiming violations of the Fifth Amendment and the free exercise clause of the First Amendment arising from defendant's prohibition on plaintiff's possession of certain religious texts. This case comes before the court on defendants' motion for summary judgment. Plaintiff opposes the motion.
On summary judgment, the initial burden is with the movant to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). The non-movant must show more than some "metaphysical doubt" based on "evidence" and not "speculation, conjecture or surmise." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir.2004). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997). The court is not to "construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991).
The relevant facts are uncontested.1 All reasonable inferences are drawn in plaintiff's favor. Plaintiff is serving a sentence of twenty to forty-five years for convictions of aggravated sexual battery, making a terroristic threat, kidnaping, and aggravated battery. At all times relevant to this case, plaintiff was lawfully incarcerated at the Hutchinson Correctional Facility, Hutchinson, Kansas. Defendant Steve Dechant was employed as Deputy Warden of the Facility, and defendant Charles Simmons, was employed as the Kansas Secretary of Corrections at the time. Due to the nature of plaintiff's convictions, the Kansas Department of Corrections ("KDOC") requested that he participate in the sexual abuse treatment program (SATP). Because plaintiff refused to do so, the Department of Corrections reduced plaintiff's privilege to Level I of its earnable-privilege system from a Level at which plaintiff had enjoyed more benefits.
Level I inmates are subject to multiple restrictions, including limits on the property they are permitted to possess. Inmates returned to security Level I are allowed to possess their primary religious text(s) but are not allowed to possess other religious texts. See Dk. 75, Exh. 5, p. 7, para. F. Primary religious texts are listed in an internal policy (IMPP) which specifies the texts the KDOC considers to be primary, or essential, to each specified religion. See Dk. 75, Exh. 4, Att. D. For the. Jewish faith, the KDOC policy lists the following four documents or categories of documents as primary texts: "Torah, Tanakh, Prayer books, Code of Jewish Law." Id. The KDOC considers all other texts, books or documents as non-essential to the Jewish religion.
Under IMPP 11-101, earnable privileges are grouped into four levels: "Intake Level, Level 1, Level II, and Level III." Id., p. 2. One of the earnable privileges is "property." Id. "To complete Level I, an inmate must ... demonstrate a willingness to participate in recommended programs and/or work assignments for 120 consecutive days." Id., p. 4. "An inmate shall be automatically reduced to Level I for ... documented refusal to participate in ... recommended programs ..." Id., p. 5. "If an inmate's incentive level is reduced as a result of refusing a work or program assignment, he or she is not eligible for an incentive level increase until they have demonstrated appropriate behavior for 120 days, including placement to, and satisfactory participation in, the appropriate work assignment/program previously refused." Id., p. 6.
IMPP 11-101 further states, with exceptions not relevant to this case, "property items not authorized at the incentive level to which the inmate is reduced shall be removed from the facility in accordance with the provisions of IMPP 12-120." Id., p. 7, E: "Upon an offender's return to Level I, property items allowed under the provisions of IMPP 12-120 shall be removed from the facility in accordance with established policy." Id., p. 7, F. Attachment A to IMPP 11-101 specifies Level I property as: "Intake property per IMPP 12-120; tennis shoes; hot pot, fan, alarm clock, and all consumable post-intake property (except books, magazines, and newspapers) per IMPP 12-120."2 Intake property allowable per IMPP 12-120 is "only that personal property specified in Admission Property List (Attachment H)" Dk. 75, Exh. 6, p. 3. Attachment H specifies that "the following may be retained by offenders" as intake property: "Bible/Primary Religious Text," quantity, 1, as "approved by reception facility chaplain." Dk. 75, Exh. 6, Attachment H. Pursuant to these policies, after plaintiffs reduction to Level I, the only religious books he was allowed to possess were the primary religious texts.
After plaintiff's security level was reduced to Level I, plaintiff was prevented from possessing two religious texts which plaintiff desired, the "Tanya" and the "Tehillim", because defendants deemed them to be, non-essential to the practice of plaintiff's religion and thus not permitted on plaintiff's security level. Plaintiff contends3 that he practices a specific branch of Judaism called "Chassidism," which requires daily reading/study of the following:
Chumash (5 books of Moses with commentary); Tehillim (daily readings of Psalms according to the days of the Jewish month as practiced by Chabad); Tanya (Chabad teachings of Rabbi Schneur Zalman); Hayom Yom (by the Lubavicter Rebbe); [and] the Siddur Tehillat HaShem (Prayer book arranged by Rabbi Schneur Zalman).
Plaintiff thereafter filed grievances related to the seizure of the "Tanya" and the "Tehillim," which were reviewed by the Warden of the Hutchinson Correctional Facility. The Warden found that the texts were not primary and upheld the decision of the administrative staff. Plaintiff continued to pursue his grievance, which was ultimately reviewed by the Deputy Chief Legal Counsel for the Kansas Department of Corrections. During that appeal, the KDOC4 asked a rabbi to act as a consultant and review the two texts which plaintiff desired. The rabbi did so and confirmed that the "Tanya" and the "Tehillim" were non-essential to the Jewish faith. Accordingly, the Deputy Chief Legal Counsel upheld the prohibition on plaintiff's possession of the "Tanya" and the "Tehillim," but offered plaintiff several alternatives which would have allowed him some access to those books, including donation of the texts to the prison library. Plaintiff refused these alternatives.
Plaintiff then filed this suit in United States District Court pursuant to 42 U.S.C. § 1983, noting a First Amendment claim but primarily contending that defendants violated his Fifth Amendment right against self-incrimination by attempting to force him to enter the SATP. Judge Van Bebber granted defendants' motion to dismiss, finding plaintiff's Fifth Amendment claims moot in light of McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)5 and holding that plaintiff's First Amendment claims concerning access to Jewish religious materials failed to state a claim for relief. Dk. 54. Plaintiff appealed that decision to the Tenth Circuit. On appeal, the Tenth Circuit noted plaintiff's failure to raise his Fifth Amendment claim on appeal, and reversed and remanded the First Amendment claims for further development of the record. Wares v. Simmons, 392 F.3d 1141 (10th Cir.2004).
After remand by the Tenth Circuit, plaintiff filed an amended complaint containing a Fifth Amendment claim, and a First Amendment claim that defendants violated his freedom to exercise his religious beliefs. (Doc. 52.) Plaintiff sues both defendants in their official and individual capacities. Plaintiff seeks damages, replacement of the items seized by defendants, purging of his record, a permanent injunction "from making any modifications from what was ordered by the sentencing court," legal fees, and any other relief the court deems just.
Plaintiff has brought suit against Charles Simmons and Steven Dechant in their official capacities, as well as in their individual capacities. This official capacity claim ...
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