Douglas v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAMEION DOUGLAS, Case No. 6:20-cv-00546-IM

Plaintiff, OPINION AND ORDER GRANTING

IN PART AND DENYING IN PART

v. SUMMARY JUDGMENT

CHAPLAIN DENNIS STAHLNECKER;

CHAPLAIN KARUNA THOMPSON; and

CHARLES SCHOW,

Defendants.

Dameion Douglas, SID #10131429, Oregon State Penitentiary, 2605 State Street, Salem, OR

97310. Pro Se.

Ellen F. Rosenblum, Attorney General, and Shannon M. Vincent, Senior Assistant Attorney

General, Oregon Department of Justice, Trial Division, CLS, 1162 Court Street NE, Salem, OR

97301. Attorneys for Defendants.

IMMERGUT, District Judge.

Before this Court are the parties’ cross-motions for summary judgment. Defendants’

Motion for Summary Judgment (“Defs.’ MSJ”), ECF 99; Plaintiff’s Motion for Summary

Judgment (“Pl.’s MSJ”), ECF 125. Plaintiff, an adult in custody (“AIC”) housed at the Oregon

PAGE 1 – OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

State Penitentiary (“OSP”), is Muslim and a member of the Nation of Islam (“NOI”). Plaintiff

claims that Chaplains Karuna Thompson and Dennis Stahlnecker violated his rights to religious

freedom and equal protection by (1) ending the Friday Jumma Prayer Service early on October

18, 2019; and (2) suspending Friday Jumma Prayer Services for 90 days from January 3, 2020 to

April 3, 2020. Verified Amended Complaint (“Am. Compl.”), ECF 75 at 5–11. Plaintiff also

alleges that Defendant Thompson violated his rights to religious freedom by failing to add him to

the Ramadan list in May 2019. Id. at 11–12. Plaintiff alleges that Officer Charles Schow denied

him access to the courts and improperly confiscated his personal property. Id. at 12. Finally,

Plaintiff alleges that Defendants took these actions in retaliation for Plaintiff’s grievances and

lawsuits. Id. at 6, 10, 13. Plaintiff brings his claims under 42 U.S.C. § 1983 and the Constitution,

the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and state law. Plaintiff

seeks declaratory and injunctive relief, as well as damages. Id. at 14–15.

As explained below, Defendants are entitled to summary judgment on Plaintiff’s

Establishment Clause, Equal Protection Clause, and RLUIPA claims against Defendants

Thompson and Stahlnecker; Plaintiff’s free exercise and retaliation claims against Defendants

Thompson and Stahlnecker relating to the early termination of the October 18 service; Plaintiff’s

claims for injunctive and declaratory relief; Plaintiff’s claims against Defendant Thompson for

the failure to include him on the May 2019 Ramadan list; and Plaintiff’s claims against

Defendant Schow for the May 2019 cell search. Defendants are not entitled to summary

judgment on Plaintiff’s retaliation and free exercise claims against Defendants Thompson and

Stahlnecker for the 90-day suspension of the Jumma Prayer Services. Plaintiff is not entitled to

summary judgment on any of his claims.

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LEGAL STANDARDS

Summary judgment is appropriate when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving

party bears the initial burden of demonstrating the absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden is satisfied, the burden

shifts to the non-moving party to set out specific facts showing a genuine issue for trial.

To defeat summary judgment, the non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elect. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue

for trial.’” Id. at 587. The record is reviewed in the light most favorable to the non-moving party.

United States v. Diebold, Inc., 369 U.S. 654 (1962).

When considering a motion for summary judgment, a court may neither weigh the

evidence nor assess credibility; instead, “the evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). A “material fact” is determined by the substantive law regarding the legal

elements of a claim. Id. at 248. If a fact will affect the outcome of the litigation and requires a

trial to resolve the parties’ differing versions of the truth, then it is material. S.E.C. v. Seaboard

Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). A dispute about a material fact is “genuine” if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.

