Ward 113886 v. Shinn

Opinion

1 JL 2 WO 3 4 5 8 9 Calvin Clinton Ward, No. CV 22-00998-PHX-JAT (JZB) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants.

15 Plaintiff Calvin Clinton Ward, who is confined in the Arizona State Prison 16 Complex-Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. 17 § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 order Defendants to answer the Complaint. 19 I. Application to Proceed In Forma Pauperis and Filing Fee 20 The Court will grant Plaintiff’s Application to Proceed In Forma Pauperis. 28 21 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 22 § 1915(b)(1). The Court will assess an initial partial filing fee of $29.50. The remainder 23 of the fee will be collected monthly in payments of 20% of the previous month’s income 24 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 25 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 26 government agency to collect and forward the fees according to the statutory formula. 27 II. Statutory Screening of Prisoner Complaints 28 The Court is required to screen complaints brought by prisoners seeking relief 1 against a governmental entity or an officer or an employee of a governmental entity. 28 2 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 3 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 4 relief may be granted, or that seek monetary relief from a defendant who is immune from 5 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 6 A pleading must contain a “short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 8 not demand detailed factual allegations, “it demands more than an unadorned, the- 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Id. 12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 13 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 14 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 15 that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 17 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 19 allegations may be consistent with a constitutional claim, a court must assess whether there 20 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 21 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 22 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 23 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 24 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 25 U.S. 89, 94 (2007) (per curiam)). 26 III. Complaint 27 In his Complaint, Plaintiff names as Defendants Arizona Department of Corrections 28 (ADC) Director David Shinn, Director of Chaplaincy Services Kenneth Herman, Senior 1 Chaplain Adam Henry, and Chaplain Trevor McShane. Plaintiff asserts Defendants 2 violated his rights to exercise his religion and to equal protection. He seeks declaratory, 3 monetary, and injunctive relief, as well as his costs and fees for this case. 4 Plaintiff alleges the following: 5 Plaintiff has been an adherent of Odinism, or Asatru, for approximately 20 years. 6 Odinism is an established religion recognized in the federal and state penal system in the 7 United States. As an adherent of Odinism, Plaintiff worships the Norse Gods and 8 Goddesses (the Aesir and Vanir) and honors his ancestors daily. Plaintiff believes that 9 wearing a full-length beard, group worship and group study, and individual daily exercise 10 of his spiritual beliefs are important and necessary tenets in his faith. To conduct daily 11 exercise, Plaintiff believes there are specific religious items that he needs to practice his 12 spiritual belief and conduct daily ritual ceremonies used in the worship and honoring of his 13 Gods and Ancestors. 14 Full-Length Beard 15 On August 2, 2021, Plaintiff requested a religious waiver to grow a full-length beard 16 with no length requirements. Plaintiff stated that he is an adherent of Odinism and that he 17 sincerely believes that wearing a full-length beard is an important and necessary tenet of 18 his faith. Plaintiff outlined his reasons for this belief “in complete detail.” The same day, 19 Plaintiff was advised to “get his beard in compliance,” that is, shave it down to one inch, 20 or suffer disciplinary action. Plaintiff reluctantly did so. 21 On August 10, 2021, Defendant McShane denied Plaintiff’s request for a religious 22 waiver, stating that religious waivers were not allowed under ADC Department Orders 704 23 and 904. On August 13, 2021, Plaintiff submitted an informal complaint requesting a 24 religious waiver to grow a full-length beard with no length requirements. Plaintiff again 25 stated that he sincerely believes that wearing a full-length beard is an important and 26 necessary tenet of his faith. On August 23, 2021, Plaintiff received an informal response 27 denying his request. Plaintiff was advised that Department Orders did not allow for 28 religious waivers. 1 On August 26, 2021, Plaintiff submitted a grievance and requested a religious 2 waiver to grow a full-length beard. On September 14, 2021, Plaintiff received a grievance 3 response denying his request. Plaintiff was advised that all beards, regardless of a 4 prisoner’s faith, had to comply with DO 704. 