Dobbins v. Unknown Party

• Court: District Court, D. Arizona
• Decided: April 13, 2022
• Docket: 2:21-cv-00007
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juwan Ledreece Dobbins, No. CV 21-00007-PHX-MTL (MTM) 10 Plaintiff, 11 v. ORDER 12 Unknown Party, et al., 13 Defendants.

14 15 Plaintiff Juwan Ledreece Dobbins, who is currently confined in the Maricopa 16 County jail, brings this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 1.) Defendant 17 moves for summary judgment, and Plaintiff opposes the motion.1 (Docs. 27, 33.) 18 I. BACKGROUND 19 On screening Plaintiff’s Complaint (Doc. 1) under 28 U.S.C. § 1915A(a), the Court 20 determined that Plaintiff stated a First Amendment free exercise claim against Defendant 21 Montejano in Count Two and directed him to answer. (Doc. 5.) The Court dismissed the 22 remaining claims and Defendants. (Id.) 23 In relevant part, Plaintiff alleges that a detention officer searched Plaintiff’s 24 possessions and discarded all his religious material, including his New King James Study 25 Bible (“NKJV Study Bible”). (Doc. 1 at 4.) Plaintiff claims that “when confronted,” the 26 officer “ignored his request” and “continued searching.” (Id.) Plaintiff notified Defendant 27

28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 29.) 1 Montejano about the incident, but, initially, Montejano ignored Plaintiff’s request. (Id.) 2 Plaintiff persisted, and, after several attempts to retrieve his Bible, Montejano “looked in 3 the trash to see that” the NKJV Study Bible was there. (Id.) Defendant Montejano informed 4 Plaintiff that the Bible would not be returned because it had been altered—Plaintiff had 5 covered the Bible in paper for preservation. (Id.) Even after explaining that, other than the 6 protective cover, the book was unaltered, Montejano disregarded Plaintiff’s prayers for 7 intercession “and threw the [NKJV Study] Bible back in the trash.” (Id.) Plaintiff claims 8 he was prevented from continuing his daily Bible studies, as he is required to do, and, after 9 several attempts, he was unable to obtain another study Bible. (Id. at 12.) 10 Defendant Montejano now moves for summary judgment and argues that he did not 11 substantially burden Plaintiff’s religious practice and that he is entitled to qualified 12 immunity. (Doc. 27.) 13 II. LEGAL STANDARD 14 Summary judgment is appropriate if the evidence, viewed in the light most favorable 15 to the nonmoving party, demonstrates “that there is no genuine dispute as to any material 16 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 17 genuine issue of material fact exists if “the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party,” and material facts are those “that might affect 19 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 20 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the non-movant 21 is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255; 22 see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (“The 23 court must not weigh the evidence or determine the truth of the matters asserted but only 24 determine whether there is a genuine issue for trial.”). That said, “[w]hen opposing parties 25 tell two different stories, one of which is blatantly contradicted by the record, so that no 26 reasonable jury could believe it, a court should not adopt that version of the facts for 27 purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 28 (2007). 1 “[A] party seeking summary judgment always bears the initial responsibility of 2 informing the district court of the basis for its motion, and identifying those portions of 3 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment 5 must “cit[e] to particular parts of materials in the record” establishing a genuine dispute or 6 “show[] that the materials cited do not establish the absence of . . . a genuine dispute.” Fed. 7 R. Civ. P. 56(c)(1). This Court has no independent duty “to scour the record in search of a 8 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal 9 quotations omitted). 10 III. RELEVANT FACTS2 11 As part of the jail’s intake procedures, Plaintiff’s property was searched by 12 Maricopa County Sheriff’s Office (“MCSO”) officers including Defendant Montejano. 