Utt v. Brown

ANTHONY B. UTT, Plaintiff, v. BETTY BROWN, GEORGE SOLOMON, CARLTON JOYNER, SERGEANT SHAW,SERGEANT HEARTSELL, SERGEANT DORMAN, CORRECTIONAL OFFICER CADRETTE,and CORRECTIONAL OFFICER GRESSLE, Defendants.

NO. 5:12-CT-3132-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

September 29, 2015

ORDER

The matter is before the court on defendants' motion for summary judgment (DE 73) pursuant to Federal Rule of Civil Procedure 56(a). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants in part and denies in part defendants' motion for summary judgment.

STATEMENT OF THE CASE

For ease of reference, the background as set forth in this court's February 4, 2015, order is as follows:

On June 22, 2012, plaintiff Anthony B. Utt ("Utt"), a state inmate acting pro se, sought to bring this civil rights action as a class action on behalf of himself, as well as plaintiffs Daniel Capshaw ("Capshaw") and Frankie L. Peach ("Peach"), pursuant to 42 U.S.C. § 1983. On December 21, 2012, the court entered an order denying Utt's motion for class certification and dismissed Capshaw andPeach.¹ The court also directed Utt to particularize his individual action.

Utt filed his amended pleading on January 31, 2013. Utt, a practitioner of the Wicca faith, alleged that defendants North Carolina Department of Public Safety ("DPS") Director of Chaplaincy Services Betty Brown ("Brown"), DPS Secretary [George Solomon ("Solomon")²,] Harnett Correctional Institution ("Harnett") Superintendent Carlton Joyner ("Joyner"), Sergeant Shaw ("Shaw"), Sergeant H[eartsell] ("H[eartsell]"), Sergeant Dorman ("Dorman"), correctional officer Cadrette ("Cadrette"), correctional officer Gressle ("Gressle"), as well as John and Jane Doe defendants violated his rights pursuant to the First Amendment to the United States Constitution[,] the Religious Land Use and Institutionalized Persons Act ("RLUIPA")[,and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution]. In particular, Utt alleged that defendants refused to allow him to use tarot cards to practice his religion, confiscated his religious property, and denied him the opportunity to participate in corporate worship services. As relief, Utt sought declaratory and injunctive relief, as well as compensatory and punitive damages. [Specifically, plaintiff sought the following: (1) return of his sacred items box; (2) ability to honor the esbats and sabbats; (3) ability to have a feast; (4) ability to read tarot; (5) ability to hold "working circles;" (6) ability to possess "appropriate sacred Wiccan religious items; (7) ability to observe ritual occasions whether or not an outside volunteer is available/present; (8) ability to engage in religious study on a weekly basis, coordinated by an inmate faith leader; (9) ability to possess more than one book of shadows at a time; and (10) ability to possess appropriate materials to maintain and add to his book of shadows.] On May 31, 2013, the court allowed Utt to proceed with his action against defendants [Solomon], Brown, Joyner, Shaw, H[eartsell], Dorman, Cadrette, and Gressle, but dismissed Utt's action against the John and Jane Doe defendants.

On September 9, 2013, all remaining defendants filed a motion to dismiss, arguing that Utt failed to state a claim upon which relief may be granted. Defendants' motion was fully briefed.

On September 3, 2014, the court entered an order denying defendants' motion to dismiss and reserving the issue of qualified immunity for another day. The court then issued a case management order, which included a February 3, 2015, discovery deadline.

On December 23, 2014, plaintiff filed a motion for a court order compelling defendants to fully respond to his discovery requests. The motion was fully briefed.

((DE 62), pp. 1-2.)

On February 4, 2015, the court entered an order granting in part and denying in part plaintiff's motion to compel. As part of its order, the court directed defendants to respond to plaintiff's request for the North Carolina Department of Public Safety's religious practices manual as well as to his requests for "any and all documents related to prison chaplaincy services staff training and education within the NCDAC;" and "any and all documents related to consultation with individuals outside the NCDAC regarding the Wiccan faith, specifying why such consultation occurred." (Id. p. 5.)

Plaintiff next filed a motion for a temporary restraining order requesting that the court enter an order directing DPS to permit him greater access to his legal property, paper for copies, and a transfer to another prison facility, which the court denied. Plaintiff subsequently filed a motion for access to a law library and a second motion to compel discovery. The court denied both motions.

