McGovern v. Ferriter et al, No. 6:2012cv00101 - Document 53 (D. Mont. 2014)
Court Description: ORDER granting 44 Motion for Reconsideration. Mr. McGovern's motion for preliminafy injunction 33 with regard to Mr. McGovern's request to register as both a Native American and Wiccan is granted. Preliminary injunction set forth in Order. Signed by Judge Dana L. Christensen on 5/14/2014. Mailed to McGovern. (TAG, )
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McGovern v. Ferriter et al Doc. 53 IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF MO*,ANA HELENA DIVISION CV 12-00101-H-DLC-RKS THOMAS MCGOVERN, Plaintiff, ORDER FILED vs. MAY 142014 MIKE FERRlTER, et aI., Clerk. u.s District Court District Of Montana Missoula Defendants. Pending before the Court is Plaintiff Thomas McGovern's Motion for Reconsideration. (Doc. 44.) Mr. McGovern seeks re40nsideration of the Court's Order denying his Motion for Preliminary Injunction regarding Defendants' refusal to allow him register his religion as Native A.nl.ericanlWiccan. Defendants I were instructed in the Court's Order of March 12,20114 (Doc. 43) to indicate what I burden Mr. McGovern's requested relief would impo~e on the Prison when Prison ! I I I policy allows inmates to register as Native Americanl~hristians. Defendants ,I, 'd . 'fi ' lor prOVI ed a generaI Just! IcatIon .c the reI" IgIOUS regIstratIOn poI' but no ICY justification for allowing inmates to register as Native. AmericanlChristian but not Native AmericanlWiccan. As such, Mr, McGovern's iMotion for Reconsideration (Doc, 44) will be granted and the Motion for Preliminary Injunction (Doc, 33) with regard to the registration issue will be granted, 1 Dockets.Justia.com I. Standard for Injunctive Relief i Injunctive relief "is an extraordinary remedy ne~er awarded as a matter of I right." Winter v. Natural Resources Defense Council.! Inc., 555 U.S. 7,24 (2008). I ! To obtain a preliminary injunction the plaintiff must '~stablish that he is likely to succeed on the merits, that he is likely to suffer irrepatable harm in the absence of I preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20. Following Winter, in Alliancefor the Wild Rockies v. Cottrell, 632 F.3d 11~7, 1132 (9th Cir. 2011), the Ninth Circuit clarified that its "serious questions" approach to preliminary injunctions survives Winter when applied as part of tqe four-part Winter test. Thus, once a plaintiff has shown a likelihood of irrepJr,able injury and that the I I injunction is in the public interest, an injunction is warranted if the plaintiff can i ! further show that there are "'serious questions going tp the merits' and the balance ! i of hardships tips sharply towards the plaintiff." Id. at11135. I I Where "a plaintiff seeks a mandatory preliminaty injunction that ! i goes beyond maintaining the status quo pendente lite,i 'courts should be extremely ! cautious' about issuing a preliminary injunction and should not grant such relief unless the facts and law clearly favor the plaintiff." Committee ofCentral American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9t~ Cir. 1986) (quoting Martin , 2 I I v. International Olympic Committee, 740 F.2d 670,615 (9th Cir. 1984)). II. Analysis A. Likelihood of success on the merits Mr. McGovern brings his claims regarding the registration policy under i I both Religious Land Use and Institutionalized Person$ Act ("RLUIPA") and the I I Equal Protection Clause of the Fourteenth Amendme~t. The Court finds that Mr. I McGovern has showed serious questions going to the Imerits of his equal I I protection claim and therefore will not address the ~UIPA issues. Those issues can be dealt with more appropriately through motionslpractice and/or at trial. To state an equal protection claim, a plaintiff must allege facts sufficient to establish that prison officials intentionally discrimina~ed against him on the basis of his religion by failing to provide him a reasonable opportunity to pursue his I faith compared to other similarly situated religious gr?Ups. Cruz v. Beto, 405 U.S. i I 319,321-22 (1972); Shakur v. Schriro, 514 F.3d 878,1891 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997)1' overruled in part on other I grounds, Shakur, 514 F.3d at 884-85. "To succeed oil an equal protection claim, a I I plaintiff in a section 1983 claim must show that offici~ls intentionally acted in a discriminatory manner." Freeman, 125 F.3d at 737. "Proof of discriminatory motive ... can in some situations be inferred from tde mere fact of differences in 3 treatment." International Brotherhood ofTeamsters United States, 431 U.S. 324,335 n. 15 (1977). Mr. McGovern has presented evidence that the Department of Corrections allows Christian inmates to select ''Native American/Christian" as a religious I i preference, presumably allowing Christians to participate in both Christian t i services and Native American services. (MSP Inmatel Religious Preference I Statement, Doc. 2-1 at 5.) Mr. McGovern filed a sworn declaration and