13 (Doc. 28 ¶ 3; Doc. 28-1 at 43 ¶ 5.) Plaintiff had an NJKV Study Bible; “Seeking God 14 Through Prayer and Mediation,” a “devotional study book[;] the ‘Servant of God’ study 15 course booklet[;] [a] Contemporary New Testament Bible[;] ‘Trade Your Cares for Calm’ 16 by Max Lucado[;] and ‘God Will Carry You Through’ by Max Lucado.” (Doc. 28 ¶ 4.) 17 During the search, either Defendant Montejano or nonparty Officer Ramirez confiscated 18 and threw away these books. (Id. ¶ 5; Doc. 28-1 at 43 ¶¶ 6–7.) But, because of Plaintiff’s 19 request, Montejano reviewed the discarded material and returned all of the books he had 20 thrown away except for the NJKV Study Bible because “he believed it was contraband 21 pursuant to MCSO policy.” (Doc. 28 ¶ 6.) 22 “The MCSO Inmate Rules and Regulations Handbook provides that ‘[a]ltered items 23 are also considered contraband . . . [sic] Some examples of contraband include but are not 24 limited to: [a]ny item which has been altered from its original form or used in a manner for 25

2 Plaintiff objects to Defendant’s use of Plaintiff’s deposition because it was not signed by 26 the court reporter or “the officer administering the deposition.” (Doc. 34 ¶ 16.) Even an uncompleted, unsigned deposition is admissible under Rule 56 “[b]ecause there is no 27 reason to believe that the sworn answers to questions are less reliable than an affidavit.” In re Sunset Bay Ass’s, 944 F.2d 1503, 1509–10 (9th Cir. 1991). Plaintiff’s deposition meets 28 the Rule 56 requirements; it is sworn testimony based on personal knowledge, and it sets forth facts admissible in evidence. Accordingly, Plaintiff’s objection is overruled. 1 which it was not intended.’” (Id. ¶ 8.) “The handbook also provides that ‘[i]f you alter or 2 tamper with religious materials, they will be taken away and you will be subject to 3 disciplinary action.’” (Id.) MCSO policy also states that detention personnel must not 4 “destroy, remove, or seize an inmate’s authorized possessions without the” inmate’s 5 knowledge “unless security reasons dictate otherwise.” (Doc. 34 ¶ 15.) 6 When inspecting the Plaintiff’s property, Montejano claims that “he observed that 7 Plaintiff’s [NKJV] [S]tudy [B]ible was altered” in two ways: its cover was missing and 8 was replaced with a brown paper bag and it was missing pages. (Doc. 28 ¶ 9.) During his 9 deposition, Plaintiff testified that his NKJV Study Bible was not missing its cover and that 10 there were no pages missing from the Bible. (Doc. 28-1 at 15 (Pl. Depo. at 42:8–14).) The 11 only alteration was the brown paper bag he had added to protect the cover. (Id.) After 12 throwing away Plaintiff’s Bible, “[Defendant] Montejano instructed [him] that [he] could 13 request a new [B]ible through religious services.” (Doc. 28 ¶ 10.) Whether Plaintiff would 14 receive a new Bible was not something that Montejano could control because “[h]e does 15 not oversee or make decisions for MCSO Religious Services.” (Id. ¶ 11.) 16 “Plaintiff has been a member of the Tonto Street Church of Christ since 1993,” and 17 “[t]he Church of Christ prefers to use the King James and the New King James translations 18 of the Bible.” (Id. ¶¶ 16–17.) Whether the Plaintiff finds the King James Version (“KJV”) 19 of the Bible an acceptable translation or alternative to the NKJV is unclear from the record. 20 (Compare Doc. 28-1 at 23 with Id. at 61.) When Plaintiff’s NJKV Study Bible was taken, 21 he still had, and Montejano was aware that he still had, a Contemporary New Testament 22 Bible. (Id. ¶¶ 12–13.) 23 “On August 10, 2020[,] Plaintiff submitted an Inmate Request Form” asking for an 24 NKJV Study Bible, but “[t]he request was returned stating not available.” (Doc. 34 ¶ 9.) 25 In prison, Plaintiff studies his Bible for about two hours a day: an hour of Old 26 Testament study in the morning and an hour of New Testament study at night. (Doc. 28 at 27 ¶ 14; Doc. 28-1 at 24–25.) Plaintiff also participated in Bible study groups with other 28 1 inmates where, if an inmate did not have a Bible, the other inmates in the study group 2 would share their Bibles with that inmate. (Doc. 28-1 at 7 (Pl. Depo. at 23:11–18).) 