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Rouser v. White

May 14, 2009



Plaintiff is an inmate at Pleasant Valley State Prison and a member of the Wiccan religion. He has brought suit against defendants, who are current and former Directors of the California Department of Corrections and Rehabilitation and wardens at two prisons, for alleged violations of his civil rights under the federal and state constitutions and alleged violations of the federal Religious Land Use and Institutionalized Persons Act.

Pending before the court is defendants' motion for summary judgment on all seven of his causes of action. The court resolves the motion on the papers and after oral argument.


A. Facts

1. Plaintiff's Religious Faith

Plaintiff is a practicing Wiccan and has been initiated as a high priest in that faith. The modern American Wiccan religion exists under the umbrella of Pagan faiths and is based on a belief in honoring the earth and its elements. Central to the Wiccan practice is the celebration of eight annual sabbats, or solar festivals, and worship at bi-weekly services called esbats, which are based on lunar phases. According to plaintiff, the most important sabbats in his practice are May 1 and October 31. Declaration of William Rouser In Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Rouser Decl.") ¶ 4. Semiweekly services are a practice of the faith.

Wiccans use several items as part of their religious worship. These include a Book of Shadows, which is a form of spiritual journal, Tarot cards, and items that represent the natural elements, such as salt, feather, herbs, wood, water, and religious medallions. According to plaintiff, other items such as altar cloths, ground eggshell powder, and a Witches Bible are also used. Declaration of Lin Wang In Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Wang Decl.") ¶ 6, Ex. 56 (Depo. of William Rouser at 10:5-20); Rouser Decl. ¶ 18. In group worship services, Wiccans may use many items, including an alter, oil, a bell, candles, a chalice, a drum, crystals, an icon of a deity, and a "tabbared."*fn2 Plaintiff contends that group worship may also use a fire pit. Wang Decl. ¶ 6, Ex. 56 at 16:1-25. According to plaintiff, the Wiccan practitioner begins each ritual by "casting a circle," in which religious articles that have symbolic meaning are placed. Rouser Decl. ¶ 7.

The parties also dispute how essential group worship is in the Wiccan faith. Defendants have tendered excerpts from plaintiff's deposition, in which he testified that "like any religion," his can be practiced alone. Rouser Depo. at 16:2-5.

Plaintiff has tendered evidence emphasizing the importance of group worship, as "[f]ellowship and communion with each other strengthens the individual." Rouser Decl. ¶ 5. According to plaintiff, the purpose of the eight annual sabbats specifically is to worship as a group. Id. ¶ 4.

2. Plaintiff's Relevant Experiences With the Department of Corrections and Rehabilitation

Plaintiff has been incarcerated by the California Department of Corrections and Rehabilitation ("CDCR") since 1979. Defendant Gomez was the Director of CDCR from April 1991 to January 1997. Defendant Cate is presently the Secretary of CDCR.

a. 1992 Grievance

In December 1990, plaintiff was transferred to California State Prison - Sacramento ("CSP-Sac"). In August 1992, he filed a grievance requesting items for practicing Wicca. Specifically, he asked for incense, candles, Tarot cards, and information on obtaining a Wiccan chaplain and arranging Wiccan services. He did not state whether he sought a paid or volunteer chaplain and, if he sought a volunteer chaplain, whether he knew of a person willing to act in this role. Prior to this, plaintiff had not identified himself as Wiccan on forms in which inmates designated their religion. This grievance was denied at the first level on the grounds that the only cards permitted at the facility were pinochle cards and that incense and candles were not allowed due to security and fire restrictions.

Plaintiff appealed and was again denied. In this denial, CDCR staff informed plaintiff that the only chaplains recognized by CDCR were those for Catholic, Muslim, Protestant, and Native American religions. Plaintiff appealed this denial.

The appeal was denied by the associate warden, on the grounds that the requested items were not allowable personal property at CSP-Sac and that there was no need to hire a Wiccan chaplain. This denial was approved by the chief deputy warden, who signed the form over defendant White's typewritten name. Defendant White had become warden of CSP-Sac three weeks prior, on October 1, 1992.*fn3 According to defendant White, he had "no personal knowledge of the grievance, did not discuss it with any of the staff whose names are on the grievance form, did not personally participate in its denial, and did not learn of it" until after the filing of the instant suit. Def. White's Response to Pl.'s First Special Interrogatory #6.

