Derby v. Wiskus

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

ADAM DERBY, )

)

Plaintiff, )

)

vs. ) Case No. 4:19-CV-2271 SRC

)

RICHARD WISKUS, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Adam Derby, a civil detainee at the Sexual Offender Rehabilitation and Treatment

Services Center (“SORTS”), seeks leave to proceed in forma pauperis in this civil action brought

under 42 U.S.C. § 1983. Having reviewed Plaintiff’s financial information, the Court grants

Plaintiff’s Motion to Proceed In Forma Pauperis. See 28 U.S.C. §1915. Additionally, after

reviewing the Complaint under 28 U.S.C. § 1915(e) and for the reasons discussed below, the Court

will give Plaintiff the opportunity to file an amended complaint.

I. Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, is malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief against a defendant who is immune from such relief. To state a claim for

relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the

elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must demonstrate a plausible claim for relief, which

is more than a “mere possibility of misconduct.” Id. at 679. “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether a

court to draw on its judicial experience and common sense. Id. at 679.

When reviewing a pro se complaint under 28 U.S.C. § 1915, the Court accepts the well-

plead facts as true, White v. Clark, 750 F.2d 721, 722 (8th Cir. 1984), and liberally construes the

complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520

(1972). A “liberal construction” means that if the essence of an allegation is discernible, the

district court should construe the plaintiff’s complaint in a way that permits his or her claim to be

considered within the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir.

2015). However, even pro se complaints are required to allege facts which, if true, state a claim

for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also

Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004) (refusing to supply additional facts or to

construct a legal theory for the pro se plaintiff that assumed facts that had not been pleaded).

II. The Complaint

Plaintiff, a civil detainee at SORTS, brings this action under 42 U.S.C. § 1983, alleging

violations of his first amendment right to freedom of religion; his fourteenth amendment right to

equal protection under the law; and violations of the Religious Land Use and Incarcerated

Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. Plaintiff names as defendants all members of

the “spiritual committee” and the “Green Belt Committee” – but Plaintiff does not clarify what

these committees are. ECF No. 1 at 2 ¶ 7. Specifically, Plaintiff names: (1) Richard Wiskus, (2)

Chuck Lotz, (3) Jeanie Semor, (4) Hannah Newmier,1 (5) Dr. Kimberly Buy, (6) all members of

the Green Belt Committee, and (7) John Doe.2 Plaintiff specifies that he is suing John Doe in

1 Plaintiff spells this Defendant’s name as both “Hannah Newmier” and “Hannah Nwemier.” ECF No. 1 at 2 ¶¶ 7-8.

The Court interprets these references as the same Defendant and will refer to this Defendant by the spelling used by

Plaintiff in the case caption.

2 It is unclear whether Plaintiff also intends to name as a Defendant “Brenda Swift,” who is listed in multiple places

Defendants are being sued.

Plaintiff states that he is pretrial detainee in the custody of the Missouri Department of

Mental Health pursuant to the Missouri Sexually Violent Predator Act, Mo. Rev. Stat. § 632.480

et seq. Plaintiff describes himself as a “sincere practitioner of the Wiccan religion” and he

alleges that he is being denied thirty-three (33) necessary items or accommodations for the

practice of his religion. ECF No. 1 at 3. These items/accommodations include: (1) wands; (2)

wooden athames;3 (3) “idols/status”;4 (4) robes; (5) chalices; (6) books; (7) religious ceremonies

on the day of holidays; (8) nighttime accommodations for full moon and sabbat ceremonies; (9)

non-sexual nude images; (10) open flame fires; (11) three hours of time on sabbats (holy days);

(12) wine for consumption on sabbats; (13) dream catchers; (14) rugs; (15) bracelets with

charms; (16) rings with religious symbols and stones; (17) tattoos; (18) smudging personal

religious items;5 (19) access to news programs and shows that inform about politics and social

issues; (20) tea light candles for personal inside use; (21) food on the Sabbath; (22) alter cloths;

(23) alters; (24) foreign languages; (25) religious oils; (26) face painting; (27) pentacle plates;6

(28) pipes; (29) musical “interments;”7 (30) Ouija boards or spirit boards; (31) time outside

daily; (32) a room for personal religious practice; and (33) food donations to the Wiccan

religious feast. ECF No. 1 at 3-6.

3 Plaintiff describes a ‘wooden athame’ as “a non-sharpened religious knife made of wood.” Id. at 3. However, an

“athame” is defined as “a usually black-handled, double-edged dagger that is used in some neo-pagan and Wiccan

rituals.” Merriam-Webster Online Dictionary (Nov. 12, 2019, 2:34 PM), https://www.merriam-

webster.com/dictionary/athame.

