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Chesser v. Rivas

United States District Court, S.D. Illinois

November 2, 2016

ZACHARY CHESSER, Plaintiff,
v.
HENRY RIVAS, JEFFREY WALTON, WENDY ROAL, STEVEN CARDONA, PAUL KELLY, MILTON NEUMANN, ROBERT ROLOFF, MCCLEARY, WINN, LESLIE SMITH, APRIL CRUITT, T. CAPALDO, STEPHEN COLT and J. SIMMONS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE.

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 214) of now-retired Magistrate Judge Philip M. Frazier recommending that the Court grant in part, deny in part, and declare moot in part the defendants' first motion for summary judgment (Doc. 112); grant the defendants' second motion for summary judgment (Doc. 113); grant in part and declare moot in part the defendants' third motion for summary judgment (Doc. 138); and deny Chesser's motion to consider judgment on the responses (Doc. 186). Chesser (Doc. 217) and the defendants (Doc. 220) have filed objections to the Report, and Chesser has responded to the defendants' objections (Doc. 221).

         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).

         Chesser filed this multi-count action in May 2013 complaining of various aspects of his confinement in the communication management housing unit (“CMU”) at the United States Penitentiary at Marion, Illinois (“USP-Marion”) from May 2, 2011, to June 2, 2014.[1] The only counts remaining in this case are Counts 1, 2, 5, 6, 13, 14, 21 and 23, which the Court will address in turn.

         Counts 1, 13 and 14: Religious Freedom Restoration Act

         Chesser complains about the rule restricting him from teaching or learning Arabic (Count 1), the failure to provide access to a qualified Imam for his religious guidance (Count 13), and the failure to accommodate some of his religious fasts (Count 14). He claims that each of these instances violated the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1, because it substantially burdened his exercise of religion without being the least restrictive means of furthering a compelling governmental interest.

         In the Report, Magistrate Judge Frazier noted that RFRA provides only injunctive, not monetary, relief. He further found Chesser had not shown he was likely to be retransferred to the CMU at USP-Marion or that, if he were transferred there, he would have a current dispute with the defendants, who have either retired or taken new positions and are no longer assigned to the USP-Marion CMU. Magistrate Judge Frazier concluded that these counts are therefore moot.

         In his objection, Chesser maintains there is a fifty-fifty chance he will return to the USP-Marion CMU when he is released from ADX-Florence because there are only two CMU units in the Bureau of Prisons (“BOP”). He points to several cases holding that a transfer out of a CMU does not moot his claims for injunctive relief where the factors supporting placement in a CMU still exist. See, e.g., Aref v. Holder, 953 F.Supp.2d 133, 144 (D.D.C. 2013).

         The Court has reviewed the matter de novo and finds that, while it is possible Chesser could return to the USP-Marion CMU, he has not shown it is likely that he will be retransferred to the USP-Marion CMU to face the same conditions for which the current defendants could provide relief. The defendants have shown that Chesser still has several steps to complete before leaving his current placement at ADX-Florence and that there are several options for where he would then go. They have further shown that at least one of the objectionable policies in the USP-Marion CMU - regarding learning Arabic - has been changed since Chesser was housed there. There is insufficient evidence to suggest it is likely Chesser will again face the same conditions he complains about in Counts 1, 13 and 14. Additionally, the defendants are no longer connected with the USP-Marion CMU and are therefore unable to change any conditions in that unit.

         Counts 2 and 6: First Amendment Free Exercise Claims

         Chesser complains about the rules restricting him from teaching or learning Arabic (Count 2) and prohibiting him from wearing shortened pants (Count 6). He brings these counts under Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), claiming that each of these rules violated his First Amendment right to freely exercise his religion because it placed a substantial burden on his religious exercise without sufficient justification.

         In the Report, Magistrate Judge Frazier found that the defendants are entitled to qualified immunity because it was not clearly established at the time the defendants enforced these rules that doing so would violate Chesser's constitutional rights. In coming to this conclusion, Magistrate Judge Frazier examined Ashcroft v. Iqbal, 556 U.S. 662 (2009), noted that it was decided after the events in this case and had nothing to do with teaching or learning Arabic or altering prison uniforms. He also found other cases cited by Chesser did not clearly establish the conduct alleged in this case was unconstitutional.

         In his objection, Chesser argues the defendants are not entitled to qualified immunity, again pointing to Iqbal and other cases as clearly establishing the relevant First Amendment law.

         The Court has reviewed the matter de novo and notes that Magistrate Judge Frazier was incorrect to find Iqbal was decided in 2014, after the conduct at issue in this case. It was actually decided in 2009, so if it clearly established the law, it ...


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