Anderson, 477 U.S. at 248.

When, as here, the parties file cross-motions for summary judgment, the court must rule

on each party’s motion on an individual and separate basis, determining, for each side, whether a

PAGE 3 – OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

judgment may be entered in accordance with the Rule 56 standard. See Fair Hous. Council of

Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (“[W]hen parties

submit cross-motions for summary judgment, ‘[e]ach motion must be considered on its own

merits.’” (citation omitted)).

BACKGROUND

A. May 2019 Ramadan List

Plaintiff alleges that Defendant Thompson “failed to add [his] name to the Ramadan list”

in May 2019, which caused him to miss the first day of Ramadan. Am. Compl., ECF 75 at 11–

12.

According to Defendants, Defendant Thompson added Plaintiff’s name and the names of

all other NOI members at OSP to the Ramadan list before the start of Ramadan. See Declaration

of Chaplain Dennis Stahlnecker (“Stahlnecker Decl.”), ECF 101, Ex. 5.

B. May 2019 Cell Search

Plaintiff alleges that on May 27, 2019 Defendant Schow “came into [Plaintiff’s] cell and

removed/confiscated legal work including the following: approx. 300 pages of transcripts and 2

legal disc[s] containing needed transcripts, audio recordings, and exhibits needed for ongoing

Federal Court cases including my current 42 U.S.C[.] § 1983 lawsuit against several OSP and

ODOC employees. Officer Schow confiscated/destroyed the [aforementioned] without leaving a

confiscation or cell sanitation form and admitted to doing it when he apologized which has

interfered with my criminal and civil cases.” Am. Compl., ECF 75 at 12–13.

According to Defendant Schow, he was assigned to perform random cell searches on

May 27, and while searching Plaintiff’s cell he removed what looked like a bag of trash.

Declaration of Charles Schow (“Schow Decl.”), ECF 100 ¶¶ 6–7. Defendant Schow asserts that

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he was unaware of Plaintiff’s grievances and ongoing litigation against other ODOC staff. Id.

¶¶ 9–10.

C. October 18, 2019 NOI Jumma Prayer Service

On October 18, 2019, at around 1:25 p.m., Plaintiff went to the OSP Chapel room used

for the NOI Jumma Prayer Service. Am. Compl., ECF 75 at 1 ¶ 1; see Stahlnecker Decl., ECF

101 ¶ 6.

According to Plaintiff, he arrived alone and joined three AICs who were already in the

room. Am. Compl., ECF 75 at 1 ¶ 1. Defendant Thompson told the men they had only fifteen

minutes to perform their prayer. Id. Plaintiff’s fellow AICs left because that was not enough time

to read the sermon and pray, but Plaintiff chose to stay in the room and was eventually joined by

another AIC to go over the sermon. Id. At around 1:55 p.m., Defendant Stahlnecker ordered

Plaintiff to leave the Chapel. Id. Plaintiff claims that the Congregational Sunni Jumma Prayer

Service was being held in the Chapel library and that they were not asked to leave the Chapel. Id.

According to Defendants, Plaintiff and one other AIC were in the room reserved for their

Jumma Prayer, and they “were very loud, to the point that a religious services volunteer in the

next room over politely asked them to be quiet.” Stahlnecker Decl., ECF 101 ¶¶ 6–7.1 Defendant

1 Plaintiff contests whether the volunteer reported his group. Am. Compl., ECF 75 at 3

¶ 4. He claims that he sent that volunteer a letter, and that volunteer responded that he was at the

Chapel on October 18 and did not recall Plaintiff’s group being disruptive. Id. at 4 ¶ 6; see also

ECF 131-1 at 4. “A trial court can only consider admissible evidence in ruling on a motion for

summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citations

omitted). The Ninth Circuit has repeatedly held that “unauthenticated documents cannot be

considered in a motion for summary judgment.” Id. To be admissible, a document must be

authentic, meaning there must be “evidence sufficient to support a finding that the item is what

the proponent claims it is.” Fed. R. Evid. 901(a). There is insufficient evidence to support a

finding that the letter provided by Plaintiff is from the volunteer as Plaintiff claims. This Court

will not consider this letter for purposes of resolving the instant motions.

