Sinclair v. Blewett

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSHUA ALLEN SINCLAIR,

Plaintiff, Case No. 2:20-cv-1397-CL

v.

ORDER

TYLER BLEWETT, Superintendent of

TRCI, et al.,

Defendants.

___________________________

MCSHANE, Judge:

Magistrate Judge Mark D. Clarke filed a Findings and Recommendation (ECF No. 100),

and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).

Defendants filed objections to the Findings and Recommendation. Although Plaintiff, proceeding

pro se, did not file objections, I have reviewed the file of this case de novo. See 28 U.S.C. §

636(b)(1)(c); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313

(9th Cir. 1981).

1 –ORDER

Magistrate Judge Clarke provided a thorough background of the Oregon Department of

Corrections (ODOC) 2020 decision to cancel all group religious services in response to the

COVID-19 global pandemic. The Court assumes, without deciding, that that decision, and the

later 2021 decision to offer a “modified pow-wow” meal in individual cells, violated Plaintiff’s

right to freely practice his religion.1 However, the Court concludes that to the extent any

individual Defendant violated Plaintiff’s constitutional rights, they are entitled to qualified

immunity based on the unprecedented nature of the pandemic.

There is no dispute that Adults in Custody (AICs) retain certain fundamental rights,

including the right to practice—within limits arising “both from the fact of incarceration and

from valid penological objectives [] including . . . institutional security”—the religion of their

choice under the Free Exercise Clause of the First Amendment. O’Lone v. Estate of Shabazz, 482

U.S. 342, 248 (1987). There is also no dispute that the global pandemic that arose in early 2020

was largely unprecedented and forced public officials to make difficult choices based on rapidly

evolving facts.

On March 13, 2020, President Trump declared a national emergency in response to the

COVID-19 pandemic. Young Decl. ¶ 7. “That same day, ODOC restricted access to its facilities

and suspended visiting, volunteers, and the majority of contractors from coming inside facilities

to decrease the potential of introducing COVID-19 into its institutions.” Id. On April 5, 2020, the

Oregon Health Authority (OHA) issued “Interim Guidance on Management of Coronavirus

Disease 2019 (COVID-19) in Correctional and Detention Facilities.” Young Decl. Ex. 1. The

OHA adapted that guidance from the United States Center for Disease Control (CDC). Young

1 It is undisputed that during Plaintiff’s time in custody, he has been “actively involved in Native American Religious

Services (NARS) programs.” Sinclair Decl. ¶ 3; ECF No. 77.

2 –ORDER

Decl. ¶ 8. ODOC follows the CDC and the OHA “guidance for corrections facilities on social

distancing.” Id. In June 2020, ODOC Religious Services held a meeting and concluded that “due

to the unpredictability of COVID-19 restrictions as of 2020 and their impact on operations, the

difficult decision was made to cancel all religious group ceremonial meals for the rest of the

year.” Young Decl. ¶ 23.

Defendants argue that the unprecedented nature of the global pandemic entitles them to

qualified immunity. In support, Defendants point to New Mexico Elks v. Gisham, 595 F. Supp.

3d 1018, 1027-28 (D. New Mexico, 2022). Obj. 5-6; ECF No. 109. The Court agrees that New

Mexico Elks provides a useful summary of courts around the country analyzing government

actions made in response to COVID-19. There, “Plaintiffs allege[d] that other organizations that

provide similar if not identical activities to Plaintiffs’ have been allowed to resume, such as golf

courses, country clubs, gyms, and restaurants, but assert that fraternal organizations have not

been allowed to reopen.” Id. at 1024 (internal quotations omitted). In concluding the Defendants

were entitled to qualified immunity, the court noted:

Plaintiffs have provided no precedent, and the Court has found none, to suggest

that Defendants violated any clearly established right by enacting the [Public

Health Orders]—including those which imposed temporary restrictions on the

sale of alcohol and/or the playing of bingo—in an effort “to address the

extraordinary health emergency” created by the COVID-19 pandemic. South Bay

Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (denying

application to enjoin enforcement of California order that, to limit spread of

COVID-19, placed temporary numerical restrictions on public gatherings).