3 About two months after his NKJV Study Bible was confiscated, “Plaintiff could 4 access MCSO tablets and was able to” read an electronic version of the KJV Bible on the 5 tablets. (Doc. 28 ¶ 21.) “Inmates generally have access to the MCSO tablets each 6 day . . . starting at approximately 7:00 AM until the evening.” (Id. ¶ 20.) Since February, 7 Plaintiff has been able to borrow a NKJV Bible from an inmate for daily personal study. 8 (See id. ¶ 22.) 9 IV. DISCUSSION 10 A. Free Exercise Claim 11 “Inmates clearly retain protections afforded by the First Amendment . . . including 12 its directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 13 Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). Nevertheless, “[l]awful 14 incarceration brings about the necessary withdrawal or limitation of many privileges and 15 rights, a retraction justified by the considerations underlying our penal system.” Id. at 348 16 (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 17 To implicate the Free Exercise Clause, a prisoner must show that the belief at issue 18 is both “sincerely held” and “rooted in religious belief.” Malik v. Brown, 16 F.3d 330, 333 19 (9th Cir. 1994); see Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008) (noting that 20 the “sincerity test,” not the “centrality test,” applies to a free exercise analysis). 21 If the inmate makes that initial showing, he must show that prison officials 22 substantially burden the practice of his religion by preventing him from engaging in 23 conduct which he sincerely believes is consistent with his faith. Hernandez v. Comm’r of 24 Internal Revenue, 490 U.S. 680, 699 (1989); Shakur, 514 F.3d at 884–85. “A substantial 25 burden . . . place[s] more than an inconvenience on religious exercise; it must have a 26 tendency to coerce individuals into acting contrary to their religious beliefs or exert 27 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Ohno 28 v. Yasuma, 723 F.3d 984, 1011 (9th Cir. 2013) (quoting Guru Nanak Sikh Soc’y of Yuba 1 City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (internal quotation marks and 2 alterations omitted)); see also Worldwide Church of God v. Philadelphia Church of God, 3 Inc., 227 F.3d 1110, 1121 (9th Cir. 2000) (“A substantial burden must be ‘more than an 4 inconvenience’”; it prevents an inmate from “engaging in [religious] conduct or having a 5 religious experience.”) (citations omitted). 6 A regulation that substantially burdens a prisoner’s right to freely exercise his 7 religion will be upheld only if “it is reasonably related to a legitimate penological interests.” 8 Shakur, 514 F.3d at 884; id. at 884–85. 9 [F]our factors [must] be balanced in determining whether a 10 prison regulation is reasonably related to legitimate 11 penological interests:

12 (1) Whether there is a valid, rational connection between the 13 prison regulation and the legitimate governmental interest put forward to justify it; 14

15 (2) Whether there are alternative means of exercising the right that remain open to prison inmates; 16

17 (3) Whether accommodation of the asserted constitutional right will impact . . . guards and other inmates, and on the allocation 18 of prison resources generally; and 19 (4) Whether there is an absence of ready alternatives versus the 20 existence of obvious, easy alternatives. 21 22 Shakur, 514 F.3d at 884 (quoting Turner v. Safley, 482 U.S. 78, 89–90 (1987)) (internal 23 quotation marks omitted). Turner addressed the reasonableness of prison regulations; 24 however, “the same analysis has been applied to individual acts” by prison officials who 25 allegedly prevented “a prisoner from engaging in religious practice.” Davis v. Powell, 901 26 F. Supp. 2d 1196, 1224 (S.D. Cal. 2012) (citing Ford v. McGinnis, 352 F.3d 582, 594–95 27 (2d Cir. 2003)). 28 1 The sincerity of Plaintiff’s religious beliefs are not disputed. (See Docs. 27, 35.) 2 Montejano does not argue that Plaintiff’s claims fail because the burden imposed was 3 reasonably related to a legitimate penological interest. (Id.) Because Montejano waived 4 both of these arguments, the Court only determines whether Plaintiff’s religious practice 5 was substantially burdened. 6 The Plaintiff asserts that his First Amendment right to study and teach from the 7 Bible daily was violated because Montejano seized and disposed of his NJKV Study Bible. 