provided documentary evidence that he requested to be allowed to register as a Native AmericanlWiccan and be allowed to participate in bo~ Native American services I and Wiccan services. He stated in a grievance that hel is Native and his family is I I from the Browning Indian Reservation. He also indicrted that he practices I Wiccan. (July 13, 2011 Grievance, Doc. 2-1 at 7.) Mi-. McGovern was denied his request to register as a ''Native AmericanlWiccan." I~stead, he has registered as a Wiccan only and has not been allowed to attend Nati~e American services. t Mr. McGovern has shown that there are seriou~ questions going to the I I merits of his claim that he is being discriminated agai*st on the basis of his religion. He has shown that he has not been allowed ~ reasonable opportunity to i pursue his Native American faith along with his Wiccan faith when Christians are allowed to practice both Christian and Native Americl/m faiths. I ! 4 B. Irreparable Harm An "irreparable injury" is a harm that "cannot compensated by money." Black's Law Dictionary 1f adequately measured or 85~ (9th ed. 2009). I Constitutional violations, unlike monetary injuries, capnot be adequately remedied through damages and alone can constitute irreparable harm. Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). Mr. McGovern alleges Defendants are violating his constitutional rights and I he is being irreparably harm by not being allowed to Jractice his religious beliefs, ! i.e., participate in Native American services. "[I]nma~es suffer irreparable injury I I when they are unable to attend religious services that ~e commanded by" their I I religion. Mayweathers v. Newland, 258 F.3d 930,938 (9th Cir. 2001). Inhibition of religious practice is a constitutional injury that can~lOt be adequately remedied through damages. To the extent Mr. McGovern is likely suffering and will likely I continue to suffer injuries arising from the inhibition ~fhis religious practice, his i injuries are irreparable. Mr. McGovern indicates he I ~s been forced to modify his I i behaviors regarding religious practices for more than three years-time he cannot I get back and he continues to be harmed by the curren~ religion registration policy. (McGovern Reply to Resp to Mtn for Reconsideration" Doc. 47 at 7.) Everyday I that the prison does not allow Mr. McGovern to participate in Native American 5 services, he suffers injuries which cannot be undone. IMr. McGovern has I I i established irreparable harm. c. Balance of the Equities , i In its prior Order, the Court questioned i what th~ burden would be, if any, of allowing Mr. McGovern to attend both Wiccan and N~tive American services I I since Christians are allowed to attend both Christian ftd Native American i services. (March 12,2014 Order, Doc. 43 at 4.) In reSponse, Defendants provided a general justification for the overall registration policy. Defendants provided evidence that Montana State Prison has a compelling interest in prison security, a fundamental element of which is controlling inmate II)ovement and assembly. Since the Religious Activities Center is a location at ~hich inmates from high and low security portions of the prison meet, controlling the movement and assembly of prisoners is key to insuring the safety and security of the prison. (Response to Mtn for Reconsideration, Doc. 46 at 5 citing Wilson Aff., Doc. 46-1 at ~10.) In order to insure that security is maintained at the Relig~ous Activities Center, I therefore, the Prison broadly limits attendance at religious activities to I I I practitioners of a specific faith. (Response to Mtn fo~ Reconsideration, Doc. 46 at 5 citing Wilson Aff., Doc. 46-1 at ~12.) Defendants ~plained that the Prison asks i inmates to declare a single, primary religious preferetice, in the interests of ! I r 6 I I efficiency of controlling groups of inmates' movemedt and assembly, and not to I I limit an inmate's exercise of religion. (Response to Mjtn for Reconsideration, Doc. I 46 at 6.) The Court can appreciate the importance of controlling groups of inmates' movement, but Defendants did not address the Court' ~ question-what burden, if any, would be placed on the Prison by allowing Mr. ~cGovern to attend both Wiccan and Native American services since Christian~ are allowed to attend both. Defendants ignored the central issue in this case in th,t the Prison appears to only ask non-Christians to declare a single primary religi04s preference. Christians can I I declare two preferences-both Christian and Native Arperican. I I This is an equal protection claim and the Prison: is giving special treatment I I I to Christian faiths over non-Christian faiths. There b~ing no evidence of any ! i burden being placed on the Prison in allowing Mr. M4Govern to attend both Wiccan and Native American services when Christians can attend both, the balance of the equities tips sharply in favor of Mr. MqGovern. I Defendants also argue that the burden on Mr. McGovern is "self-imposed" in that individuals who profess more "idiosyncratic religious needs" can use I ! Operational Procedure 5.6.1 III.B which allows them to send a request to the I Religious Activities Coordinator to request a specific religious practice I I ! 