Indeed, the Supreme Court has expressly held that “the precise question of when

restrictions on particular social activities should be lifted during the pandemic is a

dynamic and fact-intensive matter subject to reasonable disagreement,” and that

where, as here, “local officials are actively shaping their response to changing

facts on the ground,” “the notion that it is indisputably clear that the

Government’s limitations are unconstitutional seems quite improbable.” Id. at

1614.

3 –ORDER

Further, far from placing “beyond debate” any established right to be free from

temporary, pandemic-related restrictions, controlling Supreme Court precedent

instead instructs that: the “Constitution principally entrusts the safety and health

of the people to the politically accountable officials of the States to guard and

protect”; when “those officials undertake to act in areas fraught with medical and

scientific uncertainties, their latitude must be especially broad”; and, unless those

broad limits are “exceeded,” “they should not be subject to second guessing by an

unelected federal judiciary.” Id. at 1613-14. In addition to the state statutes cited

in each PHO, Defendants’ authority to enact policies, like the PHO’s in the face

of an emergency is derived from the state’s “police power.” See Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 569 (1991) (“The traditional police power of the

States is defined as the authority to provide for the public health, safety, and

morals . . . .”).

Thus, while there is no established precedent to suggest that Defendants’

limitations were unconstitutional, there is established precedent to demonstrate

that, in enacting the PHOs, Defendants acted within the limits of their

Constitutionally entrusted duty to guard and protect the safety and health of the

people of New Mexico. Given this binding Supreme Court precedent, “it is simply

irrational to assert that a reasonable health official would have known that

imposing business closings in response to a pandemic clearly violated Supreme

Court precedent.”

Indeed, “courts around the country have addressed qualified immunity for

government officials at the 12(b)(6) stage regarding COVID-19 measures and

found government officials to be immune from suit in their personal capacities.

Pleasant View Baptist Church v. Beshear, 2021 WL 4496386, at *8 (E.D. Kty.

Sept. 30, 2021) (“After examining the applicable precedent, particularly in light of

a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s

issuance of an executive order temporarily halting in person learning violated a

clearly established constitutional right, and qualified immunity will be granted on

that basis.” See, e.g., Bojicic v. DeWine, 569 F. Supp. 3d 669, 692 (N.D. Ohio,

Oct. 27, 2021) (dismissing all monetary claims against all defendants on basis of

qualified immunity, and explaining that “the numerous decisions upholding such

orders clearly demonstrate that a reasonable person in the Health Director’s

position would not have known that enacting the orders at issue here would

violate the law”); Benner v. Wolf, 2021 WL 4123973, at *5 (M.D. Pa. Sept. 9,

2021) (dismissing plaintiffs’ federal damages claims on the basis of qualified

immunity and explaining that, “when Defendants imposed the challenged

COVID-19 restrictions, no Supreme Court precedent, Third Circuit precedent, or

robust consensus or persuasive authority had held that similar restrictions violated

clearly established law”); Northland Baptist Church of St. Paul, Minn. v. Walz,

530 F. Supp. 3d 790, 807 (D. Minn. 2021) (finding that it was “not clear that

Governor Walz had fair warning that the executive orders limiting the number of

people allowed in buildings violated Plaintiffs’ rights, if they in fact do so,” and,

4 –ORDER

accordingly, dismissing claims against Governor Walz in his individual capacity

on basis of qualified immunity); Casey v. Ivey, 542 F. Supp. 3d 1245, 1284-85

(M.D. Ala. 2021) (granting qualified immunity to Governor Ivey in motion to

dismiss context following litigation challenging her proclamation of a national

emergency and subsequent orders intended to combat COVID-19); Hartman v.

Acton, 499 F. Supp. 3d 523, 538 (S.D. Ohio 2020) (granting qualified immunity

to Ohio Department of Health director in motion to dismiss context following

issuance of stay at home order in response to COVID-19 pandemic).

Consistent with these decisions, the Court finds that “existing precedent did not

clearly establish Plaintiffs rights at the time of the alleged violations so as to put

Defendants’ conduct in issuing the PHOs beyond debate.” Northland Baptist

Church, 530 F. Supp. 3d at 807.

