Shaw v. Davis

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 NORMAN SHAW, et al., Case No. 3:18-cv-00551-MMD-CLB

7 Plaintiffs, ORDER v. 8 SCOTT DAVIS, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiffs Norman Shaw, Joseph Cowart, Brian Kamedula, Charles M. Wirth, 13 and Ansell Jordan, either current or former inmates in the custody of the Nevada 14 Department of Corrections (“NDOC”) at the Lovelock Correctional Center (“LCC”), sued 15 prison officials under 42 U.S.C. § 1983 for violating their statutory and constitutional 16 religious rights by changing the LCC chapel schedule, in 2018, in a way that eliminated or 17 moved various religious services. (ECF No. 39 (“FAC”).) Before the Court is a Report and 18 Recommendation (“R&R”) of United States Magistrate Carla L. Baldwin (ECF No. 252), 19 recommending the Court deny Plaintiffs’ motion for summary judgment (ECF No. 213 20 (“Plaintiffs’ Motion”)), and grant in part, but deny in part, Defendants’ motion for summary 21 judgment (ECF No. 226 (“Defendants’ Motion)). Plaintiffs1 filed an objection to the R&R. 22 (ECF No. 253 (“Objection”).)2 As further explained below, the Court will mostly accept the 23 R&R and overrule Plaintiffs’ Objection but will sustain the Objection in part to reflect that 24 the Court agrees some Plaintiffs are entitled to summary judgment on their Religious Land 25

26 1Shaw filed the Objection. (ECF No. 253.) Cowart (ECF No. 254), Wirth (ECF No. 255), Jordan (ECF No. 256), and Kamedula (ECF No. 257) joined it. The Court accordingly 27 refers to the Objection as Plaintiffs’ Objection, and the arguments therein as Plaintiffs’ arguments. 28 2Defendants filed a response to the Objection. (ECF No. 258 (the “Response”).) 2 remaining on those claims is what injunctive relief is appropriate. 3 II. BACKGROUND 4 The Court incorporates by reference Judge Baldwin’s recitation of Plaintiffs’ 5 allegations in the FAC and the procedural history of this case provided in the R&R, which 6 the Court adopts. (ECF No. 252 at 2-6.) Judge Baldwin generally recommends that the 7 Court grant Defendants’ Motion in part to reflect that some Defendants did not personally 8 participate in the alleged constitutional violations, and that two Plaintiffs have since been 9 released from NDOC custody, rendering their RLUIPA claims moot, but otherwise 10 recommends the Court deny both sides’ motions and let Plaintiffs’ remaining claims 11 proceed to trial. (See generally id.) However, Judge Baldwin also recommends the Court 12 direct supplemental briefing “to determine whether Plaintiffs Shaw, Cowart, and Jordan 13 have received the injunctive relief they seek in this action or whether that request is moot.” 14 (Id. at 17.) 15 To that point, and as further discussed below, Plaintiffs respond in their Objection 16 that they do not believe they have received the injunctive relief they seek through the 17 current chapel schedule at LCC, so the Court will not adopt that particular 18 recommendation. (ECF No. 253 at 6.) But more generally, Plaintiffs mostly argue in their 19 Objection that Judge Baldwin should have recommended the Court grant them summary 20 judgment on several of their claims, instead of finding genuine disputes of material fact 21 remain. (See generally id.) The Court will discuss those arguments in more detail below. 22 But for now, the Court notes that Plaintiffs do not appear to object to Judge Baldwin’s 23 recommendation to grant Defendants’ Motion in part—specifically to dismiss Kamedula 24 and Wirth’s RLUIPA claims as moot because they are no longer in custody, and grant 25 summary judgment to Defendants Thomas, Ferro, LeGrand, and Potter for lack of 26 personal participation. (Compare id. with ECF No. 252 at 10, 20-21, 29-30.) The Court 27 agrees with these recommendations and adopts them without objection from Plaintiffs. 28 More broadly, the Court generally agrees with Judge Baldwin’s analysis in the R&R 2 specifically provided in the Discussion and Conclusion sections below. 3 III. LEGAL STANDARD 4 This Court “may accept, reject, or modify, in whole or in part, the findings or 5 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 6 timely objects to a magistrate judge’s report and recommendation, then the Court is 7 required to “make a de novo determination of those portions of the [report and 8 recommendation] to which objection is made.” Id. The Court’s review is thus de novo as 9 to the portions of the R&R Plaintiffs object to because Plaintiffs filed their Objection.3 (ECF 10 No. 253.) 