Free Order on Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

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LMH

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Kevin Roy,
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Plaintiff,
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vs.
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State of Arizona, et al.,
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Defendants.
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) ) ) ) ) ) ) ) ) )

No. CV 03-2150-PHX-SRB (MEA) ORDER

Plaintiff Kevin Roy, a prisoner in the custody of the Arizona Department of Corrections (ADC), brought this action challenging his right of religious exercise. Several motions are pending. The Court will (1) grant Defendants' Motion to Dismiss (Doc. 133), (2) deny both parties' cross-motions for summary judgment (Doc. 133, 150), (3) deny Defendant's Motion to Strike (Doc. 154), (4) deny Plaintiff's Objections to the magistrate judge's denial of his motion to supplement (Doc. 161), and (5) deny Plaintiff's Notice of Filing Second Copy of Motion to Reconsider. I. Procedural History Plaintiff seeks injunctive and declaratory relief regarding his right of religious exercise as an Occultist/Esoteric Christian (First Am. Compl. at 7, Doc. 19). Defendants are the ADC Director Dora Schriro, Pastoral Administrator Michael Linderman, and Senior Chaplain John Sabbagh.

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Document 162

Filed 01/19/2007

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Previously, the parties cross-moved for summary judgment (Doc. 84, 90). The Court denied Plaintiff's motion and granted Defendants' motion in part (Doc. 112). Specifically, the Court found that the Religious Land Use of Institutionalized Persons Act (RLUIPA) and the First Amendment were not violated by policies banning the donation of religious items from outside sources and limiting the number of religious books an inmate could possess to seven. Also, Plaintiff's claim that he was restricted in the number of items he could possess was mooted by a change in the ADC's policy to allow a larger box to contain religious items. The remaining claim was based on Plaintiff's allegation that he was denied permission to possess seven specific religious items: a Rosicrucian-Symbol medallion, two sets of Tarot cards, a dream catcher, an altar cloth, incense, and an abalone shell. The Court found that there were material questions of fact regarding (1) whether the procedure for obtaining religious items, as applied to Plaintiff, was substantially burdensome under RLUIPA, (2) whether practicing his faith without the requested items would be a substantial burden under RLUIPA, and (3) whether the denial of the seven requested religious items violated the First Amendment. Presently pending is Defendants' motion seeking dismissal for lack of jurisdiction or alternately seeking summary judgment (Doc. 133). Defendants contend that Plaintiff's action is moot because six of the seven items had been approved, and Plaintiff abandoned his claim for the seventh. Plaintiff responded that it is untrue that the six items were approved, and he did not abandon his claim for the seventh (Doc. 150). Defendants replied that there is no real controversy because now that the items have been approved, Plaintiff need only submit a form to his unit chaplain to obtain them (Doc. 153). Also pending are Plaintiff's cross-motion for summary judgment (Doc. 150), Defendants' motion to strike it (Doc. 154), and Plaintiff's objection to the magistrate judge's denial of his motion to supplement his response (Doc. 161). Plaintiff has filed notice that he filed a motion to reconsider the Court's previous order (Doc. 145). II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