New Mexico Elks Ass’n, 595 F. Supp. 3d at 10-27-28 (internal footnotes omitted) (cleaned up).

The F&R recommends denying qualified immunity because “there is a genuine issue of

material fact as to whether the cancellation of NARS group programs was reasonably related to

legitimate penological interests.” ECF No. 100, 25. On this record, however, the Court disagrees.

There is no dispute that on April 5, 2020, the OHA issued a 27-page report titled “Coronavirus

Disease 2019 (COVID-19) Interim Guidance on Management of Coronavirus Diseases (2019

(COVID-19) in Correctional and Detention Facilities.” Young Decl. Ex. 1; ECF No. 45. The

report noted that “[t]his interim guidance is based on what is currently known about the

transmission and severity of coronavirus disease 2019 (COVID-19). These guidelines have been

adapted from CDC.” Id. at 1. “This document is intended to provide guiding principles for

healthcare and non-healthcare administrators of correctional and detention facilities . . . to assist

in preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities.”

Id. Guidance specific to prisons was necessary because, due to the nature of holding inmates in a

“single physical setting” 24 hours per day, prisons “present[] unique challenges for control of

COVID-19 transmission among incarcerated/detained persons, staff, and visitors. . . .

5 –ORDER

Incarcerated/detained persons live, work, eat, study, and recreate within congregate

environments, heightening the potential for COVID-19 to spread once introduced.” Id.

Additionally, there is no dispute that the “tiered prevention plan and protocol” was

created in April 2020 specifically to address COVID-19 concerns. Young Decl. Ex. 2. After all,

that document is titled “ODOC COVID-19 Infection Prevention Plan & Testing Protocol.”

Id. (emphasis in original). That system remained in place throughout 2021. Young Decl. ¶ 26.

There is no dispute that the tiered system prohibited any group meetings for institutions at Tiers

3 or 4. Young Decl. ¶ 27. There is no dispute that based on that policy, “the decision was made

to offer a modified pow wow for 2021.” Young Decl. ¶ 27. The “modified pow wow,” consisting

of a meal including buffalo meat and fry bread, was delivered to pow wow participants’ cells on

September 30, 2021. Young Decl. ¶ 31. There is no dispute that in September 2021, TRCI,

where Plaintiff is housed, was at Tier 4 status.2 Young Decl. ¶ 32.

The Court sympathizes with Plaintiff’s frustrations regarding two years where his ability

to practice his religion in group settings was significantly curtailed. This was a frustration shared

by many, both in and out of correctional institutions. But the COVID-19 pandemic placed

ODOC officials in a precarious predicament. As noted above, courts around the country have

found, apparently unanimously, that public officials acting in 2020 and 2021 in response to the

rapidly evolving global pandemic are entitled to qualified immunity.3 New Mexico Elks Ass’n,

595 F. Supp. 3d at 1027-28 (citing cases). Like the restrictions here, the restrictions there

2 The ODOC did not simply issue a blanket proclamation placing all ODOC facilities at the Tier 4 level. In September

2021, eight ODOC facilities were in Tier 1 status, three facilities at Tier 2, one facility at Tier 3, and five facilities

(including Plaintiff’s facility) at Tier 4 (with the most restrictions). Young Decl. Ex. 8.

3 That actions taken today in response to COVID-19 may not be reasonable does not mean those same actions

taken in 2020 and 2021 were unreasonable. Public officials had to act with what the information known at the

time. The Court takes judicial notice that the vaccine for COVID-19 was not available in the United States until

December 2020.

6 –ORDER

involved blanket, as opposed to targeted, restrictions.4 Additionally, the cases mentioned in New

Mexico Elks concerned restrictions placed on the public at large. The restrictions challenged

here, however, were limited to AICs held in correctional institutions. Decades ago, the Supreme

Court clarified not only that “lawful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights,” but also that courts must give deference to the

judgment of prison officials:

In considering the appropriate balance of these factors, we have often said that

evaluation of penological objectives is committed to the considered judgment of

prison administrators, who are actually charged with and trained in the running of

the particular institution under examination. To ensure that courts afford

appropriate deference to prison officials, we have determined that prison

regulations alleged to infringe constitutional rights are judged on a

“reasonableness” test less restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights. We recently restated the

proper standard: When a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate penological

interests. This approach ensures the ability of corrections officials to anticipate

security problems and to adopt innovative solutions to the intractable problems of

prison administration,” and avoids unnecessary intrusion of the judiciary into

problems particularly ill suited to resolution by decree.