11 IV. DISCUSSION 12 By the Court’s count, Plaintiffs raise 11 arguments in their Objection. The Court will 13 address each argument in turn. 14 A. The Way and KAIROS 15 Plaintiffs first object to Judge Baldwin’s statement in the statement of undisputed 16 facts in the R&R that The Way and Kairos are not religions recognized by NDOC. (ECF 17 No. 253 at 1-2 (objecting to ECF No. 252 at 2 (“KAIROS and The Way are not recognized 18

19 3Defendants erroneously state in their Response that the clearly erroneous standard of review applies. (ECF No. 258 at 2-3.) Defendants rely on LR IB 3-1. (Id. at 2 20 (“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case under LR IB 1-3, when it has been shown the magistrate judge’s order is 21 clearly erroneous or contrary to law.”).) But that rule applies to matters that may finally be determined by a magistrate judge in civil cases. See LR IB 3-1. Here, the Court is 22 reviewing Judge Baldwin’s Recommendation that the Court deny the parties’ motions for summary judgment. (ECF No. 252.) LR IB 1-4(c) provides that motions for summary 23 judgment may not be finally determined by Magistrate Judges. Accordingly, LR IB 3-2— not LR IB 3-1—applies to the Court’s review of the R&R. The Court’s review of the R&R 24 is accordingly de novo as to those portions of the R&R that Plaintiffs object to. See LR IB 3-2(b). The Court noticed the same error in a prior case. See, e.g.. Pearson v. Dzurenda, 25 Case No. 3:19-cv-00031-MMD-CSD, ECF No. 75 at 3 n.2 (D. Nev. Feb. 14, 2021) (including a nearly identical footnote to this one in a nearly identical situation, but where 26 the error came from a different attorney employed by the Nevada Attorney General’s office, suggesting the error is not limited to one attorney). 27 And while the Court acknowledges that Defendants refer to the correct standard in 28 passing (ECF No. 258 at 3), Defendants refer to the clearly erroneous standard throughout the rest of their Response (id. at 4, 5, 7). 2 recognized KAIROS and The Way as religions because it permitted their adherents to hold 3 services in the LCC chapel for years until the 2018 schedule change challenged in this 4 case. (Id.) Defendants counter that this understanding is incorrect because religions are 5 only recognized by NDOC if they appear on the Faith Group Overview, and neither of 6 these groups appear on the Faith Group Overview. (ECF No. 258 at 7.) The Court agrees 7 with Defendants and overrules this objection. 8 To start, there is no dispute that neither KAIROS nor The Way are listed on the 9 NDOC’s Faith Group Overview. (ECF No. 226-4 at 5.) And the Court determines this 10 omission means they are not religions recognized by the NDOC. First, Administrative 11 Regulation (“AR”) 810.3(11)(b)(7) provides that the Religious Review Team (“RRT”) will 12 make the necessary amendments to the Faith Group Overview if a request to recognize a 13 new religion is approved. (ECF No. 72-2 at 15.) This leads to a reasonable inference that 14 if a faith group is not on the Faith Group Overview, it is not a recognized religion. Second, 15 the definitions of Faith Group and Faith Group Overview in AR 810.3 support the view that 16 only groups listed on the Faith Group Overview are recognized by NDOC. Faith Group is 17 defined as a religious or spiritual denomination, sect, or organization that is recognized by 18 NDOC. (Id. at 6.) And Faith Group Overview is defined as the compilation that defines the 19 practices, etc. of Faith Groups recognized by NDOC. (Id.) Third, Section 14.A. of AR 810.3 20 uses the phrasing “AR 810 recognized Faith Group[,]” further suggesting that only religions 21 that appear on the list are recognized by NDOC. (Id. at 31.) Fourth, Section 3.B. of AR 22 810.3 states that special privileges bestowed on a one-time basis do not create precedent, 23 suggesting that any special privileges adherents of KAIROS or The Way enjoyed in the 24 past did not somehow convert them into Faith Groups recognized by NDOC. (Id. at 4.) 