8 (See Doc. 1 at 4, 12; Doc. 33 at 3–4.) Montejano argues that Plaintiff was not substantially 9 burdened because “Plaintiff had access to the Contemporary New Testament Bible” and 10 was “able to engage in bible study by (1) using the King James translation of the Bible on 11 MCSO tablet and (2) borrowing a New King James bible from another inmate.” (Doc. 27 12 at 5.) Moreover, Montejano asserts, Plaintiff was able to borrow a NKJV Bible for his daily 13 study. (Id. at 5–6.) 14 Montejano relies on Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) to support 15 the notion that denying Plaintiff access to the Old Testament for two months was not a 16 substantial burden on his First Amendment rights. (Doc. 27 at 5.) In Canell, the Ninth 17 Circuit held that a prison guard disrupting a Muslim prisoner’s prayers for up to eighteen 18 days over a span of six weeks was not a substantial burden on the prisoner’s First 19 Amendment rights because the intrusions were “relatively short-term and sporadic.” 20 Canell, 143 F.3d at 1215; see id. at 1211–12. The Court is unconvinced. Plaintiff in this 21 case was not only denied the ability to perform a religious act—studying, teaching, and 22 reading—but also denied access to his sacred texts, namely, the entire Old Testament. 23 Furthermore, the assaults on Plaintiff’s religious beliefs were not short term and sporadic. 24 In fact, they were continuous over a period of about two months. 25 On this record, Defendant Montejano’s confiscation of Plaintiff’s New King James 26 Bible did substantially burden Plaintiff’s right to study and read his Bible. Plaintiff’s NKJV 27 Study Bible was confiscated leaving him with only the Contemporary New Testament 28 Bible. As its name suggests, the Contemporary New Testament Bible only contains the 1 New Testament; it does not contain any of the 39 Old Testament books.3 Thus, Plaintiff 2 was completely cut off from the entire Old Testament—39 of the 66 books of the Bible— 3 for about two months.4 As part of his religious readings, the Old Testament was the subject 4 of daily morning study that lasted sixty to ninety minutes. That Plaintiff still had access to 5 other religious materials is irrelevant; he was completely deprived of nearly 60% of the 6 content of his holy scripture. This is clearly a substantial burden “preventing [Plaintiff] 7 from engaging in [religious] conduct or having a religious experience” and “exert[ing] 8 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” 9 Worldwide Church of God, 227 F.3d at 1121; Ohno, 723 F.3d at 1011. Thus, the Court will 10 not grant summary judgment on this issue. 11 Plaintiff’s arguments regarding his inability to study the Old Testament are 12 sufficient to defeat Montejano’s motion for summary judgment. But, the Court also finds 13 Plaintiff’s other arguments about translational preferences persuasive given the significant 14 differences in translational methodology and philological and linguistic scholarship 15 between the Contemporary English Version (“CEV”), NJKV, and KJV translations of the 16 Bible.5 17 B. Qualified Immunity 18 “An official sued under § 1983 is entitled to qualified immunity unless it is shown 19 that the official violated a statutory or constitutional right that was clearly established at 20 the time of the challenged conduct.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). While 21 “[q]ualified immunity shields federal and state officials from money damages[,]” Ashcroft 22 v. al-Kidd, 563 U.S. 731, 735, (2011), it is “an immunity from suit rather than a mere 23 defense to liability[,]” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Consequently, it “is 24 effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231. 25 A district court evaluating whether a government official is entitled to qualified 26 immunity at the summary judgment stage asks two questions: (1) whether, taking the facts

