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(Cite as: 2006 WL 2711487 (D.Or.))

United States District Court,D. Oregon.

Sage Bruce BUTLER, Plaintiff,


LINCOLN COUNTY, OREGON; Dennis Dotson; James Russell; Sandra Barker; Ty Rae Risewick; and Does 1-10, each in their official and individual capacities, Defendants.

No. Civ. 05-6204-TC.

Sept. 18, 2006.

Ginger Genevieve Mooney, Van Ness Hammond Mooney LLC, Salem, OR, James D. Van Ness, Victoria Hatch & Associates, Portland, OR, for Plaintiff.

Bruce L. Mowery, Attorney at Law, Salem, OR, for Defendants.



*1 Magistrate Judge Thomas M. Coffin filed his Findings and Recommendation on August 21, 2006. The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review.  Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1206 (9th Cir.1982). See also Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Having reviewed the legal principles de novo, I find no error.

Accordingly, I ADOPT Judge Coffin's Findings and Recommendation. Defendants' motion for summary judgment (# 27) is grant and this case is dismissed.



COFFIN, Magistrate J.

Plaintiff has filed an amended complaint alleging that defendants violated his civil rights as guaranteed by 42 U.S.C. § 1983 and the Protection of Religious Exercise in Land Use and by Institutionalized Persons Act, 42 U.S.C. § 2000cc, when they refused to allow him to possess an eagle feather in his cell for use in personal exercise of his religious beliefs. Presently before the court is defendants' motion (# 27) for summary judgment.


Plaintiff, pending his trial on various criminal charges,FN1 was held in pretrial detention in the Lincoln County Jail (“the jail”). On September 1, 2003, plaintiff, who is of Native American heritage and an enrolled member of the Siletz Tribe, sent a kyte FN2 to “whom it may concern” in which he requested to be allowed to possess an eagle feather, and for staff to be informed that they were not to touch the feather. That request was denied later that day by Sandra Barker. Plaintiff then sent another kyte, a “Step II Grievance,” to Shift Sergeant Ty Rae Risewick, renewing the request. Risewick also denied the request, noting that he would be allowed to use a feather during ceremonies but could not keep it in his cell.

FN1. Plaintiff was charged with three counts of Assault in the Third Degree, four counts of Assault in the Fourth Degree, one count of Burglary in the First Degree, one count of Criminal Mischief in the Second Degree, and one count of Reckless Endangerment.

FN2. “Kyte” is a shorthand reference for an Inmate Communication Form.

On September 2, 2003, plaintiff sent a kyte to Jail Commander Jamie Russell, again renewing the request. Lt. Russell again stated that a feather could be brought in for ceremonies, but he could not keep it in his cell. Plaintiff then sent a kyte to Sheriff Dennis Dotson, detailing his former requests and asking to be allowed to have the feather in his cell. Dotson responded by stating he had done some research with other jails, that those jails did not allow inmates to possess feathers in their cells, and that if plaintiff had other alternatives he wanted to propose the staff would consider them.

On October 13, 2003, plaintiff's criminal defense attorney sent a letter to Sheriff Dotson requesting that plaintiff be allowed to possess an eagle feather in his cell. On that day, plaintiff also submitted a letter to the Sheriff indicating his intent to file a petition for habeas corpus.

On or about November 19, 2003, plaintiff filed a petition for habeas corpus relief in state court. After a hearing, the state judge presiding over the action filed a judgment of dismissal, finding that he generally would side with defendant's position, but that it was his belief that the action was mooted by plaintiff's transfer to state custody during the pendency of his petition. Plaintiff appealed the dismissal to the Oregon Court of Appeals, but the appeal was denied as moot. Butler v. Russell, 200 Or.App. 556, 114 P.3d 543 (2005). Plaintiff sought review by the Oregon Supreme Court, but review was denied.  Butler v. Russell, 339 Or. 406, 122 P.3d 64 (2005).

*2 On July 7, 2005, plaintiff filed the action presently before this court. Defendants now move for summary judgment on all claims, on the following bases: (1) Rooker-Feldman deference; (2) plaintiff's lack of the requisite permit to possess a protected species' feather; (3) absolute immunity; (4) qualified immunity; and (5) the lack of a municipal policy demonstrating deliberate indifference.FN3

FN3. Defendants also argue that plaintiff has no civil cause of action under the Oregon Constitution, a contention that plaintiff does not appear to contest. See Hunter v. City of Eugene, 309 Or. 298, 304, 787 P.2d 881 (1990).


A party is entitled to summary judgment as a matter of law if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact.”  Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir.1991). The moving party must carry the initial burden of proof. This burden is met through identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir.1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9th Cir.1981).

