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Chesser v. Walton

United States District Court, S.D. Illinois

November 2, 2016

ZACHARY CHESSER, Plaintiff,
v.
J.S. WALTON, et al., Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 236) of now-retired Magistrate Judge Philip M. Frazier recommending that the Court deny the motion for partial summary judgment filed by plaintiff Zachary Chesser (Doc. 131) and grant in part and deny in part the motion for summary judgment filed by defendants Steven V. Cardona, Eric Holder Jr., Milton Neumann, Robert Roloff, Charles Samuels Jr. and J. S. Walton (Doc. 127). The defendants (Doc. 237) and Chesser (Doc. 242) have filed objections to the Report, and Chesser has responded to the defendants' objections (Doc. 242).

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         I. Background

         In this lawsuit, Chesser complains about his conditions of confinement in the Communication Management Unit (“CMU”) at the United States Penitentiary at Marion, Illinois (“USP-Marion”) that resulted from a prison policy, Program Statement 5360.09 § 7(a), restricting his participation in Muslim group worship services. He was incarcerated in the USP-Marion CMU from May 2, 2011, to June 2, 2014. Specifically, he complains that he was not permitted to have congregate prayer with other Muslim inmates five times a day. Chesser is now housed at the Administrative Maximum Security Penitentiary in Florence, Colorado (“ADX-Florence”). The following claims remain in this case:

Count 1: a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), for violation of the First Amendment free exercise clause and establishment clause against defendants Holder, Samuels, and Walton;
Count 2: a claim for violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1, against defendants Holder, Samuels, and Walton;
Count 3: a state law claim for intentional infliction of emotional distress against defendants Holder, Samuels, and Walton;
Count 4: a Bivens claim for violation of the equal protection guarantees in the Fifth Amendment due process clause against defendants Holder, Samuels, Walton and Roloff; and
Count 5: a Bivens claim for retaliation in violation of the First Amendment against defendants Cardona and Neumann.

         Chesser asserts in various filings that this case includes a challenge to the nationwide application of the congregate worship policy; he is wrong. This Bivens case is a challenge to the conditions of confinement Chesser faced in the CMU at USP-Marion. A broad challenge to the policy itself can and should be brought under the Administrative Procedures Act, 5 U.S.C. § 706(2)(B), the vehicle for challenging unconstitutional agency action. Chesser has filed no such claim.[1] Chesser's repeated efforts to expand this case through his descriptions of the issues in his prolix filings are recurring problems that only serve to complicate consideration of the real issues. The Court confines its analysis to the actual issues raised in Chesser's Amended Complaint as identified in the Court's merits review order (Doc. 24).

         II. Analysis

         A. Count 1: Free Exercise Clause Chesser asserts in Count 1 that Holder, Samuels, and Walton were responsible for making and enforcing policy that limited congregate prayer for Chesser and his fellow Muslims to once a week instead of the five daily group prayers required by Chesser's religious beliefs. He claims this policy violated the First Amendment free exercise clause because it substantially burdened the exercise of his religion without a legitimate governmental interest. See Thompson v. Holm, 809 F.3d 376, 379-80 (7th Cir. 2016).

         Magistrate Judge Frazier found that the defendants are entitled to qualified immunity on this aspect of Count 1 because a Bivens remedy would likely not be recognized for such a First Amendment violation and because the law was not clearly established that Chesser had a right to five daily group prayers in the circumstances presented. He noted that there are cases holding that prisons need not allow inmates to conduct their own religious services, but those cases did not establish a right to group prayer in prison.

         In his objection, Chesser agrees that it was not clearly established that he had a right under the free exercise clause to congregate prayer. Instead, he argues that it was clearly established that non-neutral policies are unconstitutional, and he argues that this policy is not neutral because it burdens religious but not non-religious groups.[2]

         The Court has reviewed the matter de novo and agrees with Magistrate Judge Frazier for the reasons he states in the Report. Chesser has not pointed to any case from which the defendants should have known that their conduct in enforcing the congregate prayer restriction in prison would violate Chesser's First Amendment right to freely exercise his religion because it placed a substantial burden on his religious exercise without a legitimate governmental interest.

         B. Count 1: Establishment Clause

         With respect to Chesser's First Amendment establishment clause claim in Count 1, Magistrate Judge Frazier found the defendants fail to discuss this aspect of Count 1 in their summary judgment motion, and therefore fail to establish their entitlement to judgment as a matter of law. He further found that, although Chesser discusses this claim in his motion for summary judgment, he does not show the absence of a genuine issue of material fact so as to justify summary judgment.

         As a preliminary matter, Chesser's objections seek to modify his claims asserting that the defendants unconstitutionally treated him differently than those of other religious groups by allowing them, but not him, to pray in a group with other similar religious adherents in contravention of prison policy. Am. Compl. ¶¶ 75, 82, 83 (Doc. 19). In his objection, he attempts to recast his claim to assert that the defendants unconstitutionally treated religious groups differently than non-religious groups by allowing non-religious groups to meet in a group without restrictions but allowing religious groups to meet only once a week. He then claims Magistrate Judge Frazier erred in not recommending summary judgment be entered in his favor on this claim. However, this was not the claim Chesser pled in the Amended Complaint (Doc. 19), and Magistrate Judge Frazier declined to allow Chesser add it to this case in a Second Amended Complaint (Doc. 182). Such a claim is not part of this case. The Court will limit its discussion to only those claims pled in the Amended Complaint (Doc. 19) and identified in the ...


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