JAMES YOUNGBEAR, ROBERT YOUNGBEAR, and ROBERT STRONGHEART,
Plaintiffs, vs. JOHN A. THALACKER, ERNIE OWENS, and DAVID
COSTELLO, Defendants.
No. C 99-3027-MWB
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
IOWA, CENTRAL DIVISION
174 F. Supp. 2d 902
November 8, 2001, Decided
MEMORANDUM OPINION REGARDING TRIAL ON THE
MERITS
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND
II. FINDINGS OF FACT
III. LEGAL ANALYSIS
A. First Amendment Claim
1. Turner Analysis
2. First Turner factor
3. Second Turner factor
4. Third Turner factor
5. Fourth Turner factor
B. Equal Protection Claim
C. Qualified Immunity
1. Scope and purpose of
qualified immunity
2. The court's inquiry
IV. CONCLUSION
The issue
of the right of inmate practitioners of the Native American religion to have
access to a sweat lodge has been the subject of widespread and pervasive litigation
over the past decade. See e.g.,
Rich v. Woodford, 210 F.3d 961 (9th Cir. 2000) (dissent from refusal to
rehear case en banc in which a condemned man had sought to take part in a sweat
lodge ceremony prior to his execution); McElhaney v. Elo, 202 F.3d 269, 2000 WL
32036, at *4 (6th Cir. 2000) (unpublished decision affirming the granting of
summary judgment for defendant prison officials on First Amendment claim that
plaintiff's free exercise of religion rights were denied by lack of access to a
sweat lodge); Swan v. Smith, 129 F.3d 127, 1997 WL 697812 (9th Cir. 1997)
(unpublished opinion considering prisoner's claim that his constitutional
rights [*907] were violated when he
and other close custody inmates were not allowed to attend sweat lodge
ceremonies); Thomas v. Gunter, 103 F.3d 700, 702 (8th Cir. 1997) (affirming the
granting of summary judgment in favor of prison officials where district court
determined that denial of extended daily access to sweat house was rationally
related to legitimate penological interests); Cubero v. Burton, 96 F.3d 1450,
1996 WL 508624, at * (7th Cir. 1996) (unpublished decision considering claims
that prison officials interfered with inmates' First Amendment right to
practice their Native American religion by denying them religious materials,
permission to "smudge" in their rooms, and temporarily closing sweat
lodge at prison); Hamilton v. Schirro, 74 F.3d 1545, (8th Cir.) (considering
Native American inmate's claim that prison officials violated his First
Amendment right to free exercise of religion by denying him access to sweat
lodge), cert. denied, 519 U.S. 874 (1996); Werner v. McCotter, 49 F.3d 1476,
(10th Cir.) (holding that absence of evidence as to governmental interest and
burden associated with provision of sweat lodge to facilitate exercise of
Native American shamanism precluded summary judgment for prison officials),
cert denied sub nom. Thomas v.
McCotter, 515 U.S. 1166, 132 L. Ed. 2d 866, 115 S. Ct. 2625 (1995); Thomas v.
Gunter, 32 F.3d 1258, 1261 (8th Cir. 1994) (holding that prison officials would
not be entitled to qualified immunity for violating prisoner's rights to free
exercise of religion unless rational relationship could be shown between
legitimate penological interests and denial of access to prison sweat lodge for
prayer); McKinney v. Maynard, 952 F.2d 350, 351 (10th Cir. 1991) (inmate sought declaratory and injunctive
relief to permit the construction of a sweat lodge at correctional facility),
overruled by McAlpine v. Thompson, 187
F.3d 1213 (10th Cir. 1999); Allen v. Toombs, 827 F.2d 563, 565 & nn. 5, 9
(9th Cir. 1987) (upholding regulations denying access to the sweat lodge by
high security inmates but allowing weekly access by general prison
population).
In this
case, the court must determine whether correctional officials' year-long delay
in the construction of a sweat lodge, used for conducting ceremonies of the
Native American religion, at a newly opened correctional facility, was
violative of plaintiffs' right to free exercise of religion under the First
Amendment and equal protection under the
Fourteenth Amendment.
I. INTRODUCTION AND BACKGROUND
On April 22, 1999, plaintiffs James Youngbear, Robert Youngbear,
and Robert Strongheart filed their complaint in this lawsuit pursuant to the
Civil Rights Act of 1871, 42 U.S.C. § 1983, against defendants John A.
Thalacker, Ernie Owens, and David Costello. n1 Plaintiffs, all Native Americans
presently incarcerated at the Fort Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, assert that
defendants, all Iowa prison officials at FDCF, violated their First Amendment
right to free exercise of religion by delaying construction of and access to a
sweat lodge. n2 Plaintiffs also allege that defendants [*908]
violated their Equal Protection rights under the Fourteenth Amendment to
the United States Constitution by providing members of other religions the
opportunity to conduct services while denying the same opportunity to
plaintiffs to conduct a Native American religious service. Defendants filed
their answer in this matter on November 8, 1999. In their answer, defendants
denied plaintiffs claims, and asserted the affirmative defense of qualified
immunity.
This case was tried to the court on October 16, 2001, in Sioux
City, Iowa. The court exercised jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiffs were represented by Patrick Ingram of Mears Law Office, Iowa City,
Iowa. Defendants were represented by Assistant Attorney General Layne M.
Lindebak, Des Moines, Iowa.
The court will begin with its findings of fact and then turn to
its legal analysis and conclusions of law regarding plaintiffs' claims. If the
court concludes that defendants are liable on any of the legal theories
asserted by plaintiffs, it will determine whether defendants have established
their affirmative defense of qualified immunity. Finally, if the court
concludes that defendants are liable on
any of the legal theories and not entitled to qualified immunity, the court
will determine what remedies are available and appropriate under the
circumstances.