Plaintiff appealed this denial to the Director's level, where it was denied by the Chief of Inmate Appeals. According to defendant Gomez, he had delegated disposition of Director's level inmate appeals to the Chief of Inmate Appeals. Declaration of James Gomez in Support of Defs.' Mot. for Summ. J. ("Gomez Decl.") ¶¶ 4-5.

b. 1993 Grievance

In March, 1993, plaintiff was placed in administrative segregation pending investigation for disciplinary charges. Prior to this, while housed in the general population, plaintiff had a Wiccan Witches' Bible with him. In April 1993, he submitted a grievance stating that an unidentified officer did not permit him to have his Witches' Bible in administrative segregation, although other inmates in administrate segregation were permitted to have religious texts like the Christian Bible and Muslim Qu'ran. This grievance was denied, on the grounds that the book was "an Occult book on Witches, and therefore is not considered a recognized religion." Declaration of Theo White in Support of Defs.' Mot. for Summ. J. ("White Decl.") ¶ 4, Attachment 1.

Plaintiff appealed and the appeal was denied at the second level on June 25, 1993. The stated reason for the denial was that the practice of religion that requires animal or human sacrifice would not be permitted by CDCR.*fn4 Id. This denial is signed above the signature line for "Theo White, Warden." Id. Defendants contend, without tendering any evidence in support of this, that the signature is not defendant White's.

This denial was then reconsidered and on November 16, 1994, plaintiff was issued the Witches Bible. On April 23, 1996, plaintiff was transferred out of CSP-Sac to Pelican Bay State Prison ("PBSP"). During the time he was housed at CSP-Sac, plaintiff celebrated sabbats and esbats in his cell. He made candles and incense from other items that he was allowed to have.

Although defendants have tendered some evidence that plaintiff could also engage in group worship in the yard and other common areas, plaintiff has declared that this was inadequate because he was not given access to articles necessary for the worship rituals. Rouser Decl. ¶ 24. He also declared that, because he and other Wiccan worshipers were not given a designated space in which to worship, any inmate could walk through the group and "desecrate [the] circle and disrupt [the] service." Id.

c. 1997 Grievance

In May 1997, after his transfer to PBSP, plaintiff filed a grievance after an officer allegedly destroyed a small altar plaintiff had made out of a soup box. A correctional counselor told plaintiff he would be allowed to have an altar.

Between 1996 and 2007, it appears that plaintiff was transferred to a number of different facilities. Plaintiff has tendered evidence that during this time, he was denied at various times access to any group services and permission to make orders for religious items from outside vendors. Rouser Decl. ¶¶ 63-76.

d. 2007 Grievance*fn5

On June 8, 2007, plaintiff was transferred to Pleasant Valley State Prison ("PVSP"), where he is currently housed. Defendant Yates is currently the Warden at PVSP.

On June 9, 2007, plaintiff filed a grievance regarding staff at PVSP confiscating some of personal property, including several Wiccan items, upon his arrival at PVSP. This grievance was denied on the grounds that the items had not been approved for religious practice at PVSP. He appealed this denial. The denial was upheld for purported safety concerns regarding several of plaintiff's items (a bag, oil, and magnets).*fn6 The reviewing officer also found that, since the appeal was filed, two of plaintiff's items had been returned to him.

At some point subsequent, plaintiff also filed a grievance stating that CDCR staff had withheld from him a necklace and other religious articles.*fn7 Prison officials learned that this had not been shipped to PVSP from plaintiff's previous facility. The necklace was later shipped to PVSP and plaintiff currently has it.

e. Other Grievances

At present, plaintiff also has a Witches Bible and several other religious texts, Tarot cards, stones and crystals, a wooden wand, a picture of a deity, two altar cloths, sea salt, ground eggshell powder, herbs, and incense. Plaintiff has tendered evidence that he had to wait approximately six weeks for some of the herbs and incense to be provided to him after they arrived in the prison mail room.

Plaintiff has tendered evidence that he filed grievances several times since 2002 about the delays he has experienced in obtaining religious items that he has ordered. Rouser Decl. ¶¶ 38-41, 44-47, 57, 59-60. He has tendered evidence that he has also filed grievances on the basis that some religious items he has ordered from vendors have been returned to the vendors by CDCR staff. Id. ¶¶ 38, 47. According to plaintiff, until recently, CDCR staff required that the Muslim Chaplain pick up plaintiff's religious orders from the mailroom and deliver them to him, but that the chaplain refused to do so. Rouser Decl. ¶ 47; Amended Declaration of W. Myers In Support of Defs.' Mot. for Summ. J. ("Myers Decl.") ¶ 18; see also Declaration of Kajauna Irvin in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ¶ 6.