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A. Possession of Six Items Excluding the Dream Catcher The preeminent question is whether this action has become moot. Defendants contend that Plaintiff can possess a Rosicrucian-Symbol medallion, two sets of Tarot cards, an altar cloth, incense, and an abalone shell by submitting a form to his unit chaplain. Plaintiff responds that his requests for approval of the items in the past were denied so there is no need for him to try again, and he must be given a certification before he can apply to purchase the items. Defendants reply that Plaintiff has misconstrued the process, and it is constitutional to require him to submit a form in compliance with policy to obtain the items. The evidence shows that ADC Department Order (DO) 904 governs inmate religious activities and DO 909 regulates property, including religious items (Linderman Aff. ¶ 6, Ex. A, Doc. 133). According to Defendant Linderman, inmates may possess items that are consistent with the practices of their religion (Id. ¶ 12). The Pastoral Activities office keeps a list of items that have been approved (Id. ¶ 11). If the item is not on the list, the inmate may submit documentation to show that the item is used to practice his religion (Id. ¶ 15). When chaplains approve the items, they give the inmate a list that to be taped to their religious property box (Id. ¶¶ 9-10). Approval normally is not given until the inmate is ready to purchase the item (Id. ¶ 9). This action did not follow this process precisely. After the Court's previous decision in January 2006 and pursuant to settlement conferences with Magistrate Judge Voss, Plaintiff submitted a request in April 2006 for approval to possess 95 herbs and 50 other items. The request included five of the items at issue: the Tarot cards, altar cloth, cedar and sage incense, and a shell (Linderman Aff. ¶¶ 16, 21 & Attach. A & B). The sixth item ­ the medallion ­ is approved for all inmates who declare a religion (Id. ¶ 19). Plaintiff's request did not include the seventh item, the dream catcher, which is discussed below. On May 19, 2006, Linderman approved the five items, but he noted that the items were not yet on the approved items list for Esoteric Christians, and any item that Plaintiff requested to purchase through the established procedure identified in the policy would be added to the list at that time (Linderman Aff., Attach. 2). Subsequently in his affidavit,
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Linderman attested that the altar cloth, herbs (one ounce each of up to five herbs from the approved herb list), shell and tarot cards were now on the approved items list for Esoteric Christians (Id. ¶ 17). It is unclear when that occurred, but it has not been disputed that the items are on the Approved Religious Items List. According to Linderman, because Plaintiff is a declared Esoteric Christian, to possess the items from the approved list, he need only submit a "pro forma request" to his unit chaplain (Id. ¶ 18). Plaintiff responds that for him to order the items, he must first be given a Certification of Approved Religious Items that is signed by the senior chaplain and unit deputy, and then he must tape the Certificate to his religious property box (Doc. 151). In support, Plaintiff submits the affidavits of two inmates ­ Michael Stephen Remmert and Travis Bert Bradley ­ who both attest that they received a certificate after sending an inmate letter to Senior Chaplain Delbert Henderson (Remmert Aff., Ex. 2 & Attach A; Bradley Aff., Ex. 3 & Attach. B, Doc. 152). Plaintiff asserts that he needs the certificate before he can submit a copy to banking for disbursement to pay for the items (PSOF ¶ 18 & Ex. 4, Doc. 152). In his Response, Plaintiff asserted that he had already submitted four requests for the religious items that did not work ­ three in 2003 and one in April 2006 ­ so he believes that another request cannot possibly be fruitful. And Plaintiff claims it is "absurd" that he must submit a form to obtain items he is already approved to possess. Defendants reply that Plaintiff misconstrued the process. They point to Linderman's affidavit attesting that for operational and security reasons, the chaplain gives the inmate a list of approved items that is taped to the inmate's box for accountability purposes (Linderman Aff. ¶ 10, Ex. A, Doc. 133). Items that are not authorized may be considered contraband, and inmates have been known to hide contraband in their religious boxes (Id.). Linderman's Pastoral Activities Office in the Central Office maintains a list of items that have been approved after a security review (Id. ¶ 11). According to Defendants, Plaintiff has not submitted a list of the items he wants to purchase to his unit chaplain, so he has not received the certificate to tape to his religious box (Doc. 153 at 2).