II. FINDINGS OF FACT
The Fort
Dodge Correctional Facility ("FDCF"), Fort Dodge, Iowa, opened in
April of 1998. FDCF is a medium level correctional facility. At the time FDCF
opened, it did not have a sweat lodge. A sweat lodge is used by members of the
Native American religion as the heart of their purification ceremony. A sweat
lodge consists of an oval, dome shaped structure made using willow saplings as
the frame. The sweat lodge structure was traditionally covered by animal hides
but is now often covered by canvas. Inside the sweat lodge a pit is dug in
which rocks are placed after being heated in a fire pit outside the structure.
The Iowa Department of Corrections knew when the FDCF opened that it would
require a sweat lodge. It could also have reasonably anticipated having Native
American inmates incarcerated at that facility within thirty days of its
opening.
Plaintiffs James Youngbear,
Robert Youngbear, and Robert Strongheart are inmates at the FDCF. Robert
Youngbear was transferred to the FDCF on June 24, 1998. Approximately a month
later, on July 29, 1998, James Youngbear was transferred to the FDCF. Robert
Strongheart arrived at the FDCF on December 16, 1998. Plaintiffs are all
members of the Native American religion All three plaintiffs practiced the
Native American religion before being incarcerated. Plaintiffs James Youngbear
and Robert Youngbear had each been involved in the construction of sweat lodges
before being incarcerated. All three plaintiffs hold sincere beliefs in the
Native American religion.
Defendant John Thalacker is the FDCF's warden. Defendant Ernie
Owens was hired in September 1998, as the first treatment manager for the FDCF.
Before working at the FDCF, defendant Owens was a substance abuse counselor at
the Clarinda correctional facility, Clarinda, Iowa. Defendant Owens's
responsibilities as a treatment manager at the FDCF [*909] included work
programs, private sector jobs, and religious activities at the FDCF. Defendant
Owens's duties at Clarinda did not involve supervision of the Native American
religious activities at that correctional facility. There were five to ten
Native American inmates at the FDCF when Owens arrived there.
On September 9, 1998, inmate Kenneth Frazier submitted a written
request for services in the Native American religion at the FDCF to Marry Dix,
the treatment director at the FDCF. n3 At the time of Frazier's request,
defendant Owens was in his orientation process. Owen met with Frazier on
October 5, 1998, and discussed Frazier's request. Frazier also requested that
until a sweat lodge could be constructed at the FDCF that the Native American
inmates be permitted to meet for one hour each week. Owen stressed to Frazier
the need for the FDCF to have a consultant to advise the institution on how to
start and maintain Native American religious services. Owens wanted the
assistance of a Native American consultant because he did not have a background
in Native American affairs. Frazier informed Owens that he had built sweat
lodges previously. Frazier initially told Owens that any ground on which the
sweat lodge would be situated would need to be blessed by a medicine man.
Frazier informed told Owens that while such a blessing would be preferred, it
was not required.
The Iowa Department of Corrections has contracted with Native
American religion consultants since the mid-1980's to supervise and assist
Native American inmates who practice the Native American religion who are incarcerated
in Iowa's correctional facilities. n4 The Native American religion consultants
also advise correctional staffs as to religious practices and beliefs. The
Native American religion consultants' duties include quarterly visits to each
correctional institution assigned to them, supplying ceremonial items,
informing correctional staff as to which inmates may participate in the sweats,
and conducting the sweats when at the institution.
Prior to June of 1998, the Iowa Department of Corrections
contracted with Ralph Preston to act as its Native American religion
consultant. However, by June 8, 1998, the Iowa Department of Corrections
decided not to renew its contract with Preston because Preston was not making
his required visits to the correctional facilities. The Iowa Department of
Corrections decided to contract with two Native American consultants, one to
work with correctional facilities located in western Iowa and the other to work
with correctional facilities located in eastern Iowa. The Iowa Department of
Corrections contracted with [*910] Fred LaMere to be a Native American
consultant to provide services to the correctional facilities located in
eastern Iowa: the Iowa State Penitentiary in Fort Madison, Iowa: the Anamosa
State Penitentiary in Anamosa, Iowa; the Mount Pleasant Correctional Facility;
and, the Newton Correctional Facility. LaMere resides in Sioux City, Iowa,
located in Northwest Iowa. n5 The reason LaMere was assigned to the
correctional facilities located in eastern Iowa was because the Iowa Department
of Corrections was most concerned about the Iowa State Penitentiary and the Anamosa
State Penitentiary.
Paul A. Muller, the Iowa Department of Corrections's Assistant Deputy
Director for the Eastern Region was in charge of locating a Native American
religion consultant to replace Preston. On June 4, 1998, Muller called Maria
Pearson to find a Native American consultant. Pearson, a Native American who
lives in Ames, Iowa, and is on the Governor's Committee For Native American
Affairs, said that she would look into finding a consultant. On June 23, Muller
again called Maria Pearson regarding finding a Native American consultant.
Pearson indicated that she thought she new an individual in Des Moines, Iowa,
who might be interested in the position. Muller had used Pearson in this
capacity previously to find Native American religion consultants for the Iowa
Department of Corrections. On June 29, 1998, Muller tried to call Pearson
regarding the consultant position but her telephone was temporarily
disconnected. On July 2, 1998, Muller again tried to get in contact with
Pearson by telephone. On this occasion Pearson was not home. Muller left a
message on Pearson's answering machine inquiring whether the person from Des
Moines, that Pearson had previously mentioned, was interested in the Native American religion consultant position. On
July 10, 1998, Muller again telephoned Pearson and found that she was not home.
Muller left his name on her answering machine. On July 13, 1998, Muller learned
from Jane Ross that Maria Person had called and said that the person in Des
Moines she had previously mentioned was not interested in the Native American
religion consultant position. On September 13, 1998, LaMere telephoned Muller
regarding the FDCF. LaMere informed him that willows could be brought into the
FDCF and that the inmates could construct a sweat lodge in that facility.