4 Plaintiff labelled this item as “Idols/Status” which the Court interprets as meaning “idols” and “statutes.” ECF No.

1 at 3.

5 Plaintiff explains this item as “[b]urning sage to purify a religious item for use.” Id. at 4.

6 Plaintiff explains this item as a non-plastic, “small plate that has a pentagon on it.” Id. at 5.

7 Plaintiff labelled this item as “Musical Interments” describing the need for “some type of drum or flute.” Id. The

compliance” with his constitutional and RLUIPA rights, and for $1 in punitive damages.

III. Discussion

A. Legal Standards: Free Exercise of Religion and RLUIPA rights for a civil

detainee

Plaintiff, a civil detainee, alleges violations of his rights under the Free Exercise Clause

of the First Amendment of the United States Constitution and his rights under the Religious Land

Use and Institutionalized Persons Act (RLUIPA). The Fourteenth Amendment of the United

States Constitution determines the rights of individuals who have been involuntary committed to

a facility. Youngberg v. Romeo, 457 U.S. 307, 312-15 (1982). Although residents at state

institutions do have constitutionally protected interests, these rights must be balanced against the

reasons put forth by the State for restricting their liberties. Id. at 321. As inmates clearly retain

their First Amendment right to free exercise of religion in prison, O’Lone v. Estate of Shabazz,

482 U.S. 342, 348 (1987), civil detainees retain such rights as well.

According to the Supreme Court, a prison regulation infringing on an inmate’s

constitutional rights is valid so long as it is reasonably related to a legitimate penological interest.

Turner v. Safley, 482 U.S. 78, 89 (1987). Although the Eighth Circuit has not addressed the

applicability of this standard in the civil detainee context, other courts have applied the Turner

analysis8 in considering constitutional claims by civilly-committed sexually violent predators.

See, e.g., Phillips v. Palmer, No. 13-CV-4066-DEO, 2013 WL 5771026, at *3 (N.D. Iowa Oct. 23,

2013) (collecting cases).

8 Turner applies a four-factor test to determine whether a prison regulation is reasonably related to a legitimate

penological interest: (1) whether there is a rational relationship between the regulation and the legitimate

government interest advanced; (2) whether the inmates have available alternative means of exercising the right; (3)

the impact of the accommodation on prison staff, other inmates, and the allocation of prison resources generally; and

No government shall impose a substantial burden on the religious exercise of a

person residing in or confined to an institution, as defined in section 1997 of this

title, even if the burden results from a rule of general applicability, unless the

government demonstrates that imposition of the burden on that person --

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental

interest.

42 U.S.C. § 2000cc-1(a). The RLUIPA defines “religious exercise” to include “any exercise of

religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §

2000cc-5(7)(A).

RLUIPA does not authorize individual capacity claims against prison officials. E.g.,

Nelson v. Miller, 570 F.3d 868, 888-89 (7th Cir. 2009) (citing cases); Blake v. Cooper, 2013 WL

523710, *1 (W.D. Mo. Feb. 12, 2013). While RLUIPA allows official capacity claims against

prison officials, it does not authorize monetary damages based on official-capacity claims. See

Van Wyhe v. Reisch, 581 F.3d 639, 655 (8th Cir. 2009).

The legal standards for evaluating a First Amendment Free Exercise claim and a RLUIPA

claim differ. However, “when faced with both a Free Exercise claim and a RLUIPA claim, a court

must, as a threshold matter, inquire as to whether the prison has placed a ‘substantial burden’ on a

prisoner’s ability to practice his religion.” Gladson v. Iowa Dep’t of Corr., 551 F.3d 825, 833 (8th

Cir. 2009). “To constitute a ‘substantial burden,’ government policy or actions

must significantly inhibit or constrain conduct or expression that manifests some

central tenet of a person’s individual religious beliefs;

must meaningfully curtail a person’s ability to express adherence to his or her faith;

or

must deny a person reasonable opportunities to engage in those activities that are

fundamental to a person’s religion.”

Id. at 832 (citing Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004)).

Here, Plaintiff is a practitioner of Wicca, a religion recognized and accommodated by the

Missouri Department of Corrections. See Izquierdo v. Crawford, No. 1:05CV192 CDP, 2007

WL 2873210, at *1 (E.D. Mo. Sept. 26, 2007). Plaintiff claims that the denial of “necessary”

religious items and accommodations has substantially burdened the practice of his religion.

Plaintiff argues that the state does not have a compelling interest in denying these items and

accommodations to him. Plaintiff states further that even if the state did have a compelling

interest in denying such items, SORTS’ alleged blanket ban of many of these items is not the

least restrictive means of furthering the state’s compelling interest, as required by RLUIPA.