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Thompson warned Plaintiff about the noise and advised that he had fifteen minutes to complete

their Prayer Service. Id. ¶ 8. After more than fifteen minutes, Defendant Stahlnecker told

Plaintiff the Jumma Prayer Service time was over. Id.

Plaintiff filed a grievance regarding the October 18 incident. Am. Compl., ECF 75 at 2

¶ 2. In his grievance, he stated that Defendant Thompson was retaliating against him because he

had sued her. Id. In December 2019, Plaintiff received a grievance response from Defendant

Stahlnecker, which found that “[Plaintiff] and the other AIC were being very loud and using

vulgar language,” which caused a volunteer in the Chapel to ask them to be quiet. Id. at 2 ¶ 3.

The response also states that “this has happened many times in the past on numerous occasions”

and Plaintiff has been “warned about extreme noise.” Id.

D. Suspension of Jumma Prayer Services

In December 2019, Plaintiff learned that the group NOI Jumma Prayer Services were

suspended for 90 days, from January 3, 2020 to April 3, 2020. Am. Compl., ECF 75 at 8.

Defendants claim that Oregon Department of Corrections (“ODOC”) Religious Services decided

to suspend the group services due to continued noise issues and coarse language during the

group’s services. Stahlnecker Decl., ECF 101 ¶ 13. According to Defendants, the suspension

only applied to the group service that was causing a disturbance—impacted AICs could still pray

and practice their religion independently.

The 90-day suspension was cut short because of Covid-19 pandemic-related closures; all

group religious services were cancelled at OSP in March 2020 to contain the spread of the virus.

Id. ¶ 19.

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DISCUSSION

A. Injunctive and Declaratory Relief

As an initial matter, Defendants argue that Plaintiff lacks standing for the injunctive and

declaratory relief he seeks. This Court agrees. Plaintiff asks this Court to order Defendants to

“[i]mmediately make available the NOI’s Religious Storage Closet during the Friday NOI Prayer

Services.” Am. Compl., ECF 75 at 14. This relief is unrelated to the injuries Plaintiff alleges he

suffered, and so he has no standing to pursue it in this action. In addition, “[w]here a plaintiff

seeks damages or relief for an alleged constitutional injury that has already occurred declaratory

relief generally is inappropriate.” Hunter v. Daryl F. Gates, No. CV99–12811, 2001 WL 837697,

at *4 (C.D. Cal. Apr. 16, 2001) (citations omitted), aff’d sub nom. Hunter v. Gates, 68 F. App’x

69 (9th Cir. 2003); see also Santillan v. City of Reedley, No. CIV F 07-391 AWI SMS, 2007 WL

1847661, at *6 (E.D. Cal. June 27, 2007) (“Plaintiffs appear to be requesting a declaration that

involves only past conduct, where the harm has already occurred, and where there appears to be

no continuing adverse effects. Under these circumstances, [Plaintiff] has standing to sue for

damages under 42 U.S.C. § 1983, but has no standing to sue for declaratory relief that his

constitutional rights were violated.” (citations omitted)).

Defendants are entitled to summary judgment on Plaintiff’s claims for injunctive and

declaratory relief.

B. Retaliation

“It is well-established that . . . prisoners have a First Amendment right to file prison

grievances.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (first citing Rhodes v.

Robinson, 408 F.3d 559, 566 (9th Cir. 2005); and then citing Bruce v. Ylst, 351 F.3d 1283, 1288

(9th Cir. 2003)). “Retaliation against prisoners for their exercise of this right is itself a

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constitutional violation, and prohibited as a matter of ‘clearly established law.’’ Id. (citations

omitted).