LaMere also suggested the name of an individual, Elmer Running, to Muller who
might be interested in the Native American religion consultant position. Muller
did not request that LaMere go to the FDCF to oversee the construction of a
sweat lodge there and LaMere did not volunteer to do so.
Muller subsequently met with Running, Running's wife, and LaMere
sometime in the fall of 1998, regarding the Native American religion consultant
position. In December of 1998, the Iowa Department of Corrections contracted
with Elmer Running, a Nebraska medicine man, to become the Iowa Department of
Corrections's Native American religion
consultant for the Iowa correctional facilities located in western Iowa.
Running was expected to visit the FDCF soon to provide guidance and help
establish the sweat lodge at the FDCF. When Running did not visit the FDCF,
defendant Owens telephoned the Running residence and spoke with his wife. Mrs.
Running indicated that they did not have enough money to enable Running [*911]
to come the FDCF at that time. On February 26, 1999, the contract
between Running and the Iowa Department of Corrections was terminated because
Running was unable to fulfill its terms.
Muller then set out to find another Native American religion
consultant. On March 8, 1999, Muller again telephoned Maria Pearson to find a
Native American religion consultant. Muller subsequently interviewed a person
for the consultant position. After interviewing this person, Muller contacted
Pearson to find out whether she would recommend that person for the position of Native American religion consultant.
Pearson told Muller that she would not recommend this individual for the
position.
Frazier requested that Native American inmates at the FDCF be
permitted to meet periodically. This request was granted in January of 1999. Native American inmates were
permitted to meet for one hour in the prison chapel. Although Frazier requested
that Native American inmates be permitted to smudge at these meetings, this
request was denied due to state regulations prohibiting open fires in
buildings. n6
Because it was unclear how long it would take to contract with
another Native American consultant, the chaplain at the Newton Correctional
Facility, Perry Stevens, was contacted to assist the FDCF in establishing a
sweat lodge at the FDCF. Stevens was contacted because he had experience with
Native American practices at the Newton Correctional Facility. Owens delegated
to Ryan Charles Moore the responsibility to check with other correctional
institutions regarding their policies with respect to the practice of Native
American religion and to write a proposed policy for the FDCF concerning the
practice of Native American religion at that facility. Owen wanted to be able
to construct the sweat lodge as soon as the weather permitted in the spring.
Moore obtained copies of Native American religious policies used at other Iowa
correctional facilities and researched smudging. Moore spoke with Stevens and
inmate Frazier regarding what materials would be needed for the sweat lodge and
to conduct a sweat. Moore also contacted the Iowa Department of Natural
Resources to make arrangements for obtaining the willow saplings needed for
construction of the sweat lodge.
Stevens came to the FDCF on April 13, 1999, to make
recommendations for establishing a sweat lodge at the FDCF. Stevens viewed the
proposed cite for the sweat lodge and recommended moving the site east in order
to permit the FDCF's Master Control to
monitor the fire pit. After Stevens's visit to the FDCF, Moore prepared a
memorandum to Owens detailing Stevens suggestions and the supplies that needed
to be purchased in preparation for conducting a sweat at the FDCF.
On April 19, 1999, Pearson called Muller and told him that Alex
Walker would be a good choice for the position of Native American religion
consultant. After speaking with Pearson, Muller called Walker on April 19,
1999, and offered him the position of Native American religion consultant.
Walker accepted the offer. On April 26, 1999, Muller mailed a contract [*912]
for the position of Native American religion consultant to Walker, and
on April 29, 1999, Walker signed the contract.
Moore cut willow saplings himself from an area designated by the
Iowa Department of Natural Resources. Moore's obtaining of the willow saplings,
however, was delayed because the willows were located close to a river and
spring weather conditions made the area inaccessible. A sweat lodge was built
at the FDCF by Native American inmates without a consultant or medicine man
being present. Construction of the sweat lodge took approximately three hours.
On June 5, 1999, the first sweat was held at the FDCF's sweat lodge.
After obtaining copies of Native American religion policies used
at other Iowa correctional facilities, Moore spent approximately 30 hours
reviewing those policies and drafting a policy for the FDCF concerning Native
American religion. On July 22, 1999, the policy drafted by Moore concerning Native
American religion was approved. Defendant Thalacker was responsible for
assuring that a sweat lodge was built in a timely fashion at the FDCF.
III. LEGAL ANALYSIS
A. First Amendment Claim
Plaintiffs
contend that defendants unreasonably delayed responding to their requests for
the construction of a sweat lodge and that they be permitted to conduct sweats.
Prisoners do not lose all rights to free exercise of religion upon
incarceration. See Shabazz, 482 U.S. at 348; Cruz v. Beto, 405
U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (per curiam); Kikumura
v. Hurley, 242 F.3d 950, 956 (10th Cir. 2001); Flagner v. Wilkinson, 241 F.3d
475, 483 (6th Cir.), petition for cert. filed, 70 U.S.L.W. 3162 (Aug. 23, 2001)
(No. 01-324); Makin v. Colorado Dep't of Corrections, 183 F.3d 1205, 1209 (10th
Cir. 1999); Mosier v. Maynard, 937 F.2d 1521, 1525 (10th Cir. 1991); Friend v.
Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991); Williams v. Lane, 851 F.2d
867, 871 (7th Cir. 1988), cert. denied, 488 U.S. 1047, 102 L. Ed. 2d 1001, 109
S. Ct. 879 (1989); Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985). The
rights retained include the right to congregate for prayer or discussion.
See O'Lone, 482 U.S. at 348.
