The opinion of the court was delivered by: Reagan, District Judge
I. Introduction and Factual/Procedural Background
In May 2009, Omar Grayson, an inmate then incarcerated at Big Muddy River Correctional Center, filed suit for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. Liberally construed, Grayson's complaint alleged (1) that his hair was cut off in violation of his First Amendment right to freedom of religion and (2) that he was given a disciplinary ticket and punished with two months at C-grade, two months restriction of yard privilege, 12 days in segregation and the loss of 30 days good conduct credit in violation of his Fourteenth Amendment right to procedural due process. On preliminary review, the undersigned Judge found that Grayson had stated a claim against Defendant Harold Schuler for violation of his right to religious freedom but dismissed without prejudice Grayson's due process claim because he had not exhausted his state court remedies.
On February 25, 2010, Schuler filed a motion to dismiss (Doc. 14), and, on April 1, 2010, he filed a motion for summary judgment (Doc. 17). The motions were referred to United States Magistrate Judge Clifford J. Proud, who submitted a Report and Recommendation primarily directed to the motion for summary judgment on July 20, 2010. The Report recommends that Schuler's motion to dismiss be denied as moot and that Schuler's summary judgment motion be denied as to failure to exhaust administrative remedies but granted on grounds of qualified immunity. Grayson sought, and the Court granted, a motion for an extension of time to file an objection to the Report. On August 20, 2010, Grayson filed a timely objection.
Accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended decision, or recommit the matter to the Magistrate Judge with instructions. FED.R.CIV.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).
II. Standard for summary judgment
Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009)(citing FED.R.CIV.P.56(c)). Accord Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007).
When the non-moving party bears the burden of proof, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 595 F.3d at 695. Stated another way, to survive summary judgment, the non-movant must provide evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).
Without a doubt, First Amendment rights may be circumscribed in the prison setting. See Turner v. Safley, 482 U.S. 78, 89 (1987); Pell v. Procunier, 417 U.S. 817, 822 (1974)("a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."). The United States Supreme Court has upheld (as reasonably related to legitimate penological interests) prison regulations which impinge on inmates' ability to practice their religious faith. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).
Stated another way, a prisoner is "entitled to practice his religion insofar as doing so does not unduly burden the administration of the prison," but, conversely, a prison may enforce regulations that limit a prisoner's religious practices, if the regulations are "reasonably related to legitimate penological objectives." Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) (quoting Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988), and O'Lone, 482 U.S. at 353)).
Grayson objects to the Report's recommendation that Schuler is entitled to summary judgment based on qualified immunity. He asserts that Schuler was employed by the Illinois Department of Corrections (IDOC) for many years and rose to the rank of lieutenant. Grayson submits that Schuler works in Internal Affairs and knows that inmates have brought successful lawsuits against the IDOC for cutting off inmates' hair in violation of their religious beliefs. According to Grayson, he ate a specialized Hebrew vegan diet, attended Hebrew services and grew his hair long in adherence to his beliefs. Grayson asserts that these actions put Schuler on notice that forcing him to cut his hair would violate his right to religious freedom. Additionally, Grayson states that he told Schuler that he was growing out his hair because of his beliefs, referred Schuler to Biblical passages supporting his beliefs and went on a hunger strike to show his sincerity in his beliefs.
Grayson maintains that Schuler is not entitled to qualified immunity because his right to grow his hair because of his religious beliefs was clearly established in August 2008 when Schuler ordered his hair cut pursuant to the IDOC grooming policy.*fn1 Schuler counters that it was not clearly established in August 2008 - and still is not established - that cutting an ...