Since the Muslim chaplain has left, the Protestant chaplain has been assigned to retrieve religious orders for plaintiff. Plaintiff has declared that this individual has been "unhelpful." Rouser Decl. ¶ 108; see also Declaration of Douglas Hysell in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Hysell Decl.") ¶ 21.

Plaintiff has tendered evidence that in January 2008, plaintiff filed a grievance complaining that he had attempted to place orders for religious items, but that those order forms were sent to the Associate Warden for approval and that the Associate Warden never approved them. Rouser Decl. ¶ 91.

Plaintiff has also tendered evidence that there is a new system in place at PVSP whereby plaintiff submits his order forms to Lieutenant Myers and that orders, once they are delivered to PVSP, are picked up by a single chaplain and distributed to all inmates of a single yard. Rouser Decl. ¶¶ 57-60. According to plaintiff, this new system has resulted in a delay of approximately three months for Lieutenant Myers to approve order forms. Rouser Decl. ¶ 59-60.

f. Plaintiff's Access to Group Services and Religious Items at PVSP

Defendant Yates has tendered evidence, in the form of his response to plaintiff's interrogatory, that initially after his arrival at PVSP plaintiff was allowed to use the Facility A chapel for group services. Def. Yates Response to Pl.'s First Special Interrogatory #5. Plaintiff disputes this, declaring that when he first arrived at PVSP, he was not allowed to engage in group services. Rouser Decl. ¶ 83. He has declared that later he was permitted to use a small clerk's office in the chapel, although he was not allowed to utilize candles and other religious items, inhibiting his ability to have a group service. Rouser Decl. ¶ 85.

Presently, in Facility A, where plaintiff worships, an average of twenty-five to thirty inmates attend weekly Wiccan services, although sometimes there are as few as eight to ten at a single service. Plaintiff and four others are high priests and plaintiff or one of the other high priests usually lead the services. Plaintiff has tendered evidence that PVSP staff announce to the inmate population when some religious services are about to begin, but rarely make such announcements for Wiccan services. Hysell Decl. ¶¶ 14-15.

There is some dispute about what religious items are available to plaintiff and other Wiccans for their worship. Defendants contend that plaintiff has not ordered incense, although plaintiff has declared that he has on several occasions. Myers Decl. ¶ 12; Rouser Decl. ¶ 113. The parties agree that plaintiff and the other Wiccans are permitted to use flowers picked on the yard and food used by other inmates who were worshiping with the Wiccans. They also do not dispute that plaintiff and the Wiccans are trying to locate someone to donate musical instruments that they may use in their services. Plaintiff has declared that he has requested use of a fire pit for religious purposes, which was denied although Native American inmates have access to a fire pit. Rouser Decl. ¶ 61; Declaration of Marcus Barnhardt In Support of Pl.'s Opp'n to Mot. for Summ. J. ("Barnhardt Decl.") ¶ 4.

Defendants have tendered evidence that an outdoor worship area was built at PVSP, to which plaintiff and other Wiccans were allowed access. Def. Yates Response to Pl.'s Special Interrogatory #5. Plaintiff, however, has declared that his access to this area was limited, as he was often not released during his scheduled worship times,*fn8 was released significantly late, or required to return to his cell before the end of his scheduled worship time. Rouser Decl. ¶¶ 84, 86-95; Second Declaration of William Rouser in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Second Rouser Decl.") ¶ 3. He has described approximately 46 instances of this type of interference with his group worship, by the court's count. See id. Plaintiff has tendered evidence that he and other Wiccan inmates must be escorted by an officer to the outdoor worship area but that, on some occasions, no officer came to escort them, so the inmates were not able to have group worship. Rouser Decl. ¶ 49. Defendants have tendered evidence in response that prior to being escorted to the group worship area, an inmate must signal that he wishes to be released from his cell in order to go to the exercise yard. Declaration of D. Huckabay In Support of Defs.' Mot. for Summ. J. ("Huckabay Decl.") ¶¶ 6-8. According to defendants, there is no evidence nor reasonable inference that Wiccan inmates are specifically not released from their cells, as the officer who would release them would not know why they wish to go to the yard. Id. Additionally, defendants have tendered evidence that some Wiccan inmates are late to Wiccan services and cause the officer escorting Wiccan inmates from the yard to the group worship area to delay. Declaration of B. Davis In Support of Defs.' Mot. for Summ. J. ("Davis Decl.") ¶¶ 3-5.