Deference to the non-moving party does have some limit. The non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). Where “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The “mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 248. However, trial courts should act with caution in granting summary judgment, and may deny summary judgment “in a case where there is reason to believe that the better course would be to proceed to a full trial.” Anderson, 477 U.S. at 255.


I. Plaintiff's § 1983 claim (First Amendment)

A. The individual defendants are entitled to qualified immunity

*3 A district court can make a pre-trial finding that individual governmental agents have qualified immunity from a suit stemming from actions taken in their official capacity if, considering facts and inferences in the light most favorable to the plaintiff, the officials were entitled to qualified immunity as a matter of law. The appropriate analysis in considering qualified immunity as a matter of law was enunciated by the United States Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

According to the Court in Saucier, the inquiry is twofold. First, the court must consider “this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Id. at 2156. If this question is answered in the negative, the defendant is entitled to summary judgment. If, however, a constitutional right could have been violated, a second question must be asked: was the constitutional right at issue clearly established? Id. The protection afforded by qualified immunity “safeguards ‘all but the plainly incompetent or those who knowingly violate the law.” ’ Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir.1998) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Thus, the first inquiry must be whether the facts in the record, taken in the light most favorable to plaintiff, show that the individual defendants' conduct violated a constitutional right. I find that they do not.

It is important to note at the outset that the examination of defendants' actions is made in the context of plaintiff's specific requests. Plaintiff, in his first two kytes, did not simply request that he be allowed to possess a prayer feather in his cell, but that staff be instructed that they were not to touch it.FN4 His subsequent kytes were grievance kytes asking for reconsideration of the initial requests. Thus, defendants' actions are viewed not through the lens of simply denying plaintiff full-time access to a personal prayer feather, but denying plaintiff's request for such given plaintiff's caveat that jail staff were not to touch it. Although plaintiff now, in testimony prepared for his litigation, mitigates that demand-and indeed, it would have been better for all sides had a greater dialogue taken place on that issue FN5-I cannot fault defendants for accepting plaintiff's statements of his spiritual needs and requirements on their face, including the demand that staff not be allowed to touch or examine the requested feather, in considering his request. See Declaration of Jamie Russell (# 28) at ¶¶ 26, 30-33. Therefore, the inquiry is whether defendants' denial of plaintiff's request to keep a prayer feather in his cell, untouchable by jail staff, violated his constitutional rights.

FN4. It would also appear that the prohibition on touching would have extended to include the protective cloth or covering that the feather would be kept in when not being used, as described in materials plaintiff included in support of his grievance kyte. See Plaintiff's Grievance (# 28, Ex. E) at 2; see also Declaration of Jamie Russell (# 28) at ¶ 22.

FN5. Defendants state that they did, in fact, consider alternatives, and the Sheriff did note to plaintiff that alternatives would be considered if plaintiff were to offer them. However, it appears that plaintiff opted to file his state habeas action following the Sheriff's delivery of that message, and no real dialogue took place between the parties beyond the kytes and their denials.

Regulations that impinge on an inmate's First Amendment rights are only constitutionally valid if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Supreme Court has identified four factors for courts to consider in determining the reasonableness of a challenge to a regulation or determination on First Amendment grounds: (1) whether the regulation has a logical connection to the legitimate government interest invoked to justify it; (2) whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates; (3) the impact that accommodation of the asserted right will have on guards, other inmates, and prison resources; and (4) the absence of ready alternatives that fully accommodate the prisoner's right at de minimus cost to valid penological interests. Id. at 90. These factors will be discussed in turn.

1. Logical connection to legitimate interest

*4 The legitimate interest here is clear: jail staff need to be able to ensure that the facility is safe and secure, and that inmates do not have access to contraband or free access to materials that are regulated for the safety and security of inmates and staff. Forbidding an inmate to possess items in his cell which are immune from search and examination is clearly logically related to the legitimate interest in jailhouse security.

2. Alternative means of exercising the right

It is undisputed that plaintiff was allowed regular access to a spiritual adviser and was permitted to attend Native American religious ceremonies, which could, at his choosing, have included his use of a prayer feather brought in to the facility for that purpose. He was also permitted to engage in whatever prayer he wished while in his cell; the restriction was solely to his possession of the prayer feather. Given plaintiff's self-imposed prohibition on the facility's right to search such a prayer feather, the alternative means available to him were reasonable and not unduly restrictive. See also Ashelman v. Wawrzaszek, 111 F.3d 674, 677 (9th Cir.1997) (noting that “requiring a believer to defile himself by doing something that is completely forbidden by his religion is different from (and more serious than) curtailing various ways of expressing beliefs for which alternatives are available”).

