Roy Luke Sutherland, Jr. v. Kentucky Department of Corrections ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0230-MR
ROY LUKE SUTHERLAND, JR. APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 21-CI-00697
KENTUCKY DEPARTMENT OF
CORRECTIONS; PHILLIP CAMPBELL;
JANET CONOVER; COOKIE CREWS;
AND ANNA VALENTINE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND MAZE, JUDGES.
CLAYTON, CHIEF JUDGE: Roy Luke Sutherland, Jr. appeals pro se from the
Franklin Circuit Court’s order of February 28, 2022, denying his motion for default
judgment and/or summary judgment and his motion to strike and granting the
motion to dismiss of the Kentucky Department of Corrections (DOC); Cookie
Crews, Commissioner; Janet Conover, Director of Operations; Anna Valentine,
Warden; and Phillip Campbell, Deputy Warden of the Kentucky State
Reformatory. The trial court also denied Sutherland’s Kentucky Rules of Civil
Procedure (CR) 59.05 motion to disqualify itself from the case. Upon review, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sutherland, an inmate at the Kentucky State Reformatory, is a
Christian who holds a sincere religious belief that he needs to hear the Bible read
aloud on a daily basis. On May 7, 2020, he submitted a Request for
Accommodation of Religious Practice, seeking to purchase a “My-iBible.” This is
an MP3-style voice-only audio player that is pre-loaded with a recording of the
Bible. Files cannot be added to or subtracted from it. It is pocket-sized and comes
with a charger and earbuds. Sutherland requested the device in order to listen to
the Bible in the same way other inmates listen to music.
Sutherland’s request was denied by the Deputy Warden, who
explained that the device did not meet the security guidelines relating to inmate
electronics because “[i]t is not clear plastic with tamper-resistant features. It could
be taken apart, allowing things to be hidden inside or with the right know-how,
manipulation of its electronic components or storage.”
-2-
The Warden offered Sutherland an alternative audio version of the
Bible, writing, “We offer the Bible on CD in the Chapel Library. For less than the
cost of a My-iBible, I/M Sutherland can buy an already approved portable personal
CD player and headphones (which he may already own), check out the CDs from
the Chapel Library, then listen to it at his leisure. That accomplishes the same goal
with no inconvenience to anyone and without creating security concerns.” The
DOC Director of Operations reviewed the request and denied it on the same
grounds, stating, “Per CPP [Corrections Policy and Procedure], all electronic
devices (tv, clock, radio, cd player, etc.) must be clear and see through. The My-
iBible is black and cannot be seen through.” She affirmed that an audio CD of the
Bible was available for Sutherland to check out and use at his leisure.
Sutherland renewed his request to purchase a My-iBible on August 9,
2021. His request was denied on the same basis that all electronic devices must be
clear and see through.
Sutherland then sought injunctive relief in the Franklin Circuit Court,
claiming that the refusal to allow him to purchase the My-iBible impermissibly
burdened the exercise of his religion, in violation of the federal Religious Land
Use and Institutionalized Persons Act (RLUIPA); Section 5 of the Kentucky
Constitution; and the Kentucky Religious Freedom Restoration Act (KRFRA). He
filed a complaint naming as defendants the Kentucky Department of Corrections,
-3-
by/through Cookie Crews, Commissioner; Janet Conover, Director of Operations;
Anna Valentine, Warden; and Phillip Campbell, Deputy Warden of the Kentucky
State Reformatory. The defendants filed a motion to dismiss. Sutherland then
filed a motion for default judgment and/or summary judgment as a matter of law
and a motion to strike. The circuit court denied Sutherland’s motions and granted
the defendants’ motion to dismiss. Sutherland filed a CR 59.05 motion to vacate,
seeking to disqualify the trial judge from the case. The trial court denied the
motion and this appeal followed.