5 On September 16, 2021, Plaintiff submitted a grievance appeal and requested a 6 religious waiver to grow a full-length beard with no length requirements. On October 20, 7 2021, Defendant Shinn denied Plaintiff’s request, stating that DO 704 required Plaintiff to 8 adhere to a one-inch beard length. Defendant Shinn also denied Plaintiff’s request because 9 Plaintiff had failed to provide any supporting documentation from an authoritative source 10 outlining the tenets of his faith that required a full-length beard. 11 Plaintiff alleges that Jewish prisoners at Meadows Unit are allowed to grow full- 12 length beads with no length requirements in accordance with their religious beliefs, and 13 Muslim prisoners are allowed to grow five-inch beards. 14 Group Worship and Group Study 15 On November 1, 2021, Plaintiff submitted an inmate letter requesting authorization 16 for the Odinist/Asatru faith community to gather weekly for group worship and group 17 study. Plaintiff pointed out that the Odinist/Asatru faith community was only allowed to 18 gather every other week, although non-pagan faith-based groups, such as Christians and 19 Latter-Day Saints, were allowed to gather weekly and sometimes two or three times per 20 week. Plaintiff requested that the Odinist/Asatru faith community be given the same 21 opportunities that other faith-based groups were given. 22 On November 8, 2021, Defendant McShane responded to Plaintiff’s inmate letter 23 stating that the Chaplaincy would try to consult with the Deputy Warden regarding the 24 group worship schedule. On November 22, 2021, Defendant McShane denied Plaintiff’s 25 requesting stating that the Odinist/Asatru faith turn-out would continue on its scheduled 26 rotation of every other week. 27 On December 2, 2021, Plaintiff submitted an informal complaint requesting that he 28 be allowed to gather once per week for group worship and group study with other prisoners 1 who practiced his faith. Plaintiff again pointed out that other non-pagan faith-based groups 2 were allowed to gather weekly or more often. On December 3, 2021, Defendant Henry 3 denied Plaintiff’s request stating that the current rotation for the Odinist/Asatru faith 4 community would remain the same because 1) the rotation reduced the number of prisoners 5 attending at the same time and allowed the chaplaincy to operate within the maximum 6 capacity considerations set by security; and 2) the rotation was based on chaplaincy 7 availability to supervise services. 8 On December 14, 2021, Plaintiff submitted an inmate grievance again requesting 9 that be allowed to gather once per week for group worship and group study with other 10 prisoners who practiced his faith. Plaintiff pointed out that the number of prisoners allowed 11 to attend group gatherings for religious activities only applied to the pagan faith-based 12 groups because all other non-pagan faith-based groups were allowed to gather in numbers 13 significantly higher than the total number of the pagan faith-based groups. Plaintiff also 14 noted that chaplaincy availability “had never been an issue,” and when it did become an 15 issue, yard staff assisted with supervising the non-pagan faith-based groups. On January 16 11, 2022, Plaintiff’s grievance was denied. Plaintiff was advised that if the Odinist/Asatru 17 faith community could find volunteer leadership willing to come to the yard on a weekly 18 basis, then the request to gather weekly would be considered. 19 On January 14, 2022, Plaintiff submitted a grievance appeal, which Defendant 20 Shinn denied on February 22, 2022. Defendant Shinn stated that the religious services 21 offered to Plaintiff were appropriate and did not constitute an unreasonable burden on the 22 exercise of his religion. 23 Religious Items 24 On June 7, 2021, Plaintiff submitted an inmate letter requesting approval to 25 purchase eight ounces of herbs to be used for cleansing and purification purposes during 26 the practice of his faith. The same day, Plaintiff submitted an inmate letter requesting 27 approval to purchase several religious books, a religious pendant and chain, two sets of 28 cards depicting the Norse Gods and Goddesses, and an altar cloth, to be used for his 1 personal studies and daily practice. Defendant McShane signed off on both inmate letters 2 and forwarded them to Defendant Henry. 3 On July 19, 2021, Defendant Henry denied Plaintiff’s request for the herbs stating 4 that the herbs were not an approved item for Plaintiff’s listed religious preference. 