O’Lone, 482 U.S. 348-49 (internal footnotes, quotations, and citations omitted).

On this record, the Court concludes ODOC’s blanket prohibition on group activities from

May 2000 through May 2022 were reasonably related to ODOC’s legitimate concerns when

faced with a deadly, global pandemic. It is undisputed that “[i]t is not possible to maintain six

feet of social distancing between all persons present in a facility at all times with the current

4 There is no evidence indicating that ODOC officials specifically targeted NARS. Instead, due to the group settings

of the NARS practices, the blanket bans tended to impact AICs practicing NARS more than AICs whose religions

allow for praying or meditating in the solitude of their own cells. Plaintiff’s opposition acknowledges he is unable

to practice his religion in his cell. Pl.’s Resp. 18; ECF No. 76 (“As for being able to further practice my religion in my

cell, this is a misconception as well. My practices revolve around smudging, pipe ceremonies, drumming, beading,

singing, dancing, sweat ceremonies, and camaraderie among my brothers, which I am in constant prayer

throughout all of these practices, i.e., these practices are my form of prayer.”). Additionally, the restrictions did not

solely target all religious groups. ODOC “eliminat[ed] group activities in the yards and limit[ed] the number of AICs

that can be in the yard at one time.” Young Decl. ¶ 11(g).

7 –ORDER

physical layout of the institutions and the AIC population.” Young Decl. ¶ 10. That prison

officials chose to allow inmates in each unit to eat together, in close quarters during the same

time, does not render their decision to limit group religious gatherings unreasonable. The

pandemic required ODOC to take “historic and unprecedented” actions, including “[c]losing all

institutions to visitors, volunteers, and the majority of contract employees who are not deemed

‘essential.’” Young Decl. ¶ 11(a). Historically, ODOC’s pow wows rely extensively on

community volunteers. Young Decl. ¶ 5.

It is undisputed that prison officials based their decisions on guidance from Oregon’s

Governor, the OHA, and the CDC. Because the Court found no Supreme Court, Ninth Circuit, or

even District Court opinion placing Defendants on notice that they could be liable here for the

restrictions reasonably taken in response to an unprecedented global pandemic, the Court

concludes Defendants are entitled to qualified immunity. In short, the Court agrees with

Defendants that a “reasonable prison official would have believed that the procedures employed

in this case, all in accordance with ODOC policy—as well as OHA’s and the CDC’s public

health and safety recommendations—were lawful.” Def. Mot. 19; ECF No. 44.

Additionally, the Court concludes Plaintiff’s claims for injunctive relief are now moot.

“As of Fall 2022, all covid-related restrictions lifted at ODOC. Religious services have resumed

normal operations, as staffing and volunteers allow. There are no current covid-related

cancellations of any religious services at ODOC, and there are no plans for any such

cancellations moving forward.” Young Decl. ¶¶ 10-10; ECF No. 94. Therefore, Plaintiff’s

request for injunctive relief to allow “religious services to take place” is moot. Compl. ¶ 5; ECF

No. 2. There is no further injunctive relief for the Court to grant, and there is no indication that

the ODOC will reinstate the prohibitions on group religious meetings going forward.

8 –ORDER

Magistrate Judge Clarke’s Findings and Recommendation (ECF No. 100) is ADOPTED

in part. The Court declines to adopt the recommendations denying qualified immunity and

allowing Plaintiff’s claim for injunctive relief to proceed. Because the Court concludes

Defendants are entitled to qualified immunity and Plaintiff’s claim for injunctive relief is moot,

Defendants’ motion for Summary Judgment (ECF No. 44) is GRANTED.

IT IS SO ORDERED.

DATED this 2nd day of January, 2024.

_______/s/ Michael J. McShane________

Michael McShane

United States District Judge

9 –ORDER