Religious groups at PVSP store the items they use for group worship in lockers. An officer is needed to unlock the Wiccans' locker with a key and give the inmates their items. Plaintiff has tendered evidence that in the past there had been an on-going problem of officers telling plaintiff and the other Wiccans attempting to hold group services that they did not have the key to the lockers. Rouser Decl. ¶¶ 49-50; Hysell Decl. ¶¶ 9-10. Plaintiff has declared that he and other inmates continue to experience problems in officers opening their locker prior to the Wiccan services. Id. Defendants have tendered a declaration of W. Myers, the Community Partnerships Manager at PVSP, it is now the policy at PVSP that all the religious groups' lockers are secured with keyed locks, although in the past some religious group's lockers had combination locks on them. Myers Decl. ¶ 13.

Plaintiff has tendered evidence, however, that at present the locker containing Wiccan items is secured with a keyed lock, the lockers for the Native American and Catholic items is secured with a combination lock, and the locker containing items for Protestant inmates has no lock. Second Rouser Decl. ¶ 4; Hysell Decl. ¶ 7; Irvin Decl. ¶ 17; Declaration of Oliver Vann in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Vann Decl.")

¶ 3. Plaintiff has tendered evidence that the Native American and Catholic inmate clerks know the combination to their locks, so they may access their items without staff assistance. Hysell Decl. ¶ 8. Plaintiff has also declared that on one occasion, the Wiccan's locker was found open and several religious items were missing. Rouser Decl. ¶ 52.

Plaintiff has also tendered evidence that CDCR staff has interfered with his worship on sabbats. On the October 31, 2007 sabbat, plaintiff and other Wiccan inmates were not released from their cells. Rouser Decl. ¶ 88. Although defendants have tendered evidence that the facility was on lockdown that date, plaintiff has tendered evidence that lockdown did not occur until after the sabbat service had been scheduled to begin. Rouser Decl. ¶ 88. On the October 31, 2008 sabbat, the Wiccan service was disrupted when officers began playing rock music loudly during it. Rouser Decl. ¶ 96. Defendant have tendered evidence that the officers were later reminded that such actions were inappropriate. Myers Decl. ¶ 16. Finally, plaintiff has tendered evidence that he was not permitted to hold group worship service on the March 20, 2009 sabbat. Second Rouser Decl. ¶ 3, Ex. 46. Defendants have tendered evidence that the prison was on lockdown that day but Community Resources Manager Myers offered to reschedule the service, which plaintiff declined. Reply Declaration of W. Myers In Support of Defs.' Mot. for Summ. J. ("Myers Reply Decl.") ¶ 6.

Volunteer Wiccan spiritual leaders are allowed access to plaintiff and other Wiccans at PVSP. Prior to plaintiff's arrival at PVSP, a volunteer Wiccan spiritual leader attended group service, but he has not returned since. At present, no volunteer Wiccan spiritual advisor has requested to assist in services at PVSP. Plaintiff has not asked any Wiccan volunteers to come to PVSP, although he has declared that he has refrained from doing so out of fear that it could be construed as a rules violation. Rouser Decl. ¶ 110. Defendants have tendered evidence that no Wiccans at PVSP have given the Community Partnership Manager the names of potential volunteers to contact. Myers Decl. ¶ 20. Defendants have also tendered evidence that the Community Partnerships Manager has made efforts to locate a Wiccan volunteer spiritual advisor, to no avail. Id. ¶ 21.

Defendants have tendered evidence that paid chaplains are typically at a facility daily, while volunteer spiritual advisors are there more infrequently.

Defs.' Statement of Undisputed Facts

¶ 182. Plaintiff has tendered evidence that, in addition to this difference, volunteer spiritual advisors at PVSP cannot approve religious order forms, retrieve orders from the mailroom, approve or deny grievances, access prison keys, and ensure inmates are released on time for services, all of which paid chaplains may do. Declaration of Patrick McCollum in Support of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("McCollum Decl.") ¶¶ 8-12. Plaintiff has declared that he needs a paid chaplain, specifically, to retrieve religious orders, make copies of religious texts, contact entities outside of PVSP to seek donations, and otherwise facilitate his group worship. Rouser Decl. ¶¶ 104-112. Defendant has tendered evidence that staff chaplains, although they are affiliated with particular faith, are required to assist inmates of all faiths and that the chaplains do this. Declaration of Barry Smith in Support of Defs.' Mot. for Summ. J. ("Smith Decl.") ¶ 11; Declaration of Lon Moskowitz in Support of Defs.' Mot. for Summ. J. ("Moskowitz Decl.") ¶ 14; Declaration of Kamal Abdul-Jabbaar in Support of Defs.' Mot. for Summ. J. ("AbdulJabbaar Decl.") ¶ 13; Declaration of John Funmaker in Support of Defs.' Mot. for Summ. J. ("Funmaker Decl.") ¶ 14.