5 Defendant Henry also denied Plaintiff’s request for the books because they were not 6 approved through the chaplaincy. And Defendant Henry denied the request for cards 7 stating that the cards were not on the approved items list. 8 On September 8, 2021, Plaintiff submitted an inmate letter requesting a copy of the 9 approved items list for the Odinism/Asatru religion. On September 13, 2021, Defendant 10 McShane responded to Plaintiff’s inmate letter stating that the approved items list reflected 11 the items that had been requested by prisoners and approved by the Religious 12 Accommodation Review Committee (RARC). Defendant McShane advised Plaintiff that 13 prisoners could only request and/or possess religious items that were consistent with their 14 documented religious preference and that after consultation with Defendant Henry, any 15 requests for additions to the approved items list needed to be forwarded to the Central 16 Office for review by the RARC. 17 On September 28, 2021, Plaintiff submitted an inmate letter to the RARC and 18 outlined “all the problems he was having” trying to purchase religious items needed to 19 assist him in the daily practice of his faith. Plaintiff attached several documents to his 20 inmate letter, which demonstrated “these problems” and outlined the 31 religious items 21 that he sought to add to the approved items list for Odinism. Plaintiff explained why each 22 religious item was necessary and for what purpose. Plaintiff “made it clear” that the 23 religious items were necessary for him to individually exercise and practice his spiritual 24 beliefs, as well as to conduct daily ritual ceremonies used in the worship and honoring of 25 his Gods and Goddesses. 26 On October 25, 2021, Plaintiff sent an inmate letter to Defendant McShane asking 27 whether the Central Office had received his request to the RARC. On October 27, 2021, 28 1 Defendant McShane responded to Plaintiff’s inmate letter stating that the RARC no longer 2 existed and that his request would be forwarded to Defendant Henry. 3 On November 1, 2021, Plaintiff sent an inmate letter to Defendant Henry outlining 4 the 31 religious items that Plaintiff sought to add to the approved items list for Odinism 5 and explained what each item was for. On November 2, 2021, Defendant Henry responded 6 to Plaintiff’s inmate letter and explained the request procedure for prisoners to obtain 7 religious items. Defendant Henry advised Plaintiff that all non-authorized religious items 8 required submission to the Director of Chaplaincy services at Central Office. 9 On November 2, 2021, Plaintiff received an inmate letter response from Defendant 10 Herman. Defendant Herman outlined the procedure for prisoners to purchase religious 11 items and advised Plaintiff to resubmit his request to purchase each religious item “as if 12 the item had been approved,” one at a time. Plaintiff was required to provide “holy text 13 documentation” that demonstrated that the requested items were “mandatory” for the 14 observance of his religion. Defendant Herman denied Plaintiff’s requests for 27 of the 31 15 religious items, stating they were not approved due to Plaintiff’s declared religious 16 preference. 17 On December 13, 2021, Plaintiff submitted an informal complaint requesting 18 approval of all 31 of his requested religious items. Plaintiff offered to provide the 19 Chaplaincy with books, articles, and other documentation written by the leading authority 20 in his religion to explain the importance of the requested religious items, why they were 21 necessary, and what they were used for. Plaintiff questioned why he was being required to 22 provide the Chaplaincy with “holy text documentation” when the Supreme Court had 23 “made it clear” that RLUIPA applied to religious exercise regardless of whether it was 24 “compelled” and that its guarantees were not limited to beliefs that are shared by all 25 members of a religious sect. Plaintiff did not receive a response to his informal complaint. 26 On January 17, 2022, Plaintiff submitted a grievance requesting approval of the 31 27 requested religious items. Plaintiff described the problems he was having trying to resolve 28 the matter and pointed out that the Chaplaincy had “refused to follow” ADC policy, and 1 that he had been threatened with disciplinary action, referred to a committee that no longer 2 existed, and was now required to follow a standard of proof contrary to RLUIPA. On 3 February 8, 2022, Plaintiff received a grievance response, which “completely ignored” the 4 issues Plaintiff had raised in the grievance and stated the matter was “considered resolved.” 5 On February 11, 2022, Plaintiff submitted a grievance appeal, which Defendant 6 Shinn denied on April 1, 2022, on the basis that Plaintiff had failed to follow Defendant 7 Herman’s clear instructions for appropriately requesting religious items. Plaintiff alleges 8 he is the only prisoner who is required to provide “holy text documentation” demonstrating 9 that his requested religious items are “mandatory” to observe his religion. Plaintiff claims 10 the religious items he requested are all approved for other prisoners who follow pagan 11 faiths. 12 Liberally construed, Plaintiff has stated claims regarding the exercise of his religion 13 under the First Amendment and RLUIPA and equal protection claims against all 14 Defendants in their individual and official capacities. The Court will require Defendants 15 to answer the Complaint. 16 IV. Warnings 17 A. Release 18 If Plaintiff is released while this case remains pending, and the filing fee has not 19 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 20 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 21 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 22 result in dismissal of this action. 