25 In sum, the Court finds that if a faith group is not listed on NDOC’s Faith Group 26 Overview (ECF No. 226-4 at 5), it is not a Faith Group recognized by NDOC. Accordingly, 27 the Court accepts and adopts Judge Baldwin’s statement KAIROS and The Way are not 28 NDOC-recognized faith groups and overrules Plaintiffs’ corresponding objection. 2 Plaintiffs next object to Judge Baldwin’s purported failure to acknowledge that all 3 Defendants are sued in their official and unofficial capacities. (ECF No. 253 at 2.) While 4 the distinction between official and unofficial capacities can matter in some circumstances, 5 Plaintiffs do not explain how Judge Baldwin’s purported failure to mention that Plaintiffs 6 are suing all Defendants in the official and unofficial capacities affected her analysis, much 7 less how it caused Judge Baldwin to err in some way. This objection is thus overruled. 8 C. Substantial Burden Under RLUIPA 9 Plaintiffs then object to Judge Baldwin’s finding that there are disputes of material 10 fact regarding whether the 2018 LCC chapel schedule change substantially burdened 11 Plaintiffs’ religious exercise under RLUIPA. (ECF No. 253 at 2-5 (objecting to ECF No. 12 252 at 12-16).) Plaintiffs argue Judge Baldwin overlooked testimony at a preliminary 13 injunction hearing going to substantial burden and reached a conclusion contrary to the 14 Court’s conclusion in Elmajzoub v. Davis, Case No. 3:19-cv-00196-MMD-CSD, ECF No. 15 73 at 2 (D. Nev. Jun. 14, 2022) regarding the same schedule change at issue in this case— 16 and ignored Plaintiffs’ request that she take judicial notice of the Elmajzoub decision 17 before issuing her R&R. (Id.) Defendants counter that the Court should overrule Plaintiffs’ 18 objection because they “failed to demonstrate that they use the steps outlined in AR 810.3 19 to request additional religious services[,]” and the testimony at the preliminary injunction 20 hearing does not indicate that Plaintiffs requested any changes to the schedule in 2018 21 when LCC officials made the challenged changes. (ECF No. 258 at 3-5.) The Court agrees 22 with Plaintiffs. 23 Indeed, the Court declines to adopt Judge Baldwin’s recommendation as to this 24 issue and instead finds Plaintiffs are entitled to summary judgment that the 2018 LCC 25 chapel schedule change substantially burdened their religious exercise rights under 26 RLUIPA. There is no dispute here that the schedule change eliminated recurring services 27 that Shaw, Jordan, and Cowart were used to attending. Particularly considering that 28 2 to constitutes a burden on their religious exercise. 3 As to Shaw, he “asserts that the new Chapel schedule prevented him from 4 renewing his Episcopal Worship Leader License and participating in classes and religious 5 activities of his faith[.]” (ECF No. 252 at 13.) And Defendants never offered any evidence 6 to counter Shaw’s assertion that the schedule change substantially burdened his religious 7 exercise. (ECF No. 226 at 17 (declining to specifically address Shaw, much less present 8 evidence on substantial burden).) Judge Baldwin’s conclusion that a dispute of material 9 fact remains as to this issue accordingly does not follow. (ECF No. 252 at 13.) Moreover, 10 the Court may not take a “narrow view of what constitutes a ‘substantial burden”’ and the 11 “availability of alternative means of practicing religion” is irrelevant to the inquiry. Johnson 12 v. Baker, 23 F.4th 1209, 1215 (9th Cir. 2022). Thus, and as Judge Baldwin also noted 13 (ECF No. 252 at 13), the fact that NDOC may have presented alternatives to Shaw in lieu 14 of the services he was accustomed to has no bearing on the inquiry. In sum, and again 15 particularly absent any evidence to the contrary, the pertinent NDOC officials’ 2018 16 schedule change eliminating several services Shaw attended on a weekly basis 17 constituted a substantial burden on his religious exercise under RLUIPA. 