For example, Plaintiff acknowledges that SORTS has a legitimate security interest in

limiting idols and statutes, but he argues that the least restrictive means would be a limitation on

the size and number of such items, not a blanket ban of them. ECF No. 1 at 7. Similarly,

Plaintiff asserts that there are blanket bans on prayer rugs, bracelets with charms, personal alters,

personal pentacle plates, and personal musical instruments at SORTS. Plaintiff argues there

should just be limits on the size and type of these items. Id. at 15, 20-22. Also, Plaintiff asserts

that SORTS does not allow any religious service after dusk. Plaintiff argues that even if there is

a legitimate security interest in not allowing service outside at night, services should still be

allowed inside. Id. at 11. Instead of completely banning a Wiccan text which contains one nude

image, Plaintiff argues SORTS could mark out or remove the one violating image. Id. at 12.

Instead of no television viewing after 10:30 pm, Plaintiff argues that the television can be put on

closed captioning. Id. at 18. Instead of real candles, Plaintiff argues that battery-operated LED

candles should be allowed. Id. As to some items which have obvious safety issues – like open

flames, wine, tattoos, time outside in winter weather, and personal use of a private room –

Plaintiff states that such items should be allowed in controlled environments, limited amounts,

and/or with restrictions. Id. at 12-13, 16, 23-24.

same as items allowed for non-religious use. For example, Plaintiff asserts that SORTS has a

blanket ban on wands, wooden athames, robes for religious use, and Ouija boards. Id. at 6-8, 23.

However, Plaintiff claims that SORTS allows pens and pencils of similar size and shape as

wands, plastic butter knifes which are “substantially sharper than a wooden athame,” bathrobes

under personal clothing restrictions, and other board games.

For other items, Plaintiff argues that the extreme restrictions put on such items creates a

substantial burden on the practice of his religion. For example, Plaintiff cites the weight and size

restrictions on chalices, the number limitation on books, the allowance of personal books but not

personal items to be purified in religious services, the size and color restrictions on alter cloths,

and the restriction that only a Wiccan group can donate food for a Wiccan feast. Id. at 8-9, 17,

19, 25.

As for observing religious ceremonies on the day of the holiday, Plaintiff states that there

is a Wiccan holy day about every two weeks but SORTS only accommodates one of the

mandatory Wiccan holy days. Id. at 9-10. Plaintiff requests that SORTS accommodate eight (8)

Wiccan holy days a year and one on the day of the month with a full moon. As for time allowed

for religious ceremonies, Plaintiff states that SORTS currently only allows fifty (50) minutes for

services, except for one 2-hour service a year. Id. at 13. Plaintiff requests three (3) hours for

sabbat services requiring rituals. Plaintiff states that SORTS only allows food for one Wiccan

holiday a year. Id. at 18. Plaintiff argues that they should be able to provide their own food to

feast on seven (7) additional holidays per year, and that food donations should be allowed from

any source, not just Wiccan groups. Id. at 25.

In addition, Plaintiff asserts that SORTS treats people unequally. For example, according

to Plaintiff, Catholics are allowed to use grape juice in the place of wine for their religious

However, apparently these same accommodations are not given to Wiccans.

C. Analysis

Although Plaintiff has a right to free exercise of religion, because he is civilly committed,

SORTS has the right and responsibility to make determinations about Plaintiff’s safety and

security. That responsibility could extend to limitations on some aspects of religious expression

and practice. “RLUIPA does not require the prison to permit an inmate to possess every tangential

item of property that could aid the inmate’s religious exercise or learning.” Van Wyhe, 581 F.3d

at 657. There is not sufficient information before the Court to determine whether decisions

regarding Plaintiff’s religious practice were arbitrary or based on legitimate interests. Because the

Court is unfamiliar with the regulations at SORTS9 regarding religious practice and materials, the

Court cannot say with certainty whether Plaintiff’s rights are being violated in the determination

of his access to religious materials and services. As a result, Plaintiff’s Complaint cannot be

dismissed at the initial review phase.

However, although the Court finds that Plaintiff’s Complaint contains sufficient factual

allegations to survive initial review, this case cannot proceed because it is not clear whether

Plaintiff has named the proper defendants.

It is unclear from the Complaint whether the named defendants are officials or employees

of SORTS or the Missouri Department of Mental Health and if so, whether they have decision-

making power at SORTS in regards to access to religious practice and materials. Plaintiff names

as defendants the members of the “spiritual committee” and the “Green Belt Committee” but

Plaintiff does not inform the Court as to what those committees are or do. “Liability under § 1983

requires a causal link to, and direct responsibility for, the alleged deprivation of rights.” Madewell

9 Although Plaintiff references an “Approved Religious Accommodations” text, such resource is not included with

(8th Cir. 1985) (to be cognizable under § 1983, a claim must allege that the defendant was

personally involved in or directly responsible for the incidents that deprived the plaintiff of his

constitutional rights).