Nonetheless, a prisoner's free exercise right "is necessarily limited by
the fact of incarceration, and may be curtailed in order to achieve legitimate
correctional goals or to maintain prison security." O'Lone, 482 U.S. at
348; see Rouse v. Benson, 193 F.3d
936, 942 (8th Cir. 1991) (noting that "prison officials may restrict the
religious practices of inmates only if such deprivation is necessary to further
legitimate penological interests."); Ward v. Walsh, 1 F.3d 873, 876 (9th
Cir. 1993) (holding that the right to free exercise of religion is
"necessarily limited by the fact of incarceration, and may be curtailed in
order to achieve legitimate correctional goals, or to maintain prison security."); McElyea
v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (noting that a
prisoner's "free exercise right . . . is necessarily limited by the fact
of incarceration, and may be curtailed in order to achieve legitimate
correctional goals or to maintain prison security.").
Prison regulations that
infringe on the constitutional rights of prisoners to free exercise of religion
are judged by their reasonableness and prison officials are not required to
choose the least restrictive means possible in furthering administrative interests. Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th
Cir. 1990), cert. denied, 498 U.S. 1026, 112 L. Ed. 2d 669, 111 S. Ct. 677
(1991) ("Prison regulations that infringe on the constitutional [*913]
rights of prisoners are judged by their reasonableness. Prison officials
are not required to choose the least restrictive means possible in furthering
administrative interests."); see also
Garza v. Carlson, 877 F.2d 14, 16 (8th
Cir. 1989) (affirming district court's interpretation of O'Lone, as
stating that no constitutional violation is committed where prison officials
have shown a legitimate penological basis for limiting an inmate's access to
communal worship); Butler-Bey v. Frey, 811 F.2d 449, 451 (8th Cir. 1987)
(prison officials need only show that the religious practice "could create
a potential threat to a legitimate penological interest" and that their
response was not exaggerated); Murphy v. Missouri Dept. of Corrections, 814
F.2d 1252, 1256 (8th Cir. 1987) (need for a particular prison regulation
limiting free exercise of religion is to be balanced against the invasion of
religious freedom the restriction entails). The reasonableness of defendants'
actions are determined pursuant to the factors articulated in Turner v. Safley,
482 U.S. 78, 89-90, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987); Cf. O'Lone v. Estate of Shabazz, 482 U.S. 342,
352, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987).
1. Turner Analysis
The court
must consider four factors to determine if regulation of exercise of religion
is reasonable. Turner, 482 U.S.
at 89; see also O'Lone v. Estate of
Shabazz, 482 U.S. 342, 350-351, 96 L. Ed. 2d 282, 107 S. Ct. 2400. In Turner, the United States Supreme Court
considered whether Missouri prison regulations restricting inmate
correspondence and marriages were constitutionally permissible. Turner, 482 U.S. at 91-93. The Court upheld
the restrictions on correspondence, noting the rational relationship between
the restrictions and prison security, but struck down the restrictions on
inmates' rights to marry. Id. at 96.
The reasonableness test announced in Turner by the court balances an inmate's
free exercise right and the prison's legitimate correctional goals and security
concerns. The Turner reasonableness test sets forth four factors to be
considered in determining when a regulation is reasonably related to legitimate
penological interests. First,
there must be a "'valid, rational connection' between the prison regulation
and the legitimate governmental interest put forward to justify it." Turner,
482 U.S. at 89; accord O'Kane, 482 U.S. at 350. Second, a reviewing court must
assess whether there are "alternative means of exercising the right that
remain open to prison inmates." Turner, 482 U.S. at 89; accord
O'Kane, 482 U.S. at 351. Third, a court must determine "the impact
accommodation of the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources generally." Turner,
482 U.S. at 89; accord O'Kane, 482
U.S. at 352. Finally, "the absence of ready alternatives" to the
prison regulation must be explored. The "existence of obvious, easy
alternatives may be evidence that the regulation is not reasonable." Turner,
482 U.S. at 89.
However, only sincerely held religious beliefs require
accommodation by prison officials. See
Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994), supplemented, 65 F.3d
148 (9th Cir. 1995); Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir. 1991).
Thus, before the Turner factors are applied to plaintiffs' free exercise claim,
they must first establish the existence of a sincerely held religious belief,
and that the challenged regulation or conduct infringes upon that belief. See Iron Eyes v. Henry, 907 F.2d 810, 813 (8th
[*914] Cir. 1990); Hill v. Blackwell,
774 F.2d 338, 342-43 (8th Cir. 1985); accord Malik, 16 F.3d
at 333; Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981). The determination of
whether an individual is sincere in his or her beliefs is a factual one. LaFevers v. Saffle, 936 F.2d 1117, 1119
(10th Cir. 1991) (citing Frazee v. Illinois Dept. of Employment Sec., 489 U.S.
829, 832-33 (1989)). Here, there is nothing in the record which challenges the
sincerity of plaintiffs' belief in the Native American religion. The only
evidence in the record on the issue is
each plaintiff's respective testimony. The court concludes that each plaintiff
is sincere in his beliefs in the Native American religion. The court further
finds that the absence of a sweat lodge at the FDCF prevented inmates at that
institution who are members of the Native American religion from practicing
significant rituals of that religion so as to infringe upon that belief.
Therefore, the court will analyze the Turner factors with respect to
plaintiffs' free exercise claim.
2. First Turner factor
In considering the first Turner factor, the court must inquire
whether there is a "valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it." Turner, 482 U.S. at 89.
In this case, a prison regulation is not at issue but an administrative
decision: defendants decision to wait for a Native American religion consultant
to be hired before proceeding to construct the sweat lodge. Defendants assert
that this decision allows Native American inmates to exercise their religion as
fully as practicable within a prison setting while also providing correctional
officials with guidance
from a knowledgeable source as to what inmate requests are legitimately related
to the Native American religion. Defendants contend that they did not know how
a sweat lodge should be constructed and were concerned that if they attempted
to construct a sweat lodge without guidance that the sweat lodge constructed
would prove inadequate or unacceptable. The flaw in this assertion is that it
ignores the fact that the Iowa Department of Corrections had a Native American
religion consultant, Frank LaMere, under contract at all relevant times. LaMere
called Muller on September 14, 1998, only five days after Frazier had submitted
his first request for services in the Native American religion at the FDCF. LaMere
told Muller that willows could be brought into the FDCF and the inmates at the
FDCF could assemble the sweat lodge themselves. Ironically, Frazier suggested
in his letter of September 9, 1998, that LaMere be contacted to assist them in
the construction of a sweat lodge at the FDCF. While the court acknowledges
that LaMere was not under contract for the FDCF, neither Muller nor any of the
defendants ever requested that LaMere come to the FDCF on a temporary basis to
aide in the construction of a sweat lodge at that facility.