3. Impact of the accommodation on others

Allowing an inmate to possess an item and designate it untouchable by jail staff based upon a proclamation that the item is of religious significance and therefore entirely sacrosanct would, no doubt, ensure an explosion of inmate requests for religious items that jail staff are not permitted to search or examine. As noted above, approving just petitioner's request for a possession untouchable by staff would be an unacceptable security risk; expanding the number of inmates obtaining, or seeking to obtain, permission to similarly possess untouchable items would, of course, magnify the security problems.

4. Ready alternatives

Although the court believes it would have been preferable for the parties to engage in a dialogue about possible alternatives, as stated above, the court will not fault defendants for accepting plaintiff's own assertions regarding the parameters of his demand. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 350, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (“[W]e have rejected the notion that prison officials ... have to set up and then shoot down every conceivable alternative method of accommodating the claimants constitutional complaint.”)  (citations omitted). Within those parameters-i.e., plaintiff's demand he have a personal prayer feather and that the feather be untouchable-the court is not aware of alternatives that would not present a security risk which were not already available to plaintiff (to wit, the ability to participate in prayer sessions with a spiritual advisor who would bring in a feather and in Native American religious ceremonies in which prayer feathers were used).

*5 Each of these factors weighs in favor of defendants' decision not to allow plaintiff to possess a prayer feather that staff could not inspect and search. As such, under the Turner analysis of the facts presented, the defendants' conduct was not an unconstitutional violation of plaintiff's First Amendment rights.

However, even assuming, arguendo, that plaintiff's rights were violated by defendants' actions, the individual defendants are entitled to qualified immunity because no clearly established law would have informed them that the denial of plaintiff's request was contrary to the constitution. There is no caselaw that the court is aware of that would put a reasonable official in defendants' position on notice that an inmate, on First Amendment grounds, was constitutionally entitled to possess an item of religious significance notwithstanding a demand that the item be immune from search. Indeed, even absent that demand, defendants would likely be entitled to qualified immunity because at the time of the action there was limited caselaw even discussing a possible constitutional right to possession of an eagle feather on religious grounds. See, e.g., Wolf v. Ferguson, 2006 WL 375920 (W.D.Ark.2006) (granting qualified immunity to officials who denied plaintiff access to an eagle feather, finding “[t]here is scant guidance in decided cases even for courts and judges concerning [the question]” and collecting those few cases). Certainly in this case qualified immunity is appropriate.

For the above reasons, the court believes that qualified immunity is appropriate for the individual defendants. The constitutional claims against them should be dismissed.

B. The county can not be held responsible under Monell

To succeed on his § 1983 claim against Lincoln County, plaintiff must demonstrate that his constitutional rights were violated and that a policy of the county was a moving force behind the violation. Monell v. Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Mabe v. San Bernadino County, 237 F.3d 1101, 1111 (9th Cir.2001). As described above, there was no constitutional violation. Hence, there is no basis for Monell liability. Plaintiff's § 1983 claim against the county should be dismissed.

II. Plaintiff's RLUIPA claim

Plaintiff also brings a claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc. That act provides, in relevant part, that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless that burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” 42 U.S.C. § 2000cc-1.

As may be the case on his constitutional claims, plaintiff may well have the right under the RLUIPA to possess a prayer feather in his cell under the act. Indeed, it appears from the record that now, in the custody of the state Department of Corrections, he is allowed to possess one (subject to inspection and search). Again, however, the situation presented to the staff of the Lincoln County Jail was not merely the request of a prayer feather but the request that it be immune from inspection and search. As I found above, such a provision presents an unacceptable risk to the security and well-being of both staff and other inmates, and such security is clearly a compelling governmental interest. See Cutter v. Wilkinson, 544 U.S. 709, 722-23, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Plaintiff was not totally denied access to a prayer feather-he had opportunities when meeting with a spiritual advisor and during religious ceremonies to use one-and given plaintiff's stated requirement that his personal feather, if provided, could not be inspected or searched, there was no less restrictive means of accommodating plaintiff's request. See Hammons v. Saffle, 348 F.3d 1250, 1256 (10th Cir.2003) (prisoner not required to be provided a preferred means of religious expression if he is provided an alternate, sufficient means); see also Allen v. Toombs, 827 F.2d 563, 569 (9th Cir.1987) (holding similarly under the First Amendment). Because the denial of plaintiff's request, considering the other opportunities available to him, was the least restrictive means of ensuring him adequate means of religious expression while not compromising a compelling governmental interest, there was no violation of the RLUIPA. This claim should be dismissed.


*6 For the above stated reasons, defendants' motion (# 27) for summary judgment should be granted and this case should be dismissed.

DATED this 21 day of August, 2006.