Anderson v. Vare et al, No. 2:2007cv01117 - Document 57 (D. Nev. 2010)

Court Description: ORDER denying 53 Motion for District Judge to Reconsider Order. Signed by Judge Gloria M. Navarro on 7/14/2010. (Copies have been distributed pursuant to the NEF - SD)
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Anderson v. Vare et al Doc. 57 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 RICHARD ANDERSON, 5 6 7 8 Plaintiff, vs. LENARD VARE et al., Defendants. ) Case No.: 2:07-cv-01117-RCJ-RJJ ) ) ORDER ) ) ) ) ) ) ) 9 10 Before the Court is Plaintiff Richard Anderson’s Motion to Reconsider (#53). Plaintiff 11 brought the instant motion on April 26, 2010, following this Court’s March 31, 2010 Order (#52) 12 entered by Judge Robert Jones. Defendants filed a timely Response (#54) and Plaintiff filed an 13 untimely Reply (#56). 14 15 BACKGROUND Plaintiff Richard Anderson is a Nevada state prisoner housed by the Nevada Department 16 of Corrections (“NDOC”). Plaintiff claims to be a Native American, although he does not allege 17 any particular tribal affiliation or enrollment. (See Complaint ¶ 1). On September 15, 2006, 18 Anderson was transferred from the Southern Desert Correctional Center (“SDCC”) to the 19 Southern Nevada Correctional Center (“SNCC”) as part of an older inmate work force. Upon his 20 arrival at SNCC, Plaintiff asked Defendant Lenard Vare about the availability of land for Native 21 American religious use. Vare informed Plaintiff that SNCC was a new facility and that no land 22 at SNCC had yet been specifically designated for such use, but that plans were being “worked 23 on.” The land that SNCC had previously allowed Native American inmates to use for religious 24 rituals had been annexed to a women’s unit to alleviate overpopulation at the women’s facility. 25 Defendants told Anderson that because the land once used for rituals was now part of the female Page 1 of 7 1 housing unit, he would not be allowed to use it. Defendant Vare further informed Anderson that 2 land at SNCC might be available for Native American use as early as March 2008. Plaintiff 3 requested that he be transferred to another facility if Native American land was not immediately 4 available. Vare informed Plaintiff that the chapel at SNCC was available for Native American 5 rituals and in fact had been utilized for this purpose in the past. The SNCC chapel was not 6 restricted to use by inmates of any particular faith. On December 7, 2007, Plaintiff was transferred back to SDCC based on his request for 7 8 access to land used exclusively for Native American religious ceremonies. In the meantime, on 9 August 20, 2007, Plaintiff filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 and the 10 Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1. The 11 Court granted Defendants’ motion for summary judgment, and the Court of Appeals affirmed 12 except as to the RLUIPA claims asserted against Defendants Vare, Howell, Corenze, and 13 Dreesen. The Court of Appeals vacated and remanded summary judgment on the RLUIPA 14 claims as to those Defendants, because the district court did not apply the proper standard of 15 religious rights under RLUIPA, but only the standard set by the Free Exercise Clause of the First 16 Amendment, which is not as strict as RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709, 714 17 (2005); see also Alvarez v. Hill, 518 F.3d 1152, 1154–57 (9th Cir. 2008). On April 1, 2010, the 18 Court ruled that the remaining Defendants were entitled to summary judgment on Plaintiff’s 19 claims under RLUIPA. Specifically, the Court held that Defendants were entitled to absolute 20 immunity as to monetary damages. The Court also held that Plaintiff’s claim for injunctive relief 21 failed as a matter of law. DISCUSSION 22 23 24 25 A. Legal Standard for Motion to Reconsider A motion to alter or amend a judgment must be made within twenty-eight (28) days of entry of judgment. Fed. R. Civ. P. 59(e) (2010). Here, judgment was entered on April 1, 2010, Page 2 of 7 1 and the present motion was filed twenty-five days later on April 26, 2010. Therefore the motion 2 to reconsider is timely under Rule 59(e) and should be considered under that rule as opposed to 3 Rule 60(b). Am. Ironworks & Erectors, Inc. v. N. Am. Contr. Corp., 248 F.3d 892, 898-99 (9th 4 Cir. 2001) (“[A] motion for reconsideration is treated as a motion to alter or amend judgment 5 under Federal Rule of Civil Procedure Rule 59(e) if it is filed within ten days of entry of 6 judgment.”). On December 1, 2009, the time to file a Rule 59(e) motion was extended to 7 twenty-eight days. Compare Fed. R. Civ. P. 59(e) (2010), with Fed. R. Civ. P. 59(e) (2009). 