Moreover, even if LaMere had been unwilling to provide guidance
at the FDCF, defendants had available to them Iowa Department of Corrections
staff from other facilities who were knowledgeable in the Native American
religion. Indeed, when a replacement for Running was not readily found, Moore
consulted with Newton Correctional Facility's chaplain, Perry Stevens. Stevens
was contacted because he had experience with Native American practices at the
Newton Correctional Facility. Stevens came to the FDCF on April 13, 1999, and
made recommendations for establishing a sweat lodge at the FDCF. Thus, the court finds that the first Turner factor weighs in favor of
plaintiffs.
[*915] 3. Second Turner
factor
Examining
the second Turner factor, the court concludes that there were no alternatives
available to plaintiffs in the exercise of their religion due to the actions of
defendants. While Native American inmates were allowed to meet in the chapel
once a week and possess certain sacred objects of the Native American religion,
such as medicine bags, eagle feathers, and tobacco ties, the possession of such
sacred objects could not substitute for the absence of a sweat lodge and the
lack of a facility for performing a central tenet of the Native American religion, the purification
ceremony. Moreover, even though Native Americans were permitted to meet once a
week, they were not permitted to smudge. Thus, the court concludes that the
second Turner factor weighs in favor of plaintiffs.
4. Third Turner factor
The third
Turner factor requires the court to consider "the impact accommodation of
the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally." Turner, 482 U.S. at 90.
Here, the court finds that accommodation of plaintiffs would have had a
negligible impact on guards and other inmates. Defendants were always
willing to construct a sweat lodge at the FDCF. Defendants had at their
disposal the resources necessary for construction of the sweat lodge and the
creation of those rules and regulations necessary for its use. Accommodating
plaintiffs merely required that the construction of the sweat lodge and the
creation of prison rules and regulations occur at an earlier date. Indeed,
plaintiffs conceded in their testimony that the sweat lodge could have been
constructed earlier if it had been a higher priority item. Therefore, the court
concludes that the third Turner factor also weighs in favor of plaintiffs.
5. Fourth Turner factor
Finally,
the fourth Turner factor requires the court to consider that "if an inmate
claimant can point to an alternative that fully accommodates the prisoner's
rights at de minimis cost to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy the reasonable
relationship standard." Turner, 482 U.S. at 91. Here, as noted above,
defendants could have accommodated
plaintiffs rights by either requesting that its Native American religion
consultant LaMere provide temporary assistance to get the sweat lodge up and
running at the FDCF, or by seeking Iowa Department of Corrections personnel
from other correctional facilities, such as Perry Stevens, who were
knowledgeable in the tenets of the Native American religion come to the FDCF
and assist in the construction of the sweat lodge there. Thus, the court
concludes that the fourth Turner factor also weighs in favor of
plaintiffs.
Looking at the totality of
all four Turner factors, the court concludes that plaintiffs have proved that
defendants' actions in delaying the construction of a sweat lodge at the FDCF
were not reasonably related to valid penological interests. Therefore, the
court concludes that plaintiffs have established that defendants' action
violated the Free Exercise Clause of the First Amendment of the United States
Constitution.
B. Equal Protection Claim
Plaintiffs also contend that the actions delineated above
demonstrate that defendants treated them, as members of the Native American
religion, less favorably that other inmates at the FDCF, in violation of the Equal Protection Clause. [*916]
Under the Equal Protection Clause, in order to prevail, plaintiffs must
show that a defendant acted with discriminatory purpose. See McCleskey v. Kemp, 481 U.S. 279, 292, 95 L.
Ed. 2d 262, 107 S. Ct. 1756 (1987); General Bldg. Contractors Ass'n v.
Pennsylvania, 458 U.S. 375, 390-92, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982); Village
of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 50
L. Ed. 2d 450, 97 S. Ct. 555 (1977); Washington
v. Davis, 426 U.S. 229, 240, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Tyler v.
Hot Springs School Dist. No. 6, 827 F.2d 1227, 1230 (8th Cir. 1987). While
plaintiffs need not prove that a discriminatory intent was the sole motivating
factor, the plaintiff must show that a discriminatory purpose was a motivating
factor. Village of Arlington Heights,
429 U.S. at 265. As the Supreme Court has observed: "'Discriminatory
purpose' . . . implies more than an intent as volition or intent as awareness
of consequences. . . . It implies that the decision maker. . . selected or
reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its
adverse effects upon an identifiable group." Personnel Adm'r of Mass. v.
Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979). There can
be no "negligent" violations of an individual's right to equal
protection. Rather, only deliberate discrimination violates the equal
protection clause. See McCleskey, 481 U.S. at 292; Village of Arlington
Heights, 429 U.S. at 265; Davis, 426 U.S. at 240; United States v. Clary, 34
F.3d 709, 713 (8th Cir. 1994), cert. denied, 513 U.S. 1182, 115 S. Ct. 1172,
130 L. Ed. 2d 1126 (1995); Tyler, 827 F.2d at 1230.
Here, the
court finds that plaintiffs' have failed to meet their burden of demonstrating
purposeful religious discrimination on the part of defendants. There is no
evidence from which the court may infer that defendants' asserted reasons for
delaying the construction of a sweat lodge at the FDCF were a pretext for
discrimination. It is clear that defendants wished to wait until a consultant
was hired by the Iowa Department of Corrections to advise them on conducting various aspects of the Native
American religion at the FDCF. The Iowa Department of Corrections sought input
from a respected member of the Native American community, Maria Pearson, into
who should be hired as a consultant. The fact that two of the Native American
religion consultants did not perform as expected and that the hiring of the
third took a prolonged amount of time was the result of mischance and not the
product of discriminatory intent. Therefore, the court finds that plaintiffs
have failed to prove their claim that defendants' violated the Equal Protection
Clause.