“Within the prison context, a viable claim of First Amendment retaliation entails five

basic elements: (1) An assertion that a state actor took some adverse action against an inmate

(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

exercise of his First Amendment rights, and (5) the action did not reasonably advance a

legitimate correctional goal.” Rhodes, 408 F.3d at 567–68 (footnote and citations omitted).

1. May 2019 Ramadan List

Defendants are entitled to summary judgment on Plaintiff’s retaliation claim against

Defendant Thompson for failure to add his name to the Ramadan list. Defendants have produced

evidence establishing that Defendant Thompson added Plaintiff’s name to the Ramadan list. See

Stahlnecker Decl., ECF 101, Ex. 5 at 8, 13. While this Court accepts that Plaintiff missed the

first day of Ramadan, Plaintiff has not presented evidence to create a triable issue of fact as to

whether Defendant Thompson added his name to the list.

2. May 2019 Cell Search

Defendants are entitled to summary judgment on Plaintiff’s retaliation claim against

Defendant Schow. Plaintiff fails to introduce evidence to create a triable issue of fact as to

whether Defendant Schow conducted the May 2019 cell search out of a retaliatory motive. In

particular, Plaintiff presents no evidence plausibly suggesting that Defendant Schow knew of

Plaintiff’s grievances and lawsuits against other ODOC staff, nor that Defendant Schow took

adverse action against Plaintiff because of those grievances and lawsuits. The mere fact that the

alleged adverse action took place after Plaintiff filed prison grievances cannot establish that the

exercise of Plaintiff’s First Amendment rights was the legal and proximate cause of the

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retaliation. Pratt v. Rowland, 65 F.3d 802, 807–08 (9th Cir. 1995) (explaining that the timing of

adverse actions alone is insufficient to establish retaliatory intent).

3. Early Ending for October 18 Service

Defendants are entitled to summary judgment on Plaintiff’s retaliation claim against

Defendants Thompson and Stahlnecker for ending the Jumma Prayer Service on October 18. The

action Plaintiff alleges these Defendants took is not an adverse action sufficient to establish the

first element of retaliation. An adverse action is action that “would chill a person of ordinary

firmness” from engaging in that activity. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770

(9th Cir. 2006). In the prison context, the action taken must be clearly adverse to the plaintiff.

See, e.g., Rhodes, 408 F.3d at 568 (noting that arbitrary confiscation and destruction of property,

initiation of a prison transfer, and assault in retaliation for filing grievances was sufficient to

plead an adverse action); Pratt, 65 F.3d at 806–07 (reaffirming that an allegation of retaliatory

prison transfer and double-cell status sufficiently states a claim of retaliation). According to

Plaintiff’s version of events, he and his fellow worshipers were given a fifteen-minute warning

and then permitted to stay in the Chapel for another fifteen minutes. Plaintiff cannot show that

some limitation of prayer time—in this case to approximately 30 minutes—is an adverse action

that would “chill a person of ordinary firmness” from filing grievances.

4. Suspension of Services

Neither side is entitled to summary judgment on Plaintiff’s retaliation claim against

Defendants Thompson and Stahlnecker for the 90-day suspension of Jumma Prayer Services.

There are genuine issues of material fact as to the motivation for the suspension.

Defendants assert that the suspension was due to “recurring noise issues that posed a

threat to orderly operations and prison security.” Defs.’ MSJ, ECF 99 at 7. To support this

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assertion, Defendants provide the declaration of Defendant Stahlnecker, but Defendants do not

provide extrinsic evidence contemporaneous to the relevant period, August to December 2019.