18 As to Jordan, Judge Baldwin found there was no admissible evidence to support 19 Defendants’ contention that there was considerable flexibility in the time the Jumu’ah 20 prayer service could take place, but nonetheless found that there was a dispute of material 21 fact as to whether Jordan could have attended Jumu’ah at other times. (Id. at 13-14.) This 22 recommendation does not follow either. “There are, of course, no alternative means of 23 attending Jumu’ah; respondents’ religious beliefs insist that it occur at a particular time.” 24 O’Lone v. Est. of Shabazz, 482 U.S. 342, 351 (1987). And indeed, the Court found that 25 the same schedule change at issue here constituted a substantial burden under RLUIPA 26 regarding Jumu’ah specifically in Elmajzoub, Case No. 3:19-cv-00196-MMD-CSD, ECF 27 No. 73 at 2. Thus, it would be logically difficult for the Court to reach a different conclusion 28 here. The Court finds that the 2018 LCC schedule change moving Jumu’ah from the early 2 RLUIPA. 3 As to Cowart, there similarly appears to be no dispute that the schedule change 4 eliminated services he was accustomed to attending, and the ability to request or use 5 alternative or additional time slots is not strictly relevant to the RLUIPA inquiry. (ECF No. 6 252 at 14.) And the Court does not find that the fact The Way is not an NDOC-recognized 7 Faith Group changes the analysis. Judge Baldwin noted that there appears to be no 8 dispute that Cowart’s participation in the services eliminated by the schedule change were 9 grounded in his sincerely held religious beliefs. (Id. at 11.) And Defendants do not dispute 10 that the schedule change eliminated “a space in the Chapel for worship service with 11 outside sponsor, Bible studies, music practice, and a yearly, two-day Pentecost service.” 12 (Id. at 14.) Thus, several recurring services and events grounded in Cowart’s sincerely- 13 held religious beliefs were eliminated. This constitutes a substantial burden on his religious 14 exercise rights under RLUIPA. See, e.g., Johnson, 23 F.4th at 1216 (finding that NDOC 15 regulation restricting the plaintiff’s “use of scented oil during prayer to a paltry one out of 16 35 prayers per week” constituted a substantial burden on his religious exercise under 17 RLUIPA). The Court accordingly rejects Judge Baldwin’s recommendation to find a 18 dispute of material fact precludes Cowart summary judgment that his religious exercise 19 rights were burdened by the schedule change. 20 In sum, the Court finds Plaintiffs are entitled to summary judgment that the 2018 21 schedule change regarding the LCC chapel substantially burdened Plaintiffs’ religious 22 exercise rights under RLUIPA. 23 D. Compelling Interest Under RLUIPA 24 Plaintiffs next object to Judge Baldwin having found a genuine dispute of material 25 fact precluding summary judgment as to whether Defendants had a compelling interest 26 under RLUIPA justifying the 2018 change to the LCC chapel schedule. (ECF No. 253 at 27 5-6.) Plaintiffs more specifically argue that Judge Baldwin overlooked the evidence 28 Plaintiffs proffered with their Motion to the effect that Defendants did not consider any less 2 responses from Defendants where Defendants refused to state what less restrictive 3 options they considered when asked, instead contending they do not believe the schedule 4 change was restrictive. (Id.) Defendants, somewhat cryptically and certainly in a 5 conclusory manner, seem to argue that the Court should adopt Judge Baldwin’s 6 recommendation on this issue because Defendants have argued the amended chapel 7 schedule was the least restrictive means of serving a compelling government interest. 8 (ECF No. 258 at 4.) The Court again agrees with Plaintiffs. 9 Whether Defendants have argued something is not necessarily relevant to the 10 summary judgment analysis, which requires the Court to examine the evidence proffered 11 by the parties to see if a genuine dispute of material fact exists. Defendants’ argument in 12 their Response is accordingly unpersuasive. And there is no genuine dispute of material 13 fact here. Indeed, Judge Baldwin found that “Defendants have not demonstrated they 14 meaningfully ‘considered and rejected the efficacy of less restrictive measures before 15 adopting the challenged practice.”’ (ECF No. 252 at 16 (quoting Warsoldier v. Woodford, 16 418 F.3d 989, 999 (9th Cir. 2005)).) In addition, and as Plaintiffs argue (ECF No. 253 at 17 5-6), the evidence they presented with their Motion supports this finding. Specifically, 18 Plaintiffs point to two substantially similar interrogatory responses by Defendants 19 Carpenter and Davis. (Id.) When asked, neither Carpenter nor Davis identified any less 20 restrictive alternatives they considered before implementing the 2018 change to the 21 chapel schedule. (ECF No. 149-2 at 97 (Carpenter), 106 (Davis).) Instead, Carpenter 22 wrote, “Defendant does not believe they were restrictive. We were following the ARs.” (Id. 23 at 97.) And Davis wrote, “[i]t wasn’t about less restrictive. It was about taking the bias 24 toward certain faiths out of the Chapel Schedule and making it fair for all faiths.” (Id. at 25 106.) Because they were being specifically asked about what less restrictive alternative 26 means they considered—and to provide examples—the only reasonable inference the 27 Court may draw from these responses is that neither Carpenter nor Davis considered any 28 less restrictive alternatives before implementing the challenged change to the chapel 2 responses—in their Response (ECF No. 358 at 4), meaning these concessions made 3 during discovery are undisputed facts. 4 Accordingly, Judge Baldwin’s ultimate recommendation that disputes of material 5 fact remain on the compelling interest prong of Plaintiffs’ RLUIPA claims does not follow 6 from her key factual finding noted above and discussed in the R&R. Defendants cannot 7 meet their “burden to prove least restrictive means unless [they] demonstrate[] that [they 8 have] actually considered and rejected the efficacy of less restrictive measures before 9 adopting the challenged practice.” Warsoldier, 418 F.3d at 999. The evidence is to the 10 contrary here. As explained above, the evidence shows that Defendants did not consider 11 any less restrictive measures before making the 2018 change to the LCC chapel schedule. 12 Because Defendants did not consider any less restrictive measures before making the 13 challenged change to the LCC chapel schedule, the Court must find—and does—that 14 Plaintiffs prevail on the compelling interest prong of their RLUIPA claims. 15 Further, because the Court makes that finding, the Court accordingly finds that 16 Plaintiffs are entitled to summary judgment on their RLUIPA claim (and sustains Plaintiffs’ 17 corresponding objections). After all, the Court also finds that Plaintiffs are also entitled to 18 summary judgment on the substantial burden prong of the RLUIPA analysis. The Court 19 thus rejects Judge Baldwin’s recommendations that genuine disputes of material fact 20 preclude summary judgment on Plaintiffs’ RLUIPA claims. The question that remains is 21 what injunctive relief is appropriate to remedy Defendants’ violation of RLUIPA. While 22 Plaintiffs ask for the LCC chapel schedule to revert to what it was before the 2018 schedule 23 change (ECF No. 38 at 28), the parties have not addressed these issues in some time, 24 and their positions may have changed considering the Court’s findings detailed 25 immediately above. And the question of what injunctive relief is appropriate dovetails with 26 the Court’s discussion of Plaintiffs’ next argument in their Objection below. 27 /// 28 /// 2 More specifically, Plaintiffs also object (ECF No. 253 at 6) to Judge Baldwin’s 3 recommendation that, “further briefing should be required to determine whether Plaintiffs 4 Shaw, Cowart, and Jordan have received the injunctive relief they seek in this action or 5 whether that request is moot.” (ECF No. 252 at 17.) Plaintiffs state they have not received 6 the injunctive relief they seek. (ECF No. 253 at 6.) Thus, there is no need to adopt Judge 7 Baldwin’s recommendation to direct supplemental briefing on mootness. Moreover, and 8 as explained above, the Court finds that Plaintiffs are entitled to summary judgment on 9 their RLUIPA claims. 10 The question, therefore, is what injunctive relief is appropriate to remedy 11 Defendants’ violations of RLUIPA in adopting the 2018 changes to the LCC chapel 12 schedule. The Court will direct supplemental briefing on that issue. 