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On this record, it is undisputed that the six items have been placed on an approved list and also approved personally by Linderman, the Pastoral Activities Director in the ADC's Central Office. The process requires Plaintiff, when he is ready to purchase the items, to submit an inmate letter to the unit chaplain at his place of custody to obtain the certificate. The certificate is then submitted to banking for disbursement. As Defendants point out, even clearly established rights are subject to reasonable limitations in the prison context. In Resnick v. Adams, 348 F.3d 763, 768 n. 6 & 771 (9th Cir. 2003), the Ninth Circuit held that requiring an inmate to complete a form to obtain religious meals was not a substantial burden and did not violate his right of free exercise under the First Amendment. Similarly, Plaintiff has not shown that requiring him to submit a form to obtain a certificate from his unit chaplain when he is ready to purchase the items is unreasonable, and Defendants have submitted evidence that security reasons underlie the requirement. Also, Plaintiff's own evidence shows that when two other inmates submitted such a request, the unit chaplain promptly issued the certificate. Although Plaintiff protests that he has submitted four requests that were not fruitful, three of these requests occurred in 2003 before this litigation began. The fourth request, which was made in April 2006, resulted in approval of the items by Linderman. All that remains for Plaintiff to do is to submit an inmate letter to his unit chaplain. Had he done so and been rejected, this case would be in a different posture. His refusal to do so does not create a First Amendment or RLUIPA claim because Defendants' requirement is not unreasonable. Plaintiff's claims for injunctive and declaratory relief based on these six items are now moot. Mootness deprives the court of its jurisdiction. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2002). A case becomes moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001) (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). These criteria are satisfied when it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Los Angeles
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County v. Davis, 440 U.S. 625, 630 (1979) (citations and quotations omitted). A claim for declaratory relief may still exist after the case for the injunction has dissolved if the alleged facts shows that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122 (1974) (citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). Past exposure to illegal conduct does not present a case or controversy if unaccompanied by any continuing, present adverse effects. Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir. 2003) (citations and quotations omitted). Dismissal on grounds of mootness is justified when it is clear that the litigant no longer has any need of judicial protection that it sought. Id. at 1102-03 (citations and quotations omitted). Defendants concede that Plaintiff need only submit an inmate letter to his unit chaplain to obtain his Certificate for these six items and then submit a copy to banking for disbursement. There is no controversy remaining, and Plaintiff's claims based on these six items are now moot. B. The Dream Catcher Under the ADC's current policy, inmates may be authorized to possess items that are "consistent with the practices" of the inmate's declared religion. Nearly four years ago, on February 13, 2003, Plaintiff submitted a request for the dream catcher (and the other six items). Defendants contend that Plaintiff's request was not approved because he did not show that the dream catcher was used in the practice of Esoteric Christian/Occultism (Linderman Aff. ¶ 20). Since that time, the legal standards governing religious practice and the ADOC policies have changed. Plaintiff has had ample opportunity to resubmit his request, accompanied by authority to show that the dream catcher is part of his religious practice. He did so in April 2006, when he submitted a request to possess 95 herbs and 50 other items along with citation to authority. Notably, Plaintiff omitted the dream catcher in this request (Linderman Aff. ¶¶ 20-21). Although Plaintiff states that he is not willing to forgo it, he has not adequately explained his failure to continue to pursue it, particularly considering that his most recent request was for more than 100 items. The Court cannot