8 This rule prevents parties from seeking reconsideration of a judgment based on a court's own 9 errors of law after the time for filing a motion under Rule 59(e) has run by attempting to invoke 10 Rule 60(b), which only permits amendment of a judgment based on circumstances external to a 11 court's own actions. See, e.g., Hahn v. Becker, 551 F.2d 741, 745 (7th Cir. 1977) (“[T]he relief 12 sought by the defendants is correction of errors of law and is not of the type contemplated by 13 Rule 60. As this court has emphasized, it will not permit parties to circumvent the service 14 requirement of Rule 59(e) by merely denominating the motion as one made under Rule 60.”). A Rule 59(e) motion is appropriate “if the district court: (1) is presented with newly 15 16 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or 17 (3) if there is an intervening change in the controlling law.” Circuit City Stores, Inc. v. Mantor, 18 417 F.3d 1060, 1064 (9th Cir. 2005) (quoting Sch. Dist. No 1J, Multnomah County v. ACandS, 19 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)); see also 389 Orange Street Partners v. Arnold, 179 20 F.3d 656, 665 (9th Cir. 1999). 21 B. 22 Analysis In the present case, Plaintiff seeks reconsideration on the grounds that District Judge 23 Jones’ summary judgment for Defendants conflicted with Magistrate Judge Johnston’s discovery 24 order, that there was inadequate time for discovery in the case, that this Court failed to 25 adequately analyze the law under RLUIPA and apply the correct legal standards, and that the Page 3 of 7 1 Court failed to demand detailed evidence from Defendants. None of these arguments has 2 sufficient merit to warrant granting Plaintiff’s motion. In short, Plaintiff fails to demonstrate 3 new evidence, clear error or manifest injustice, or an intervening change in controlling law. 4 Accordingly, denial of Plaintiff’s motion is required. 5 1. 6 As to Plaintiff’s contentions regarding the evidence in the case, they are clearly without Discovery 7 merit. The mere fact that the magistrate judge entered a discovery order does not in any way 8 limit this Court’s ability to hear and decide dispositive matters. The relevant inquiry is whether 9 the standard under Federal Rule of Civil Procedure 56 was applied correctly, which it was. The 10 Court need not permit full discovery before granting summary judgment, nor did Plaintiff seek a 11 Rule 56(f) continuance. See Barona Group of Capitan Grande Band of Mission Indians v. 12 American Management & Amusement, Inc., 840 F.2d 1394, 1400 (9th Cir. 1987) (finding the 13 district court did not abuse its discretion where the party opposing summary judgment did not 14 file a Rule 56(f) motion stating what additional information remained to be discovered and how 15 it would preclude summary judgment). Rule 56(c) itself states that “a party may move for 16 summary judgment at any time until 30 days after the close of discovery.” Fed. R. Civ. P. 56 17 (emphasis added). In the instant case, the Court determined that sufficient discovery had taken 18 place, and sufficient evidence was presented to the Court to determine that Plaintiff’s claims 19 failed as a matter of law, regardless of whether or not further discovery were permitted. 20 2. RLUIPA 21 As to Plaintiff’s substantive arguments, they are insufficient to demonstrate that clear 22 error or manifest injustice was the result of this Court’s prior order. The Court determined that 23 the burden on Plaintiff’s religious beliefs imposed by the ban on the burning of sage in his cell 24 was subject to strict scrutiny, but that the State of Nevada had compelling interest in preventing 25 intoxication and criminal behavior, as well as rehabilitating its inmates. Further, the State of Page 4 of 7 1 Nevada’s ban on burning substances in prison cells, such as sage which has a strong smell that 2 can be used to mask the smell of intoxicants and other contraband, was the least restrictive 3 means to accomplish the State of Nevada’s compelling interest. 4 The Court’s Order granting Defendant’s Motion for Summary Judgment determined that 5 Defendants’ offer to allow Plaintiff to use the chapel for his ceremonies made his claim of 6 deprivation of rights unmeritorious. (April 1, 2010 Order at 9:1–3, #53). However, Plaintiff now 7 claims in his Motion for Reconsideration that while Plaintiff was alternatively offered the use of 8 the prison chapel for his ceremonies, this accommodation does not necessarily make his claim of 9 deprivation of rights unmeritorious because Plaintiff was still prevented from burning sage, even 10 in the chapel. There does appear to be a genuine issue of material fact as to whether Plaintiff 11 was allowed to burn sage in the chapel. Plaintiff claims that he was not allowed and Defendants 12 have not attempted to rebut this claim. Therefore, this Court will assume, for purposes of 13 summary judgment review that Plaintiff was not allowed to burn sage in the chapel. It should be 14 noted, however, that Plaintiff has raised this allegation in his motion to reconsider rather than in 15 his Complaint. As Plaintiff has not sought to amend his Complaint post-appeal, the Court need 16 not consider his claims not contained in the Complaint. Regardless, the Court is convinced that 17 Plaintiff’s claims were properly subject to the summary judgment motion. 