For instance, there is no evidence that warnings were given or that efforts were made to warn the

group of the consequences of continuing in a particular manner. Moreover, while some responses

to Plaintiff’s grievances suggest that there were reports or complaints made against the NOI

group about the conduct of its members, see Stahlnecker Decl., ECF 101, Ex. 1 at 11, Defendants

provide no details or specificity as to the extent or frequency of the alleged disruptions.2

For his part, Plaintiff insists that “no outside volunteer Chaplain, OSP Chaplain, or OSP

Correctional Officer has ever asked me nor any AIC attending the NOI Service to ‘please be

quiet’ “on, before, or after October 18, 2019.” Declaration of Dameion Douglas, ECF 131 ¶ 16.

And Plaintiff points out that he filed grievances relating to the October 18 incident soon after it

occurred, and the 90-day suspension of the Prayer Services was close in time to those grievances

which could support an inference of retaliatory motive.

On this record, this Court is left with Plaintiff’s statements versus statements by

Defendants Stahlnecker and Thompson. Defendants have offered no additional evidence to

demonstrate as a matter of law that Plaintiff’s retaliation claim is implausible. Based on the

evidence the parties have provided, there are genuine issues of fact as to what happened prior to

the 90-day suspension and what motivated that suspension. Deciding which version of events is

accurate will require weighing the evidence and making credibility determinations, which are

2 This is not to say that in all circumstances there is a requirement to document a certain

number of complaints or warn an AIC or a group of AICs before imposing a sanction, nor that

such evidence is necessary to defeat a retaliation claim on summary judgment. Rather, these are

examples of evidence that could, depending on the facts of a particular case, allow this Court to

determine that a plaintiff’s retaliation claim is implausible as a matter of law.

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tasks for a jury. Defendants may very well prevail on this claim at trial, but at this stage

Defendants have not presented evidence showing Plaintiff’s version of events is implausible.

C. Free Exercise

Prisoners retain their First Amendment rights to free exercise of religion while

incarcerated. O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987), superseded on other grounds

by Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4, as stated in

Ashelman v. Wawrzaszek, 111 F.3d 674, 676–77 (9th Cir. 1997). When a prison regulation or

official acts impinge on an AIC’s constitutional right to free exercise, the regulation or acts are

valid if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S.

78, 89 (1987); see also Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008).3

Both parties recognize that such a determination is made through the test outlined in

Turner v. Safley, 482 U.S. 78 (1987), which requires this Court to balance four factors in

determining whether the challenged conduct is reasonably related to legitimate penological

interests: (1) whether there is a valid rational connection between the challenged conduct and the

legitimate government interest put forward to justify it; (2) whether there are alternative means

of exercising the right that remain open to prison inmates; (3) whether accommodation of the

asserted constitutional right will impact guards and other inmates or prison resources generally;

and (4) whether there is an absence of ready alternatives versus the existence of obvious, easy

alternatives. Shakur, 514 F.3d at 884 (citing Turner, 482 U.S. at 89–90). “The first Turner factor

is the most important.” Jones v. Slade, 23 F.4th 1124, 1135 (9th Cir. 2022). In conducting this

3 To warrant protection under the First Amendment, the religious belief must be

“sincerely held” and “rooted in religious belief,” rather than in secular philosophical concerns.

Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (citations omitted). That aspect of this case is

not in dispute.

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analysis, courts are to give significant deference to the views of prison officials given the

“inordinately difficult” nature of prison operation. Turner, 482 U.S. at 84–85.

1. May 2019 Ramadan List

Defendants are entitled to summary judgment on Plaintiff’s free exercise claim for

Defendant Thompson’s alleged failure to add his name to the May 2019 Ramadan list. As noted

above, Defendants have produced evidence showing that Defendant Thompson added Plaintiff’s

name to the list. While this Court accepts that Plaintiff missed the first day of Ramadan, there is

no genuine dispute over whether Defendant Thompson added his name to the list.

2. Early Ending for October 18 Service

Defendants are entitled to summary judgment on Plaintiff’s free exercise claim for the

early ending of the Jumma Prayer Service on October 18. Plaintiff has not established that his

right to free exercise was impinged by being required to leave the Chapel early. According to

Plaintiff’s version of events, he had the opportunity to participate in the Jumma Prayer Service

for half an hour. While fifteen minutes may not be enough time to complete the Service, see Am.