13 F. Turner Factors and the Standard to Apply to Constitutional Claims 14 Plaintiffs then object to Judge Baldwin’s statements in the R&R that they did not 15 adequately address the Turner4 factors, arguing they did, and dispute that the Turner 16 factors even apply to their Constitutional claims, instead arguing that the basically strict 17 scrutiny standard that NDOC itself adopted in AR 810 should instead govern the Court’s 18 review of Plaintiffs’ constitutional claims. (ECF No. 253 at 6-8.) Defendants counter that 19 Plaintiffs did not meet their burden to show the absence of a genuine dispute of material 20 fact on their equal protection clause claim, and that Plaintiffs proffer no caselaw supporting 21 their view that the strict-scrutiny-like standard from AR 810 should govern the Court’s 22 review of Plaintiffs’ Constitutional claims. (ECF No. 258 at 5.) The Court mostly agrees 23 with Defendants. 24 Starting with the broader issue first, the Court agrees with Defendants’ assessment 25 that Plaintiffs proffer no caselaw supporting their view that the Court should review their 26 constitutional claims under the strict scrutiny standard from AR 810 instead of the Turner 27 28 4Turner v. Safley, 482 U.S. 78 (1987). 2 appropriate factors to analyze Plaintiffs’ Constitutional claims. (ECF No. 252 at 18.) Walker 3 v. Beard, 789 F.3d 1125 (9th Cir. 2015) provides a reasonably analogous framework for 4 the Court’s use in this case because it too involved RLUIPA and Constitutional claims 5 challenging prison policy. The Walker Court employed the RLUIPA analysis that the Court 6 also applied above for the RLUIPA claims and analyzed the Constitutional claim (First 7 Amendment Free Exercise) using the Turner factors. See id. at 1134-38 (analyzing the 8 RLUIPA claim), 1138-39 (analyzing the First Amendment Free Exercise claim using the 9 Turner factors). And the approach the Ninth Circuit took in Walker is consistent with other 10 governing precedent the Court was able to locate. The Court was notably unable to locate 11 any binding opinions where a court analyzed an incarcerated litigant’s Constitutional 12 claims involving a purported infringement on their religious rights using a strict-scrutiny- 13 like standard found in an administrative regulation. Courts instead generally use the 14 Turner factors. This Court will too. 15 Turning to Plaintiffs’ more specific objection, Plaintiffs are correct that they did 16 address the Turner factors in their Motion. (Compare ECF No. 252 at 18 (stating that 17 neither party addressed the Turner factors) with ECF No. 213 at 31-33 (addressing the 18 Turner factors).) However, as discussed below as to Plaintiffs’ subsequent objections, the 19 Court agrees with Judge Baldwin’s analysis of Plaintiffs’ Constitutional claims. 20 G. Establishment Clause Claims 21 Plaintiff next object to this sentence in the R&R: “However, it is not clear on this 22 record whether these other groups requested and were granted the ability to participate in 23 group prayer services on a particular date and time that coincides with their faith, while 24 Plaintiffs were not.” (ECF Nos. 252 at 22 (the sentence), 253 at 8 (objecting to the 25 sentence).) Plaintiffs argue they addressed the accommodations given to other religious 26 groups in their Motion, so they are entitled to summary judgment on their First Amendment 27 Establishment Clause claims. (ECF No. 253 at 8.) Defendants essentially counter that 28 Plaintiffs’ desired conclusion does not follow because they did not explain how Judge 2 6.) The Court agrees with Defendants. 3 Plaintiffs do not attack the propriety of Judge Baldwin’s overall analysis of their 4 Establishment clause claims, instead quibbling with one nondeterminative component of 5 it. The Court also agrees with Judge Baldwin’s analysis of the Establishment Clause claim. 6 Despite the strong evidence that Defendants preferred some religions over others in 7 enacting the 2018 change to the LCC chapel schedule, the Court agrees with Judge 8 Baldwin that NDOC’s Faith Group Overview suggests that NDOC at least attempts to treat 9 all recognized Faith Groups equally, which creates enough of a dispute of fact to render 10 summary judgment inappropriate. (ECF No. 252 at 22.) Moreover, Carpenter states in her 11 declaration that the intent behind the challenged chapel schedule changes was to treat all 12 religions equally. (ECF No. 226-2 at 2-3.) Davis similarly suggests that concerns about 13 fairness motivated the challenged changes to the LCC chapel schedule. (ECF No. 226-3 14 at 3.) Thus, disputes of material fact remain on Plaintiffs’ Establishment Clause claim. The 15 Court adopts Judge Baldwin’s Recommendation on this issue and overrules Plaintiffs’ 16 corresponding objection. 