Williams v. Borrego ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 21, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
CHARLES LAMONT WILLIAMS,
Plaintiff - Appellee,
v. No. 20-1146
JENNIFER HANSEN; DAVID
LISAC; REBECCA VOLZ;
ANDREW KING,
Defendants - Appellants,
and
JOHN DOE; DEBORAH BORREGO;
DAYNA JOHNSON,
Defendants.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:19-CV-00371-RBJ-MEH)
_________________________________
Joshua G. Urquhart, Assistant Attorney General (Philip J. Weiser,
Colorado Attorney General, and Cole J. Woodward, Assistant Attorney
General, with him on the briefs), Denver, Colorado, for Defendants-
Appellants.
David Joseph Feder, Jones Day, Los Angeles, California (Cynthia A.
Barmore and Benjamin C. Mizer, Jones Day, Washington, D.C., and
Samuel Weiss, Rights Behind Bars, Washington, D.C., with him on the
briefs), for Plaintiff-Appellee.
_________________________________
Before BACHARACH, EBEL, and MCHUGH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal involves the constitutional right of prisoners to freely
exercise their religious beliefs. The issue is whether prison officials
violated a clearly established right by banning
 any Native American religious services for at least nine days
and
 the use of tobacco for Native American religious services for
30 days.
We conclude that these bans could have violated a clearly established
constitutional right.
1. Prison officers temporarily ban the use of tobacco for religious
services.
Mr. Charles Williams is a Colorado prisoner who practices a Native
American religion that uses tobacco in sweat lodges. The ceremonies are
possible because prison officials specified where inmates could use
tobacco in religious services.
In 2018, prison officials confiscated tobacco from a prisoner and
suspected that it had come from Mr. Williams’s religious group. Prison
officials responded with a 30-day ban on the use of tobacco for religious
services.
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2. Prison officials later ban any Native American religious services
for at least nine days.
Weeks later, prison officials imposed a lockdown and modified
operations, including an indefinite suspension of Native American
religious services. Despite this suspension, prison officials allowed
Christian and Islamic groups to continue their religious services because
outside volunteers could provide supervision. The complaint implies that
the suspension lasted at least nine days.
Mr. Williams sued under 42 U.S.C. § 1983, alleging in part that
prison officials violated the First Amendment. 1 The defendants moved to
dismiss, asserting qualified immunity. The district court denied the motion
on the ground that Mr. Williams’s allegations had overcome qualified
immunity.
3. We have jurisdiction.
When the district court denies a motion to dismiss based on qualified
immunity, appellate jurisdiction exists only if the appeal turns on a legal
issue. Weise v. Casper, 507 F.3d 1260, 1263–64 (10th Cir. 2007). Mr.
Williams challenges appellate jurisdiction based on the defendants’
assertion of factual arguments.
1
The complaint included other claims that are not at issue in this
appeal.
3
In their opening brief, the defendants assert that only one Native
American service was cancelled during the lockdown. But the complaint
stated only when the ban had started, not when it had ended. From the
other dates in the complaint, we can infer only that the ban lasted at least
nine days. So the assertion in the defendants’ opening brief rests on a
factual question beyond our jurisdiction. Perry v. Durborow, 892 F.3d
1116, 1119–20 (10th Cir. 2018).
But the defendants later conceded that the complaint had alleged that
the ban lasted at least 9 days and possibly as long as 30 days. Oral
Argument at 3:10–4:12, 5:19–6:56. Given this concession, we have
jurisdiction to address the defendants’ legal argument on whether a ban
lasting at least nine days would have violated a clearly established
constitutional right. Perry, 892 F.3d at 1120.
4. We apply de novo review.
We conduct de novo review of the denial of a motion to dismiss for
qualified immunity. Sanchez v. Hartley, 810 F.3d 750, 753 (10th Cir.
2016). In conducting this review, we view all of the allegations in the
complaint as true and draw reasonable inferences in the light most
favorable to the non-moving party (Mr. Williams). Id. at 754.
5. Mr. Williams has overcome qualified immunity.
To overcome the defendants’ assertion of qualified immunity, Mr.