18 Plaintiff implies that the issue is whether a total ban on the use of sage burning 19 (smugging) in a prison cell or in a prison chapel as part of a religious worship is the least 20 restrictive means of maintaining security. Under RLUIPA, prison officials bear the burden of 21 establishing that the restriction challenged is the “least restrictive alternative to achieve” a 22 compelling governmental interest. See Warsoldier, 418 F.3d at 998. “[N]o longer can prison 23 officials justify restrictions on religious exercise by simply citing to the need to maintain order 24 and security in a prison.” Alvarez v. Hill, 518 F.3d 1152, 1156–1157 (9th Cir. 2008) (citing 25 Greene v. Solano County Jail, 513 F.3d 982, 989 (9th Cir. 2008)). Prisons must now demonstrate Page 5 of 7 1 that they “actually considered and rejected the efficacy of less restrictive measures before 2 adopting the challenged practice.” Warsoldier, 418 F.3d at 999. To succeed on its Motion for 3 Summary Judgment, Defendants must demonstrate that restrictions on Plaintiff’s religious 4 exercise were the least restrictive means of maintaining prison security. While prison 5 administrators are to be accorded deference with regard to prison security, Defendants must 6 show that they “actually considered and rejected the efficacy of least restrictive measures before 7 adopting the challenged practice.” Id. However, Plaintiff admits that areas of land dedicated to the burning of sage for religious 8 9 purposes exist outside every other prison facility except the one where he had recently arrived. 10 (Motion to Reconsider at 5, #53). According to Defendants, upon arrival to SNCC, Defendant 11 Vare informed Plaintiff that because he was in a new facility, no land had yet been designated for 12 such use, but that plans were being “worked on” and he could use the chapel instead. (Vare Aff. 13 at 1:7–2:13, #16 Ex. E). Unsatisfied with this accommodation, Plaintiff admits he was 14 transferred to another facility, SDCC, an older facility that did provide him access to land 15 specifically designated for Native American religious ceremonies. (Opposition to Motion to 16 Dismiss and Summary Judgment at 9:14–15, #25). The grievance forms attached to Plaintiff’s 17 Opposition to Defendant’s Motion to Dismiss demonstrate that Defendants considered Plaintiff’s 18 requests, including his request to burn sage in his room, 1 and elected to move Plaintiff in order 19 facilitate his requests. (Exhibits attached to Plaintiff’s Opposition to Motion to Dismiss, #25). 20 The disputed evidence as to whether or not Plaintiff wanted to be transferred from SNCC is 21 immaterial to whether or not the prison officials’ conduct was constitutionally infirm. The least 22 restrictive means used by the Defendants to accomplish its compelling interest was not just to 23 prohibit the burning of sage in the cell or chapel in the new facility, but to transfer Plaintiff to 24 one of the other prison facilities which had already completed the construction of a designated 25 1 Notably, just as Plaintiff did not allege in his Complaint that he was prohibited from burning sage in the chapel, this is not evidenced in the grievance forms he has attached to his pleadings. Page 6 of 7 1 outdoor area enabling him to practice the burning of sage. This is sufficient to meet the showing 2 required under Warsoldier, 418 F.3d at 999, as Plaintiff’s own evidence demonstrates that prison 3 officials considered his request and rejected allowing him to burn sage, instead transferring him 4 to another facility. 5 Therefore, the Court is convinced that the analysis and conclusion of the previous 6 summary judgment in favor of Defendants was correct. Plaintiff has not presented any evidence 7 or argument sufficient to amend this judgment. 8 9 10 CONCLUSION IT IS HEREBY ORDERED THAT Plaintiff’s Motion to Reconsider (#53) is DENIED. DATED this 14th day of July, 2010. 11 12 13 ________________________________ Gloria M. Navarro United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 of 7