C. Qualified Immunity
1. Scope and purpose of qualified immunity
The standard for qualified immunity is that "government
officials performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d
396, 102 S. Ct. 2727 (1982); Behrens v. Pelletier, 516 U.S. 299, 305, 133 L.
Ed. 2d 773, 116 S. Ct. 834 (1996); accord
Carroll v. Pfeffer, 262 F.3d 847, 849 (8th Cir. 2001); Wilson v.
Lawrence County, 260 F.3d 946, 951 (8th Cir. 2001); Moore v. Duffy, 255 F.3d
543, 545 (8th Cir. 2001); Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir. 2001);
Thomas v. Talley, 251 F.3d 743, 746 (8th Cir. 2001); Tlanka v. Serrell, 244
F.3d 628, 632 (8th Cir. 2001); Sexton v. Martin, [*917] 210 F.3d 905,
909 (8th Cir. 2000); Samuels v. Meriwether, 94 F.3d 1163, 1166 (8th Cir. 1996);
Bills v. Dahm, 32 F.3d 333, 334 (8th Cir. 1994); Sellers ex rel. Sellers v.
Baer, 28 F.3d 895, 898 (8th Cir. 1994), cert. denied, 513 U.S. 1084, 115 S. Ct.
739, 130 L. Ed. 2d 641 (1995); Latimore v. Widseth, 7 F.3d 709, 712 (8th Cir.
1993) (en banc) (quoting Jackson v. Rapps, 947 F.2d 332, 338 (8th Cir. 1991),
cert. denied, 503 U.S. 960, 118 L. Ed. 2d 208, 112 S. Ct. 1561 (1992)), cert.
denied, 510 U.S. 1140 (1994); Givens v. Jones, 900 F.2d 1229, 1231-32 (8th Cir. 1990) (quoting Harlow, 457 U.S. at
818). "What this means in practice is that whether an official protected
by qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the objective legal reasonableness of the
action, assessed in light of the legal rules that were clearly established at
the time it was taken." Wilson v. Layne, 526 U.S. 603, 614, 143 L. Ed. 2d
818, 119 S. Ct. 1692 (1999) (internal quotations omitted); Phillips v.
Collings, 256 F.3d 843, 849 (8th Cir. 2001) (quoting Wilson, 526 U.S. at 614); Tlanka,
244 F.3d at 632 (same). "For a right to be deemed clearly established, the
'contours of the right must be sufficiently clear that a reasonable official
would understand that what she is doing violates that right.'" Phillips,
256 F.3d at 849 (quoting Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir.
1998)) (in turn quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d
523, 107 S. Ct. 3034 (1987)); accord Burnham v. Ianni, 98 F.3d 1007, 1017 (8th
Cir. 1996); Brayman v. United States, 96 F.3d 1061, 1064 (8th Cir. 1996); Good
v. Olk-Long, 71 F.3d 314, 315 (8th Cir. 1995); Prosser v. Ross, 70 F.3d 1005, 1007 (8th Cir. 1995); Bills, 32
F.3d at 335; Latimore, 7 F.3d at 712; Johnson-El v. Schoemehl, 878 F.2d 1043,
1048 (8th Cir. 1989).
"To defeat a government official's claim of qualified
immunity, a plaintiff must demonstrate that the official's actions violated a
statutory or constitutional right, that the right was clearly established at
the time of the violation, and that a reasonable official would have known that
his conduct violated that right." Techinical Ordnance, Inc. v. United
States, 244 F.3d 641, 648 (8th Cir. 2001) (citing Harlow, 457 U.S. at 818);
accord Sexton v. Martin, 210 F.3d 905,
909-910 (8th Cir. 2000); see Bills, 32
F.3d at 334-35 (noting that the shield of qualified immunity is breached if
"the unlawfulness of the action [is] apparent in light of pre-existing
law."). However, the Supreme Court has made clear that a plaintiff cannot
defeat an official's claim of qualified immunity "'simply by alleging
violation of extremely abstract rights.'" Bills, 32 F.3d at 335 (quoting Anderson,
483 U.S. at 639); Givens, 900 F.2d at
1232 (quoting Anderson, 483 U.S. at 639). Otherwise, "plaintiffs would be
able to convert the rule of qualified immunity into a rule of virtually
unqualified liability simply by alleging a violation of extremely abstract
rights." Anderson, 483 U.S. at 639; Latimore, 7 F.3d at 712. Case law
dealing with qualified immunity reflects a conflict of competing
interests. Harlow, 457 U.S. at 819; Anderson,
483 U.S. at 638; Pierson v. Ray, 386 U.S. 547, 554, 18 L. Ed. 2d 288, 87 S. Ct.
1213 (1967). Government officials must not be limited in their actions by fear
of monetary damages and liability. Harlow,
457 U.S. at 807; Pierson, 386 U.S. at 554; Butz v. Economou, 438 U.S. 478, 506,
57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). There are also concerns for imposing
upon public officials the expense of defending insubstantial claims. Harlow,
[*918] 457 U.S. at 808; Butz,
438 U.S. at 507-08. The social costs of continually defending public work
include a subsequent diversion from future programs and the deterrence of qualified individuals from
entering positions of public office. Harlow,
457 U.S. at 814. On the other hand, "when government officials abuse their
offices, 'actions for damages may offer the only realistic avenue for
vindication of constitutional guarantees.'" Anderson, 483 U.S. at 638
(quoting Harlow, 457 U.S. at 814). Qualified immunity attempts to strike a
balance between these concerns, providing "'ample room for mistaken
judgments' by protecting 'all but the plainly incompetent or those who
knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 116 L.