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grant injunctive relief when Plaintiff refuses to comply with Defendants' reasonable policies. Plaintiff has waived this claim by failing to pursue it. C. Beyond the Seven Items In his Response, Plaintiff contends that he was only permitted to list seven items on his request form, so he grieved the matter and listed all of the items he wanted (Doc. 151). He claims that he continues to seek all of the items. In Plaintiff's First Amended Complaint, he challenged the limit of the number of items to seven (Doc. 19). He did not identify any of the items that he wanted. The Court has found that this claim was mooted by a change in policy allowing a larger religious property box (Doc. 112). The Court noted that Plaintiff only exhausted administrative remedies for the claim that he was not allowed to possess the seven items, and the Court disregarded his claim that he was entitled to possess items for ritual magic that included ESP cards, pebble, dice, mirror, crystals, and gazing devise for skyring (an induced trance to permit spiritual visions) (Doc. 112 at 4 n.3). After settlement negotiations, in April 2006 Plaintiff requested more than 100 items and was approved by Linderman on most of them. In light of this history, it is unclear what items could possibly remain that have not undergone the approval process with Linderman, and it is not clear that the claim was properly exhausted. Accordingly, Plaintiff's ambiguous contention cannot expand this litigation. It is rejected. III. Cross-Motions for Summary Judgment, Motion to Strike, and Motion to Stay Defendants have alternately sought summary judgment on Plaintiff's RLUIPA claims, and Plaintiff has cross-moved on the same claim (Doc. 133, 150). Both motions were filed more than one year after the dispositive motion deadline elapsed on April 23, 2005 (Doc. 67). Defendants' motion was filed on June 15, 2006, and Plaintiff's, on August 28, 2006. Although the Court has considered Defendants' claim of mootness because it was jurisdictional, the Court is not willing to re-open summary judgment at this late date. Both motions will be denied. Also, Defendants sought to strike Plaintiff's cross-motion for summary judgment or alternately, to delay ruling upon it until their motion is decided (Doc. 154). This motion is moot.
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IV. Appeal of Denial of Motion to Supplement On September 21, 2006, Plaintiff moved to supplement his response to Defendants' motion to dismiss/summary judgment that had been filed about a month earlier on August 28 (Doc. 158). Defendants had already filed their reply on September 8 (Doc. 153). The magistrate judge summarily denied the motion (Doc. 159). Plaintiff appealed on the basis that the magistrate judge lacked authority to deny the motion and that he has newly-discovered evidence that is relevant to the issues (Doc. 161). The magistrate judge has authority to rule on pretrial matters that are not dispositive of a claim or a defense of a party. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Matters that are "procedural" fall within this ambit. LRCiv 72.2(a)(2). Whether to permit a party to supplement a response was a procedural matter, not dispositive of a claim or defense. Thus, Plaintiff's contention that the magistrate lacked authority to decide the motion is baseless. An appeal from the determination of a pretrial, non-dispositive matter by a magistrate judge is reviewed by the district judge under a "clearly erroneous or contrary to law" standard. 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. Rule 72.1(a), 72.2(a)(1). There is no exception for "newly-discovered" evidence for extending deadlines for filing a response. The magistrate judge's ruling was not clearly erroneous or contrary to law. The Court has also examined the "newly-discovered" evidence and finds that it does not affect the ruling herein. Plaintiff contends that another inmate who is an Esoteric Christian was denied approval of a second tarot deck and was told that other items were not on the approved list (Ex. A, Doc. 158). Plaintiff believes this is evidence that any request he makes will also be denied. But a close examination of the inmate's request and the prison official's response shows that the response did not disagree with the inmate's assertion that he was "already approved" for a medallion, 1 deck of tarot cards, herbs, ritual stones, sea shell, alter cloth and prayer beads. Indeed, these are the items that Defendants have represented are on the ADC's Approved Religious Items List ­ an altar cloth, 1 ounce each of up to 5 herbs, prayer beads, ritual stones, smudging shell and tarot cards (Linderman Aff. ¶¶ 17, 23 & Attach. 2, Doc. 133). To the extent that the prison officials may have applied
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an incorrect standard of "normally used in your religious practice" to the inmate's request, that application does not affect the issues in this case. Plaintiff's objections will be denied. V. Motion for Reconsideration After the Court's previous Order of January 17, 2006 (Doc. 112), Plaintiff moved for an extension of time to file a motion to reconsider (Doc. 116). The magistrate judge granted an extension until March 17, 2006 (Doc. 117). Plaintiff then moved for leave to file excess pages and submitted a motion to reconsider (Doc. 120). His motion to reconsider was 19 pages in length, 2 pages beyond the 17-page limit. See LRCiv. 7.2(e). The motion to reconsider was docketed as an attachment to his motion for leave, not as a separate motion. The magistrate judge denied the motion for leave as moot because Plaintiff had not filed a motion for reconsideration by the March 17, 2006 deadline (Doc. 132). Presently pending is Plaintiff's "Notice of Filing Second Copy of Motion for Reconsideration" (Doc. 145). He contends that his motion for reconsideration was

erroneously docketed as an attachment to a motion to exceed the page limit (Doc. 120). Even if the motion for reconsideration had been docketed separately, the result would be the same. The motion exceeded the page limit, and Plaintiff was not granted leave to file it. He took a risk by failing to file a motion that complied with the local rules. It was a risk that he lost, and he still has not filed a motion that is within the page limit. The Court will not now hear his non-complying motion. His notice will be denied. IT IS ORDERED: 1. Defendants' Motion to Dismiss (Doc. 133) is granted. Plaintiff's claims for declaratory and injunctive relief are dismissed. Defendant's alternate Motion for Summary Judgment (Doc. 133) is denied. 2. Plaintiff's Cross-Motion for Summary Judgment (Doc. 150) is denied. 3. Defendants' Motion to Strike (Doc. 154) is denied. 4. Plaintiff's Objections to the Magistrate Judge's Order (Doc. 161) are denied. 5. Plaintiff's Notice of Filing Second Copy of Motion for Reconsideration (Doc. 145) is denied.
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IT IS FURTHER ORDERED directing the Clerk to enter judgment dismissing Plaintiff's case.

DATED this 18th day of January, 2007.

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