7 accommodation. The Religious Activities Coordinatqr will then bring this request to the Religious Issues Committee, which will then w~rk to determine whether, i and to what extent, to approve the accommodation. MSP then codifies approved I ! accommodations in policy, schedule, procedure, or database entry, as appropriate. (Response to Mtn for Reconsideration, Doc. 46 at 6.) •Defendants argue inmates may declare any religion and request any accommodation-assuming the authenticity of their beliefs. This would allow, they argue, an inmate who claimed the Wiccan religious preference to attend Native American ceremonies. (Response to Mtn for Reconsideration, Doc. 46 at 6-7l) I , I But requiring non-Christians to abide by this prpcedure and not requiring Christians to do the same puts an additional burden on non-Christians and furthers Mr. McGovern's equal protection argument. Defendants also submit that in the past, some Native American practitioners have voiced strong objections to Wiccan practitioners engaging in Native American practice, inasmuch as the Native American bractitioners felt it was disrespectful of their culture. (Response to Mtn for R~consideration, Doc. 46 at 7 I citing Wilson Aff., Doc. 46-1 at ~25.) A vague hears~y statement that other I I inmates made objections in the past (although how lo,g in the past is not clear), is insufficient to defeat Mr. McGovern's motion. Mr. ~cGovern has argued that the , 8 policy in place prior to the current revised version allowed inmates to attend whatever religious services they wanted to. No evidence was presented that Wiccans attending Native American services caused institutional security issues. There are insufficient factual details to make this a va1id justification for favoring one religion over all others. D. Public Interest i Allowing inmates to practice religion while incarcerated is clearly within I ! the public interest in that Congress specifically passe4 the RLUIPA to serve such a I I purpose. III. Conclusion The Prison Litigation Reform Act allows court~ to enter an order for preliminary injunctive relief but requires that, In any civil action with respect to prison condit~ons, to the extent otherwise authorized by law, the court may ent+r a temporary restraining order or an order for preliminary injunctive relief. I Preliminary injunctive relief must be narrowly ~awn, extend no further than necessary to correct the harm the CflUrt finds requires preliminary relief, and be the least intrusive me~ns necessary to correct that harm. The court shall give substant~al weight to any adverse impact on public safety or the operatio~ of a criminal justice system caused by the preliminary relief and sh~ll respect the principles of comity set out in paragraph (1 )(B) in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry; unless the court makes the findings required under subsection (a)( 1) for the entry of 9 i I prospective relief and makes the order final befbre the expiration of the 90-day period. 18 U.S.C. § 3626(a)(2). The relief described below is narrowly tailoredJ At this juncture it applies to one person, Mr. McGovern, and it allows only those privileges afforded to inmates i who are already allowed to register as ChristianiNativb American. The Court ! specifically asked Defendants to address any substantial burden that might be I I i placed on them, but as to the specific relief requested,1 no explanation was given. I I ! ! No evidence was presented demonstrating an adverse limpact on public safety or I I the operation of a criminal justice system. This prelin1tinary injunction thus complies with the Prison Litigation Reform Act. Pursuant to 18 U.S.C. § 3626(a)(2) this prelimhlary injunction will automatically expire 90 days after its entry. The Court will consider requests to I renew or extend the preliminary injunction should thi~ matter not be resolved prior to that date. I I IT IS ORDERED that Mr. McGovern's motion ifor reconsideration (Doc. I i 44) is granted. Mr. McGovern's motion for preliminafy injunction (Doc. 33) with I regard to Mr. McGovern's request to register as both ~ Native American and ! Wiccan is granted. The Court enters the following preliminary injunction: 10 1) Defendants shall allow Mr. McGovern to participate in Native American and Wiccan services at Montana State Prison and its regional facilities. I I i 2) Defendants shall afford Mr. McGovern all p~ivileges allowed to Native Americans that have a duel classification, which includes, the ability to purchase and possess religious items on both the Native American religious items list and the Wiccan religious list. Dated this 14th day of May, 2014. Dana L. Chri~tensen, Chief istrict Judge United Statea District Court I I I i I I ! ! 11
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