17 H. Free Exercise Clause Claims 18 Plaintiffs next object to Judge Baldwin’s finding that factual disputes preclude 19 summary judgment on their First Amendment Free Exercise Clause claim because 20 Plaintiffs claim that no legitimate penological purpose ever existed justifying the 2018 21 change to the chapel schedule. (ECF No. 253 at 8.) Defendants counter that Plaintiffs’ 22 objection is insufficiently specific and should therefore be disregarded. (ECF No. 258 at 23 6.) 24 There is at least a factual dispute as to whether Defendants had a legitimate 25 penological purpose justifying the 2018 LCC chapel schedule change. For example, 26 Defendants Baker, Carpenter, and Davis describe in their declarations how the prior 27 chapel schedule caused safety and security concerns because it permitted religious 28 services throughout LCC at all times of day, and Baker received reports that participants 1 || in some of those scattered religious services were exchanging contraband and engaging 2 || in sexual contact. (ECF Nos. 226-1, 226-2, 226-3.) The Court will accordingly accept and 3 || adopt Judge Baldwin’s recommendation as to Plaintiffs’ Free Exercise Clause claim and 4 || overrule Plaintiffs’ corresponding objection. 5 I. Section 1985 Conspiracy Claim 6 Plaintiffs next object to Judge Baldwin’s finding that a dispute of material fact 7 || precludes summary judgment to either side on Plaintiffs’ 42 U.S.C. § 1985(3) conspiracy 8 || claim because this is the rare case where Plaintiffs have direct evidence of a conspiracy 9 || to deprive them of their constitutional rights. (ECF No. 253 at 9 (objecting to ECF No. 252 10 || at 26).) Defendants counter that Plaintiffs raise an insufficiently specific objection. (ECF 11 || No. 258 at 6.) 12 While Plaintiffs’ point is well taken, the Court ultimately agrees with Judge Baldwin 13 || that this claim should go to trial. The evidence that Plaintiffs point to is remarkable in the 14 || sense that it stands out in the Court’s experience presiding over hundreds of prisoner civil 15 || rights cases. Plaintiffs point to Davis’ own notes taken after a meeting about the pertinent 16 || schedule change—produced by NDOC in discovery—that also implicates Carpenter: 17 18 2. "Why did our Muslim studies get taken away.” told them that | took that to AW Carpenter and she sald, “Denied.” | couldn't say In front of all of them that It was because they teach racism, hate and black 19 supremacy. There would have been a riot. 20 || (ECF No. 213 at 511.) It is hard for the Court to imagine a stronger piece of evidence in 21 || support of Plaintiffs’ Section 1985 conspiracy claim. 22 Nonetheless, Baker, Davis, and Carpenter submitted sworn declarations stating 23 || that they had other reasons for changing the chapel schedule beyond anti-Islamic religious 24 || animus. (ECF Nos. 226-1, 226-2, 226-3.) Thus, the Court would have to make adverse 25 || credibility determinations as to Baker, Davis, and Carpenter to determine that Plaintiffs are 26 || entitled to summary judgment on their Section 1985 conspiracy claim—because Plaintiffs’ 27 || evidence contradicts their sworn declarations. But at summary judgment, the Court may 28 || not “make credibility determinations with respect to statements made in affidavits[.]” 13

2 (“A judge must not grant summary judgment based on [her] determination that one set of 3 facts is more believable than another.”). Therefore, despite Plaintiffs’ strong evidence, it 4 would be inappropriate to grant Plaintiffs summary judgment on their Section 1985 5 conspiracy claim. The Court accordingly accepts and adopts Judge Baldwin’s 6 recommendation on this issue and overrules Plaintiffs’ corresponding objection. 7 J. Retaliation Claim 8 Plaintiffs also object to Judge Baldwin’s recommendation that neither party is 9 entitled to summary judgment on Plaintiffs’ First Amendment retaliation claim, arguing that 10 the facts show Plaintiffs are entitled to summary judgment on this claim. (ECF No. 353 at 11 9 (objecting to ECF No. 252 at 26-27).) Defendants counter that Plaintiffs are not entitled 12 to summary judgment on this issue because there is no evidence that Plaintiffs were 13 chilled by Defendants’ allegedly retaliatory actions. (ECF No. 258 at 7.) The Court agrees 14 with Defendants. 