27 3 See The Holy Bible (New King James Version). 4 Id. 28 5 See LELAND RYKEN, CHOOSING A BIBLE: UNDERSTANDING BIBLE TRANSLATION D (2005) 1 in the light most favorable to the nonmoving party, the officers’ conduct violated a federal 2 statutory or constitutional right, and (2) whether the right was clearly established at the 3 time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 200–01 (2001). Either 4 question may be addressed first, and if the answer to either is “no,” then the officers cannot 5 be held liable for damages. See Pearson, 555 U.S. at 236. With respect to the second prong, 6 “[b]ecause the focus is on whether the officer had fair notice that her conduct was unlawful, 7 reasonableness is judged against the backdrop of the law at the time of the conduct.” 8 Brosseau v. Haugen, 543 U.S. 194, 198 (2004). For this reason, the Supreme Court has 9 emphasized the importance of ensuring the evidence is reviewed through the appropriate 10 lens when deciding the “clearly established prong” on summary judgment. Tolan v. Cotton, 11 572 U.S. 650, 657–58 (2014). 12 The Supreme Court has “repeatedly stressed that courts must not ‘define clearly 13 established law at a high level of generality, since doing so avoids the crucial question 14 whether the official acted reasonably in the particular circumstances that he or she faced.’” 15 District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 590 (2018) (quoting 16 Plumhoff, 572 U.S. at 779 (2014)). Thus, the second step in the qualified immunity analysis 17 “must be undertaken in light of the specific context of the case, not as a broad general 18 proposition.” Saucier, 533 U.S. at 201. “The ‘clearly established’ standard . . . requires that 19 the legal principle clearly prohibit the officer’s conduct in the particular circumstances 20 before him. The rule’s contours must be so well defined that it is ‘clear to a reasonable 21 officer that his conduct was unlawful in the situation he confronted.’” Wesby, 138 S. 22 Ct. at 590 (quoting Saucier, 533 U.S. at 202). “This requires a high degree of specificity.” 23 Id. (internal quotation omitted). But, “[t]his is not to say that an official action is protected 24 by qualified immunity unless the very action in question has previously been held 25 unlawful, . . . but it is to say that in the light of pre-existing law the unlawfulness must be 26 apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal citation omitted). 27 “This demanding standard protects all but the plainly incompetent or those who knowingly 28 violate the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 1 Montejano argues that qualified immunity applies because there is “no controlling 2 Ninth Circuit or Supreme Court case holding that a jail must provide an inmate a specific 3 translation of the Bible or that a plaintiff is substantially burdened by studying a different 4 translation of the Bible for a short or sporadic period of time.” (Doc. 27 at 7.) Moreover, 5 he argues that Plaintiff has failed to raise a genuine dispute of fact on this issue. 6 (Doc. 35 at 5.) The Court disagrees. 7 Contrary to Montejano’s arguments, it is clear to the Court that qualified immunity 8 does not apply in this case. The first prong of the qualified immunity question is clear. 9 Montejano’s actions prevented Plaintiff from reading the Old Testament for over two 10 months. As a practicing Christian, Plaintiff engaged in daily morning studies of the Old 11 Testament. Thus, Montejano violated Plaintiff’s First Amendment right to free exercise of 12 religion. 13 Regarding the second prong, the right to read the Old Testament was clearly 14 established at the time Montejano acted. See, e.g., Jones v. Williams, 791 F.3d 1023, 1033 15 (9th Cir. 2015) (“It [is] well established . . . that government action places a substantial 16 burden on an individual’s right to free exercise of religion when it tends to coerce the 17 individual to forego [his or] her sincerely held religious beliefs or to engage in conduct that 18 violates those beliefs.”). It would be clear to any reasonable officer faced with Montejano’s 19 decision that depriving Plaintiff of access to the Old Testament for two months was 20 unlawful. Therefore, the Court will not grant summary judgment on qualified immunity. 21 V. CONCLUSION 22 Accordingly, 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IT IS ORDERED: 2 (1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion 3.) for Summary Judgment (Doc. 27). 4 (2) Defendant’s Motion for Summary Judgment (Doc. 27) is denied. 5 Dated this 13th day of April, 2022. 6 Wicheal T. Fburde Michael T. Liburdi 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28