Compl., ECF 75 at 1 ¶ 1, Plaintiff was ultimately allotted thirty minutes. Further, Plaintiff does

not specify how much additional time he expected to have in the Chapel, nor how much time his

group has been allotted in the past.

3. Suspension of Services

Neither side is entitled to summary judgment on Plaintiff’s free exercise claim relating to

the 90-day suspension of the Jumma Prayer Services. As explained for the retaliation claim

relating to the 90-day suspension, there are issues of fact that preclude summary judgment.

In particular, there are issues of fact as to why the Defendants suspended the Jumma

Prayer Services. Defendants claim the group had a history of being vulgar and disruptive, which

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is supported by Defendant Stahlnecker’s declaration. Defendants do not provide further evidence

establishing that the group had been complained of or disciplined for this alleged behavior.

Plaintiff claims there is no such history, which is supported by his Verified Complaint and

declaration. See Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (“A verified complaint

may be treated as an affidavit to oppose summary judgment to the extent it is ‘based on personal

knowledge’ and ‘sets forth specific facts admissible in evidence.’” (citation omitted)). Plaintiff

asserts that the Defendants suspended the service in order to retaliate against him for filing

grievances. This Court cannot decide which version is accurate without weighing the evidence

and making credibility determinations, which is not permitted on summary judgment.

Because there are questions of fact going to the events leading up to the suspension and

the reason for the suspension, this Court cannot weigh the first—and most important—Turner

factor. Under Defendants’ version of events, the legitimate penological interest was controlling

noise levels and providing a disruption-free Chapel. Suspending the disruptive group would have

a valid, rational connection to that goal. Under Plaintiff’s version, there is no legitimate

penological purpose because the Defendants’ actions were retaliatory and were not based on

noise and disruption. Accordingly, this factor favors neither party.

Second, Plaintiff did appear to have alternative means available to practice his religion

other than through the Jumma Prayer Services. Defendants claim that he had “access to the

written Khutba (the sermon for the Friday Prayer) and could exercise his faith in his cell.” Defs.’

MSJ, ECF 99 at 10. Plaintiff does not contest that he had the ability to practice his religion

individually. This factor weighs in favor of Defendants.

As for the third and fourth Turner factors, the issues of fact as to the underlying events

prevent this Court from evaluating these factors. If Defendants’ version of events is accurate,

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then this Court would weigh the impact of accommodating a disruptive group in the Chapel and

any alternatives to excluding a disruptive group. On the other hand, if Plaintiff’s version of

events is accurate, then this Court would weigh the impact of requiring Chaplains not to retaliate

and alternatives to excluding an AIC as a means of retaliation. At this stage, these factors favor

neither side.

Because there are preliminary questions of fact as to the events predating the suspension

and the motivation for the suspension, neither side is entitled to summary judgment on this

claim.

D. Establishment Clause

The First Amendment’s Establishment Clause, applicable to state action by incorporation

through the Fourteenth Amendment, states that “Congress shall make no law respecting an

establishment of religion.” U.S. Const. amend. I; see Everson v. Bd. of Educ. of Ewing Twp., 330

U.S. 1, 8 (1947). “This clause applies not only to official condonement of a particular religion or

religious belief, but also to official disapproval or hostility towards religion.” Am. Fam. Ass’n,

Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120–21 (9th Cir. 2002); see also

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“In our

Establishment Clause cases we have often stated the principle that the First Amendment forbids

an official purpose to disapprove of a particular religion or of religion in general.” (citations

omitted)); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396 (9th Cir. 1994) (“The government

neutrality required under the Establishment Clause is thus violated as much by government

disapproval of religion as it is by government approval of religion.” (citations omitted)).4

4 Plaintiff discusses at length the test established by Lemon v. Kurtzman, 403 U.S. 602

(1971). See Pl.’s MSJ, ECF 125 at 4–8. In light of Kennedy v. Bremerton School District, 597