Williams must allege facts showing the violation of a constitutional right
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that had been clearly established. Id. The defendants argue only that any
violation had not been clearly established.
A right is ordinarily “clearly established” when it’s apparent from a
precedent or the clear weight of authority from other courts. Toevs v. Reid,
685 F.3d 903, 916 (10th Cir. 2012). Mr. Williams has made this showing.
A. A single unpublished opinion does not show clear
establishment of the right, but we examine all pertinent
opinions.
In denying qualified immunity, the district court relied solely on an
unpublished opinion: McKinley v. Maddox, 493 F. App’x 928 (10th Cir.
2012) (unpublished). The defendants argue that a single unpublished
opinion cannot establish qualified immunity. We agree. See Green v. Post,
574 F.3d 1294, 1305 n.10 (10th Cir. 2009) (“In determining whether the
law was clearly established, we have held that we may not rely upon
unpublished decisions.”); see also Mecham v. Frazier, 500 F.3d 1200, 1206
(10th Cir. 2007) (“An unpublished opinion, . . . even if the facts were
closer, provides little support for the notion that the law is clearly
established. . . .”). But the defendants go further, urging us to confine our
review to the opinions that Mr. Williams cited in district court.
Our review is not limited to the opinions cited by Mr. Williams. In
determining whether a right is clearly established, we are conducting de
novo review of a legal issue, which requires consideration of all relevant
case law. Elder v. Holloway, 510 U.S. 510, 516 (1994); see also Cortez v.
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McCauley, 478 F.3d 1108, 1122 n.19 (10th Cir. 2007) (en banc) (“While it
is true that Plaintiffs should cite to what constitutes clearly established
law, we are not restricted to the cases cited by them.”).
B. The indefinite ban on religious services could have violated
a clearly established constitutional right.
It was clearly established that the indefinite denial of any religious
services would violate Mr. Williams’s right to freely exercise his religious
beliefs in the absence of a legitimate penological interest.
To state a valid constitutional claim, a prisoner must allege facts
showing that officials substantially burdened a sincerely held religious
belief. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). If a substantial
burden is shown, officials must identify a legitimate penological interest.
Id. And if a legitimate penological interest exists, the court must determine
the reasonableness of the conduct creating the burden. Id. at 1218–19.
On appeal, the defendants argue only that Mr. Williams failed to
adequately allege a clearly established burden on his exercise of religious
beliefs. So we must consider only whether the law clearly established a
substantial burden when prison officials banned religious services for at
least nine days.
Officials denied Mr. Williams access to all Native American
religious services, including sweat lodges. This denial was clearly a
substantial burden under Yellowbear v. Lampert, 741 F.3d 48, 56 (10th Cir.
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2014), which regarded prohibition on participation in a sweat lodge as a
substantial burden on the right to exercise one’s religion.
Yellowbear addressed a claim under the Religious Land Use and
Institutionalized Persons Act (RLUIPA). Yellowbear v. Lampert, 741 F.3d
48, 53 (10th Cir. 2014). Given the difference between RLUIPA and the
First Amendment, the defendants oppose using RLUIPA cases to determine
whether Mr. Williams’s constitutional right was clearly established.
The defendants point to language in Abdulhaseeb v. Calbone, 600
F.3d 1301 (10th Cir. 2010), saying that the RLUIPA standards differ from
those under the First Amendment’s Free Exercise Clause. Id. at 1314. But
this difference lies in the type of government interest needed to justify a
substantial burden, not what constitutes a substantial burden. Abdulhaseeb
points out that Congress intended for courts to interpret the RLUIPA term
“substantial burden” as no broader than the Supreme Court’s assessment of
what constitutes a “substantial burden” under the First Amendment’s Free
Exercise Clause. Id. at 1315; accord Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 813 (8th Cir. 2008) (“When the significance of a religious belief
is not at issue, the same definition of ‘substantial burden’ applies under the
Free Exercise Clause, [the Religious Freedom Restoration Act] and
RLUIPA.”); Lovelace v. Lee, 472 F.3d 174, 198 n.8 (4th Cir. 2006)
(“RLUIPA incorporates the ‘substantial burden’ test used in First
Amendment inquiries and expressly refers to the Free Exercise Clause in
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allocating its burden of proof.”). As a result, anything that constituted a
substantial burden under RLUIPA would also have constituted a substantial
burden under the First Amendment.