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim
upon which relief may be granted admits as true the
material facts of the complaint. So a court should not
grant the motion unless it appears the pleading party
would not be entitled to relief under any set of facts
which could be proved. Accordingly, the pleadings
should be liberally construed in the light most favorable
to the plaintiff, all allegations being taken as true. This
exacting standard of review eliminates any need by the
trial court to make findings of fact; rather, the question is
purely a matter of law. Stated another way, the court
must ask “if the facts alleged in the complaint can be
proved, would the plaintiff be entitled to relief?” Since a
motion to dismiss for failure to state a claim upon which
relief may be granted is a pure question of law, a
reviewing court owes no deference to a trial court’s
determination; instead an appellate court reviews the
issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks and
citations omitted).
-4-
ANALYSIS
Sutherland argues that the trial court erred in refusing to grant his
motion for a default judgment because the appellees did not file a timely answer to
his complaint. CR 55.01 allows a party to move for a default judgment when the
other party “has failed to plead or otherwise defend.” An exception to this Rule is
provided in CR 55.04, which states that “[n]o judgment by default shall be entered
against the Commonwealth or an officer or agency thereof . . . unless the claimant
establishes his claim or right to relief by evidence satisfactory to the Court.” This
action was taken against an agency and officers of the Commonwealth, and the
trial court held that Sutherland had failed to establish his substantive claims to
relief. Consequently, the trial court did not err in refusing to grant the default
judgment.
Next, Sutherland argues that the trial court erred in failing adequately
to evaluate his claim under RLUIPA. RLUIPA provides that the government shall
not “impose a substantial burden on the religious exercise of a person residing in or
confined to an institution . . . unless the government demonstrates that imposition
of the burden on that person . . . is in furtherance of a compelling governmental
interest; and . . . is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc-1(a). The Kentucky counterpart of
-5-
RLUIPA, the KRFRA, the applicability of which is not confined solely to
individuals in institutions, similarly states:
Government shall not substantially burden a person’s
freedom of religion. The right to act or refuse to act in a
manner motivated by a sincerely held religious belief
may not be substantially burdened unless the government
proves by clear and convincing evidence that it has a
compelling governmental interest in infringing the
specific act or refusal to act and has used the least
restrictive means to further that interest. A “burden”
shall include indirect burdens such as withholding
benefits, assessing penalties, or an exclusion from
programs or access to facilities.
Kentucky Revised Statue (KRS) 446.350.
To state a viable claim under these statutes, Sutherland must first
demonstrate that the government has placed a substantial burden on the exercise of
his religion. “For the purposes of RLUIPA, a substantial burden exists where: 1) a
follower is forced to choose between following the precepts of his religion and
forfeiting benefits otherwise generally available to other inmates versus
abandoning one of the precepts of his religion in order to receive a benefit; OR 2)
the government puts substantial pressure on an adherent to substantially modify his
behavior and to violate his beliefs.” Washington v. Klem, 497 F.3d 272, 280 (3rd
Cir. 2007). “[A]t a minimum the substantial burden test requires that a RLUIPA
plaintiff demonstrate that the government’s denial of a particular religious item or
-6-
observance was more than an inconvenience to one’s religious practice.”
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316 (10th Cir. 2010) (citation omitted).
The trial court held as a matter of law that the denial of Sutherland’s
request for the My-iBible did not substantially burden his ability to listen to the
Bible on a daily basis. The trial court acknowledged that using the CD recordings
of the Bible might be less convenient than the My-iBible, but the restriction did not
rise to the level of imposing a substantial burden on his exercise of his religion.
Sutherland argues that the trial court failed to consider the evidence he
placed in the record showing that the appellees’ alleged security concerns were
exaggerated because larger electronic devices which are not clear or see through,
such as keyboards and clocks, are permitted in the prison. Apparently, the only
electronic listening devices prisoners are permitted to use outside in the prison yard
are MP3 players, which means Sutherland cannot listen to the Bible in the yard
whereas the other inmates may listen to music in that area. But the fact that
Sutherland may not listen to the Bible while he is out in the prison yard does not
constitute a substantial burden on the exercise of his religious beliefs. It is
undisputed that he is permitted to listen to the Bible on CD at any time everywhere
else in the prison facility. At most, it is an inconvenience that he is unable to listen
to the Bible in the prison yard.