U.S. 507 (2022), “[i]nstead of relying on the Lemon test, lower courts must now interpret the

PAGE 14 – OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

1. May 2019 Ramadan List

Defendants are entitled to summary judgment on Plaintiff’s Establishment Clause claim

against Defendant Thompson for the alleged failure to add Plaintiff to the Ramadan list in May

2019. As explained in the preceding sections, Defendants have produced evidence showing that

Defendant Thompson added Plaintiff’s name to the Ramadan list. While this Court accepts that

Plaintiff missed the first day of Ramadan, there is no genuine dispute of fact as to whether

Defendant Thompson added his name to this list.

2. Early Ending for October 18 Service and Suspension of Services

Defendants are entitled to summary judgment on Plaintiff’s Establishment Clause claims

relating to the early termination and suspension of the Jumma Prayer Services. The facts alleged

by Plaintiff, even when construed in his favor, raise no plausible inference that Defendants

Thompson or Stahlnecker officially condoned a particular religion or religious belief or acted out

of hostility toward Plaintiff’s religion.

E. Equal Protection

The Equal Protection Clause mandates that prison officials cannot discriminate against

particular religions. Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), abrogated on other

grounds by Shakur, 514 F.3d at 884–85, as stated in Penwell v. Holtgeerts, 365 F. App’x 665,

667 (9th Cir. 2010). “[T]he Equal Protection Clause entitles each prisoner to a reasonable

opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who

adhere to conventional religious precepts.” Shakur, 514 F.3d at 891 (citation and internal

Establishment Clause by ‘reference to historical practices and understandings.’” Sabra v.

Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 888 (9th Cir. 2022) (quoting Kennedy, 597 U.S.

at 535). Because this Court concludes that Plaintiff has alleged no facts and provided no

evidence giving rise to an inference of hostility toward his religion, it is unnecessary to

determine what test is appropriate.

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quotation marks omitted). “To succeed on an equal protection claim, a plaintiff in a [§] 1983

claim must show that officials intentionally acted in a discriminatory manner.” Freeman, 125

F.3d at 737 (first citing FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991); and then citing

Sischo–Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir. 1991)), superseded

on other grounds as stated in Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1041–42

(9th Cir. 2005) . A plaintiff may show discriminatory intent by offering evidence of disparate

treatment sufficient to raise an inference of discriminatory purpose. Freeman, 125 F.3d at 737–

39.

1. May 2019 Ramadan List

Defendants are entitled to summary judgment on Plaintiff’s equal protection claim

against Defendant Thompson for the Ramadan list. Construing the facts and drawing inferences

in Plaintiff’s favor, Plaintiff has not presented evidence to create a triable issue of fact as to

whether Defendant Thompson intentionally acted in a discriminatory manner. The exhibits

provided by Defendants show that Defendant Thompson realized that several NOI members,

including Plaintiff, had not been added to the Ramadan list. Ahead of Ramadan, Defendant

Thompson added them to the list.

2. Early Ending for October 18 Service and Suspension of Services

Defendants are entitled to summary judgment on Plaintiff’s equal protection claim for the

early ending of the Jumma Prayer Service and the 90-day suspension of Services. The facts

alleged by Plaintiff reflect no intent on the part of Defendants to discriminate against Plaintiff or

treat him differently because of his religion. Rather, Plaintiff alleges that Defendants Thompson

and Stahlnecker were motivated by retaliation. Indeed, Plaintiff has produced no evidence that

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would give rise to a reasonable inference that the Defendants intended to discriminate against

him on account of his religion.

F. RLUIPA

RLUIPA provides broader protections for religious exercise than does the First

Amendment. See Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir. 2008). RLUIPA

provides that “[n]o [state or local] government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution” unless the government shows the

burden furthers “a compelling governmental interest” and is the “least restrictive means” of

furthering that interest. 42 U.S.C. § 2000cc-1(a); see also Cutter v. Wilkinson, 544 U.S. 709, 715

(2005). RLUIPA defines “religious exercise” as “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); see also

Cutter, 544 U.S. at 715.