Though Yellowbear characterized the ban of a religious service as a
substantial burden, the defendants compare their conduct to what took
place in Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009). In
Gallagher, we concluded that isolated acts of negligence do not
substantially burden the free exercise of religion. Id. at 1070. But this
comparison fails based on differences in duration and intent.
First, the ban here lasted at least nine days and possibly longer. The
complaint states that
 religious services were banned indefinitely on May 4, 2018,
 Christian and Muslim services continued during the following
week while Native American services remained suspended, and
 Mr. Williams filed a grievance on May 13, 2018, regarding the
suspension of religious services.
But the complaint does not say when officials permitted resumption of
Native American religious services.
In oral argument, defense counsel acknowledged that the complaint
had alleged an interruption in services for at least 9 days and possibly as
long as 30 days. Oral Argument at 5:56–6:10. By contrast, Gallagher
addressed only 2 occasions of delays in accommodating requests for
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religious holidays and 1 incident involving contamination of kosher
utensils. Gallagher, 587 F.3d at 1070.
Second, the court in Gallagher emphasized the unintentional nature
of the disruption to religious observance. Id. Here, though, authorities
allegedly acted intentionally by disallowing tobacco and suspending
services. We’ve noted that our court couldn’t locate opinions suggesting
“that a conscious or intentional interference with [a prisoner’s] right to
free exercise, whether relatively brief or not, is consistent with the First
Amendment.” Ralston v. Cannon, 884 F.3d 1060, 1067 & n.8 (10th Cir.
2018); see also id. at 1067 n.8 (distinguishing opinions that found no
violation because there wasn’t adequate evidence of intent). Because Mr.
Williams alleges intentional deprivation of any religious services,
Gallagher does not help the defendants. Intentionally denying access to
any religious services is clearly established as a substantial burden under
Yellowbear.
The defendants point out that the ban in Yellowbear was apparently
permanent, see 741 F.3d at 53, and the denial here was not. But we do not
know how long the denial lasted. Defense counsel acknowledged that the
complaint had alleged a denial that might have lasted as long as 30 days.
Oral Argument at 6:10–6:18. In reality, the ban might have lasted even
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longer. 2 And we must construe the amended complaint favorably to Mr.
Williams. Sanchez v. Hartley, 810 F.3d 750, 754 (10th Cir. 2016). So for
purposes of the motion to dismiss, we can assume that the ban lasted
beyond a single month.
But even a single month would have sufficed, for Makin v. Colorado
Department of Corrections, 183 F.3d 1205, 1215 (10th Cir. 1999) clearly
established a substantial burden for a partial religious deprivation lasting
only one month. In Makin, prison officials failed to provide meals to an
inmate at appropriate times throughout the month of Ramadan. Id. at 1208–
09. We held that the prison officials had diminished the plaintiff’s spiritual
experience, burdening his exercise of religion enough to violate the First
Amendment. Id. at 1212–13. In stating this holding, we recognized that a
“complete denial of the ability to observe a religious practice is not
required to demonstrate an infringement.” Id. at 1213.
If a deprivation of appropriately timed meals for a month constitutes
a substantial burden under the First Amendment, a complete ban on
religious services for a month would also create a substantial burden. And
2
In oral argument, the defendants argued that the ban on any religious
services couldn’t possibly have outlasted the prohibition against tobacco
use. Oral Argument at 6:18–6:29. But Mr. Williams alleged in the
complaint that authorities had prohibited religious services because of a
lockdown; this prohibition had nothing to do with the ban on tobacco use.
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here the prison officials unquestionably acted in a way that diminished Mr.
Williams’s spiritual experience.
Under Yellowbear and Makin, Mr. Williams’s constitutional right is
clearly established. We do not need to decide whether a ban lasting only
nine days could constitute a clearly established substantial burden. Even if
it could not, dismissal for qualified immunity is unavailable when the
complaint lacks enough detail to know how long the ban lasted. See
Thomas v. Kaven, 765 F.3d 1183, 1196–98 (10th Cir. 2014).