Ed. 2d 589, 112 S. Ct. 534 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341,
89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)); Anderson, 483 U.S. at 638 (qualified
immunity protects "all but the plainly incompetent or those who knowingly
violate the law"); accord Bagby v.
Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996); Ludwig v. Anderson, 54 F.3d
465, 470 (8th Cir. 1995). The qualified immunity defense should fail if the
official violates a clearly established right, because "a reasonably competent public official should
know the law governing his conduct." Slone, 983 F.2d at 109 (quoting Harlow,
457 U.S. at 819). It extends, however, to "a prison official who relies on
a facially valid regulation unless he knows or should know that the regulation
violates a well established constitutional right consisting of the particular
act" he punishes or prohibits. Wolfel
v. Morris, 972 F.2d 712, 719-20 (6th Cir. 1992).
Qualified immunity is not just a defense, but an immunity to
suit for money damages. Mitchell v.
Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Gomez v.
Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). Qualified
immunity is a question of law which is usually determined by the court prior to
trial. Swenson v. Trickey, 995 F.2d
132, 135 (8th Cir.), cert. denied, 510 U.S. 999, 114 S. Ct. 568, 126 L. Ed. 2d
468 (1993) (quoting Hunter v. Bryant, 502 U.S. 224, 228, 116 L. Ed. 2d 589, 112
S. Ct. 534 (1991)). Qualified immunity must be asserted by the defendant, or
the privilege is lost. Mitchell, 472
U.S. at 526. A denial of qualified immunity is immediately appealable. Behrens v. Pelletier, 516 U.S. 299, 116 S.
Ct. 834, 842, 133 L. Ed. 2d 773 (1996); Mitchell, 472 U.S. at 526-27; Bagby v.
Brondhaver, 98 F.3d at 1098; Allison v. Department of Corrections, 94 F.3d 494,
496 (8th Cir. 1996); Reese v. Goose, 60 F.3d 487, 489 (8th Cir. 1995).
2. The court's inquiry
In determining an official's entitlement to immunity, the courts
undertake a two-pronged analysis. Carroll,
262 F.3d at 849; Tlanka, 244 F.3d at 632; Weider v. Packet, 137 F.3d 1047, 1050
(8th Cir. 1998); Mansion v. South Dakota Dep't of Soc. Serve., 60 F.3d 505, 509
(8th Cir. 1995). First, the court must determine if a deprivation of a
constitutional right has been alleged. Wilson,
526 U.S. at 609; Conn v. Gibbered, 526 U.S. 286, 290 (1999); Carroll, 262 F.3d
at 849; McGee v. Booz, 251 F.3d 750, 752 (8th Cir. 2001); Tlanka, 244 F.3d at
632; Weider, 137 F.3d at 1050; George
v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994); Mansion, 60 F.3d at 509.
If so, the court "'must determine whether that right was clearly
established at the time of the alleged violation.'" Carroll, 262 F.3d at
849 (quoting Mansion, 60 F.3d at 509); Weider, 137 F.3d at 1050;
[*919] The conduct of a
reasonable official is measured by what "'[a] reasonably competent
official should know.'" Walters v. Gresham, 990 F.2d 381, 384 (8th Cir.
1993) (quoting Slone v. Herman, 983 F.2d 107, 111 (8th Cir. 1993), and denying
qualified immunity because a reasonably competent official should know that
unless a judgment has been stayed it must be obeyed); accord Bagby, 98 F.3d at 1098. Good faith is not
an element of the defense, nor relevant to the qualified immunity inquiry,
because "the standard is one of 'objective reasonableness.'" Slone,
983 F.2d at 110 (quoting Bark v. Been, 948 F.2d 489, 494 (8th Cir. 1991), in
turn quoting Malley v. Briggs, 475 U.S. 335, 344, 89 L. Ed. 2d 271, 106 S. Ct.
1092 (1986)).
The Seventh Circuit Court of Appeals has held further that:
[The test of qualified
immunity] is not whether the conduct is clearly constitutional, but whether it
is clearly unconstitutional. [Plaintiff's] proposed test would focus on whether
courts have specifically sanctioned
particular conduct, whereas the correct inquiry is whether courts have
found the conduct unconstitutional or have defined a constitutional right in
such a way that "'a reasonable official would understand that what he is
doing violates that right.'" McDonald v. Hawkins, 966 F.2d 292, 293 (7th
Cir. 1992) (quoting Anderson, 483 U.S. at 640, 107 S. Ct. at 3039). "This
is not to say that an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful, but it is to say
that in the light of pre-existing law, the unlawfulness must be apparent."
Anderson, 483 U.S. at 640, 107 S. Ct. at 3039 (citations omitted). . . .
Application of this test "does not require a prior case that is 'precisely
on all fours on the facts and law.'" McDonald, 966 F.2d at 293. . . .
Rather, we are concerned with whether
the law was clear "in relation to the specific facts confronting the
public officials when [they] acted." Rakovich v. Wade, 850 F.2d 1180, 1209
(7th Cir.), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534
(1988); see also McDonald, 966 F.2d at
294.
Knox v. McGinnis, 998 F.2d
1405, 1409-10 (7th Cir. 1993) (some internal citations omitted); accord Anderson, 483 U.S. at 640 (it is not
necessary that the exact action has been held previously unlawful, but the
unlawfulness must be apparent and known from pre-existing law); Latimore, 7
F.3d at 712-13 (same). "To be clearly established, there need not be a
case decided on all fours with the present factual circumstances." Wilson,
260 F.3d at 951; accord Vaughn, 253
F.3d at 1130. Instead, "it need only be apparent from pre-existing law
that the conduct is unlawful." Wilson, 260 F.3d at 951 (citing Anderson,
483 U.S. at 640).
Finally, the defense of qualified immunity may be utilized
successfully even in the face of a clearly established (and violated) constitutional right, if the
defendant can demonstrate "the 'objective legal reasonableness' of the
action assessed in light of the legal rules that were 'clearly established' at
the time it was taken." Anderson, 483 U.S. at 639, 107 S. Ct. at 3038
(citations omitted) (quoting Harlow, 457 U.S. at 819, 818, 102 S. Ct. at 2739,
2738).