Sutherland argues that the trial court was obligated under Kentucky
-7-
Rules of Evidence (KRE) 302 to apply the holding in Robertson v. Biby, 647 F.
App’x 893 (2016), and on that basis to rule in his favor. KRE 302 does not
mandate such an action on the trial court’s part, and, in any event, Robertson is not
dispositive of the case because the underlying facts are significantly
distinguishable. Robertson was a prison inmate, housed in a segregation unit, who,
like Sutherland, believed that his religion required him to hear the Bible daily.
Unlike general population prisoners, segregated prisoners were not permitted to
possess MP3 players, so Robertson was denied access to a My-iBible his mother
sent to him. The prison officials argued that his religious belief was nonetheless
not substantially burdened, because he could hear the Bible read aloud during visits
from his Rabbi or other individuals, over the telephone in his cell, from a television
or radio purchased through an approved vendor, or by transitioning back into the
prison’s general population. The appellate court disagreed, holding that these
options were not viable alternatives because Robertson could not require a rabbi or
other volunteers to visit him for the purpose of reading the Bible; he could not
afford to purchase a TV or radio; the telephone cost eighteen cents per minute to
use and he had no friends or family with a local phone number; and finally, the fact
that he was in segregation was not sufficient justification to burden the exercise of
his religion. Robertson, 647 F. App’x at 896-97.
-8-
By contrast, Sutherland has access to free CD recordings of the Bible
from the chapel library. He does not need to rely on volunteers in order to engage
in his religious practice and he has not claimed he is unable to afford a CD player.
Because Sutherland has failed as a matter of law to meet the threshold
standard of showing that a substantial burden has been placed on his religious
beliefs, we need not consider whether the actions of the appellees are motivated by
a compelling governmental interest.
Finally, Sutherland argues that the trial judge, who presides over
Division II of the Franklin Circuit Court, abused his discretion in refusing to
disqualify himself from the proceedings under KRS 26A.015(2)(e). The statutory
provision requires a judge to recuse himself “[w]here he has knowledge of any
other circumstances in which his impartiality might reasonably be questioned.” Id.Sutherland claims the judge’s impartiality was suspect because his brother-in-law
served as the Secretary of the Justice and Public Safety Cabinet (JPSC) fifteen
years before and the appellees were all employees of the Kentucky DOC, which
falls under the control of the JPSC. Sutherland also contends that it is reasonable
to presume the judge created other relationships with unnamed individuals who are
still employed with the JPSC. As evidence, he attached to his motion an order
dating from 2011 in which a case was transferred, without any explanation or
reference to the judge’s brother-in-law, from Division II to Division I of the
-9-
Franklin Circuit Court, and a notice dating from 2007 in which the judge in
Division II informed some unnamed litigants of a potential conflict of interest
because his brother-in-law was at that time the Secretary of the JPSC overseeing
the DOC, the Department of Public Advocacy, the Kentucky State Police, and the
Parole Board. The notice stated that the judge did not believe the relationship
would prejudice his judgment in any way, but he wished to disclose it and offer the
litigants a chance to request a transfer to Division I. These documents, dating from
ten and fifteen years ago, respectively, and Sutherland’s purely speculative belief
regarding unnamed individuals at the JPSC, are insufficient to create a reasonable
question concerning the impartiality of the trial judge. The trial court did not err in
denying the motion to vacate on these grounds.
CONCLUSION
For the foregoing reasons, the orders of the Franklin Circuit Court
denying the motion for default judgment and/or summary judgment and the motion
to strike and granting the motion to dismiss and denying the motion to vacate are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Roy Luke Sutherland, Jr. Kristin Wehking
LaGrange, Kentucky Frankfort, Kentucky
-10-