Here the complaint does not specify whether the ban lasted nine
days, two weeks, a month, or six months. Because our case law clearly
established a substantial burden from a ban lasting 30 days, the defendants
are not entitled to dismissal based on qualified immunity.
C. The 30-day ban on tobacco use violated a clearly established
constitutional right.
We must also decide whether the law clearly established a substantial
burden when authorities imposed a 30-day ban on using tobacco for
religious services. To decide this question, we consider two implicit
questions:
1. Did the law clearly establish a right to use objects (like
tobacco) for religious purposes?
2. If “yes,” did the law clearly establish a constitutional
prohibition when the object is disallowed for 30 days?
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We answer “yes” to both questions: Our case law clearly established the
right of prisoners to use objects required by religious doctrine, and a 30-
day prohibition could have violated this right.
Many faiths require the use of objects, such as the Rosary, prayer
beads, wine, Sanctus Bell, Crucifix, and incense. We’ve thus recognized
that depriving inmates of particular objects can substantially burden the
exercise of religion. E.g., Kay v. Bemis, 500 F.3d 1214, 1219–20 (10th Cir.
2007) (holding that the denial of access to tarot cards could violate the
Constitution if a prisoner wanted to use them for a religious purpose). For
Mr. Williams, tobacco was an object needed for his religious services. And
no one contests the sincerity of Mr. Williams’s stated need.
The defendants point out that the tobacco ban was limited to 30 days.
So we must decide whether a 30-day ban on a religious object could violate
a clearly established right. We answer “yes” based on Makin v. Colorado
Department of Corrections, 183 F.3d 1205 (10th Cir. 1999). There we held
that the Constitution required the availability of meals at particular times
during the month-long Ramadan fast. Id. at 1215; see Part 5(B), above.
Denial of these meals would substantially burden the free exercise of
religion even if prisoners could fast by saving their food from other meals.
See Makin, 183 F.3d at 1213 (“A complete denial of the ability to observe
a religious practice is not required to demonstrate an infringement . . . .”).
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So it is clearly established that a partial denial of religious activities for 30
days could constitute a substantial burden.
The defendants try to distinguish Makin by arguing that
 Ramadan is a once-a-year holiday that is especially significant
for Muslims and
 the suspension here involved regular services.
But this argument fails for two reasons.
First, the complaint does not specify the importance of tobacco for
Mr. Williams’s religious practice. We must draw all reasonable inferences
favorably to Mr. Williams and can reasonably infer the importance of
tobacco to his religious services. See Sanchez v. Hartley, 810 F.3d 750,
754 (10th Cir. 2016). Indeed, the defendants acknowledge that Mr.
Williams’s desire to use tobacco for religious purposes was just as
important as “a Muslim inmate’s desire to observe Ramadan.” Appellant’s
Reply Br. at 17.
Second, “courts have rightly shied away from attempting to gauge
how central a sincerely held belief is to the believer’s religion.” Kay v.
Bemis, 500 F.3d 1214, 1220 (10th Cir. 2007) (quoting Watts v. Fla. Int’l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007)). So Makin clearly establishes
that a 30-day deprivation is long enough for a substantial burden regardless
of the centrality of the particular deprivation to a prisoner’s religious
practice.
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The defendants also argue that
 Mr. Williams did not allege that deprivation of tobacco had
impeded his full enjoyment of religious events and
 the plaintiff in Makin did make such an allegation.
But we must draw all reasonable inferences in Mr. Williams’s favor.
Sanchez v. Hartley, 810 F.3d 750, 754 (10th Cir. 2016). And we can
reasonably infer that the denial of tobacco had impeded Mr. Williams’s
enjoyment of religious services that would normally include tobacco. The
30-day ban on tobacco use would thus have violated a clearly established
constitutional right.
* * *
Because Mr. Williams has adequately alleged the violation of a
clearly established constitutional right, he has overcome qualified
immunity. So we affirm the denial of the defendants’ motion to dismiss.
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