15 Indeed, the Court agrees with Judge Baldwin’s analysis of this claim and will adopt 16 it. While Plaintiffs have presented some evidence that Defendants retaliated against 17 Plaintiffs, Defendants are also correct that Plaintiffs filed grievances after the allegedly 18 retaliatory actions, creating at least a genuine dispute of material fact as to Plaintiffs’ 19 retaliation claims. (ECF No. 226 at 27 (citing to Plaintiffs evidence, consisting of, in 20 pertinent part, grievances filed by Plaintiffs).) The Court therefore overrules Plaintiffs’ 21 objection as to their retaliation claim. 22 K. Pro Se Standard 23 Plaintiffs finally ask that the Court liberally construe their pleadings because they 24 are pro se. (ECF No. 353 at 9-10.) The Court has done so. 25 V. CONCLUSION 26 The Court notes that the parties made several arguments and cited to several cases 27 not discussed above. The Court has reviewed these arguments and cases and determines 28 that they do not warrant discussion as they do not affect the outcome of the issues before 2 It is therefore ordered that Plaintiffs’ Objection (ECF No. 253) to the Report and 3 Recommendation of U.S. Magistrate Judge Carla L. Baldwin is sustained in part and 4 overruled in part, as stated herein. The Report and Recommendation (ECF No. 252) is 5 therefore adopted in part and rejected in part as stated herein. 6 It is further ordered that Plaintiffs’ motion for summary judgment (ECF No. 213) is 7 granted in part, and denied in part, as stated herein. 8 It is further ordered that Defendants’ motion for summary judgment (ECF No. 226) 9 is granted in part, and denied in part, as stated herein. 10 It is further ordered that Plaintiffs Kamedula and Wirth’s RLUIPA claims are 11 dismissed as moot because they are no longer in custody. 12 It is further ordered that Defendants Thomas, Ferro, LeGrand, and Potter are 13 dismissed from this case for lack of personal participation. 14 It is further ordered that all Doe Defendants are dismissed from this case under 15 Federal Rule of Civil Procedure 4(m). 16 It is further ordered that Plaintiffs Shaw, Jordan, and Cowart are entitled to 17 summary judgment on their RLUIPA claim against Defendants Davis, Carpenter, Baker, 18 and Wickham. 19 It is further ordered that Plaintiffs may proceed to trial on their Fourteenth 20 Amendment equal protection claim against Defendants Davis, Carpenter, Wickham, and 21 Baker. 22 It is further ordered that Plaintiffs may proceed to trial on their First Amendment 23 Establishment Clause claim against Defendants Wickham, Baker, Carpenter, and Davis. 24 It is further ordered that Plaintiffs may proceed to trial on their First Amendment 25 Free Exercise Clause claim against Defendants Wickham, Baker, Carpenter, and Davis. 26 It is further ordered that Plaintiffs may proceed to trial on their 42 U.S.C. § 1985(3) 27 conspiracy claim against Defendants Wickham, Baker, Carpenter, and Davis. 28 It is further ordered that Plaintiffs may proceed to trial on their First Amendment 1 || Retaliation Claim against Defendants Davis and Carpenter. 2 It is further ordered that the Court finds it appropriate to refer this case to a 3 || settlement conference before United States Magistrate Judge Carla L. Baldwin under LR 4 || 16-5. 5 It is further ordered that, if this case does not settle at the settlement conference, 6 || the parties must: 7 1. Submit a proposed joint pretrial order within 30 days of the settlement 8 conference; and 9 2. brief the issue of what injunctive relief is appropriate to remedy Defendants 10 Davis, Carpenter, Baker, and Wickham’s violations of Plaintiffs Shaw, 11 Jordan, and Cowart’s religious exercise rights under RLUIPA in making the 12 challenged 2018 changes to the LCC chapel schedule. Specifically, Plaintiffs 13 Shaw, Jordan, and Cowart must file a brief of no more than 24 pages within 14 14 days of the settlement conference. Defendants may then file a response, 15 also limited to 24 pages, within 14 days after Plaintiffs file their opening brief. 16 Plaintiffs may then file a reply limited to 12 pages within seven days after 17 Defendants file their response. 18 DATED THIS 12" Day of August 2022.

20 MIRANDA M. DU 21 CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 16