Latimore, 7 F.3d at 712.
The determinative issue presented here is whether a reasonable
corrections official would have known as of September of 1998 and thereafter
that it violated the Free Exercise Clause to delay for twelve months providing
a sweat lodge to Native American inmates who are practicing members of the
Native American religion [*920] because of problems with consultants the
Iowa Department of Corrections contracted with to provide direction regarding
the Native American religion. The court concludes that the contours of the right that plaintiffs
assert was not defined sufficiently by prior case law such that a reasonable
official would understand that what was done in the present case violated the
Free Exercise Clause. As of September of 1998, there was a paucity of case law
on the question of the speed by which state officials were required to respond
to legitimate requests for a sweat lodge. Indeed, the decisions of the federal
courts, as of September of 1998, do not provide a definitive answer or indicate
even a trend in the law. Thus, the court finds that the contours of the right
were not clear and specific enough that "a reasonable official would
understand that what he is doing violates that right." Anderson, 483 U.S.
at 640. Thus, the court concludes that the second part of the qualified
immunity test has been satisfied in this case and that defendants are entitled to qualified
immunity here for all of plaintiffs' claims alleging violations of the Free
Exercise Clause.
IV. CONCLUSION
Initially,
the court concludes that plaintiffs have failed to establish their claims with
respect to defendant Costello and are not entitled to judgment on any of their
claims with respect to defendant Costello. The court further concludes, having
considered the totality of all four Turner factors, that plaintiffs have proved
that defendants Owens and Thalacker's actions in delaying the construction of a
sweat lodge at the FDCF were not reasonably related to valid penological
interests. Therefore, the court concludes that plaintiffs have established that
defendants Owens and Thalacker's actions violated the Free Exercise Clause of
the First Amendment of the United States Constitution. The court also concludes
that plaintiffs' have failed to meet their burden of demonstrating purposeful
religious discrimination on the part of defendants. Therefore, the court finds
that plaintiffs have failed to prove their claim that defendants Owens and
Thalacker violated the Equal Protection Clause by their actions. Finally, the
court finds that, as of September 1998, the contours of the right that
plaintiffs assert were not defined sufficiently by prior case law such that a
reasonable official would understand that what was done in the present case
violated the Free Exercise Clause. Thus, the court concludes that the second
part of the qualified immunity test has been satisfied in this case and finds
that defendants Owens and Thalacker are entitled to qualified immunity here for
all of plaintiffs' claims alleging violations of the Free Exercise Clause.
IT IS SO ORDERED.
DATED this 8th day of November, 2001.
MARK W. BENNETT
CHIEF JUDGE, U.S. DISTRICT COURT
NORTHERN DISTRICT OF IOWA
n1 There were seventeen plaintiffs
originally named in the complaint: James Youngbear; Kenneth A. Frazier; Kenneth
Morris; Robert Saul; Dayton Sabasta; Michael Wabasha; Ellsworth Youngbear;
Christopher Chapman; Gary Rice; Robert Youngbear; Michael Benton; Terrance
Keahna; Michael Cleveland; Marvin Mitchell; Jeremy McKinney; and, Henry White.
Of the original plaintiffs, only James Youngbear and Robert Youngbear remain.
Plaintiff Strongheart joined the lawsuit on November 22, 2000.
n2 Plaintiffs presented no evidence at trial
with respect to defendant Costello. Therefore, the court concludes that
plaintiffs have failed to establish their claims with respect to defendant
Costello and are not entitled to judgment on their claims with respect to
defendant Costello. For the remaining portion of this decision any reference to
"defendants" is to defendants Owens and Thalacker only.
n3
Frazier's request is Defendants' Exhibit H. In his request, Frazier wrote in
relevant part:
This is a request for our Native American
church time. I'm asking for a weekday time maybe Tuesday or Monday I know we
don't have a sweat lodge yet, but this time that us Native Americans are asking
for will help us prepare for when it gets here. I'm enrolled in Santee Nebraska
I am a Pipe carrier for the people. I'm also a Sundance pledger. I've lived
with a Medicine Man before I have been taught this Red Road since I was seven.
712-258-2726 Home 279-6754 Work
I'm sure our consultant Fred Lamere will be
willing to work with us & the staff to get a sweat lodge here soon as
possible. I would like to teach this class & run the sweat lodg (sic)
ceremoneys (sic). I just came from Newton & was running it there. Is there
some way I can talk to you our (sic) the chaplon (sic) to get this started. For
now we will only need an hour a week. When the sweat lodg (sic) does get here
we will need more time.
Fazier
letter, Defendants' Ex. H.
n4 The Iowa Department of Corrections also
contracts with consultants for such other religions as Christianity, Judaism,
and Islam.
n5 The court takes judicial notice of the
fact that Sioux City is 92 miles from Fort Dodge, Iowa.
n6
Smudging is a purification process prior to prayer in which the individual
burns small amounts of sage, sweet grass or pure tobacco to produce smoke. See
Defs.' Ex. 1, HANDBOOK OF RELIGIOUS BELIEFS AND PRACTICES, STATE OF WASHINGTON
DEP'T OF CORRECTIONS 6 (1995). "The individual desiring to smudge lights
the mixture, lets it smolder, then draws the smoke toward the heart and over
the head to receive its blessing. After the smudging takes place, the smoke is
offered to the four directions, Mother Earth, and Father Sky." Id.