23 B. Address Changes 24 Plaintiff must file and serve a notice of a change of address in accordance with Rule 25 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 26 relief with a notice of change of address. Failure to comply may result in dismissal of this 27 action. 28 . . . . 1 C. Copies 2 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 3 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 4 of every document he files or to submit an additional copy of every filing for use by the 5 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 6 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 7 including, with every document he files, a certificate of service stating that this case is 8 subject to General Order 14-17 and indicating the date the document was delivered to 9 prison officials for filing with the Court. 10 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 11 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 12 copy of every document that he files, and include a certificate stating that a copy of the 13 filing was served; and (b) submit an additional copy of every filing for use by the Court. 14 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 15 being stricken without further notice to Plaintiff. 16 D. Possible Dismissal 17 If Plaintiff fails to timely comply with every provision of this Order, including these 18 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 19 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 20 to comply with any order of the Court). 21 IT IS ORDERED: 22 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 23 (2) As required by the accompanying Order to the appropriate government 24 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 25 of $29.50. 26 (3) The Clerk of Court must send Plaintiff this Order, and a copy of the 27 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 28 for Waiver of Service of Summons form for Defendants Shinn, Herman, Henry, and 1 McShane. 2 (4) Plaintiff must complete1 and return the service packet to the Clerk of Court 3 within 21 days of the date of filing of this Order. The United States Marshal will not 4 provide service of process if Plaintiff fails to comply with this Order. 5 (5) If Plaintiff does not either obtain a waiver of service of the summons or 6 complete service of the Summons and Complaint on a Defendant within 90 days of the 7 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 8 action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 9 16.2(b)(2)(B)(ii). 10 (6) The United States Marshal must retain the Summons, a copy of the 11 Complaint, and a copy of this Order for future use. 12 (7) The United States Marshal must notify Defendants of the commencement of 13 this action and request waiver of service of the summons pursuant to 4(d) of the Federal 14 Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of Civil Procedure and Rule 15 4.1(c) of the Arizona Rules of Civil Procedure. The notice to Defendants must include a 16 copy of this Order. 17 (8) A Defendant who agrees to waive service of the Summons and Complaint 18 must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 19 30 days of the date of the notice and request for waiver of service pursuant to Federal 20 Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service. 21 (9) The Marshal must immediately file signed waivers of service of the 22 summons. If a waiver of service of summons is returned as undeliverable or is not returned 23 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 24 the Marshal must: 25 (a) personally serve copies of the Summons, Complaint, and this Order 26

27 1 If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee 28 works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there. 1 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 2 and 3 (b) — within 10 days after personal service is effected, file the return of 4 service for Defendant, along with evidence of the attempt to secure a waiver of 5 service of the summons and of the costs subsequently incurred in effecting service 6 upon Defendant. The costs of service must be enumerated on the return of service 7 form (USM-285) and must include the costs incurred by the Marshal for 8 photocopying additional copies of the Summons, Complaint, or this Order and for 9 preparing new process receipt and return forms (USM-285), if required. Costs of 10 service will be taxed against the personally served Defendant pursuant to Rule 11 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 12 Court. 13 (10) Defendants Shinn, Herman, Henry, and McShane must answer the 14 Complaint or otherwise respond by appropriate motion within the time provided by the 15 | applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 16 (11) Any answer or response must state the specific Defendant by name on whose 17 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 18 | does not identify the specific Defendant by name on whose behalf it is filed. 19 (12) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 20 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 21 authorized under 28 U.S.C. § 636(b)(1). 22 Dated this 17th day of June, 2022. 23 24 a 3 25 %6 _ James A. Teil Org Senior United States District Judge 27 28