Defendants have tendered evidence that PVSP does not have funding in its current fiscal year to hire paid Wiccan chaplains and that there is presently a hiring freeze throughout the CDCR. Smith Decl. ¶¶ 5, 14' Declaration of A. Bonilla In Support of Defs.' Mot. for Summ. J. ("Bonilla Decl.") ¶ 5.

3. Relevant Policies and Practices of CDCR and Its Facilities

a. CDCR Policies and Practices

The parties do not dispute that CDCR's regulations provide that the heads of institutions are required to make "every reasonable effort to provide for the religious and spiritual welfare of all interested inmates." Def.'s SUF ¶ 52, citing Cal. Code Regs. tit. 15 § 3210. Reasonable efforts may include employing chaplains, use of volunteer chaplains, provision of space to conduct services, and modification of inmates' work schedules to attend religious services. Id.

According to the CDCR Operations Manual, the Office of Community Resources is charged with religious programming in correctional facilities and oversees religious chaplains. Wang Decl. Ex. 52 (CDCR Operations Manual § 11010.11.2). Chaplains serve on the "Chaplains Coordinating Committee," which advises CDCR on religious policy and programming. Id. § 11030.9. They also meet with the Warden of the institution quarterly. Id. § 101060.3. They are responsible for organizing and conducting religious services themselves and approving that done by volunteer chaplains. Id. § 101060.6.

Chaplains also receive religious items ordered from vendors by inmates prior the items being given to the inmate, which may be subject to the chaplain's approval. Id. §§ 54030.7., 54030.10.9. Chaplains are also responsible for approving inmates' requests for items from vendors. Id. § 54030.10.9. Chaplains also approve inmates' requests for religious meals and administer the Religious Diet Program. Id. §§ 54080.13, 54080.14.

b. Policies and Practices at CSP-Sac

At the time that plaintiff was an inmate at CSP-Sac, candles and incense were only allowed to be used in the chapel when a chaplain or spiritual advisor was present. Pinochle cards were the only cards permitted among inmates. Defendants have tendered evidence that the purpose of this restriction was to deter gambling and if an inmate transformed pinochle cards into regular playing cards, the cards were confiscated. suf 116.

As Warden of CSP-Sac, defendant White did not have authority to approve the retention of a Wiccan spiritual advisor at the state's expense. Approval at the Departmental level was necessary. At the time, CDCR's policy was to provide paid chaplains or spiritual advisors for Muslims, Native Americans, Catholics and Protestants. Defendant Gomez stated that paid chaplains were provided to these faiths because they had enough members to warrant the cost. Def. Gomez's Response to Pl.'s Fourth Interrogatory #25. Plaintiffs have tendered evidence, however, that in a case brought against CDCR and individual defendants who are not the defendants here, the state defendants indicated in a November 2008 brief that CDCR has never actually analyzed or applied . . . criteria . . . including liturgical needs or numbers of inmates of a particular faith group in determining whether any of the five existing chaplain classifications are warranted, whether a new paid chaplain classification is warranted for pagans or for any other faith group, and/or whether to employ chaplains of any faith group.

Wang Decl. Ex. 58 at 1 n. 2; see also id. Ex. 57 at 4.

c. Policies and Procedures at PVSP

Paid chaplains are provided at PVSP to Catholics, Protestants, Muslims and Native Americans. A paid Jewish chaplain from Avenal State Prison is used at PVSP to minister to Jewish inmates there. Defendants have tendered some evidence that the decision to restrict paid chaplaincies to only these faiths (or groups of faiths, in the case of Protestants and Native Americans) is based on a consideration of size and religious need of those inmate populations. Smith Decl. ¶¶ 6-7.

B. Procedural History

Plaintiff sued the defendants in 1993 for violation of his civil rights in relation to his religious practice. The parties settled in November, 1997. The terms of the settlement provided, in part, that plaintiff would have access to the Wiccan Bible and other religious materials, even while housed in a Security Housing Unit or Administrative Segregation, consistent with policies and procedures regulating inmate access to religious articles. SAC ΒΆΒΆ 29(a)-(d). Additionally, the settlement agreed to permit a volunteer Wiccan spiritual advisor to ...

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