Defendants are entitled to summary judgment on Plaintiff’s RLUIPA claims because,

even assuming Plaintiff could show violations of RLUIPA, he is not entitled to the relief he

seeks for several reasons.

First, RLUIPA does not contemplate liability of government employees in their

individual capacity. See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). According to the

Amended Complaint, Plaintiff’s RLUIPA claims are made against the Defendants in their

individual capacities. Second, any claims for monetary damages against Defendants, who are

state employees, in their official capacities are barred by sovereign immunity. See Sossamon v.

Texas, 563 U.S. 277, 285–86 (2011); see also Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir.

2012). Likewise, “RLUIPA does not authorize suits for damages against state officials in their

individual capacities because individual state officials are not recipients of federal funding and

PAGE 17 – OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

nothing in the statute suggests any congressional intent to hold them individually liable.” Jones

v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (citing Wood, 753 F.3d at 903–04). Because

Plaintiff is not entitled to money damages for the alleged RLUIPA violations, whether brought

against Defendants in their official or individual capacities, he can prove no set of facts that

would entitle him to relief. Third, along with barring claims for monetary damages, the Eleventh

Amendment also bars retrospective declaratory relief against the state. Lund v. Cowan, 5 F.4th

964, 969 (9th Cir. 2021). Last, as discussed above, Plaintiff does not have standing to pursue his

claims for injunctive relief.

For all these reasons, Defendants are entitled to summary judgment on Plaintiff’s

RLUIPA claims.

G. Access to Courts

To establish a violation of the right of access to the courts, Plaintiff must establish that he

has suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349 (1996). Actual injury is a

jurisdictional requirement that flows from the doctrine of standing and may not be waived. Id.

Plaintiff must show “actual prejudice with respect to contemplated or existing litigation, such as

the inability to meet a filing deadline or to present a claim.” Nev. Dep’t of Corr. v. Greene, 648

F.3d 1014, 1018 (9th Cir. 2011) (quoting Lewis, 518 U.S. at 348).

Plaintiff has not presented evidence to create a triable issue of fact as to whether he

suffered any prejudice from Defendant Schow’s confiscation of his legal materials. He states that

the confiscation interfered with his criminal and civil cases, but he offers no specific details nor

any evidence to show actual prejudice. Defendants are entitled to summary judgment on this

claim.

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H. State-Law Claim

Last, Plaintiff cannot pursue a state-law claim for conversion in this Court against

Defendant Schow. The sole cause of action under Oregon law for any tort committed by ODOC

officers or employees acting within the scope of their employment or duties, as alleged here, is

an action against ODOC under the Oregon Tort Claims Act. O.R.S. 30.265(1)–(2). However,

ODOC is an arm of the State and is immune from suit in federal court for supplemental state-law

claims. See Eaton v. Two Rivers Correction Inst. Grievance Coordinator Enyon, Case No. 2:20-

cv-1251-SI, 2020 WL 7364975, at *6 (D. Or. Dec. 15, 2020); Est. of Pond v. Oregon, 322 F.

Supp. 2d 1161, 1165 (D. Or. 2004). Accordingly, Defendants are entitled to summary judgment

on Plaintiff’s state-law claim.

CONCLUSION

Defendants’ Motion for Summary Judgment, ECF 99, is GRANTED in part and

DENIED in part. Defendants are entitled to summary judgment on all claims except those

relating to the 90-day suspension of the Jumma Prayer Services. For those claims, Plaintiff may

only seek damages. Defendant Schow is DISMISSED from this action. Plaintiff’s Motion for

Summary Judgment, ECF 125, is DENIED.

IT IS SO ORDERED.

DATED this 31st day of March, 2024.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

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