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Womack v. Cross

United States District Court, S.D. Illinois

June 8, 2015

RAY L. WOMACK, No. 1938-031, Plaintiff,
v.
JAMES CROSS, JR., FRANCIS THAYER, BRUCE NEESE, JENNIFER BRAYE, USA, and UNKNOWN PARTIES, Defendants.

MEMORANDUM AND ORDER

MICHAEL J. REAGAN, Chief District Judge.

Plaintiff Ray L. Womack is an inmate currently housed in the Greenville Federal Correctional Institution. Pursuant to 28 U.S.C. § 1331, Plaintiff brings this action for deprivations of his rights with respect to his religious freedom as an American Indian. He asserts First and Fifth Amendment claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and similar claims under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, and the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996. He also asserts that the defendants have conspired to violate his civil rights, in violation of 42 U.S.C. §§ 1985 and 1986. Furthermore, he contends various defendants have violated federal pay policies by not giving a full day's work for a full day's pay.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A. The Court is required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that "no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id. at 557. At this juncture, the factual allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

According to the complaint, the Sweat Lodge religious ceremony for American Indians at Greenville is regularly scheduled by Chaplain Francis Thayer for Saturdays, from 11:30 a.m. to 3:30 p.m. On October 11, 2014, Administrative Assistant for Religious Service Jennifer Braye told Plaintiff and others that that day's Sweat Lodge ceremony would end an hour early. She explained she "had to get things ready for the Catholics" and had too many things to do by herself, and that she had no intention of working overtime for the American Indians (Doc. 1-1, p. 4). She subsequently advised Plaintiff and his fellow worshipers of her intended changes to their religious gathering: beginning the following week only two participants would be permitted to participate in the Firekeeper move, and the fire would not be started in advance of the scheduled start of the Sweat Lodge ceremony. Braye also cautioned the group that those who were on the call-out list who missed the call-out would receive an incident report.

A few days later, on October 14, the Native American group was called to meet with Chaplain Thayer and Braye. Braye announced the changes. When an inmate voiced disagreement, Braye had the inmate placed in segregation. She explained to the others that she did not care if they "filed on her" because she knew people in the right places and would not be going anywhere.

Under the new policies, Braye and Assistant Chaplin Bruce Neese leave inmates out in the cold and rain until the scheduled time for a religious service to begin, while they remain in their offices with the chapel locked. By strictly adhering to the schedule, inmates lose approximately 10 minutes from their time for worship because they must first set up the chapel for their particular needs. Also, Braye routinely uses the f-word in the chapel and on the Native American's sacred ground, which Plaintiff perceives as a general disrespect for religion, and evidence of a lack of moral character. It is further alleged that Braye attempts to dissuade and impede him and other inmates from using the chapel during her work hours. Braye and Neese have even managed to cancel extracurricular activities, such as movie nights for various religious groups-they just cancel the event when Chaplain Thayer is not at work.

When Chaplain Thayer is not around, Braye closes the chapel early and leaves work early, or she closes herself in the chapel and locks the door. It is also alleged that Assistant Chaplain Neese manipulates his work hours the same way. Both Braye and Neese purportedly still draw a full day's pay for less than a day's work.

Although inmates do not report what is going on out of fear of retaliation, Plaintiff submitted a BP-8 informal complaint to his counselor regarding Braye's discriminatory practices. No response was received. The counselor eventually explained that the BP-8 had been sent to SIS, but SIS never received the BP-8. Plaintiff then sent a BP-9 (the second step in the administrative grievance process), to Warden James Cross, Jr., complaining about Braye. The BP-9 was denied because it was deemed untimely. Plaintiff then sent a BP-10 appeal to the Bureau of Prison's Regional Office; the appeal was also deemed untimely. A subsequent BP-11 appeal to the Central Office in Washington was similarly unsuccessful, even though Plaintiff had sent documentation he believed proved that his BP-8 was timely filed. ( See Doc. 1-2, pp. 2-20). Plaintiff views the denial of his grievance at every step in the administrative process as a conspiracy to systematically deny him-and other Native American's-an equal ability to practice their religioun and a denial of due process ( see Doc. 1-1, p. 6). Since filing his grievance, Plaintiff has not practiced his faith for fear of retaliation by Braye and/or Neese.

Plaintiff contends Braye and Neese, acting in conspiracy, have created a hostile environment and otherwise substantially burdened the practice of his religion, and Warden Cross and Chaplain Thayer have knowingly allowed them to do so. Plaintiff alleges a conspiracy to deny him due process. And, he contends federal pay policies have been violated, costing taxpayers money.

Plaintiff seeks injunctive relief from the United States. Plaintiff also seeks monetary damages.

Based on the allegations in the complaint, the Court finds it convenient to divide the pro se action into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1: Defendants Cross, Thayer, Neese and Braye, individually or in conspiracy, burdened Plaintiff's free exercise of his religion, in violation of the First Amendment, RFRA and AIRFA;
Count 2: Defendants Cross, Thayer, Neese and Braye, individually or in conspiracy, failed to equally protect Plaintiff's right to practice his religion, in violation of the Fifth Amendment;
Count 3: Defendants Cross, the unnamed Regional Director and unnamed Central Office Administrator, individually or in conspiracy, denied Plaintiff due process and the ability to equally practice his ...

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