On April 20, 2015, defendants Brown, Cadrette, Dorman, Gressle, Heartsell, Joyner, Solomon, and Shaw filed a motion for summary judgment, arguing that plaintiff cannot establish a constitutional violation. Alternatively, defendants assert the affirmative defense of qualified immunity. In support of their motion, defendants provided affidavits from defendants Brown, Joyner, Gressle, Heartsell, and Dorman, as well as the following: excerpts of several State of North Carolina Prisons Policies and Procedures; the DPS' Religious Practices Reference Manual; an emailfrom Darla Kaye Wynne; a January 25, 2011, letter from plaintiff; plaintiff's February 23, 2011, inmate property log; relevant Harnett's Policies and Procedures governing inmate searches; a memorandum from Harnett Clinical Chaplain II Terri Stratton; records pertaining to plaintiff's disciplinary hearings regarding confiscated property; grievances and grievance responses; and an employee time sheet for defendant Cadrette.

Plaintiff responded to defendants' motion and attached affidavits from inmates Steven Schultz, Willie Werr, Keith Barbee, Billy J. Tysinger, and Johnny D. Lee, as well as the following: additional grievances and grievance responses; a December 31, 2014, letter from Darla Kaye Wynne; a January 17, 2015, letter from Lady Ashleen O'Gaea; a document captioned "Charge of the Goddess;" 2004 emails from Darla Kaye Wynne and defendant Brown and Chaplain Bird; his February 23, 2011, inmate property log; and a religious services schedule for the month of March 2015 at Lumberton. Defendants replied.

STATEMENT OF THE FACTS

Except as otherwise noted below, the undisputed facts are as follows. When plaintiff filed this action, he was incarcerated at Harnett Correctional Institution ("Harnett"). (Am. Compl. p. 2.) Plaintiff is a practitioner of the Wiccan faith and has been a practitioner of this faith for 27 years. (Id. p. 6 and Pl.'s Aff. (Am. Compl. Attach.), p. 1.)

The North Carolina Department of Public Safety ("DPS") recognizes Wicca³ as an approved religion in its Religious Practices Reference Manual. (Brown Aff. Ex. B.) In developing its Wicca policies reflected in the manual, DPS consulted outside sources, including Darla Kaye Wynne, theAssistant National Director of Witches Against Religious Discrimination, Inc. (Id. ¶ 12 and Ex. D.) Ms. Wynne informed DPS that "[t]o practice Wicca, one truly only needs oneself and a book of shadows." (Id.) DPS policy, accordingly, permits inmates practicing the Wicca faith to maintain a Book of Shadows as well as the following approved religious property: sacred cloth, cauldron, talisman bag, tarot cards, one set of runes, wand, athame, a religious medallion, and reading materials. (Id. ¶ 13 and Ex. B, D.)

Plaintiff's complaint relates to four specific incidents during which he asserts he was denied the ability to practice his religious faith freely. The first incident occurred on December 29, 2010, when defendant Shaw observed plaintiff reading tarot cards and instructed plaintiff that if she observed him "reading tarot cards for anyone other than [himself], [he would] be going to segregation." (Am. Compl. p. 5; and Attach. p. 1.) Defendant Shaw further instructed plaintiff that he could not read tarot cards for himself or any other inmate in the recreation yard. (Id. Attach. p 1.)

Plaintiff then filed a grievance related to the incident in which he stated, "there are sever[al] bible studies . . . that take place in the yard" and at least two groups who study the Qu'ran in the yard. (Id. p. 2.) Plaintiff further stated that informal "religious services" occurred on a daily basis for the approximate two years prior to the filing of his December 29, 2010, grievance. (Id.) In response, prison officials stated that DPS policy provided that tarot cards were for personal use only. (Id. p. 7.) Defendant Brown explains, in her affidavit, that such policy is necessary because the reading of tarot in Wicca is a personal exercise and that permitting an inmate to read tarot for another inmate would place the reading inmate in a position of leadership over the other inmate. (Brown Aff. ¶ 16.)

The second incident at issue occurred on January 18, 2011,⁴ when defendant Heartsell, acting at the direction of defendant Joyner, confiscated all of plaintiff's religious property including a sacred items box. (Am. Compl. p. 6.) Harnett prison officials then charged plaintiff with a disciplinary infraction for possession of contraband. (Id. Attach. p. 9.) After receiving the disciplinary charge, plaintiff contacted defendant Joyner by mail and complained that the officers wrongfully confiscated his religious items. (Joyner Aff. Ex. A.) In response, defendant Joyner consulted with Harnett Clinical Chaplain II Stratton and defendant Brown to determine which of the confiscated items were permitted by DPS' Religious Practices Reference Manual. (Id. ¶ 6.) After consulting with the chaplains, defendant Joyner met with plaintiff on February 23, 2011, and informed plaintiff that all of the confiscated items, with the exception of the moonstone and tiger's...