In general, fictitious parties may not be named as defendants in a civil action. Phelps v.

United States, 15 F.3d 735, 739 (8th Cir. 1994). An action may proceed against a party whose

name is unknown, however, if the complaint makes sufficiently specific allegations to permit the

identity of the party to be ascertained after reasonable discovery. Munz v. Parr, 758 F.2d 1254,

1257 (8th Cir. 1985). Here, Plaintiff provides no specifics on who John Doe is, or what he

specifically did to violate Plaintiff’s rights. Also, Plaintiff brings suit against John Doe in both

his individual and official capacities. However, as stated above, RLUIPA does not allow

individual-capacity claims against prison officials.

In addition, except as to Defendant John Doe, the Complaint is silent as to whether

Defendants are being sued in their official or individual capacities. Where a “complaint is silent

about the capacity in which [plaintiff] is suing defendant, [a district court must] interpret the

complaint as including only official-capacity claims.” Egerdahl v. Hibbing Community College,

72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Naming a

government official in his or her official capacity is the equivalent of naming the government entity

that employs the official. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

However, in this case, the Court does not have sufficient information to ascertain who employs

the named defendants. The Court notes that throughout the Complaint Plaintiff refers to the “state”

– as in the state’s “compelling interest” or the state’s “burden of least restrictive means.” ECF No.

1 at 7, 11. But the “state” is not a named defendant in Plaintiff’s Complaint.

Because Plaintiff is proceeding pro se and the allegations of his Complaint contain

sufficient factual allegations to survive initial review, the Court will give him the opportunity to

original Complaint. E.g., In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396

F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supersedes an

original complaint and renders the original complaint without legal effect”). Plaintiff must type

or neatly print the amended complaint on the Court’s form, which will be provided to him. See

E.D. Mo. L.R. 2.06(A) (FRCP 45) (“All actions brought by self-represented plaintiffs or

petitioners should be filed on Court-provided forms”).

The Court reminds Plaintiff that the Federal Rules of Civil Procedure require litigants to

formulate their pleadings in an organized and comprehensible manner. Even pro se litigants are

obligated to plead specific facts as to each named defendant and must abide by the Federal Rules

of Civil Procedure. See U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); Fed. R. Civ. P. 8(a)(2)

(complaint should contain short and plain statement of claims); Fed. R. Civ. P. 8(d)(1) (each

claim shall be simple, concise, and direct); Fed. R. Civ. P. 10(b) (parties are to separate their

claims within their pleadings and the contents of which shall be limited as far as practicable to a

single set of circumstances). Plaintiff is required to set out not only his alleged claims in a

simple, concise, and direct manner, but also the facts supporting his claims as to each named

defendant.

In the “Caption” section of the complaint form, Plaintiff must state the first and last

name, to the extent he knows it, of the defendant or defendants he seeks to sue. See Fed. R. Civ.

P. 10(a) (“The title of the complaint must name all the parties”). Plaintiff should also indicate

whether he intends to sue each defendant in his or her individual capacity, official capacity, or

both. Plaintiff should avoid naming anyone as a defendant unless that person is directly related

to his claim(s).

It is important that Plaintiff allege facts explaining how each defendant was personally

involved in or directly responsible for harming him. See Madewell, 909 F.2d at 1208. It is not

enough for Plaintiff to refer to a group of defendants and make general allegations against them.

Instead, Plaintiff must explain the role of each defendant so that each defendant will have notice

of what he or she is accused of doing or failing to do. See Topchian v. JPMorgan Chase Bank,

N.A., 760 F.3d 843, 848 (8th Cir. 2014) (stating that the essential function of a complaint “is to

give the opposing party fair notice of the nature and basis or grounds for a claim.”).

The Court will give Plaintiff thirty days to file the amended complaint. Plaintiff is advised

that the Court will review the amended complaint under 28 U.S.C. §1915.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs application to proceed in forma pauperis [2]

is GRANTED.

IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a blank copy

of the Court’s Prisoner Civil Rights Complaint form.

IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order,

plaintiff shall file an amended complaint in accordance with the instructions set forth herein.

Plaintiff’s failure to timely comply with this Order may result in the dismissal of this

case, without prejudice and without further notice.

Dated this 21st day of November, 2019.

sir. Ce

STEPHEN R. CLARK .

UNITED STATES DISTRICT JUDGE

-ll-